Full text Finals contended that he should be designated terminal supervisor, or to any

other comparable position, in view of his preferential right thereto. On

Republic of the Philippines June 26, 1989, complaining that the PPA had not acted on his protest,
SUPREME COURT Junsay went to the Civil Service Commission and challenged Lapinid's
Manila appointment on the same grounds he had earlier raised before the PPA.
In a resolution dated February 14, 1990, the Commission disposed as
EN BANC follows:

G.R. No. 96298 May 14, 1991 After a careful review of the records of the case, the
Commission finds the appeal meritorious. In the comparative
RENATO M. LAPINID, petitioner, evaluation sheets, the parties were evaluated according to the
vs. following criteria, namely: eligibility; education; work
CIVIL SERVICE COMMISSION, PHILIPPINE PORTS experience; productivity/performance/ attendance; integrity;
AUTHORITY and JUANITO JUNSAY, respondents. initiative/leadership; and physical characteristics/personality
traits. The results of the evaluation are as follows:
Brillantes, Nachura, Navarro & Arcilla Law Offices for petitioner.
Adolpho M. Guerzon for J. Junsay, Jr. JUNSAY, Juanito — 79.5
Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon
for Civil Service Commission. VILLEGAS, Benjamin — 79

LAPINID, Renato — 75

CRUZ, J.: DULFO, Antonio — 78

The issue raised in this case has been categorically resolved in a long MARIANO, Eleuterio — 79
line of cases that should have since guided the policies and actions of
the respondent Civil Service Commission. Disregard of our consistent FLORES, Nestor — 80
ruling on this matter has needlessly imposed on the valuable time of
the Court and indeed borders on disrespect for the highest tribunal. We DE GUZMAN, Alfonso — 80
state at the outset that this conduct can no longer be countenanced.
VER, Cesar — 80
Petitioner Renato M. Lapinid was appointed by the Philippine Ports
Authority to the position of Terminal Supervisor at the Manila It is thus obvious that Protestants Junsay (79.5) and Villegas
International Container Terminal on October 1, 1988. This (79) have an edge over that of protestees Lapinid (75) and
appointment was protested on December 15, 1988, by private Dulfo (78).
respondent Juanito Junsay, who reiterated his earlier representations
with the Appeals Board of the PPA on May 9, 1988, for a review of Foregoing premises considered, it is directed that Appellants
the decision of the Placement Committee dated May 3, 1988. He Juanito Junsay and Benjamin Villegas be appointed as
 Terminal Supervisor (SG 18) vice protestees Renato Lapinid
and Antonio Dulfo respectively who may be considered for
appointment to any position commensurate and suitable to their
qualifications, and that the Commission be notified within ten
(10) days of the implementation hereof.
SO ORDERED.
Upon learning of the said resolution, Lapinid, 7who claimed he had
not been informed of the appeal and had not been heard thereon, filed
a motion for reconsideration on March 19, 1990. This was denied on
May 25, 1990. The Philippine Ports Authority also filed its own
motion for reconsideration on June 19, 1990, which was denied on
August 17, 1990. A second motion for reconsideration filed on
September 14, 1990, based on the re-appreciation of Lapinid's rating
from 75% to 84%, was also denied on October 19, 1990.
When the petitioner came to this Court on December 13, 1990, we
resolved to require Comments from the respondents and in the
meantime issued a temporary restraining order. The Solicitor General
took a stand against the Civil Service Commission which, at his
suggestion, was allowed to file its own Comment. The petitioner filed
a Reply. The private respondent's Comment was dispensed with when
it was not filed within the prescribed period.
We see no reason to deviate from our consistent ruling on the issue
before us.
In Luego v. Civil Service Commission,1 this Court declared:
The issue is starkly simple: Is the Civil Service Commission
authorized to disapprove a permanent appointment on the
ground that another person is better qualified than the
appointee and, on the basis of this finding, order his
replacement by the latter?
xxx xxx xxx
Appointment is an essentially discretionary power and must be
performed by the officer in which it is vested according to his
best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is
a political question involving considerations of wisdom which
only the appointing authority can decide.
xxx xxx xxx
Significantly, the Commission on Civil Service acknowledged
that both the petitioner and the private respondent were
qualified for the position in controversy. That recognition alone
rendered it functus officio in the case and prevented it from
acting further thereon except to affirm the validity of the
petitioner's appointment. To be sure, it had no authority to
revoke the said appointment simply because it believed that the
private respondent was better qualified for that would have
constituted an encroachment on the discretion vested solely in
the city mayor.
The same ruling has been affirmed, in practically the same language as
Luego, in Central Bank v. Civil Service Commission, 171 SCRA 744;
Santiago v. Civil Service Commission, 178 SCRA 733; Pintor v. Tan,
G.R. No. 84022 and G.R. No. 85804, March 9, 1989, En Banc, Minute
Resolution; Galura v. Civil Service Commission, G.R. No. 85812, June
1, 1989, En Banc, Minute Resolution; Zulueta v. Mamangun, G.R. No.
85941, June 15, 1989, En Banc, Minute Resolution; Remigio v.
Chairman, Civil Service Commission, G.R. No. 86324, July 6, 1989,
En Banc, Minute Resolution; Aurora Macacua v. Civil Service
Commission, G.R. No. 91520, July 31, 1990, En Banc, Minute
Resolution; Abdulwahab A. Bayao v. Civil Service Commission, G.R.
No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbos
v. Civil Service Commission, G.R. No. 92561, September 12, 1990;
Alicia D. Tagaro v. The Hon. Civil Service Commission, et al., G.R.
No. 90477, September 13, 1990, En Banc, Minute Resolution; Elenito
Lim v. Civil Service Commission, et al., G.R. No. 87145, October 11,
1990, En Banc, Minute Resolution; Teologo v. Civil Service
Commission, G.R. No. 92103, November 8, 1990; Simpao v. Civil
Service Commission, G.R. No. 85976, November 15, 1990.
Only recently, in Gaspar v. Court of Appeals2 this Court said:
The only function of the Civil Service Commission in cases of
this nature, according to Luego, is to review the appointment in
the light of the requirements of the Civil Service Law, and
when it finds the appointee to be qualified and all other legal
requirements have been otherwise satisfied, it has no choice but
to attest to the appointment. Luego finally points out that the
recognition by the Commission that both the appointee and the
protestant are qualified for the position in controversy renders
it functus officio in the case and prevents it from acting further
thereon except to affirm the validity of the former's
appointment; it has no authority to revoke the appointment
simply because it considers another employee to be better
qualified for that would constitute an encroachment on the
discretion vested in the appointing authority.
xxx xxx xxx
The determination of who among several candidates for a
vacant position has the best qualifications is vested in the
sound discretion of the Department Head or appointing
authority and not in the Civil Service Commission. Every
particular job in an office calls for both formal and informal
qualifications. Formal qualifications such as age, number of
academic units in a certain course, seminars attended, etc., may
be valuable but so are such intangibles as resourcefulness, team
spirit, courtesy, initiative, loyalty, ambition, prospects for the
future, and best interests, of the service. Given the demands of
a certain job, who can do it best should be left to the Head of
the Office concerned provided the legal requirements for the
office are satisfied. The Civil Service Commission cannot
substitute its judgment for that of the Head of Office in this
regard.
It is therefore incomprehensible to the Court why, despite these
definitive pronouncements, the Civil Service Commission has seen fit
to ignore, if not defy, the clear mandate of the Court.
We declare once again, and let us hope for the last time, that the Civil
Service Commission has no power of appointment except over its own
personnel. Neither does it have the authority to review the
appointments made by other offices except only to ascertain if the
appointee possesses the required qualifications. The determination of
who among aspirants with the minimum statutory qualifications should
be preferred belongs to the appointing authority and not the Civil
Service Commission. It cannot disallow an appointment because it
believes another person is better qualified and much less can it direct
the appointment of its own choice.
Appointment is a highly discretionary act that even this Court cannot
compel.1âwphi1 While the act of appointment may in proper cases be
the subject of mandamus, the selection itself of the appointee—taking
into account the totality of his qualifications, including those abstract
qualities that define his personality—is the prerogative of the
appointing authority. This is a matter addressed only to the discretion
of the appointing authority. It is a political question that the Civil
Service Commission has no power to review under the Constitution
and the applicable laws.
Commenting on the limits of the powers of the public respondent,
Luego declared:
It is understandable if one is likely to be misled by the
language of Section 9(h) of Article V of the Civil Service
Decree because it says the Commission has the power to
"approve" and "disapprove" appointments. Thus, it is provided
therein that the Commission shall have inter alia the power to:
9(h) Approve all appointments, whether original or
promotional, to positions in the civil service, except
those presidential appointees, members of the Armed
Forces of the Philippines, police forces, firemen, and
jailguards, and disapprove those where the appointees
 do not possess appropriate eligibility or required
qualifications. (Emphasis supplied)
However, a full reading of the provision, especially of the
underscored parts, will make it clear that all the Commission is
actually allowed to do is check whether or not the appointee
possesses the appropriate civil service eligibility or the required
qualifications. If he does, his appointment is approved; if not, it
is disapproved. No other criterion is permitted by law to be
employed by the Commission when it acts on—or as the
Decree says, "approves" or "disapproves'—an appointment
made by the proper authorities.
The Court believes it has stated the foregoing doctrine clearly enough,
and often enough, for the Civil Service Commission not to understand
them. The bench does; the bar does; and we see no reason why the
Civil Service Commission does not. If it will not, then that is an
entirely different matter and shall be treated accordingly.
We note with stern disapproval that the Civil Service Commission has
once again directed the appointment of its own choice in the case at
bar. We must therefore make the following injunctions which the
Commission must note well and follow strictly.
Constitution. The Civil Service Commission should recognize that its
acts are subject to reversal by this Court, which expects full
compliance with its decisions even if the Commission may not agree
with them.
The Commission on Civil Service has been duly warned. Henceforth,
it disobeys at its peril.
WHEREFORE, the petition is GRANTED. The Resolutions of the
respondent Civil Service Commission dated February 14, 1990, May
25, 1990, August 17, 1990, and October 19, 1990, are REVERSED
and SET ASIDE. The temporary restraining order dated December 13,
1990, is made PERMANENT. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento Griño-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Footnotes

Whatever the reasons for its conduct, the Civil Service Commission is 1 143 SCRA 327.
ORDERED to desist from disregarding the doctrine announced in
Luego v. Civil Service Commission and the subsequent decisions 2 G.R. No. 90799, October 18, 1990.
reiterating such ruling. Up to this point, the Court has leniently
regarded the attitude of the public respondent on this matter as
imputable to a lack of comprehension and not to intentional
intransigence. But we are no longer disposed to indulge that fiction.
Henceforth, departure from the mandate of Luego by the Civil Service
Commission after the date of the promulgation of this decision shall be
considered contempt of this Court and shall be dealt with severely, in
view especially of the status of the contemner.

While we appreciate the fact that the Commission is a constitutional

body, we must stress, as a necessary reminder, that every department
and office in the Republic must know its place in the scheme of the
 Republic of the Philippines Assistant Civil Security Officer, Civil Intelligence and Security
SUPREME COURT Department of the Quezon City Government, assumed the
Manila Administrative Officer IV position on 2 December 1987.

EN BANC A day earlier, private respondent Florentina Eleria, Administrative

Officer III of the Health Department, Quezon City Government, filed a
G.R. No. 92573 June 3, 1991 protest with the Merit System Protection Board ("Board") in respect of
Abila's appointment. The Board indorsed the protest to the Quezon
ALEX A. ABILA, petitioner, City Officer-in-Charge, Reynaldo Bernardo, who rendered a decision
vs. dismissing the protest.
CIVIL SERVICE COMMISSION and FLORENTINA E.
ELERIA, respondents. Private respondent Eleria appealed to the Board. On 27 October 1988,
the Board promulgated a decision revoking petitioner Abila's
G.R. No. 92867 June 3, 1991 appointment and directing the Quezon City Officer-in-Charge or
Mayor to appoint private respondent Eleria in lieu of petitioner Abila.
QUEZON CITY, represented by the Honorable Brigido R. Simon, The Board found that both petitioner Abila and private respondent
Jr., petitioner, Eleria met the minimum eligibility and education requirements for
vs. Administrative Officer IV, but ruled that respondent Eleria had the
CIVIL SERVICE COMMISSION and FLORENTINA E. edge in terms of rank and experience as an Administrative Officer. The
ELERIA, respondents. Board also held that respondent Eleria was holding a position next in
rank to that of the vacancy, which circumstance, according to the
Z.P. Reyes Law Office for petitioner Abila. Board, under Section 4 of the Civil Service Commission Resolution
The City Attorney for petitioner Quezon City. No. 83-343, gave her "promotional priority" over petitioner.
Pedro F. Martinez for private respondent.
Petitioner Abila appealed to the Civil Service Commission
("Commission"). The Commission affirmed in toto the Board's
decision and resolution dated 21 November 1989. Petitioner moved for
RESOLUTION reconsideration, without success.

Petitioner is now before this Court on certiorari. He contends that the

FELICIANO, J.:
On 1 September 1987, Amado Villafuerte retired from his position as
Administrative Officer IV in the Health Department of the City
Government of Quezon City. Then Quezon City Officer-in-Charge
Brigido Simon, Jr. appointed petitioner Alex Abila as Villafuerte's
successor. Petitioner Abila who had theretofore been the Acting
respondent Commission, having verified that both petitioner and
private respondent were legally qualified to fill the vacancy, should
not have proceeded to comparing the parties' qualifications and
choosing the person that it believed to be the appropriate appointee.
Those functions, petitioner urges, belong to the City Mayor as part of
his appointing power and cannot be appropriated for itself by the
respondent Commission.
In a Resolution dated 19 April 1990, the Court granted a temporary
restraining order enjoining respondent Commission from
implementing its resolutions.
The Quezon City Government, represented by its elected Mayor,
Brigido Simon, Jr., filed an identical Petition with this Court, docketed
as G.R. No. 92867, seeking annulment of respondent Commission's
resolution and upholding the validity of the appointment of petitioner
Abila on substantially the same grounds pleaded by the latter.
In a resolution dated 26 July 1990, the Court ordered consolidation of
the two (2) cases for their more convenient disposition.
The recurring issue posed in this case is whether the respondent
Commission has authority to substitute its own judgment for that of
the official authorized by law to make an appointment to the
government service, in the matter of weighing an appointee's
qualifications and fitness for a position, after it has been shown that
the appointee possesses the minimum qualifications prescribed for the
position.
In a long line of cases,1 the Court has held that respondent
Commission has no such authority, the power of appointment, which is
essentially discretionary, being vested by law in the head of the office
concerned. The head of the office is the person on the spot. He
occupies the ideal vantage point from which to identify and designate
the individual who can best fill the post and discharge its functions in
the government agency he heads. The choice of an appointee from
among those who possess the required qualifications is a political and
administrative decision calling for considerations of wisdom,
convenience, utility and the interests of service which can best be
made by the head of the office concerned, the person most familiar
with the organizational structure and environmental circumstances
within which the appointee must function.
In Lapinid vs. Civil Service Commission (supra), the Court through
Mr. Justice Cruz, stressed:
We declare once again, and let us hope for the last time, that
the Civil Service Commission has no power of appointment
except over its own personnel. Neither does it have the
authority to review the appointments made by other offices
except only to ascertain if the appointee possesses the required
qualifications. The determination of who among aspirants with
the minimum statutory qualifications should be preferred
belongs to the appointing authority and not the Civil Service
Commission. It cannot disallow an appointment because it
believes another person is better qualified and much less can it
direct the appointment of its own choice.
Appointment is a highly discretionary act that even this Court
cannot compel. While the act of appointment may in proper
cases be the subject of mandamus, the selection itself of the
appointee –– taking into account the totality of his
qualifications, including those abstract qualities that define his
personality –– is the prerogative of the appointing authority.
This is a matter addressed only to the discretion of the
appointing authority. It is a political question that the Civil
Service Commission has no power to review under the
Constitution and the applicable laws.2
The Commission, the Court said in Chang v. Civil Service
Commission,3 "is not a co-manager or surrogate administrator of
government offices and agencies."
In the case at bar, the respondent Commission itself acknowledged that
both petitioner Abila and respondent Eleria are legally qualified for the
position in question.4 Having made the determination, the
Commission had exhausted its powers and may not act any further
except to affirm the validity of petitioner's appointment. More
specifically, the Commission had no authority to revoke petitioner's
appointment because the Commission believed that private respondent
Eleria was better qualified for the position involved; the Commission's
acts in this respect constituted an encroachment upon a discretionary
authority vested by law in the Quezon City Mayor and not in the
Commission.
The Court notes that a vacant position in the Civil Service may be
filled by promotion, transfer of present employees, reinstatement and
re-employment or appointment of outsiders who have the necessary
eligibility.5 The next-in-rank rule invoked by respondent Commission
to justify its choice of respondent Eleria over petitioner Abila, applies
only where a vacancy is filled by promotion, a process which denotes
a scalar ascent of an officer to another position higher either in rank or
salary. A promotion involves a situation quite different from the
situation in the case at bar where the appointment of petitioner Abila
was effected through lateral transfer from a position in one department
of the city government to a position of greater responsibility in another
department of the same government.6 In Medenilla v. Civil Service
Commission,7 the Court very recently stressed that:
. . . We have already held in cases subsequent to Millares that
the next-in-rank rule is not absolute; it only applies in cases of
promotion (see Pineda v. Claudio, 28 SCRA 34 [1969]). And
even in promotions, it can be disregarded for sound reasons
made known to the next-in-rank. The appointing authority,
under the Civil Service Law, is allowed to fill vacancies by
promotion, transfer of present employees, reinstatement,
reemployment, and appointment of outsiders who have
appropriate civil service eligibility, not necessarily in that
order (see Pineda v. Claudio, supra; Luego v. Civil Service
Commission, 143 SCRA 327 [1986]). There is no legal fiat
that a vacancy must be filled only by promotion; the appointing
authority is given wide discretion to fill a vacancy from among
the several alternatives provided for by law. (Emphasis
supplied)
The Court further notes that even if the vacancy here had been filled
by promotion rather than by lateral transfer, the concept of "next in
rank" does not import any mandatory or peremptory requirement that
the person next in rank must be appointed to the vacancy. What
Section 19 (3) of P.D. No. 807, the Civil Service Law, provides is that
if a vacancy is filled by a promotion, the person holding the position
next in rank thereto "shall be considered for promotion."8
In Taduran v. Civil Service Commission,9 the Court construed that
phrase to mean that the person next in rank "would be among the first
to be considered for the vacancy, if qualified.10 In Santiago, Jr. v.
Civil Service Commission,11 the Court elaborated the import of the
rule in the following manner:
One who is next-in-rank is entitled to preferential consideration
for promotion to the higher vacancy but it does not necessarily
follow that he and no one else can be appointed. The rule
neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority to promote such
person to the next higher position. . . .12
It appears to the Court that Section 4 of respondent Commission's
Resolution No. 83-343 which provided that:
Rule on Promotion
xxx xxx xxx
Section 4. An employee who holds a next in rank position who
is competent and qualified, possesses an appropriate civil
service eligibility and meets the other conditions for promotion
shall be promoted to the higher position, when it becomes
vacant. (Emphasis supplied)
has been superseded by Section 2 of Rule 3 of the respondent
Commission's subsequent Resolution No. 89-779 which reads as
follows:
B. Rules on Protest Cases
xxx xxx xxx
Rule III. Procedure in Filling Vacancies
xxx xxx xxx
 Section 2. Positions in the Second Level. — When a vacancy
occurs in the second level of the career service as herein
defined, the employees in the department who occupy the next
lower positions in the occupational group under which the
vacant position is classified, and in other functionally related
occupational groups, who are competent and qualified and with
appropriate civil service eligibility shall be considered for
appointment to the vacancy. (Emphasis supplied)
When, in the exercise of its rule-making power, it promulgated Section
4 of its earlier Resolution No. 83-343, the Commission clearly
exceeded the scope of its statutory authority since the Civil Service
law itself, in Section 19 (3) of P.D. No. 807, had simply provided that
persons next in rank who are qualified "shall be considered for
promotion." The current regulation found in Section 2 of Rule III of
the Commission's Resolution No. 89-779 is, fortunately, more
consistent with the Commission's enabling statute.
Finally, respondent Commission will find no comfort in Meram v.
Edralin13 which it cites. In that case, the Court affirmed the
appointment of the next in rank "because the original appointee's
appointment was made in consideration of the political, ethnic,
religious or blood ties totally against the very purpose behind the
establishment of professionalism in the civil service."14 In the case at
bar, respondents have not asserted the existence of any circumstances,
such as those in Meram, which would have warranted intervention by
the Commission to correct an arbitrary and merely capricious exercise
of power by the appointing authority.
ACCORDINGLY, the Court Resolved to TREAT respondents'
Comments as their Answers, to GRANT due course to the Petition for
Certiorari and to ANNUL and SET ASIDE the Resolutions of the
respondent Civil Service Commission Nos. 89-869 (21 November
1989) and 90-240 (5 March 1990), respectively. The Temporary
Restraining Order dated 19 April 1990 is hereby MADE
PERMANENT.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Footnotes
1 The Court, in Lapinid v. Civil Service Commission, et al.,
G.R. No. 96298, 14 May 1991, collected most of these cases.
Additional cases include: Cortez v. Civil Service Commission,
et al., G.R. No. 92673, 13 March 1991; Lopez v. Civil Service
Commission, G.R. No. 92140,19 February 1991, p. 9; G.R. No.
94465, 27 November 1990, p. 2; Chang v. Civil Service
Commission, et al., G.R. No. 86791, 26 November 1990, p. 5;
Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate
Court, et al., 140 SCRA 32, 35 (1985); Ocampo v. Subido, 72
SCRA 443, 451 (1976); Torres v. Borja, 56 SCRA 47, 55
(1974); Reyes v. Abeleda, 22 SCRA 825, 830 (1968).
2 Because the precipitating events in the case at bar occurred
before the promulgation of Lapinid, the Court refrains from
taking any action against respondent Commission.
3 G.R. No. 86791, 26 November 1990, p. 5.
4 Rollo of G.R. No. 92573, p. 26.
5 Section 19 (5), P.D. No. 807. See also Luego v. Civil Service
Commission, 143 SCRA 327, 333 (1986); Patagoc v. Civil
Service Commission, G.R. No. 90229, 14 May 1990, p. 5.
6 Pineda v. Claudio, 28 SCRA 34, 48 (1969).
7 G.R. No. 93868, 19 February 1991.
8 The applicable provision reads:
 "No. 1-Article VIII. GUTIERREZ, JR., J.:

Personnel Policies and Standards
xxx xxx xxx
SECTION 19. Recruitment and Selection of Employees.
—....
xxx xxx xxx
(3) When a vacancy occurs in a position in the second
level of the Career Service as defined in Section 7, the
employees in the government service who occupy the
next lower positions in the occupational group under
which the vacant position is classified, and in other
functionally related occupational groups and who are
competent, qualified and with the appropriate civil
service eligibility shall be considered for promotion.
(Emphasis supplied)
This is a petition for certiorari which seeks to set aside the
decision of the Presidential Assistant for Legal Affairs,
permanently enjoining the Minister of Natural Resources and
the Director of the Bureau of Forest Development (BFD) from
enforcing and implementing the decisions of the Merit Systems
Board and the resolutions of the Civil Service Commission
which ordered the appointment of the petitioner to the contested
position of Administrative Officer V in the Bureau of Forest
Development.
On July 29, 1982, the private respondent Filipino V. Edralin,
who was a training officer of the Bureau of Forest Development
(BFD) was proposed for appointment to the position of
Administrative Officer V, R-73, Administrative Division of the
BFD. Petitioner herein and Mr. Hermocio M. Agravio who hold
the positions of Administrative Officer III,R-70 and Supply
Officer V, R-70 respectively, filed their protests against the
proposal.

On the same date, the Director of the BFD sent a memorandum

to the respondent Minister stating that in the course of the
Republic of the Philippines deliberation of the BFD Promotion Board, the latter found out
SUPREME COURT that there are four BFD Personnel in the Central Office who are
Manila considered "next-in-rank" to the position of Administrative
Officer V namely:
THIRD DIVISION
Erlinda P. Meram, Administrative Officer Ill, Range
G.R. No. 71228 September 24, 1987 70, assigned as Chief of the Internal Control Staff.

ERLINDA P. MERAM, petitioner, Hermecio M. Agravio, Supply Officer V, Range 70,

vs. Chief of the Property Section, designated Asst.
FILIPINA V. EDRALIN, THE MINISTER OF NATURAL Chief of the Administrative Division from October
RESOURCES AND THE PRESIDENTIAL ASSISTANT FOR 8, 1981 to July 20, 1982.
LEGAL AFFAIRS, respondents.
Atty. Dominador Malong, Legal Officer, Range 69,
assigned in the Legal Division.
 Atty. Salome T. Cansino, Trial Attorney Range 69,
assigned in the Legal Division. (Rollo, pp. 30-31)
In his memorandum, the Director also pointed out that the Board
found that Mrs. Filipina V. Edralin, Training Officer, Range 60,
assigned in the Training Center was not next-in-rank.
On August 10, 1982, the Civil Service Commission forwarded to
the respondent Minister the protests of the petitioner and
Agravio for appropriate action.
On August 12, 1982, the respondent Minister forwarded the
permanent appointment of respondent Edralin to take effect on
August 17, 1982, as Administrative Officer V to the Commission
for appropriate action.
In his letter, the Minister explained that he assessed the
recommendation of the Promotions Board and considered also
other aspects which are vital to the dynamism of the service;
and upon seeing that respondent Edralin is eminently qualified
for the position, the person on whom he can repose his trust
and confidence, and who possesses the necessary integrity,
knowledgeability and sound judgment, he decided to appoint
her to the said position for the best interest of the service.
In due course, the appointment was approved by the
Commission "subject to the final outcome of the protests against
the appointment by Erlinda Meram and H. Agravio."
On September 1, 1982, the respondent Minister rendered a
decision, embodied in two separate letters, dismissing the
protests. In his letter to the petitioner which was received by the
latter on September 10, 1982, the Minister assured her "that
when another opportunity comes, and I have had a chance to
better appreciate your qualities and capabilities, then I would
certainly consider you for the appointment to a more senior
position. "
Petitioner and Agravio appealed to the Merit Systems Board
(MSB) pursuant to paragraph 2, Section 5 of Presidential
Decree (P.D.) No. 1409.
On January 13, 1983, the Merit Systems Board promulgated a
decision in favor of Hermecio M. Agravio, revoking the previous
approval of the appointment of respondent Edralin and directing
the Minister to appoint, in her stead, Agravio to the contested
position. In its decision, the MSB ruled:
xxx xxx xxx
Based on the foregoing qualifications of the
contestants, this Board finds that all parties meet
the eligibility requirement. While Mrs. Edralin and
Mrs. Meram are holders of bachelor's degree
supplemented with at least 12 units in
management and/or public administration, Mr.
Agravio, although a third year in Commerce, has
relevant in-service trainings/seminars which would
sufficiently offset his one year deficiency in college
work and the required 12 units in
management/public administration (CSC Res. No.
682, dated July 20, 1977). Thus, all meet the
education requirement for the contested position.
As to the required 5 years experience, Mr. Agravio
has been (an) Administrative Officer 11 for four
years of progressively responsible experience in
all phases of administrative functions. In the same
manner, Meram bas been a Disbursinng Officer
for more than one year, a Budget Examiner for six
months, Cashier IV for five years, and an
Administrative Officer Ill for more than three years
or a total of about nine years and six months. On
the other hand, the relevant experience of Edralin
consist of three years in Training Assistant and
about one year as Training Officer, which
experiences as Trainor, although may be
considered, are however less than the required
five years of progressively responsible experience.
However, Edralin's deficiency in the required
experience may be offset by her relevant trainings
and academic units earned in Master of Public
Administration.
From the foregoing, it cannot be said that Mr.
Agravio does not qualify for the position, or that
Mrs. Meram's work experience are not suitable
and relevant, and her education not appropriate to
the contested position. Moreover, the contested
position is not confidential in nature but rather,
belongs to the second level in the career service
so that trust and confidence are not the decisive
factors in fining the position.
The Merit Promotion Plan established by the
Bureau of Forest Development shows that the
positions considered next-in-rank to the contested
position of Administrative Officer V (R-73) are:
Administrative Officer III (R-70), Supply Officer IV
(R-70), Senior Legal Officer (R-69). Mrs. Meram
holds the position of Administrative Officer III, and
Mr. Agravio, Supply Officer IV. Mrs. Edralin holds
the position of Training Officer (R-60) which is not
listed as next-in-rank. Such being the case, Mrs.
Edralin is not, while Mrs. Meram and Mr. Agravio
are next-in-rank employees to the contested
position. Hence, the latter two should have been
considered for the position of Administrative
Officer V.
xxx xxx xxx
In terms of education, Mrs. Meram is a holder of
bachelor's degree with 12 units in Master in
Business Administration and has 9 years and 6
months relevant experience with 12 relevant
trainings completed. Mr. Agravio, who is a third
year Commerce student, however, has 13 years of
relevant experience to his credit and 23 relevant
training completed. Moreover, for a period of 9
months, Mr. Agravio was designated Officer-in-
Charge, Administrative Division, pursuant to MNR
Special Order No. 359, series of 1981, and there
is no showing that he failed to discharge efficiently
the duties and responsibilities of the position.
Thus, Mr. Agravio is considered more competent
and qualified than Meram (Rollo, pp. 50-51)
Both the petitioner and respondent Edralin filed motions for
reconsideration. On May 16, 1983, the MSB promulgated
another decision modifying the earlier one and appointed the
petitioner, after finding that Agravio's designation as Assistant
Officer-in-Charge was revoked because he had been ineffective
in said position.
Respondent Edralin appealed to the Civil Service Commission.
On October 5, 1983, the Commission dismissed the appeal and
on May 3, 1984, it denied the respondent's motion for
reconsideration.
On May 18, 1984, respondent Edralin filed a letter-petition with
the Office of the President invoking Section 19(6) of P.D. No.
807. In her petition, Edralin alleged that jurisdiction in
promotional contests is lodged with the Ministry head and
appeal by the aggrieved party from decisions of said Ministry
head should be taken to the Office of the President. Therefore,
the Merit System Board and the Civil Service Commission had
no jurisdiction to act on petitioner's appeal.
Petitioner, on the other hand, filed a motion for execution of the
Commission's decision.
On June 14, 1984, the Confidential Legal Assistant of the Office
of the Presidential Assistant for Legal Affairs directed the
Commission to forward within fifteen (15) days from receipt
thereof, the entire records of the case in view of Edralin's appeal
On July 19, 1984, the Commission rejected the order of the
Office of the President, stating that under Section 8, P.D. No.
1409, decisions of the Commission are subject to review only by
the courts.
On October 9, 1984, the Minister of Natural Resources issued a
Memorandum to the BFD Director instructing him to enforce and
implement the order of the Commission for having become final
and executory.
On October 15, 1984, the BFD Director issued the appointment
of Administrative Officer V to the petitioner effective as of that
date.
On February 20, 1985, Confidential Legal Assistant Sabio
issued an order directing the MNR to transmit all relevant
records of the case.
Respondent Edralin wrote another letter to the President of the
Philippines. It seems that this letter was taken cognizance of by
then President Marcos because on toPof such letter appeared a
note in his purported handwriting which reads:
9 March 1985
Justice Lazaro,
Tell Dir. Cortes to suspend everything pending
study by the Office of the President. Prepare
decision on appeal for reconsideration.
(Rollo, p. 75)
In connection with the above note, Presidential Assistant for
Legal Affairs Lazaro furnished a copy of Edralin's letter with the
President's marginal note to Director Cortes of the BFD.
On March 19, 1985, the Director of the BFD issued a
memorandum informing Lazaro that the matters which the
President was directing him to suspend are already fait
accompli and that, therefore, while he was wining to comply with
the Presidential instructions, the implementation of his
compliance had become legally untenable.
This nothwithstanding, on May 27, 1985, Lazaro rendered the
questioned decision, the dispositive portion of which provides:
WHEREFORE, IN VIEW OF ALL THE
FOREGOING, the decision of the Minister of
Natural Resources embodied in two separate
letters, both dated September 1, 1982, dismissing
the protests of Hermecio M. Agravio and Erlinda
P. Meram,( is hereby AFFIRMED and the appeals
therefrom S of said protestants are hereby
DISMISSED g FOR LACK OF MERIT. The Minister
of Natural dResources and the Director of the
Bureau of .Forest Development are hereby
ENJOINED ) PERMANENTLY from carrying out,
complying with and/or enforcing in any manner
whatsoever,I (1) the decisions dated January 13,
 1983, and May 16, 1983 of the Merit Systems
Board in MSB Case No. 813 and (2) Resolutions
Nos. 83-427 and 84-138, dated October 5, 1983,
and May 3, 1984, respectively, of the Civil Service
Commission in CSC Case No. 84. (Rollo, p. 106)
Hence, this petition.
The principal issue presented in this case is whether or not the
Office of the President acted correctly in taking cognizance of
respondent's letter-petition, and passing upon the same, and
thereafter, setting aside the decisions of the Merit Systems
Board and the Civil Service Commission.
P.D. No. 1409, Section 5(2) provides:
Sec. 5. Powers and Functions of the Board. —
The Board shall have the following functions,
among others:
xxx xxx xxx
(2) Hear and decide cases brought before it by
officers and employees who feel aggrieved by the
determination of appointing authorities involving
appointment, promotion, transfer, detail
reassignment and other personnel actions, as well
as complaints against any officers in the
government arising from abuses arising from
personnel actions of these officers or from
violations of the merit system."
In connection with this power of the MSB, Section 8 of this
decree also provides:
Sec. 8. RelationshiPwith the Civil Service
Commission. — Decisions of the Board involving
the removal of officers and employees from the
service shall be subject to automatic review by the
Commission. The Commission shall likewise hear
and decide appeals from other decisions of the
Board, provided that the decisions of the
Commission shall be subject to review only by the
Courts.
The petitioner contends that by virtue of the above-quoted
decree which was promulgated on June 8, 1978, the MSB and
the Commission had validly acquired jurisdiction over her formal
protest to the exclusion of all other officials, boards or offices
and that, therefore, the respondent Presidential Assistant for
Legal Affairs gravely abused his discretion when he disregarded
and declared as nun and void the decisions of the MSB and the
resolutions of the Commission which had already become final
and executory, and in fact, had already been executed,
enforced and implemented.
On the other hand, the Solicitor-General contends that P.D. No.
807 vests exclusive appellate jurisdiction upon the Office of the
President in cases of appeal by a qualified next-in-rank
employee from decisions of ministry (department) heads arising
from appointments in three (3) specific cases. One of them is
when said employee is contesting the appointment of one who
is not next-in-rank. Therefore, the petitioner's protest should
have been elevated to the Office of the President and not to the
Commission, much less to the Merit Systems Board.
P.D. No. 807 was promulgated on October 6, 1975, Section 19
(6) of this decree provides:
Sec. 19 (6) A qualified next-in-rank employee shall
have the right to appeal initially to the department
head and finally to the Office of the President an
appointment made (1) in favor of another next-in-
rank employee who is not qualified, or (2) in favor
of one who is not next-in-rank, or (3) in favor of
one who is appointed by transfer and not next-in-
rank, or by reinstatement, or by original
appointment if the employee making the appeal is
 not satisfied with the written special reason or
reasons given by the appointing authority for such
appointment: Provided, That final appeal shall be
to the department head concerned if the
appointment is issued to a qualified next-in-rank
employee. Before deciding a contested
appointment, the Office of the President shall
consult the Civil Service Commission. ... .
There is nothing in the above-quoted provision which connotes
exclusivity of jurisdiction in the Office of the President to take
cognizance of the specific cases cited above. Furthermore,
even if it were so, with the promulgation of P.D. No.1409, this
power of review by the Office of the President was not only
divested of its exclusivity but was, in fact, repealed altogether.
The petitioner, therefore, correctly filed her protest with the MSB
in accordance with P.D. No. 1409. Moreover, respondent
Edralin is now estopped from questioning the orders of the MSB
and the Commission since she submitted to the jurisdiction of
these two bodies by filing for reconsideration with the MSB and
upon denial of the same, by appealing to the Commission.
In the leading case of Tijam v. Sibonghanoy (23 SCRA 29), we
ruled:
While petitioners could have prevented the trial
court from exercising jurisdiction over the case by
seasonably taking exception thereto, they instead
invoked the very same jurisdiction by filing an
answer and seeking affirmative relief from it. What
is more, they participated in the trial of the case by
cross-examining respondent Planas. Upon this
premise, petitioners cannot now be allowed
belatedly to adopt an inconsistent posture by
attacking the jurisdiction of the court to which they
had submitted themselves voluntarily.
This ruling was reiterated in Philippine National Bank v.
Intermediate Appellate Court (143 SCRA 299).
As stated earlier, both the MSB and the Commission had
jurisdiction to pass upon the petitioner's protest with or without
the application of the principle of estoppel. But more important,
however, is the fact that in the decision of the MSB on January
13, 1983, the said board found that respondent Edralin is not an
employee who is "next-in-rank" to the vacated position, and
although there is no mandatory nor peremptory requirement that
persons next-in-rank are entitled to preference in appointments
(see Taduran v. Commissioner of Civil Service, 131 SCRA 66),
the very purpose of the civil service law dictates that persons
who are qualified and next-in-rank should be given preferential
consideration when filling uPa vacated position through
promotion.
In Samson v. Court of Appeals (145 SCRA 654, 658-659) we
ruled:
xxx xxx xxx
... As may be noted, the general purpose of the
Civil Service Law (Republic Act No. 2260) is to
"insure and promote the general mandate
requiring appointments only according to merit and
fitness, and to provide within the public service a
progressive system of personal administration to
insure the maintenance of an honest and efficient
progressive and courteous civil service in the
Philippines." (Section 2, R. A. 2260).
The principles governing the integrity of the civil service are of
universal validity. As stated in the case of Hanley v. Murphy
(255 P. 2d, 1, 4):
xxx xxx xxx
... The civil service system rests on the principle of
application of the merit system instead of the
spoils system in the matter of appointment and
tenure of office. (Barry v. Jackson, 30 Cal. App.
 165, 169, 157 P. 828) To that end the charter
establishes a classified civil service system, with
exclusive power in the civil service commission to
provide qualified personnel, for the various
municipal departments and to classify or reclassify
positions according to prescribed duties ...
Furthermore, civil service laws are not enacted to penalize
anyone. They are designed to eradicate the system of
appointment to public office based on political considerations
and to eliminate as far as practicable the element of
partisanshiPand personal favoritism in making appointments.
These laws intend to establish a merit system of fitness and
efficiency as the basis of appointment; to secure more
competent employees, and thereby promote better government.
(See Gervais v. New Orleans Police Department, 77 So 2d,
393; Civil Service Board of City of Phoenix v. Warren, 244 P2d
1157 citing State ex rel. Kos v. Adamson, 226 Minn. 177, 32 N.
W. 2d 281, 284)
In the case at bar, the BFD personnel who are considered next-
in-rank to the vacated position were Identified. Respondent
Edralin was not one of them. In fact, she was nine or ten salary
ranges below the next-in-rank personnel. Subsequently, the
MSB made the same finding in its decision. Evidently, therefore,
the foremost consideration why respondent's appointment was
ordered by the Office of the President notwithstanding the fact
that petitioner was more qualified and that she was next-in-rank
was because of her petition to the President in the form of a
letter rather than an appeal and which started by introducing
herself as "Filipina Villeses-Edralin, wife of Efren E. Edralin of
Sarrat, Ilocos Norte." The clear intent of her letter-petition was
not to appeal in accordance with P.D. No. 807 but to elicit some
kind of favorable response from the President based on
considerations of blood ties, influence, or ethnic and regional
affiliations. To a certain extent she succeeded but this Court
must strike down the practice of political, ethnic, religious, or
blood ties being used to get choice appointments for it goes
against the very purpose behind the establishment of the civil
service in our country. As earlier stated, appointments under the
civil service law should be based on merit and fitness and
should never depend on how intimate a friend or how closely
related an appointee is to the powers that be. And granting that
the respondent possesses the qualifications required for the
contested position, it cannot be denied that the petitioner
equally possesses the same qualifications, if not in greater
degree, and more important, she is next-in-rank to the vacated
position. Therefore, she deserves to be appointed to the
disputed item.
WHEREFORE, the petition is hereby GRANTED. The decision
of the Presidential Assistant for Legal Affairs dated May 27,
1985 is ANNULLED and SET ASIDE. The decision of the Merit
Systems Board dated May 16, 1983 and the resolutions of the
Civil Service Commission which dismissed respondent's appeal
and motion for reconsideration are hereby REINSTATED and
made immediately EXECUTORY. No extension to file a motion
for reconsideration will be granted.
SO ORDERED.
Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.
SECOND DIVISION
G.R. No. 207422, March 18, 2015
ANGEL ABAD, Petitioner, v. HERMINIO DELA CRUZ,
Respondent.
DECISION
LEONEN, J.:
Appointments in the civil service are made fundamentally on the basis
of merit. Both the Constitution and law ensure that those appointed are
fit for the position. While those who are next in rank to a vacant
position may be given some preference, no one has a vested right to a
government position. Seniority and salary grades should be given their
due weight but should not trump the public interest.
This resolves the Petition for Review on Certiorari1 filed by Angel
Abad assailing the Court of Appeals Decision2 dated April 11, 2012.
The Court of Appeals affirmed the Civil Service Commission
Resolution3 dated June 22, 2010. This Resolution affirmed the
permanent appointment of Herminio Dela Cruz as City Government
Department Head III.4
Mayor Jaime R. Fresnedi appointed Herminio Dela Cruz (Dela Cruz)
as City Assessor5 of the City Government of Muntinlupa in a
permanent capacity on December 28, 2006.6 The City Assessor is
given the item of City Government Department Head III.7
In Resolution No. 06-361,8 majority of the members of the
Sangguniang Panlungsod of the City Government of Muntinlupa
concurred in the appointment of Dela Cruz as City Government
Department Head III.9
Pursuant to Civil Service Commission Resolution No. 02-1235
granting the City Government of Muntinlupa the power to take final
action on its appointments, the appointment of Dela Cruz was
considered attested to by the Civil Service Commission.10
Angel A. Abad (Abad), Local Assessment Operations Officer V in the
Office of the City Assessor, wrote the Civil Service Commission and
requested the disapproval of Dela Cruz's appointment as City
Government Department Head III.11 Abad alleged that the position of
City Government Department Head III corresponded to Salary Grade
27, nine (9) salary grades higher than Dela Cruz's former position as
Local Assessment Operations Officer III with Salary Grade 18.12
According to Abad, Dela Cruz's appointment violated Item 15 of Civil
Service Commission Memorandum Circular No. 3, Series of 2001,
which prohibits the promotion of an employee to a position more than
three (3) salary grades above his or her former position:13
15. An employee may be promoted or transferred to a
position which is not more than three (3) salary, pay or
job grades higher than the employee's present position
except in very meritorious cases, such as: if the vacant
position is next-in-rank as identified in the System of
Ranking Positions (SRP) approved by the head of
agency, or the lone or entrance position indicated in the
agency staffing pattern.
Abad added that being a qualified next-in-rank, he applied for the
position of City Government Department Head III. However, he and
three (3) other qualified applicants were allegedly excluded from the
selection process, in violation of Item 10 of Civil Service Commission
Memorandum Circular No. 3, series of 2001.14 This provides:
10. For vacancies in the first and second levels, all qualified next-
in-rank employees shall be automatically considered candidates
for promotion to the next higher position.
According to Abad, the appointment of Dela Cruz caused
"demoralization within [their] ranks."15
In the letter16 dated January 26, 2007, the Civil Service Commission
referred Abad's letter to the City Government of Muntinlupa's
grievance machinery for proper action.
In the meantime, newly elected Mayor Aldrin San Pedro (Mayor San
Pedro) assumed his office in the City Government of Muntinlupa on
July 1, 2007. On August 3, 2007, the main building of Muntinlupa
City Hall was gutted by fire, destroying the Office of the City
Personnel. The City Government of Muntinlupa, therefore, failed to
act on Abad's Letter.17
Thus, on September 25, 2007, Abad filed with the Mayor's Office the
letter-complaint18 reiterating his request for disapproval of Dela Cruz's
permanent appointment as City Government Department Head III.
Mayor San Pedro referred Abad's letter-complaint to the City
Government of Muntinlupa's Personnel Department.19

Finding that Dela Cruz's promotion violated Civil Service Commission
Memorandum Circular No. 3, Series of 2001 on the three-salary-grade
rule,20 the Grievance Committee recommended the invalidation of
Dela Cruz's permanent appointment as City Government Department
Head III.21 This recommendation was approved by Mayor San Pedro.
Mayor San Pedro's approval was then referred to the Civil Service
Commission-National Capital Region for appropriate action.22
In the Decision23 dated August 17, 2009, the Civil Service
Commission-National Capital Region invalidated Dela Cruz's
permanent appointment as City Government Department Head III and
ruled that he was appointed in violation of the three-salary-grade rule
under Civil Service Commission Memorandum Circular No. 3, Series
of 2001.24
On Dela Cruz's appeal,25 the Civil Service Commission reversed and
set aside the Civil Service Commission-National Capital Region's
Decision in Resolution No. 101276 dated June 22, 2010.26
The Civil Service Commission found that the City Government of
Muntinlupa's Personnel Selection Board ranked the applicants for City
Government Department Head III based on the following criteria:
performance, work history, awards, education, training, potential, and
physical characteristics and personality traits. Out of nine (9)
applicants, Dela Cruz ranked first with a grade of 90.67 out of 100
points. Although it conceded that Abad was not among the nine (9)
applicants screened, the Commission nevertheless ruled that Dela
Cruz's appointment was an exception to the three-salary-grade rule.27
Dela Cruz underwent a deep selection process rendering his
appointment "very meritorious[.]"28
The Commission likewise noted that contrary to the rule that whoever
alleges must prove, the Grievance Committee placed on Dela Cruz the
burden of proving that Abad was not considered for appointment. The
Grievance Committee, therefore, erred. As for Abad, he failed to prove
the allegation that he was not considered for promotion.29
Abad's Motion for Reconsideration was denied by the Civil Service
Commission in the Resolution dated November 12, 2010.30
A Petition for Review was filed before the Court of Appeals.31 The
Court of Appeals, however, dismissed the Petition for Review in the
Decision dated April 11, 2012.32
The Court of Appeals held that the three-salary-grade rule "only gives
preference to the person occupying the position next in rank to a
vacancy, but does not by any means give [the employee next in rank]
[the] exclusive right to be appointed to the said vacancy."33 As long as
the employee appointed to the position possesses the minimum
qualifications for the position, the appointment is valid.34
The Court of Appeals also found that Abad failed to prove that he was
the employee next in rank to the position of City Government
Department Head III.35 On the other hand, Dela Cruz proved that he
possessed the minimum qualifications for the position and that he
underwent a deep selection process where he ranked first among nine
(9) applicants.36 The Court of Appeals, thus, affirmed Dela Cruz's
appointment.37
Both Motion for Reconsideration38 and Supplemental Motion for
Reconsideration39 filed by Abad were denied by the Court of Appeals
in its Resolution40 dated June 4, 2013.
On July 25, 2013,41 Abad filed before this court the Petition for
Review on Certiorari. Dela Cruz filed his Comment,42 after which
Abad filed his Reply.43
Abad insists that Dela Cruz's promotion was void for violation of the
three-salary-grade rule under Civil Service Commission Memorandum
Circular No. 3, Series of 2001. Moreover, he and other employees who
were allegedly next in rank to the position of City Government
Department Head III were not considered for the position. Contrary to
the finding of the Civil Service Commission and the Court of Appeals,
the City Government of Muntinlupa's Personnel Selection Board did
not conduct any deep selection process in appointing a new City
Government Department Head III.44

Thus, Abad prays that this court invalidate Dela Cruz's appointment
and order the City Government of Muntinlupa to conduct a new
selection process for the position of City Government Department
Head III.45
Dela Cruz refutes Abad's claim of lack of deep selection process. As
the Civil Service Commission and the Court of Appeals found, the
City Government of Muntinlupa's Personnel Selection Board
conducted a deep selection process for the position of City
Government Department Head III where he ranked first out of nine (9)
applicants.46 Dela Cruz emphasizes that the factual findings of the
Civil Service Commission, which was sustained by the Court of
Appeals, must be accorded great respect since these have been made
by the "administrative agency which [has] acquired expertise [in the
field of civil service law.]"47
The issues for this court's resolution are:
First, whether respondent Dela Cruz's promotion to the position of
City Government Department Head III is void because it violated the
next-in-rank rule; and
Second, whether respondent Dela Cruz's promotion to the position of
City Government Department Head III is void for lack of a deep
selection process.
This Petition must be denied.
I Candidates for appointment to first and second level positions are
The Civil Service Commission is the "central personnel agency of the
Government[.]"48 Its mandate is to ensure that appointments in the
civil service are generally made on the basis of merit and fitness.49 The
Commission is tasked to strengthen the merit and rewards system in
the civil service50 by administering and enforcing the "constitutional
and statutory provisions on the merit system for all levels and ranks in
the Civil Service[.]"51
The Constitution adopts the merit system to ensure that those
appointed in the civil service are competent.52 This is to "eradicate the
system of appointment to public office based on political
considerations and to eliminate . . . the element of partisanship and
personal favoritism in making appointments."53
"The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original
charters."54 Thus, all appointive local government employees are
covered by civil service laws and rules.55 Appointive local government
employees must possess the qualifications provided by law for the
positions they hold.56
The qualifications the appointee must satisfy depend on whether the
position belongs to the career service or the non-career service.
Entrance in the career service is based on "merit and fitness to be
determined as far as practicable by competitive examination, or based
on highly technical qualifications[.]"57 On the other hand, entrance in
the non-career service is based on criteria other than the "usual tests of
merit and fitness[.]"58
Positions in the career service are further grouped into three (3) levels.
The first level includes positions requiring less than four (4) years of
collegiate studies.59 The second level includes positions with duties
requiring at least four (4) years of college work up to the Division
Chief level.60 The third level includes positions in the Career
Executive Service.61
generally screened by the Personnel Selection Board.62 In local
government units, the Personnel Selection Board is headed by the local
chief executive and is composed of members appointed by the
sanggunian concerned.63 The Personnel Selection Board of each local
government unit "assist[s] the local chief executive in the judicious
and objective selection of personnel for employment as well as . . .
promotion[.]"64
The appointing authority in local government units, therefore, is the
local chief executive who must assess the merits of the Personnel
Selection Board's recommendation.65 If heads of offices or
departments in a local government unit are appointed, majority of the
members of the sanggunian concerned must concur in the
appointment.66 Finally, the appointment must be submitted to the Civil
Service Commission for attestation within 30 days from the
appointment's issuance date.67
For local government units, the appointment of an assessor is
mandatory.68 In the City Government of Muntinlupa, the City Assessor
is given the item of City Government Department Head III under the
City's 2007 Personnel Schedule.69 As provided in Section 472(a) of the
Local Government Code of 1991, the assessor, must possess the
following qualifications:
SECTION 472. Qualifications, Powers and Duties. - (a) No person
shall be appointed assessor unless he is a citizen of the Philippines, a
resident of the local government unit concerned, of good moral
character, a holder of a college degree preferably in civil or
mechanical engineering, commerce, or any other related course from a
recognized college or university, and a first grade civil service eligible
or its equivalent. He must have acquired experience in real property
assessment work or in any related field for at least five (5) years in the
case of the city or provincial assessor, and three (3) years in the case of
the municipal assessor.
The 1997 Revised Qualification Standards Manual reiterates the
following minimum qualifications for the position of assessor:
Education : Bachelor's degree preferably in Civil or
Mechanical Engineering, Commerce or
any related course
Experience : Five (5) years experience in real property
assessment work or in any related field
Training : None
Eligibility : First grade or its equivalent.70
The Civil Service Commission-National Capital Region and the Civil
Service Commission agree that respondent possesses the minimum
qualifications under the law for the position of City Government
Department Head III:
A comparative evaluation of the qualifications of Dela Cruz as
indicated in his Personal Data Sheet (PDS) vis-a-vis the qualification
standards for the position of City Assessor III shows that he meets all
the requirements for appointment thereto. Likewise, he satisfies the
requirements prescribed by RA 7160. Hence, Dela Cruz qualifies for
the issuance of permanent appointment as City Assessor III.
Moreover, the appointment of Dela Cruz was confirmed by the
Sangguniang Panlungsod ng Muntinlupa in Resolution No. 06-361
dated December 7, 2006.71
With its constitutional mandate, the Civil Service Commission has
acquired "specialized knowledge and expertise"72 in the field of civil
service law. Consequently, its findings of fact, if based on substantial
evidence, are "accorded great respect and even finality"73 by appellate
courts, this court included. Absent grave abuse of discretion, this court
will not disturb the findings of fact of the Civil Service Commission.74
II
Petitioner contends, however, that he is a qualified next-in-rank who
was bypassed for appointment to the position of City Government
Department Head III. Thus, respondent's appointment is void
notwithstanding his possession of the qualifications for the position.
In promotions,75 the appointing authority must automatically consider
the employees next in rank as candidates for appointment. Section 21,
paragraphs (2) and (3) of the Civil Service Law provide for the next-
in-rank rule:
SEC. 21. Recruitment and Selection of Employees. — . . .
(2) When a vacancy occurs in a position in the first level of the Career
Service as defined in Section 6, the employees in the department who
occupy the next lower positions in the occupational group under which
the vacant position is classified, and in other functionally related
occupational groups and who are competent, qualified and with the
appropriate civil service eligibility shall be considered for promotion.
(3) When a vacancy occurs in a position in the second level of the
Career Service as defined in Section 8, the employees in the
government service who occupy the next lower positions in the
occupational group under which the vacant position is classified and
in other functionally related occupational groups and who are
competent, qualified and with the appropriate civil service eligibility
shall be considered for promotion. (Emphasis supplied)
"Promotion is the advancement of an employee from one position to
another with an increase in duties and responsibilities as authorized by
law, and usually accompanied by an increase in salary."76 Employees
next in rank are those "who occupy the next lower positions in the
occupational group under which the vacant position is classified, and
in other functionally related occupational groups and who are
competent, qualified and with the appropriate civil service
eligibility[.]"77
The reason behind the next-in-rank rule is to maintain the policy of
merit and rewards in the civil service.78 Since appointments in the civil
service are based on merit and fitness, it is assumed that the
appointments of employees next in rank are equally meritorious.
Appointments that consider rank, salary grades, and seniority promote
progressiveness and courtesy in the civil service.79
Still, the next-in-rank rule is a rule of preference on who to consider
for promotion.80 The rule does not give employees next in rank a
vested right to the position next higher to theirs should that position
become vacant.81 Appointment is a discretionary power of the
appointing authority.82 So long as the appointee possesses the
qualifications required by law, the appointment is valid.83
Who to appoint is "a political question involving considerations of
wisdom which only the appointing authority can decide."84 For the
betterment of government service, the appointing authority may
consider other "abstract criteria[,]"85 aside from the minimum
qualifications set by law in making appointments. As this court
explained in Cortez v. Civil Service Commission:86
[M]any factors are taken into account in evaluating the qualifications
of prospective appointees and that formal examinations, work
experience and educational attainment are only some of them. Such
abstract criteria as loyalty, cordiality, initiative, resourcefulness,
discipline, and other personality traits are also properly considered.
When making this evaluation, the appointing authority should be given
the widest possible leeway and cannot be controlled by the
Commission....
....
As long as the appointee possesses the minimum qualifications
prescribed by law or regulations, there is no question that his
appointment must be respected by the Civil Service Commission even
if it be proved that there are others with superior credentials.87
To successfully protest the issuance of an appointment, the employee
next in rank must prove his or her status as a qualified next-in-rank;
otherwise, the protest shall be dismissed.88 Being next in rank is a legal
conclusion that would be the result of inference from evidence
properly alleged and proven. The burden of proof rests on the
employee alleging that he or she is next in rank.89
Petitioner failed to discharge his burden of proving that he was a
qualified next-in-rank. He failed to prove that his position of Local
Assessment Operations Officer V has been previously determined to
be next-in-rank to the position of City Government Department Head
III in the Office of the City Assessor of the City Government of
Muntinlupa.90
Petitioner, therefore, has no right to protest the appointment of
respondent.
III
Petitioner further contends that respondent was appointed in violation
of the three-salary-grade rule found in Item 15 of Civil Service
Commission Memorandum Circular No. 3, Series of 2001. Therefore,
respondent's appointment should be recalled.
Item 15 of Civil Service Commission Memorandum Circular, Series of
2001 on the three-salary-grade rule states that "[a]n employee may be
promoted or transferred to a position which is not more than three (3)
salary, pay or job grades higher than the employee's present
position[.]" However, this rule is subject to the exception of "very
meritorious cases." These "very meritorious cases" are provided in
Civil Service Commission Resolution No. 03-0106 dated January 24,
2003:
Any or all of the following would constitute a meritorious case
exempted from the 3-salary grade limitation on promotion:
1. The position occupied by the person is next-in- rank to the
vacant position, as identified in the Merit Promotion Plan and
the System of Ranking Positions (SRP) of the agency [;]
2. The position is a lone, or entrance position, as indicated in the
agency's staffing pattern;
3. The position belongs to the dearth category, such as Medical
Officer/Specialist positions and Attorney positions;
4. The position is unique and/or highly specialized such as
Actuarial positions and Airways Communicator;
5. The candidates passed through a deep selection process,
taking into consideration the candidates' superior
qualifications in regard to:
Educational achievements
Highly specialized trainings
Relevant work experience
Consistent high performance
rating/ranking; and
6. The vacant position belongs to the closed career system.91
(Emphasis supplied)
Consistent with the next-in-rank rule, the appointing authority shall
consider for promotion qualified next-in-rank employees. However,
there are instances when the employees next in rank occupy positions
whose salary grades are more than three (3) grades lower than that
corresponding to the vacant position. These instances should not
prevent the appointing authority from filling the vacancy, but whoever
is appointed must undergo a deep selection process and demonstrate
his or her superior qualifications and competence.92 This is to maintain
the standard of merit and fitness for appointment in the civil service.
The Civil Service Commission found that respondent's appointment
fell under the fifth exception provided in Civil Service Commission
Resolution No. 03-0106 dated January 24, 2003.93 Contrary to
petitioner's claim, the Personnel Selection Board conducted a deep
selection process, ranking the candidates for the position of City
Government Department Head III based on the following criteria:
performance, 25 points; work history, 25 points; awards, 5 points;
education, 5 points; training, 10 points; potential, 10 points; and
physical characteristics and personality traits, 20 points.
The document denominated as Merit Promotion and System of
Ranking Position shows that out of nine (9) candidates, respondent
ranked first with a grade of 90.67 out of 100 points.94 Respondent's
case, therefore, is a "very meritorious case." His promotion from Local
Assessment Operations Officer III with Salary Grade 18 to City
Government Department Head III with Salary Grade 27 is valid.
IV
Even if petitioner were next in rank, he failed to present evidence
conclusively showing that he was not considered for promotion. The
document denominated as Merit Promotion and System of Ranking
Position contains only nine (9) names; hence, it appears to be a short
list of those ranked for promotion. To be shortlisted, however, is
different from being considered for promotion. Petitioner might have
been considered for promotion, but he did not make it to the short list.
Absent contrary evidence, the presumption that the City Government
of Muntinlupa's Personnel Selection Board performed its duties with
regularity applies.95
In any case, we cannot order the invalidation of respondent's
appointment in the present proceedings. To do so would necessarily
result in his removal from an office he has physically possessed for
almost nine (9) years. Respondent has been discharging the duties of
the City Assessor, at the very least, under a color of title to the position
especially since he possesses the qualifications for it. Analogous to a
de facto officer, respondent's title to his office may only be attacked
through a petition for quo warranto filed by the Government or by the
person claiming title to the office.96
In Tayko v. Capistrano,97 this court held that "[t]he title of a de facto
officer cannot be indirectly questioned. . . . Having at least colorable
right to the office[,] [the de facto officer's] title can be determined only
in a quo warranto proceeding or information in the nature of a quo
warranto at suit of the sovereign."98
Respondent possesses the minimum qualifications for the position of
City Government Department Head III. Moreover, his promotion from
a Salary Grade 18 to a Salary Grade 27 position was a "very
meritorious case" since he has gone through a deep selection process.
Respondent Herminio Dela Cruz's appointment as City Government
Department Head III, therefore, is valid.
WHEREFORE, the Petition for Review on Certiorari is DENIED.
The Court of Appeals' Decision dated April 11, 2012 is AFFIRMED.
SO ORDERED.
Carpio, (Chairperson), Velasco, Jr. Del Castillo, and Mendoza* , JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191644 February 19, 2013
DENNIS A.B. FUNA, Petitioner,
vs.
CTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN
HIS OFFICIAL CONCURRENT CAPACITIES AS ACTING
SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS
ACTING SOLICITOR GENERAL, EXECUTIVE SECRETARY
LEANDRO R. MENDOZA, OFFICE OF THE PRESIDENT,
Respondents.
DECISION
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution expressly prohibits the
President, Vice-President, the Members of the Cabinet, and their
deputies or assistants from holding any other office or employment
during their tenure unless otherwise provided in the Constitution.
Complementing the prohibition is Section 7, paragraph (2), Article IX-
B of the 1987 Constitution, which bans any appointive official from
holding any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries, unless
otherwise allowed by law or the primary functions of his position.
These prohibitions under the Constitution are at the core of this special
civil action for certiorari and prohibition commenced on April 7, 2010
to assail the designation of respondent Hon. Alberto C. Agra, then the
Acting Secretary of Justice, as concurrently the Acting Solicitor
General.
Antecedents
The petitioner alleges that on March 1, 2010, President Gloria M.
Macapagal-Arroyo appointed Agra as the Acting Secretary of Justice
following the resignation of Secretary Agnes VST Devanadera in
order to vie for a congressional seat in Quezon Province; that on
March 5, 2010, President Arroyo designated Agra as the Acting
Solicitor General in a concurrent capacity;1 that on April 7, 2010, the
petitioner, in his capacity as a taxpayer, a concerned citizen and a
lawyer, commenced this suit to challenge the constitutionality of
Agra’s concurrent appointments or designations, claiming it to be
prohibited under Section 13, Article VII of the 1987 Constitution; that
during the pendency of the suit, President Benigno S. Aquino III
appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General; and
that Cadiz assumed as the Solicitor General and commenced his duties
as such on August 5, 2010.2
Agra renders a different version of the antecedents. He represents that
on January 12, 2010, he was then the Government Corporate Counsel
when President Arroyo designated him as the Acting Solicitor General
in place of Solicitor General Devanadera who had been appointed as
the Secretary of Justice;3 that on March 5, 2010, President Arroyo
designated him also as the Acting Secretary of Justice vice Secretary
Devanadera who had meanwhile tendered her resignation in order to
run for Congress representing a district in Quezon Province in the May
2010 elections; that he then relinquished his position as the
Government Corporate Counsel; and that pending the appointment of
his successor, Agra continued to perform his duties as the Acting
Solicitor General.4
Notwithstanding the conflict in the versions of the parties, the fact that
Agra has admitted to holding the two offices concurrently in acting
capacities is settled, which is sufficient for purposes of resolving the
constitutional question that petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition for certiorari,
prohibition and mandamus brought by herein petitioner assailing the
constitutionality of the designation of then Undersecretary of the
Department of Transportation and Communications (DOTC) Maria
Elena H. Bautista as concurrently the Officer-in-Charge of the
Maritime Industry Authority. The petitioner has adopted here the
arguments he advanced in Funa v. Ermita, and he has rested his
grounds of challenge mainly on the pronouncements in Civil Liberties
Union v. Executive Secretary6 and Public Interest Center, Inc. v.
Elma.7
What may differentiate this challenge from those in the others is that
the appointments being hereby challenged were in acting or temporary
capacities. Still, the petitioner submits that the prohibition under
Section 13, Article VII of the 1987 Constitution does not distinguish
between an appointment or designation of a Member of the Cabinet in
an acting or temporary capacity, on the one hand, and one in a
permanent capacity, on the other hand; and that Acting Secretaries,
being nonetheless Members of the Cabinet, are not exempt from the
constitutional ban. He emphasizes that the position of the Solicitor
General is not an ex officio position in relation to the position of the
Secretary of Justice, considering that the Office of the Solicitor
General (OSG) is an independent and autonomous office attached to
the Department of Justice (DOJ).8 He insists that the fact that Agra
was extended an appointment as the Acting Solicitor General shows
that he did not occupy that office in an ex officio capacity because an
ex officio position does not require any further warrant or appointment.
Respondents contend, in contrast, that Agra’s concurrent designations
as the Acting Secretary of Justice and Acting Solicitor General were
only in a temporary capacity, the only effect of which was to confer
additional duties to him. Thus, as the Acting Solicitor General and
Acting Secretary of Justice, Agra was not "holding" both offices in the
strict constitutional sense.9 They argue that an appointment, to be
covered by the constitutional prohibition, must be regular and
permanent, instead of a mere designation.
Respondents further contend that, even on the assumption that Agra’s
concurrent designation constituted "holding of multiple offices," his
continued service as the Acting Solicitor General was akin to a hold-
over; that upon Agra’s designation as the Acting Secretary of Justice,
his term as the Acting Solicitor General expired in view of the
constitutional prohibition against holding of multiple offices by the
Members of the Cabinet; that under the principle of hold-over, Agra
continued his service as the Acting Solicitor General "until his
successor is elected and qualified"10 to "prevent a hiatus in the
government pending the time when a successor may be chosen and
inducted into office;"11 and that during his continued service as the
Acting Solicitor General, he did not receive any salaries and
emoluments from the OSG after becoming the Acting Secretary of
Justice on March 5, 2010.12
Respondents point out that the OSG’s independence and autonomy are
defined by the powers and functions conferred to that office by law,
not by the person appointed to head such office;13 and that although
the OSG is attached to the DOJ, the DOJ’s authority, control and
supervision over the OSG are limited only to budgetary purposes.14
In his reply, petitioner counters that there was no "prevailing special
circumstance" that justified the non-application to Agra of Section 13,
Article VII of the 1987 Constitution;15 that the temporariness of the
appointment or designation is not an excuse to disregard the
constitutional ban against holding of multiple offices by the Members
of the Cabinet;16 that Agra’s invocation of the principle of hold-over is
misplaced for being predicated upon an erroneous presentation of a
material fact as to the time of his designation as the Acting Solicitor
General and Acting Secretary of Justice; that Agra’s concurrent
designations further violated the Administrative Code of 1987 which
mandates that the OSG shall be autonomous and independent.17
Issue
Did the designation of Agra as the Acting Secretary of Justice,
concurrently with his position of Acting Solicitor General, violate the
constitutional prohibition against dual or multiple offices for the
Members of the Cabinet and their deputies and assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently
with his position of Acting Solicitor General was unconstitutional and
void for being in violation of the constitutional prohibition under
Section 13, Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit: (1) there
must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have the
standing to assail the validity of the subject act or issuance, that is, he
must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.18
Here, the OSG does not dispute the justiciability and ripeness for
consideration and resolution by the Court of the matter raised by the
petitioner. Also, the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer to bring a suit of this nature has already
been settled in his favor in rulings by the Court on several other public
law litigations he brought. In Funa v. Villar,19 for one, the Court has
held:
To have legal standing, therefore, a suitor must show that he has
sustained or will sustain a "direct injury" as a result of a government
action, or have a "material interest" in the issue affected by the
challenged official act. However, the Court has time and again acted
liberally on the locus standi requirements and has accorded
certain individuals, not otherwise directly injured, or with
material interest affected, by a Government act, standing to sue
provided a constitutional issue of critical significance is at stake.
The rule on locus standi is after all a mere procedural technicality
in relation to which the Court, in a catena of cases involving a
subject of transcendental import, has waived, or relaxed, thus
allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been personally injured by the operation of a
law or any other government act. In David, the Court laid out the
bare minimum norm before the so-called "non-traditional suitors"
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in
the validity of the election law in question;
3.) For concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.
This case before Us is of transcendental importance, since it
obviously has "far-reaching implications," and there is a need to
promulgate rules that will guide the bench, bar, and the public in
future analogous cases. We, thus, assume a liberal stance and
allow petitioner to institute the instant petition.20 (Bold emphasis
supplied)
In Funa v. Ermita,21 the Court recognized the locus standi of the
petitioner as a taxpayer, a concerned citizen and a lawyer because the
issue raised therein involved a subject of transcendental importance
whose resolution was necessary to promulgate rules to guide the
Bench, Bar, and the public in similar cases.
But, it is next posed, did not the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of
this suit render this suit and the issue tendered herein moot and
academic?
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value.22 Although the
controversy could have ceased due to the intervening appointment of
and assumption by Cadiz as the Solicitor General during the pendency
of this suit, and such cessation of the controversy seemingly rendered
moot and academic the resolution of the issue of the constitutionality
of the concurrent holding of the two positions by Agra, the Court
should still go forward and resolve the issue and not abstain from
exercising its power of judicial review because this case comes under
several of the well-recognized exceptions established in jurisprudence.
Verily, the Court did not desist from resolving an issue that a
supervening event meanwhile rendered moot and academic if any of
the following recognized exceptions obtained, namely: (1) there was a
grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the
constitutional issue raised required the formulation of controlling
principles to guide the Bench, the Bar and the public; and (4) the case
was capable of repetition, yet evading review.23
It is the same here. The constitutionality of the concurrent holding by
Agra of the two positions in the Cabinet, albeit in acting capacities,
was an issue that comes under all the recognized exceptions. The issue
involves a probable violation of the Constitution, and relates to a
situation of exceptional character and of paramount public interest by
reason of its transcendental importance to the people. The resolution of
the issue will also be of the greatest value to the Bench and the Bar in
view of the broad powers wielded through said positions. The situation
further calls for the review because the situation is capable of
repetition, yet evading review.24 In other words, many important and
practical benefits are still to be gained were the Court to proceed to the
ultimate resolution of the constitutional issue posed.
2.
Unconstitutionality of Agra’s concurrent designation as Acting
Secretary of Justice and Acting Solicitor General
At the center of the controversy is the correct application of Section
13, Article VII of the 1987 Constitution, viz:
Section 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure, directly or
indirectly practice any other profession, participate in any business, or
be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.
A relevant and complementing provision is Section 7, paragraph (2),
Article IX-B of the 1987 Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
The differentiation of the two constitutional provisions was well stated
in Funa v. Ermita,25 a case in which the petitioner herein also assailed
the designation of DOTC Undersecretary as concurrent Officer-in-
Charge of the Maritime Industry Authority, with the Court reiterating
its pronouncement in Civil Liberties Union v. The Executive
Secretary26 on the intent of the Framers behind these provisions of the
Constitution, viz:
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions
of their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself.
In other words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to
be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to
impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive
and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation. The phrase
"unless otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular instances
cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided under Section 7,
pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII. (Bold emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with
his position of Acting Solicitor General, therefore, Agra was
undoubtedly covered by Section 13, Article VII, supra, whose text and
spirit were too clear to be differently read. Hence, Agra could not
validly hold any other office or employment during his tenure as the
Acting Solicitor General, because the Constitution has not otherwise
so provided.27
It was of no moment that Agra’s designation was in an acting or
temporary capacity. The text of Section 13, supra, plainly indicates
that the intent of the Framers of the Constitution was to impose a
stricter prohibition on the President and the Members of his Cabinet in
so far as holding other offices or employments in the Government or in
government-owned or government controlled-corporations was
concerned.28 In this regard, to hold an office means to possess or to
occupy the office, or to be in possession and administration of the
office, which implies nothing less than the actual discharge of the
functions and duties of the office.29 Indeed, in the language of Section
13 itself, supra, the Constitution makes no reference to the nature of
the appointment or designation. The prohibition against dual or
multiple offices being held by one official must be construed as to
apply to all appointments or designations, whether permanent or
temporary, for it is without question that the avowed objective of
Section 13, supra, is to prevent the concentration of powers in the
Executive Department officials, specifically the President, the Vice-
President, the Members of the Cabinet and their deputies and
assistants.30 To construe differently is to "open the veritable floodgates
of circumvention of an important constitutional disqualification of
officials in the Executive Department and of limitations on the
President’s power of appointment in the guise of temporary
designations of Cabinet Members, undersecretaries and assistant
secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations."31
According to Public Interest Center, Inc. v. Elma,32 the only two
exceptions against the holding of multiple offices are: (1) those
provided for under the Constitution, such as Section 3, Article VII,
authorizing the Vice President to become a member of the Cabinet;
and (2) posts occupied by Executive officials specified in Section 13,
Article VII without additional compensation in ex officio capacities as
provided by law and as required by the primary functions of the
officials’ offices. In this regard, the decision in Public Interest Center,
Inc. v. Elma adverted to the resolution issued on August 1, 1991 in
Civil Liberties Union v. The Executive Secretary, whereby the Court
held that the phrase "the Members of the Cabinet, and their deputies or
assistants" found in Section 13, supra, referred only to the heads of the
various executive departments, their undersecretaries and assistant
secretaries, and did not extend to other public officials given the rank
of Secretary, Undersecretary or Assistant Secretary.33 Hence, in Public
Interest Center, Inc. v. Elma, the Court opined that the prohibition
under Section 13 did not cover Elma, a Presidential Assistant with the
rank of Undersecretary.34
It is equally remarkable, therefore, that Agra’s designation as the
Acting Secretary of Justice was not in an ex officio capacity, by which
he would have been validly authorized to concurrently hold the two
positions due to the holding of one office being the consequence of
holding the other. Being included in the stricter prohibition embodied
in Section 13, supra, Agra cannot liberally apply in his favor the broad
exceptions provided in Section 7, paragraph 2, Article IX-B of the
Constitution ("Unless otherwise allowed by law or the primary
functions of his position") to justify his designation as Acting
Secretary of Justice concurrently with his designation as Acting
Solicitor General, or vice versa. Thus, the Court has said –
[T]he qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the
broad exceptions provided under Section 7, Article IX-B of the 1987
Constitution. To construe said qualifying phrase as respondents would
have us do, would render nugatory and meaningless the manifest intent
and purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the Cabinet,
their deputies and assistants with respect to holding other offices or
employment in the government during their tenure. Respondents’
interpretation that Section 13 of Article VII admits of the exceptions
found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to
when the highranking officials of the Executive Branch from the
President to Assistant Secretary, on the one hand, and the generality of
civil servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position in the
government during their tenure.35
To underscore the obvious, it is not sufficient for Agra to show that his
holding of the other office was "allowed by law or the primary
functions of his position." To claim the exemption of his concurrent
designations from the coverage of the stricter prohibition under
Section 13, supra, he needed to establish herein that his concurrent
designation was expressly allowed by the Constitution. But, alas, he
did not do so.
To be sure, Agra’s concurrent designations as Acting Secretary of
Justice and Acting Solicitor General did not come within the definition
of an ex officio capacity. Had either of his concurrent designations
been in an ex officio capacity in relation to the other, the Court might
now be ruling in his favor.
The import of an ex officio capacity has been fittingly explained in
Civil Liberties Union v. Executive Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue of office." It
refers to an "authority derived from official character merely, not
expressly conferred upon the individual character, but rather annexed
to the official position." Ex officio likewise denotes an "act done in an
official character, or as a consequence of office, and without any other
appointment or authority other than that conferred by the office." An
ex officio member of a board is one who is a member by virtue of his
title to a certain office, and without further warrant or appointment. x x
x.
xxxx
The ex officio position being actually and in legal contemplation part
of the principal office, it follows that the official concerned has no
right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated to
"provide the government with a principal law agency which shall be
both its legal counsel and prosecution arm; administer the criminal
justice system in accordance with the accepted processes thereof
consisting in the investigation of the crimes, prosecution of offenders
and administration of the correctional system; implement the laws on
the admission and stay of aliens, citizenship, land titling system, and
settlement of land problems involving small landowners and members
of indigenous cultural minorities; and provide free legal services to
indigent members of the society."37 The DOJ’s specific powers and
functions are as follows:
(1) Act as principal law agency of the government and as legal
counsel and representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders
and administer the probation and correction system;
(3) Extend free legal assistance/representation to indigents and
poor litigants in criminal cases and non-commercial civil
disputes;
(4) Preserve the integrity of land titles through proper
registration;
(5) Investigate and arbitrate untitled land disputes involving
small landowners and members of indigenous cultural
communities;
(6) Provide immigration and naturalization regulatory services
and implement the laws governing citizenship and the
admission and stay of aliens;
(7) Provide legal services to the national government and its
functionaries, including government-owned or controlled
corporations and their subsidiaries; and
(8) Perform such other functions as may be provided by law.38
On the other hand, the Administrative Code of 1987 confers upon the
Office of the Solicitor General the following powers and functions, to
wit:
The Office of the Solicitor General shall represent the Government of
the Philippines, its agencies and instrumentalities and its officials and
agents in any litigation, proceeding, investigation or matter requiring
the services of lawyers. When authorized by the President or head of
the office concerned, it shall also represent government owned or
controlled corporations. The Office of the Solicitor General shall
discharge duties requiring the services of lawyers. It shall have the
following specific powers and functions:
1. Represent the Government in the Supreme Court and the
Court of Appeals in all criminal proceedings; represent the
Government and its officers in the Supreme Court, the Court of
Appeals, and all other courts or tribunals in all civil actions and
special proceedings in which the Government or any officer
thereof in his official capacity is a party.
2. Investigate, initiate court action, or in any manner proceed
against any person, corporation or firm for the enforcement of
any contract, bond, guarantee, mortgage, pledge or other
collateral executed in favor of the Government. Where
proceedings are to be conducted outside of the Philippines the
Solicitor General may employ counsel to assist in the discharge
of the aforementioned responsibilities.
3. Appear in any court in any action involving the validity of
any treaty, law, executive order or proclamation, rule or
regulation when in his judgment his intervention is necessary
or when requested by the Court.
4. Appear in all proceedings involving the acquisition or loss of
Philippine citizenship.
5. Represent the Government in all land registration and related
proceedings. Institute actions for the reversion to the
Government of lands of the public domain and improvements
thereon as well as lands held in violation of the Constitution.
6. Prepare, upon request of the President or other proper officer
of the National Government, rules and guidelines for
government entities governing the preparation of contracts,
making investments, undertaking of transactions, and drafting
of forms or other writings needed for official use, with the end
in view of facilitating their enforcement and insuring that they
are entered into or prepared conformably with law and for the
best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General
the public interest requires, any provincial or city fiscal to
assist him in the performance of any function or discharge of
any duty incumbent upon him, within the jurisdiction of the
aforesaid provincial or city fiscal. When so deputized, the
fiscal shall be under the control and supervision of the Solicitor
General with regard to the conduct of the proceedings assigned
to the fiscal, and he may be required to render reports or
furnish information regarding the assignment.
8. Deputize legal officers of government departments, bureaus,
agencies and offices to assist the Solicitor General and appear
or represent the Government in cased involving their respective
offices, brought before the courts and exercise supervision and
control over such legal Officers with respect to such cases.
9. Call on any department, bureau, office, agency or
instrumentality of the Government for such service, assistance
and cooperation as may be necessary in fulfilling its functions
and responsibilities and for this purpose enlist the services of
any government official or employee in the pursuit of his tasks.
10. Departments, bureaus, agencies, offices, instrumentalities
and corporations to whom the Office of the Solicitor General
renders legal services are authorized to disburse funds from
their sundry operating and other funds for the latter Office. For
this purpose, the Solicitor General and his staff are specifically
authorized to receive allowances as may be provided by the
Government offices, instrumentalities and corporations
concerned, in addition to their regular compensation.
11. Represent, upon the instructions of the President, the
Republic of the Philippines in international litigations,
negotiations or conferences where the legal position of the
Republic must be defended or presented.
12. Act and represent the Republic and/or the people before
any court, tribunal, body or commission in any matter, action
or proceedings which, in his opinion affects the welfare of the
people as the ends of justice may require; and
 13. Perform such other functions as may be provided by law.39
The foregoing provisions of the applicable laws show that one position
was not derived from the other. Indeed, the powers and functions of
the OSG are neither required by the primary functions nor included by
the powers of the DOJ, and vice versa. The OSG, while attached to the
DOJ,40 is not a constituent unit of the latter,41 as, in fact, the
Administrative Code of 1987 decrees that the OSG is independent and
autonomous.42 With the enactment of Republic Act No. 9417,43 the
Solicitor General is now vested with a cabinet rank, and has the same
qualifications for appointment, rank, prerogatives, salaries,
allowances, benefits and privileges as those of the Presiding Justice of
the Court of Appeals.44
Moreover, the magnitude of the scope of work of the Solicitor
General, if added to the equally demanding tasks of the Secretary of
Justice, is obviously too much for any one official to bear. Apart from
the sure peril of political pressure, the concurrent holding of the two
positions, even if they are not entirely incompatible, may affect sound
government operations and the proper performance of duties. Heed
should be paid to what the Court has pointedly observed in Civil
Liberties Union v. Executive Secretary: 45
Being head of an executive department is no mean job. It is more than
a full-time job, requiring full attention, specialized knowledge, skills
and expertise. If maximum benefits are to be derived from a
department head’s ability and expertise, he should be allowed to attend
to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions
of responsibility, which may result in haphazardness and inefficiency.
Surely the advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage of our
national and economic development, far outweigh the benefits, if any,
that may be gained from a department head spreading himself too thin
and taking in more than what he can handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting
Solicitor General, was not covered by the stricter prohibition under
Section 13, supra, due to such position being merely vested with a
cabinet rank under Section 3, Republic Act No. 9417, he nonetheless
remained covered by the general prohibition under Section 7, supra.
Hence, his concurrent designations were still subject to the conditions
under the latter constitutional provision. In this regard, the Court aptly
pointed out in Public Interest Center, Inc. v. Elma:46
The general rule contained in Article IX-B of the 1987 Constitution
permits an appointive official to hold more than one office only if
"allowed by law or by the primary functions of his position." In the
case of Quimson v. Ozaeta, this Court ruled that, "[t]here is no legal
objection to a government official occupying two government offices
and performing the functions of both as long as there is no
incompatibility." The crucial test in determining whether
incompatibility exists between two offices was laid out in People v.
Green - whether one office is subordinate to the other, in the sense that
one office has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in the
functions of the two; x x x Where one office is not subordinate to the
other, nor the relations of the one to the other such as are inconsistent
and repugnant, there is not that incompatibility from which the law
declares that the acceptance of the one is the vacation of the other. The
force of the word, in its application to this matter is, that from the
nature and relations to each other, of the two places, they ought not to
be held by the same person, from the contrariety and antagonism
which would result in the attempt by one person to faithfully and
impartially discharge the duties of one, toward the incumbent of the
other. X x x The offices must subordinate, one [over] the other, and
they must, per se, have the right to interfere, one with the other, before
they are incompatible at common law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies in
general to all elective and appointive officials, Section 13, Article VII,
thereof applies in particular to Cabinet secretaries, undersecretaries
and assistant secretaries. In the Resolution in Civil Liberties Union v.
Executive Secretary, this Court already clarified the scope of the
prohibition provided in Section 13, Article VII of the 1987
Constitution. Citing the case of US v. Mouat, it specifically identified
the persons who are affected by this prohibition as secretaries,
undersecretaries and assistant secretaries; and categorically excluded
public officers who merely have the rank of secretary, undersecretary
or assistant secretary.
Another point of clarification raised by the Solicitor General refers to
the persons affected by the constitutional prohibition. The persons
cited in the constitutional provision are the "Members of the Cabinet,
their deputies and assistants." These terms must be given their
common and general acceptation as referring to the heads of the
executive departments, their undersecretaries and assistant secretaries.
Public officials given the rank equivalent to a Secretary,
Undersecretary, or Assistant Secretary are not covered by the
prohibition, nor is the Solicitor General affected thereby. (Italics
supplied).
It is clear from the foregoing that the strict prohibition under Section
13, Article VII of the 1987 Constitution is not applicable to the PCGG
Chairman nor to the CPLC, as neither of them is a secretary,
undersecretary, nor an assistant secretary, even if the former may have
the same rank as the latter positions.
It must be emphasized, however, that despite the non-applicability of
Section 13, Article VII of the 1987 Constitution to respondent Elma,
he remains covered by the general prohibition under Section 7, Article
IX-B and his appointments must still comply with the standard of
compatibility of officers laid down therein; failing which, his
appointments are hereby pronounced in violation of the Constitution.47
Clearly, the primary functions of the Office of the Solicitor General
are not related or necessary to the primary functions of the Department
of Justice. Considering that the nature and duties of the two offices are
such as to render it improper, from considerations of public policy, for
one person to retain both,48 an incompatibility between the offices
exists, further warranting the declaration of Agra’s designation as the
Acting Secretary of Justice, concurrently with his designation as the
Acting Solicitor General, to be void for being in violation of the
express provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agra’s concurrent
appointment; the de facto officer doctrine
In view of the application of the stricter prohibition under Section 13,
supra, Agra did not validly hold the position of Acting Secretary of
Justice concurrently with his holding of the position of Acting
Solicitor General. Accordingly, he was not to be considered as a de
jure officer for the entire period of his tenure as the Acting Secretary
of Justice. A de jure officer is one who is deemed, in all respects,
legally appointed and qualified and whose term of office has not
expired.49
That notwithstanding, Agra was a de facto officer during his tenure as
Acting Secretary of Justice. In Civil Liberties Union v. Executive
Secretary,50 the Court said:
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for
actual services rendered. It has been held that "in cases where there is
no de jure, officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining
thereto, is legally entitled to the emoluments of the office, and may in
an appropriate action recover the salary, fees and other compensations
attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit
by the services of an officer de facto and then be freed from all
liability to pay any one for such services. Any per diem, allowances or
other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained
by them.
A de facto officer is one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face.51 He may also be one who is in
possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, PRESBITERO J.
ANTONIO T. CARPIO
however irregular or informal, so that the incumbent is not a mere VELASCO, JR.
Associate Justice
volunteer.52 Consequently, the acts of the de facto officer are just as Associate Justice
valid for all purposes as those of a de jure officer, in so far as the
public or third persons who are interested therein are concerned. 53 TERESITA J.
ARTURO D. BRION
LEONARDO-DE CASTRO
Associate Justice
In order to be clear, therefore, the Court holds that all official actions Associate Justice
of Agra as a de facto Acting Secretary of Justice, assuming that was
his later designation, were presumed valid, binding and effective as if MARIANO C. DEL
DIOSDADO M. PERALTA
he was the officer legally appointed and qualified for the office. 54 This CASTILLO
Associate Justice
clarification is necessary in order to protect the sanctity of the dealings Associate Justice
by the public with persons whose ostensible authority emanates from
the State. 55 Agra's official actions covered by this claritlcation extend MARTIN S. VILLARAMA,
to but are not limited to the promulgation of resolutions on petitions ROBERTO A. ABAD
JR.
for review filed in the Department of Justice, and the issuance of Associate Justice
Associate Justice
department orders, memoranda and circulars relative to the
prosecution of criminal cases. JOSE CATRAL
JOSE PORTUGAL PEREZ
MENDOZA
WHEREFORE, the Comi GRANTS the petition for certiorari and Associate Justice
Associate Justice
prohibition; ANNULS AND VOIDS the designation of Hon. Alberto
C. Agra as the Acting Secretary of Justice in a concurrent capacity
with his position as the Acting Solicitor General for being ESTELA M. PERLAS-
BIENVENIDO L. REYEZ
unconstitutional and violative of Section 13, Article VII of the 1987 BERNABE
Associate Justice
Constitution; and DECLARES that l-Ion. Alberto C. Agra was a de Associate Justice
facto officer during his tenure as Acting Secretary of Justice.
MARVIC M.V. F. LEONEN
No pronouncement on costs of suit. Associate Justice

SO ORDERED. CERTIFICATION

LUCAS P. BERSAMIN Pursuant to Section 13, Article VII of the Constitution, I certify that
Associate Justice the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the court.
WE CONCUR:
MARIA LOURDES P. A. SERENO
MARIA LOURDES P. A. SERENO Chief Justice
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 193314 February 26, 2013
SVETLANA P. JALOSJOS, Petitioner,
vs.
COMMISSION ON ELECTIONS, EDWIN ELIM TUMPAG and
RODOLFO Y. ESTRELLADA, Respondents.
DECISION
SERENO, J.:
Svetlana P. Jalosjos (petitioner) comes before this Court on a Petition
for Review under Rule 64 with an extremely urgent application for the
issuance of a status quo order and for the conduct of a special raffle, 1
assailing the 04 June 20102 and 19 August 20103 Resolutions in SPA
No. 09-161 (DC) of the Commission on Elections (respondent
COMELEC). These Resolutions granted the Petition to Deny Due
Course to or Cancel the Certificate of Candidacy filed by Edwin Elim
Tumpag and Rodolfo Y. Estrellada (private respondents) against
petitioner. At the heart of this controversy is whether petitioner
complied with the one-year residency requirement for local elective
officials.
On 20 November 2009, petitioner filed her Certificate of Candidacy
(CoC) for mayor of Baliangao, Misamis Occidental for the 10 May
2010 elections. She indicated therein her place of birth and residence
as Barangay Tugas, Municipality of Baliangao, Misamis Occidental
(Brgy. Tugas).
Asserting otherwise, private respondents filed against petitioner a
Petition to Deny Due Course to or Cancel the Certificate of Candidacy,
in which they argued that she had falsely represented her place of birth
and residence, because she was in fact born in San Juan, Metro
Manila, and had not totally abandoned her previous domicile, Dapitan
City.4 To support this claim, they presented the following as evidence:
1. Certification from the Assessor’s Office of Baliangao that
there was no tax declaration covering any real property in the
name of petitioner located at any place in the municipality;5
2. Certification from the Civil Registrar of Baliangao that
petitioner had no record of birth in the civil registry of the
municipality;6
3. Joint Affidavit of three residents of Baliangao – incumbent
Barangay Chairperson Gregorio P. Gayola (Gayola) and
incumbent 3rd Kagawad Felicisimo T. Pastrano (Pastrano),
both officials of Barangay Tugas, Baliangao, Misamis
Occidental, and former police officer Adolfo L. Alcoran
(Alcoran);7
4. Affidavit of Patricio D. Andilab (Andilab), official of Purok
5, Brgy. Tugas, Baliangao.8
On the other hand, petitioner averred that she had established her
residence in the said barangay since December 2008 when she
purchased two parcels of land there, and that she had been staying in
the house of a certain Mrs. Lourdes Yap (Yap) while the former was
overseeing the construction of her house. Furthermore, petitioner
asserted that the error in her place of birth was committed by her
secretary. Nevertheless, in a CoC, an error in the declaration of the
place of birth is not a material misrepresentation that would lead to
disqualification, because it is not one of the qualifications provided by
law.9 Petitioner presented the following evidence to sustain her claims:
1. Certificate of Live Birth;10
2. Extrajudicial Partition with Simultaneous Sale executed by
the heirs of Agapito Yap, Jr. (Yap, Jr.) pertaining to two
parcels of land covered by Transfer Certificate of Title (TCT)
Nos. 12410 and P-33289 in favor of petitioner;11
3. TCT Nos. 12410 and P-33289 in the name of Yap, Jr.;12
4. Two Declarations of Real Property in the name of Yap, Jr.;13
5. Two sketch plans of lots covered by TCT Nos. 12410 and P-
33289 prepared by the Office of the Provincial Assessor for
Yap, Jr.;14
6. Photographs of the alleged residence of petitioner in
Baliangao, Misamis Occidental;
7. Sketches of structures petitioner constructed in the resort she
developed in Baliangao, Misamis Occidental;15
8. Petitioner’s Application for Voter’s Registration and Voter’s
Certification issued by the Office of the Election Officer of
Baliangao, Misamis Occidental;16
9. Petitioner’s CoC;17
10. Joint Affidavit of Rodolio R. Yap III (Yap III), Roger V.
Villanueva (Villanueva), Romeo A. Duhaylungsod, Jr.
(Duhaylungsod) and Dennis M. Estrellada (Estrellada), who
undertook the construction and development of petitioner’s
residential house and resort;18
11. Affidavit of incumbent Barangay Chairperson Marichu
Michel Acas-Yap (Acas-Yap) of Barangay Punta Miray,
Baliangao, Misamis Occidental (Brgy. Punta Miray);19
12. Affidavit of Nellie E. Jumawan (Jumawan), the president of
the Center for Agriculture and Rural Development, Inc.;20
13. Affidavit of Dolores B. Medija (Medija), the president of
Women for Children Association;21
14. Joint Affidavit of Emily J. Bagundol (Bagundol) and Nelia
D. Colaljo (Colaljo), presidents of the Paglaum Multi-purpose
Cooperative;22
15. Joint Affidavit of Charles C. Tenorio (Tenorio) and
Reynold C. Analasan (Analasan), presidents of Tamban Multi-
Purpose Cooperative and Balas Diut Brotherhood Association,
respectively;23
16. Affidavit of Pedro Rio G. Bation (Bation), president of the
Del Pilar Lawn Tennis Club of Baliangao;24
17. Affidavit of Jessie P. Maghilum (Maghilum), a member of
the Phi Omega Sigma Fraternity/Sorority of Baliangao,
Misamis Occidental Chapter;25 and
18. Affidavit of Ophelia P. Javier (Javier), petitioner’s personal
secretary.26
The Petition to Deny Due Course to or Cancel the Certificate of
Candidacy remained pending as of the day of the elections, in which
petitioner garnered the highest number of votes. On 10 May 2010, the
Municipal Board of Canvassers of Baliangao, Misamis Occidental,
proclaimed her as the duly elected municipal mayor.27
On 04 June 2010, the COMELEC Second Division rendered a
Resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, respondent is DISQUALIFIED
from running for the position of mayor in the Municipality of
Baliangao, Misamis Occidental for this coming May 10, 2010
elections.28
The COMELEC En Banc promulgated a Resolution on 19 August
2010 denying the Motion for Reconsideration of petitioner for lack of
merit and affirming the Resolution of the Second Division denying due
course to or cancelling her CoC.
COMELEC Ruling
Respondent COMELEC ruled in its 04 June 2010 Resolution that
misrepresentation as to one’s place of birth is not a ground for the
cancellation of a CoC. Petitioner merely committed an oversight when
she declared that she was born in Baliangao when she was actually
born in San Juan. However, the COMELEC ruled that based on the
evidence presented, petitioner never acquired a new domicile in
Baliangao, because she failed to prove her bodily presence at that
place, her intention to remain there, and her intention never to return to
her domicile of origin. Hence, respondent COMELEC disqualified her
from running for the position of mayor of Baliangao29 pursuant to
Section 78 in relation to Section 74 of the Omnibus Election Code.30
In response to this adverse ruling, petitioner elevated her case through
a Motion for Reconsideration before the COMELEC En Banc, arguing
that the evidence she presented proved that she had established her
domicile in the said municipality.31
Nonetheless, in its 19 August 2010 Resolution, respondent COMELEC
affirmed the earlier ruling of the Second Division. In upholding the
latter’s ruling, COMELEC En Banc said that (1) the Extrajudicial
Partition with Simultaneous Sale was not sufficient proof that
petitioner had purchased two parcels of land, because she was never a
party to the agreement, and it was quite unusual that she never
acquired a deed of sale or title to protect her interests; (2) the sketch
plans were not signed by the corporate engineer who purportedly
prepared them, nor was there an affidavit from the engineer to
authenticate the plans; (3) the application of petitioner for voter
registration only proved that she had met the minimum six-month
residency requirement and nothing more; and (4) the affiants of the
Sworn Statements were all partial, because they either worked for her
or were members of organizations that received financial assistance
from her.32
Hence, the instant Petition arguing that respondent COMELEC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction in holding that petitioner was not a resident of Baliangao,
Misamis Occidental and in thus justifying the cancellation of her CoC.
She also asserts that the 04 June 2010 and 19 August 2010 COMELEC
Resolutions are null and void, being violative of her right to due
process, because there was no promulgation or prior notice as required
by Sec. 6 of COMELEC Resolution No. 8696 or by the Rules on
Disqualification of Cases Filed in Connection with the 10 May 2010
Automated National and Local Elections.
In a Resolution dated 07 September 2010, we issued a Status Quo Ante
Order, which required the parties to observe the status quo prevailing
before the issuance of the assailed COMELEC Resolutions.33
Thereafter, the parties filed their respective pleadings.
Issues
The issues before us can be summarized as follows:
I. Whether COMELEC committed grave abuse of discretion
when it failed to promulgate its 04 June 2010 and 19 August
2010 Resolutions in accordance with its own Rules of
Procedure; and
II. Whether COMELEC committed grave abuse of discretion in
holding that petitioner had failed to prove compliance with the
one-year residency requirement for local elective officials.
Our Ruling
COMELEC’s failure to serve
advance notice of the promulgation
of the 04 June 2010 and 19 August
2010 Resolutions does not invalidate
them.
Petitioner assails the validity of the 04 June 2010 and 19 August 2010
Resolutions, because she was not served an advance notice that these
Resolutions were going to be promulgated. This failure was allegedly
a violation of COMELEC Resolution No. 8696. Hence, she argues that
her right to due process was violated. In response, respondent
COMELEC asserts that it suspended COMELEC Resolution No. 8696
through an En Banc Order dated 04 May 2010.34 Furthermore, the
suspension was in accordance with its power to promulgate its own
rules as provided by the Constitution. Nevertheless, petitioner was
afforded the opportunity to be heard and to submit evidence in support
of her defense.
We agree with respondent COMELEC.
As stated by respondent COMELEC, Resolution No. 8696 was
suspended through an Order dated 04 May 2010. However, assuming
that this Resolution was still in effect, the failure to serve notice of the
promulgation under Section 6 thereof did not make the 04 June 2010
and 19 August 2010 COMELEC Resolutions invalid. The Court held
thus in Sabili v. COMELEC:35
In Lindo v. Commission on Elections,[49] petitioner claimed that there
was no valid promulgation of a Decision in an election protest case
when a copy thereof was merely furnished the parties, instead of first
notifying the parties of a set date for the promulgation thereof, in
accordance with Section 20 of Rule 35 of the COMELEC’s own Rules
of Procedure, as follows:
Sec. 20. Promulgation and Finality of Decision. — The decision of the
court shall be promulgated on a date set by it of which due notice must
be given the parties. It shall become final five (5) days after
promulgation. No motion for reconsideration shall be entertained.
Rejecting petitioner’s argument, we held therein that the
additional rule requiring notice to the parties prior to
promulgation of a decision is not part of the process of
promulgation. Since lack of such notice does not prejudice the
rights of the parties, noncompliance with this rule is a procedural
lapse that does not vitiate the validity of the decision. Thus:
This contention is untenable. Promulgation is the process by which a
decision is published, officially announced, made known to the public
or delivered to the clerk of court for filing, coupled with notice to the
parties or their counsel (Neria v. Commissioner of Immigration, L-
24800, May 27, 1968, 23 SCRA 812). It is the delivery of a court
decision to the clerk of court for filing and publication (Araneta v.
Dinglasan, 84 Phil. 433). It is the filing of the signed decision with the
clerk of court (Sumbing v. Davide, G.R. Nos. 86850-51, July 20, 1989,
En Banc Minute Resolution). The additional requirement imposed by
the COMELEC rules of notice in advance of promulgation is not part
of the process of promulgation. Hence, We do not agree with
petitioner’s contention that there was no promulgation of the trial
court's decision. The trial court did not deny that it had officially made
the decision public. From the recital of facts of both parties, copies of
the decision were sent to petitioner's counsel of record and petitioner’s
[sic] himself. Another copy was sent to private respondent.
What was wanting and what the petitioner apparently objected to
was not the promulgation of the decision but the failure of the trial
court to serve notice in advance of the promulgation of its decision
as required by the COMELEC rules. The failure to serve such
notice in advance of the promulgation may be considered a
procedural lapse on the part of the trial court which did not
prejudice the rights of the parties and did not vitiate the validity of
the decision of the trial court nor [sic] of the promulgation of said
decision.
Moreover, quoting Pimping v. COMELEC,[50] citing Macabingkil v.
Yatco,[51] we further held in the same case that failure to receive
advance notice of the promulgation of a decision is not sufficient to set
aside the COMELEC’s judgment, as long as the parties have been
afforded an opportunity to be heard before judgment is rendered, viz:
The fact that petitioners were not served notice in advance of the
promulgation of the decision in the election protest cases, in Our
view, does not constitute reversible error or a reason sufficient
enough to compel and warrant the setting aside of the judgment
rendered by the Comelec. Petitioners anchor their argument on an
alleged denial to them [sic] due process to the deviation by the
Comelec from its own made rules. However, the essence of due
process is that, the parties in the case were afforded an
opportunity to be heard.
In the present case, we read from the COMELEC Order that the
exigencies attendant to the holding of the country’s first automated
national elections had necessitated that the COMELEC suspend the
rule on notice prior to promulgation, and that it instead direct the
delivery of all resolutions to the Clerk of the Commission for
immediate promulgation. Notably, we see no prejudice to the parties
caused thereby. The COMELEC’s Order did not affect the right of the
parties to due process. They were still furnished a copy of the
COMELEC Decision and were able to reckon the period for perfecting
an appeal. In fact, petitioner was able to timely lodge a Petition with
this Court.
Clearly, the COMELEC validly exercised its constitutionally granted
power to make its own rules of procedure when it issued the 4 May
2010 Order suspending Section 6 of COMELEC Resolution No. 8696.
Consequently, the second assailed Resolution of the COMELEC
cannot be set aside on the ground of COMELEC’s failure to issue to
petitioner a notice setting the date of the promulgation thereto.
(Emphases supplied)
Thus, even if COMELEC failed to give advance notice of the
promulgation of the 04 June 2010 and 19 August 2010 Resolutions, its
failure to do so did not invalidate them.
Petitioner failed to comply with the
one-year residency requirement for
local elective officials.
Petitioner’s uncontroverted domicile of origin is Dapitan City. The
question is whether she was able to establish, through clear and
positive proof, that she had acquired a domicile of choice in
Baliangao, Misamis Occidental, prior to the May 2010 elections.
When it comes to the qualifications for running for public office,
residence is synonymous with domicile. Accordingly, Nuval v.
Guray36 held as follows:
The term ‘residence’ as so used, is synonymous with ‘domicile’ which
imports not only intention to reside in a fixed place, but also personal
presence in that place, coupled with conduct indicative of such
intention.37
There are three requisites for a person to acquire a new domicile by
choice. First, residence or bodily presence in the new locality. Second,
an intention to remain there. Third, an intention to abandon the old
domicile.38
These circumstances must be established by clear and positive proof,
as held in Romualdez-Marcos v. COMELEC39 and subsequently in
Dumpit- Michelena v. Boado:40
In the absence of clear and positive proof based on these criteria, the
residence of origin should be deemed to continue. Only with evidence
showing concurrence of all three requirements can the presumption of
continuity or residence be rebutted, for a change of residence requires
an actual and deliberate abandonment, and one cannot have two legal
residences at the same time.41
Moreover, even if these requisites are established by clear and positive
proof, the date of acquisition of the domicile of choice, or the critical
date, must also be established to be within at least one year prior to the
elections using the same standard of evidence.
In the instant case, we find that petitioner failed to establish by clear
and positive proof that she had resided in Baliangao, Misamis
Occidental, one year prior to the 10 May 2010 elections.
There were inconsistencies in the Affidavits of Acas-Yap, Yap III,
Villanueva, Duhaylungsod, Estrellada, Jumawan, Medija, Bagundol,
Colaljo, Tenorio, Analasan, Bation, Maghilum and Javier.
First, they stated that they personally knew petitioner to be an actual
and physical resident of Brgy. Tugas since 2008. However, they
declared in the same Affidavits that she stayed in Brgy. Punta Miray
while her house was being constructed in Brgy. Tugas.
Second, construction workers Yap III, Villanueva, Duhaylungsod and
Estrellada asserted that in December 2009, construction was still
ongoing. By their assertion, they were implying that six months before
the 10 May 2010 elections, petitioner had not yet moved into her
house at Brgy. Tugas.
Third, the same construction workers admitted that petitioner only June 2010 and 19 August 2010 Resolutions that she had failed to meet
visited Baliangao occasionally when they stated that "at times when the one-year residency requirement.
she (petitioner) was in Baliangao, she used to stay at the house of
Lourdes Yap while her residential house was being constructed."42 During the pendency of the case, we deemed it proper to issue an
Order dated 07 September 2010 directing the parties to observe the
These discrepancies bolster the statement of the Brgy. Tugas officials status quo before the issuance of these COMELEC Resolutions
that petitioner was not and never had been a resident of their disqualifying petitioner from the mayoralty race in Baliangao. We
barangay. At most, the Affidavits of all the witnesses only show that issued the Order, considering that petitioner, having garnered the
petitioner was building and developing a beach resort and a house in highest number of votes in the 10 May 2010 elections, had assumed
Brgy. Tugas, and that she only stayed in Brgy. Punta Miray whenever office as municipal mayor. However, with this final determination of
she wanted to oversee the construction of the resort and the her ineligibility to run for office, there is now a permanent vacancy in
house.1âwphi1 the office of the mayor of Baliangao. Hence, the vice-mayor of
Baliangao shall become its mayor in accordance with Section 44 of the
Assuming that the claim of property ownership of petitioner is true, Local Government Code.
Fernandez v. COMELEC43 has established that the ownership of a
house or some other property does not establish domicile. This WHEREFORE, premises considered, the Petition is DENIED. The
principle is especially true in this case as petitioner has failed to Status Quo Ante Order issued by this Court on 07 September 2010 is
establish her bodily presence in the locality and her intent to stay there hereby LIFTED.
at least a year before the elections, to wit:
SO ORDERED.
To use ownership of property in the district as the determinative
indicium of permanence of domicile or residence implies that the MARIA LOURDES P. A. SERENO
landed can establish compliance with the residency requirement. This Chief Justice
Court would be, in effect, imposing a property requirement to the right
to hold public office, which property requirement would be WE CONCUR:
unconstitutional.
ANTONIO T. CARPIO
Finally, the approval of the application for registration of petitioner as Associate Justice
a voter only shows, at most, that she had met the minimum residency
requirement as a voter.44 This minimum requirement is different from
that for acquiring a new domicile of choice for the purpose of running PRESBITERO J. TERESA J. LEONARDO-
for public office. VELASCO, JR. DE CASTRO
Associate Justice Associate Justice
Accordingly, in the CoC of petitioner, her statement of her eligibility
to run for office constitutes a material misrepresentation that warrants ARTURO D. BRION DIOSDADO M. PERALTA
its cancellation.45 She contends that respondent COMELEC never Associate Justice Associate Justice
made a finding that she had committed material misrepresentation. Her
contention, however, is belied by its factual determination in its 04 LUCAS P. BERSAMIN MARIANO C. DEL
 PER CURIAM:
Associate Justice CASTILLO
Associate Justice Assailed in this petition for review on certiorari1 are the Decision2
dated April 25, 2011 and the Resolution3 dated October 17, 2011 of
MARTIN S. VILLARAMA, the Court of Appeals (CA) in CA-G.R. SP. No. 113017 upholding the
ROBERTO A. ABAD
JR. validity of Search Warrant No. 09-14407.4
Associate Justice
Associate Justice
The Facts
JOSE CATRAL
JOSE PORTUGAL PEREZ
MENDOZA On July 10, 2009, the Philippine National Police (PNP), through
Associate Justice
Associate Justice Police Senior Superintendent Roberto B. Fajardo, applied with the
Regional Trial Court (RTC) of Manila, Branch50 (Manila-RTC) for a
ESTELA M. PERLAS- warrant to search three (3) caves located inside the Laud Compound in
BIENVENIDO L. REYES Purok 3, Barangay Ma-a, Davao City, where the alleged remains of the
BERNABE
Associate Justice victims summarily executed by the so-called "Davao Death Squad"
Associate Justice
may be found.5 In support of the application, a certain Ernesto
Avasola (Avasola) was presented to the RTC and there testified that he
CERTIFICATION personally witnessed the killing of six (6) persons in December 2005,
and was, in fact, part of the group that buried the victims.6
Pursuant to Section 13, Article VIII of the Constitution, I certify that
the conclusions in the above Decision had been reached in consultation Judge William Simon P. Peralta (Judge Peralta), acting as Vice
before the case was assigned to the writer of the opinion of the Court. Executive Judge of the Manila-RTC, found probable cause for the
issuance of a search warrant, and thus, issued Search Warrant No. 09-
MARIA LOURDES P. A. SERENO 144077 which was later enforced by the elements ofthe PNP-Criminal
Chief Justice Investigation and Detection Group, in coordination withthe members
of the Scene of the Crime Operatives on July 15, 2009.The search of
Republic of the Philippines the Laud Compound caves yielded positive results for the presence of
SUPREME COURT human remains.8
Manila
On July 20, 2009, herein petitioner, retired SPO4 Bienvenido Laud
FIRST DIVISION (Laud), filed an Urgent Motion to Quash and to Suppress Illegally
Seized Evidence9 premised on the following grounds: (a) Judge
G.R. No. 199032 November 19, 2014 Peralta had no authority to act on the application for a search warrant
since he had been automatically divested of his position asVice
RETIRED SP04 BIENVENIDO LAUD, Petitioner, Executive Judge when several administrative penalties were imposed
vs. against him by the Court;10 (b) the Manila-RTC had no jurisdiction to
PEOPLE OF THE PHILIPPINES, Respondent. issue Search Warrant No. 09-14407 which was to be enforced in
Davao City;11 (c) the human remains sought to be seized are not a
DECISION proper subject of a search warrant;12 (d) the police officers are
mandated to follow the prescribed procedure for exhumation of human
remains;13 (e) the search warrant was issued despite lack of probable
cause;14 (f) the rule against forum shopping was violated;15 and (g)
there was a violation of the rule requiring one specific offense and the
proper specification of the place to be searched and the articles to be
seized.16
The Manila-RTC Ruling
In an Order17 dated July 23, 2009, the Manila-RTC granted the
motion of Laud "after a careful consideration [of] the grounds alleged
[therein]." Aside from this general statement, the said Order contained
no discussion on the particular reasons from which the Manila-RTC
derived its conclusion.
Respondent, the People of the Philippines (the People), filed a Motion
for Reconsideration18 which was, however, denied in an Order19
dated December 8, 2009, wherein the Manila-RTC, this time,
articulated its reasons for the warrant’s quashal, namely: (a) the People
failed to show any compelling reason to justify the issuanceof a search
warrant by the Manila RTC which was to be implemented in Davao
City where the offense was allegedly committed, in violation of
Section 2, Rule 126 of the Rules of Court;20 (b) the fact that the
alleged offense happened almost four (4) years before the search
warrant application was filed rendered doubtful the existence of
probable cause;21 and (c) the applicant, i.e., the PNP, violated the rule
against forum shopping as the subject matter of the present search
warrant application is exactly the sameas the one contained in a
previous application22 before the RTC of Davao City, Branch 15
(Davao-RTC) which had been denied.23
Unconvinced, the People filed a petition for certioraribefore the CA,
docketed as CA-G.R. SP. No. 113017.
The CA Ruling
In a Decision24 dated April 25, 2011, the CA granted the People’s
petition and thereby annulled and set aside the Orders of the Manila-
RTC for having been tainted with grave abuse of discretion.
It held that the requirements for the issuance of a search warrant were
satisfied, pointing out that an application therefor involving a heinous
crime, such as Murder, is an exception to the compelling reasons
requirement under Section 2, Rule 126 of the Rules of Court as
explicitly recognized in A.M. No. 99-20-09-SC25 and reiterated in
A.M. No. 03-8-02-SC,26 provided that the application is filed by the
PNP, the National Bureau of Investigation (NBI), the Presidential
Anti-Organized Crime Task Force (PAOC-TF) or the Reaction
Against Crime Task Force (REACT-TF),27 with the endorsement of
its head, before the RTC of Manila or Quezon City, and the warrant be
consequently issued by the Executive Judge or Vice-Executive Judge
of either of the said courts, as in this case.28
Also, the CA found that probable cause was established since, among
others, witness Avasola deposed and testified that he personally
witnessed the murder of six (6) persons in December 2005 and was
actually part of the group that buried the victims – two bodies in each
of the three (3) caves.29 Further, it observed that the Manila-RTC
failed to consider the fear of reprisal and natural reluctance of a
witness to get involved in a criminal case, stating that these are
sufficient reasons to justify the delay attending the application of a
search warrant.30 Accordingly, it deemed that the physical evidence of
a protruding human bone in plain view in one of the caves, and
Avasola’s first-hand eye witness account both concur and point to the
only reasonable conclusion that the crime ofMurder had been
committed and that the human remains of the victims were located in
the Laud Compound.31
Finally, the CA debunked the claim of forum shopping, finding that
the prior application for a search warrant filed before the Davao-RTC
was based on facts and circumstances different from those in the
application filed before the Manila-RTC.32
Dissatisfied, Laud moved for reconsideration which was, however,
denied in a Resolution33 dated October 17, 2011,hence, this petition.
The Issues Before the Court
The issues for the Court’s resolution are as follows: (a) whether the
administrative penalties imposed on Judge Peralta invalidated Search
Warrant No. 09-14407; (b) whether the Manila-RTC had jurisdiction
to issue the said warrant despite non-compliance with the compelling
reasons requirement under Section 2, Rule126 of the Rules of Court;
(c) whether the requirements of probable cause and particular
description were complied with and the one-specific-offense rule
under Section 4, Rule 126 of the Rules of Court was violated; and (d)
whether the applicant for the search warrant,i.e., the PNP, violated the
rule against forum shopping.1âwphi1
The Court's Ruling
The petition has no merit.
A. Effect of Judge Peralta’s Administrative Penalties.
Citing Section 5, Chapter III of A.M. No. 03-8-02-SC which provides
that "[t]he imposition upon an Executive Judge or Vice-Executive
Judge of an administrative penalty of at least a reprimand shall
automatically operate to divest him of his position as such,"Laud
claims that Judge Peralta had no authority to act as Vice-Executive
Judge and accordingly issue Search Warrant No. 09-14407 in view of
the Court’s Resolution in Dee C. Chuan & Sons, Inc. v. Judge
Peralta34 wherein he was administratively penalized with fines of
₱15,000.00 and ₱5,000.00.35
While the Court does agree that the imposition of said administrative
penalties did operate to divest Judge Peralta’s authority to act as
ViceExecutive Judge, it must be qualified thatthe abstraction of such
authority would not, by and of itself, result in the invalidity of Search
Warrant No. 09-14407 considering that Judge Peralta may be
considered to have made the issuance as a de facto officer whose acts
would, nonetheless, remain valid.
Funa v. Agra36 defines who a de factoofficer is and explains that his
acts are just as valid for all purposes as those of a de jureofficer, in so
far as the public or third persons who are interested therein are
concerned, viz.:
A de facto officer is one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face. He may also be one who is in
possession of an office, and is discharging [his] duties under color of
authority, by which is meant authority derived from an appointment,
however irregular or informal, so that the incumbent is not a mere
volunteer. Consequently, the acts of the de factoofficer are just as valid
for all purposes as those of a de jure officer, in so far as the public or
third persons who are interested therein are concerned.37
The treatment of a de factoofficer’s acts is premised on the reality that
third persons cannot always investigate the right of one assuming to
hold an important office and, as such, have a right to assume that
officials apparently qualified and in office are legally such.38 Public
interest demands that acts of persons holding, under color of title, an
office created by a valid statute be, likewise, deemed valid insofar as
the public – as distinguished from the officer in question – is
concerned.39 Indeed, it is far more cogently acknowledged that the de
factodoctrine has been formulated, not for the protection of the de
facto officer principally, but rather for the protection of the public and
individuals who get involved in the official acts of persons discharging
the duties of an office without being lawful officers.40
In order for the de facto doctrine to apply, all of the following
elements must concur: (a) there must be a de jureoffice; (b) there must
be color of right or general acquiescence by the public; and (c) there
must be actual physical possession of the office in good faith.41
The existence of the foregoing elements is rather clear in this case.
Undoubtedly, there is a de jureoffice of a 2nd Vice-Executive Judge.
Judge Peralta also had a colorable right to the said office as he was
duly appointed to such position and was only divested of the same by
virtue of a supervening legal technicality – that is, the operation of
Section 5, Chapter III of A.M. No. 03-8-02-SC as above-explained;
also, it may be said that there was general acquiescence by the public
since the search warrant application was regularly endorsed to the sala
of Judge Peralta by the Office of the Clerk of Court of the Manila-
RTC under his apparent authority as 2nd Vice Executive Judge.42
Finally, Judge Peralta’s actual physical possession of the said office is
presumed to bein good faith, as the contrary was not established.43
Accordingly, Judge Peralta can be considered to have acted as a de
factoofficer when he issued Search Warrant No. 09-14407, hence,
treated as valid as if it was issued by a de jureofficer suffering no
administrative impediment.
B. Jurisdiction of the Manila-RTC to Issue Search Warrant No. 09-
14407; Exception to the Compelling Reasons Requirement Under
Section 2, Rule 126 of the Rules of Court.
Section 12, Chapter V of A.M.No. 03-8-02-SC states the requirements
for the issuance of search warrants in special criminal cases by the
RTCs of Manilaand Quezon City. These special criminal cases pertain
to those "involving heinous crimes, illegal gambling, illegal possession
of firearms and ammunitions, as well as violations of the
Comprehensive Dangerous Drugs Act of 2002, the Intellectual
Property Code, the Anti-Money Laundering Act of 2001, the Tariff
and Customs Code, as amended, and other relevant laws that may
hereafter be enacted by Congress, and included herein by the Supreme
Court." Search warrant applications for such cases may befiled by "the
National Bureau of Investigation (NBI), the Philippine National
Police(PNP) and the AntiCrime Task Force (ACTAF)," and
"personally endorsed by the heads of such agencies." As in ordinary
search warrant applications, they "shall particularly describe therein
the places to be searched and/or the property or things to be seized as
prescribed in the Rules of Court." "The Executive Judges [of these
RTCs] and,whenever they are on official leave of absence or are not
physically present in the station, the Vice-Executive Judges" are
authorized to act on such applications and "shall issue the warrants, if
justified, which may be served in places outside the territorial
jurisdiction of the said courts."
The Court observes that all the above-stated requirements were
complied with in this case.
As the records would show, the search warrant application was filed
before the Manila-RTC by the PNP and was endorsed by its head, PNP
Chief Jesus Ame Versosa,44 particularly describing the place to be
searched and the things to be seized (as will be elaborated later on) in
connection with the heinous crime of Murder.45 Finding probable
cause therefor, Judge Peralta, in his capacity as 2nd Vice-Executive
Judge, issued Search Warrant No. 09-14407 which, as the rules state,
may be served in places outside the territorial jurisdiction of the said
RTC.
Notably, the fact that a search warrant application involves a "special
criminal case" excludes it from the compelling reason requirement
under Section 2, Rule 126 of the Rules of Court which provides:
SEC. 2. Court where application for search warrant shall be filed. —
An application for search warrant shall be filed with the following:
a) Any court within whose territorial jurisdiction a crime was
committed.
b) For compelling reasons stated in the application, any court
within the judicial region where the crime was committed if the
place of the commission of the crime isknown, or any court
within the judicial region where the warrant shall be enforced.
However, if the criminal action has already been filed, the application
shall only be made in the court where the criminal action is pending.
(Emphasis supplied)
As explicitly mentioned in Section 12, Chapter V of A.M. No. 03-8-
02-SC, the rule on search warrant applications before the Manila and
Quezon City RTCs for the above-mentioned special criminal cases
"shall be an exception to Section 2 of Rule 126 of the Rules of Court."
Perceptibly, the fact that a search warrant is being applied for in
connection with a special criminal case as above-classified already
presumes the existence of a compelling reason; hence, any statement
to this effect would be super fluous and therefore should be dispensed
with. By all indications, Section 12, Chapter V of A.M. No. 03-8-02-
SC allows the Manila and Quezon City RTCs to issue warrants to be
servedin places outside their territorial jurisdiction for as long as the
parameters under the said section have been complied with, as in this
case. Thus, on these grounds, the Court finds nothing defective in the
preliminary issuance of Search Warrant No. 09-14407. Perforce, the
RTC-Manila should not have overturned it.
C. Compliance with the Constitutional Requirements for the Issuance
of Search Warrant No. 09-14407 and the One-SpecificOffense Rule
Under Section 4, Rule 126 of the Rules of Court.
In order to protect the people’s right against unreasonable searches and
seizures, Section 2, Article III of the 1987 Philippine Constitution
(Constitution) provides that no search warrant shall issue except upon
probable causeto be determined personally by the judgeafter
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized:
SEC. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to besearched and the persons or
things to be seized.
Complementarily, Section 4, Rule 126 of the Rules of Court states that
a search warrant shall not be issued except upon probable cause in
connection with one specific offense:
SEC. 4. Requisites for issuing search warrant. - A search warrant shall
not issue except upon probable cause in connection with one specific
offenseto be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the
things to be seized which may be anywhere in the Philippines.
(Emphasis supplied)
In this case, the existence of probable cause for the issuance of Search
Warrant No. 09-14407 is evident from the first-hand account of
Avasola who, in his deposition, stated that he personally witnessed the
commission of the afore-stated crime and was, in fact, part of the
group that buried the victims:
Q9-Who are these six (6) male victims who were killed and buried in
the caves in December 2005 at around 9:00 p.m.?
A9-I heard Tatay Laud calling the names of the two victims when they
were still alive as Pedro and Mario. I don’t know the names of the
other four victims.
Q10-What happened after Pedro, Mario and the other four victims
were killed?
A10-Tatay Laud ordered me and the six (6) killers to bring and bury
equally the bodies inthe three caves. We buried Pedro and Mario
altogether in the first cave, located more or less 13 meters from the
makeshift house of Tatay Laud, the other two victims in the second
cave and the remaining two in the third cave.
Q11-How did you get there at Laud Compound in the evening of
December 2005?
A11-I was ordered by Tatay Laud to go [to] the place. I ran errands
[for] him.46
Avasola’s statements in his deposition were confirmed during the
hearing on July 10, 2009, where Judge Peralta conducted the following
examination:
Court: x x x Anong panandaan mo? Nandoon ka ba noong naghukay,
nakatago o kasama ka?
Mr. Avasola: Kasama po ako sa pagbuhat ng mga tao, sir.
Court: Mga ilang katao?
Mr. Avasola: Anim (6) po.
Court: May mass grave ba na nahukay?
Mr. Avasola: May tatlong kweba po na maliliit yung isa malaki. x x
x.47
Verily, the facts and circumstancesestablished from the testimony of
Avasola, who was personally examined by Judge Peralta, sufficiently
show that more likely than not the crime of Murder of six (6) persons
had been perpetrated and that the human remains in connection with
the same are in the place sought to be searched. In Santos v. Pryce
Gases, Inc.,48 the Court explained the quantum of evidence necessary
to establish probable cause for a search warrant, as follows:
Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discrete and prudent
man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place sought to be
searched. A finding of probable cause needs only torest on evidence
showing that, more likely than not, a crime has been committed and
that it was committed by the accused. Probable cause demands more
than bare suspicion; it requires less than evidence which would justify
conviction. The existence depends to a large degree upon the finding
or opinion of the judge conducting the examination. However, the
findings of the judge should not disregard the facts before him nor run
counter to the clear dictates of reason.49
In light of the foregoing, the Court finds that the quantum of proof to
establish the existence of probable cause had been met. That a
"considerable length of time" attended the search warrant’s application
from the crime’s commission does not, by and of itself, negate the
veracity of the applicant’s claims or the testimony of the witness
presented. As the CA correctly observed, the delay may be accounted
for by a witness’s fear of reprisal and natural reluctance to get
involved in a criminal case.50 Ultimately, in determining the existence
of probable cause, the facts and circumstances must be personally
examined by the judge in their totality, together with a judicious
recognition of the variable complications and sensibilities attending a
criminal case. To the Court’s mind, the supposed delay in the search
warrant’s application does not dilute the probable cause finding made
herein. In fine, the probable cause requirement has been sufficiently
met.
The Court similarly concludes that there was compliance with the
constitutional requirement that there be a particular description of "the
place to be searched and the persons or things to be seized."
"[A] description of a place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the
place intended and distinguish it from other places in the community.
Any designation or description known to the locality that points out
the place to the exclusion of all others, and on inquiry leads the
officers unerringly to it, satisfies the constitutional requirement."51
Search Warrant No. 09-14407 evidently complies with the foregoing
standard since it particularly describes the place to be searched,
namely, the three (3) caves located inside the Laud Compound in
Purok 3, Barangay Maa, Davao City:
You are hereby commanded to makean immediate search at any time
[of] the day of the premises above describe[d] particularly the three (3)
caves (as sketched) inside the said Laud Compound, Purok 3, Brgy.
Ma-a, Davao Cityand forthwith seize and take possession of the
remains of six (6) victims who were killed and buried in the just said
premises.
x x x x52 (Emphases supplied)
For further guidance in its enforcement, the search warrant even made
explicit reference to the sketch53 contained in the application. These,
in the Court’s view, are sufficient enough for the officers to, with
reasonable effort, ascertain and identify the place to be searched,
which they in fact did.
The things to be seized were also particularly described, namely, the
remains of six (6) victims who were killed and buried in the aforesaid
premises. Laud’s posturing that human remains are not "personal
property" and, hence, could not be the subject of a search warrant
deserves scant consideration. Section 3, Rule 126 of the Rules of Court
states:
SEC. 3.Personal property to be seized. – A search warrant may be
issued for the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the
offense; or
(c) Used or intended to be used as the means of committing an
offense. (Emphases supplied) "Personal property" in the
foregoing context actually refers to the thing’s mobility, and
not to its capacity to be owned or alienated by a particular
person. Article416 of the Civil Code,54 which Laud himself
cites,55 states that in general, all things which can be
transported from place to place are deemed to be personal
property. Considering that human remains can generally be
transported from place toplace, and considering further that
they qualify under the phrase "subject of the offense" given
that they prove the crime’s corpus delicti,56 it follows that they
may be valid subjects of a search warrant under the above-cited
criminal procedure provision. Neither does the Court agree
with Laud’s contention that the term "human remains" is too
all-embracing so as to subvert the particular description
requirement. Asthe Court sees it, the description points to no
other than the things that bear a direct relation to the offense
committed, i.e., of Murder. It is also perceived that the
description is already specific as the circumstances would
ordinarily allow given that the buried bodies would have
naturally decomposed over time. These observations on the
description’s sufficient particularity square with the Court’s
pronouncement in Bache and Co., (Phil.), Inc. v. Judge Ruiz,57
wherein it was held:
A search warrant may be said to particularly describe the things to be
seized when the description therein is as specific as the circumstances
will ordinarily allow(People v. Rubio, 57 Phil. 384 [1932]); or when
the description expresses a conclusion of fact — not of law — by
which the warrant officer may be guided in making the search and
seizure (idem., dissent of Abad Santos, J.); or when the things
described are limited to those which bear direct relation to the offense
for which the warrant is being issued(Sec. 2, Rule 126, Revised Rules
of Court) x x x If the articles desired to be seized have any direct
relation to an offense committed, the applicant must necessarily have
some evidence, other than those articles, to prove the said offense; and
the articles subject of search and seizure should come in handy merely
to strengthen such evidence. (Emphases supplied)58
Consequently, the Court finds that the particular description
requirement – both as to the place to be searched and the things to be
seized – had been complied with.
Finally, the Court finds no violation of the one-specific-offense rule
under Section 4, Rule 126 of the Rules of Court as above-cited which,
to note, was intended to prevent the issuance of scattershot warrants,
or those which are issued for more than one specific offense. The
defective nature of scatter-shot warrants was discussed in the case of
People v. CA59 as follows: There is no question that the search
warrant did not relate to a specific offense, in violation of the doctrine
announced in Stonehill v. Diokno and of Section 3 [now, Section 4] of
Rule 126 providing as follows:
SEC. 3. Requisites for issuing search warrant.— A search warrant
shall not issue but upon probable cause in connection with one specific
offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the
things to be seized. Significantly, the petitioner has not denied this
defect in the search warrant and has merely said that there was
probable cause, omitting to continue that it was in connection withone
specific offense. He could not, of course, for the warrant was a scatter-
shot warrant that could refer, in Judge Dayrit’s own words, "to
robbery, theft, qualified theft or estafa." On this score alone, the search
warrantwas totally null and void and was correctly declared to be so by
the very judge who had issued it.60
In Columbia Pictures, Inc. v. CA,61 the Court, however, settled that a
search warrant that covers several counts of a certain specific offense
does not violate the one-specific-offense rule, viz.:
Finally, and more importantly, the places to be searched were different
– that inManila sought the search of the Laud Compound caves, while
that in Davao was for a particular area in the Laud Gold Cup Firing
Range. There being no identity of facts and circumstances between the
two applications, the ruleagainst forum shopping was therefore not
violated.

That there were several counts of the offenseof copyright infringement Thus, for all the above-discussed reasons, the Court affirms the CA
and the search warrant uncovered several contraband items in the form Ruling which upheld the validity of Search Warrant No. 09-14407.
of pirated video tapes is not to be confused with the number of
offenses charged. The search warrant herein issued does not violate the WHEREFORE, the petition is DENIED. The Decision dated April 25,
one-specific-offense rule. (Emphasis supplied)62 2011 and the Resolution dated October 17, 2011 of the Court of
Appeals in CA-G.R. SP. No. 113017 are hereby AFFIRMED.
Hence, given that Search Warrant No. 09-14407 was issued only for
one specific offense – that is, of Murder, albeit for six (6) counts – it SO ORDERED.
cannot be said that Section 4, Rule 126 of the Rules of Court had been
violated. MARIA LOURDES P.A. SERENO
Chief Justice
That being said, the Court now resolves the last issue on forum Chairperson
shopping.
PRESBITERO J. VELASCO, JR.*
D. Forum Shopping. Associate Justice

TERESITA J. LEONARDO-
JOSE PORTUGAL PEREZ
DE CASTRO
There is forum shopping when a litigant repetitively avails of several Associate Justice
Associate Justice
judicial remedies in different courts, simultaneously or successively,
all substantially founded on the same transactions and the same ESTELA M. PERLAS-BERNABE
essential facts and circumstances, and all raising substantially the same Associate Justice
issues either pending in or already resolved adversely by some other
court to increase his chances of obtaining a favorable decision if not in CERTIFICATION
one court, then in another.63
Pursuant to Section 13, Article VIII of the Constitution, I certify that
Forum shopping cannot be said to have been committed in this case the conclusions in the above Decision had been reached in consultation
considering the various points of divergence attending the search before the case was assigned to the writer of the opinion of the Court's
warrant application before the Manila-RTC and that before the Davao- Division.
RTC. For one, the witnesses presented in each application were
different. Likewise, the application filed in Manila was in connection
with Murder, while the one in Davao did not specify any crime.
MARIA LOURDES P.A. SERENO
Chief Justice
EN BANC
[G.R. No. 154674. May 27, 2004]
THE CIVIL SERVICE COMMISSION, petitioner, vs. FELICISIMO
O. JOSON, JR., in his capacity as former Administrator of the
Philippine Overseas Employment Administration (POEA), respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1[1] of the
Court of Appeals dated August 12, 2002 reversing Resolution No.
002778 of the Civil Service Commission (CSC) which denied the
respondents request for payment of the salary of Priscilla Ong, as
Executive Assistant IV in the Office of the Philippine Overseas
Employment Administrator (POEA) for the period of July 1, 1995 to
October 31, 1995.
The antecedents are as follows.
On July 1, 1995, Respondent Felicisimo O. Joson, Jr., then
Administrator of the Philippine Overseas Employment Administration
(POEA) appointed Priscilla Ong as Executive Assistant IV in his
office under a contractual status. The appointment was made after the
Department of Budget and Management (DBM) thru Director Miguel
B. Doctor2[2] approved his request for the creation of a contractual
position of Executive Assistant IV at the Office of the POEA
Administrator, effective not earlier than July 1, 1995.
Penned by Justice Perlita J. Tria Tirona with Associate Justices
1[1]
Buenaventura J. Guerrero and Rodrigo V. Cosico concurring.
2[2] Rollo, p. 48.
Subsequently, respondent Joson wrote the CSC requesting exemption
from the rule requiring appointees to confidential staff positions to
meet the prescribed educational qualification.3[3] The educational
requirement for the position of Executive Assistant is a Bachelors
degree relevant to the job4[4] and Priscilla Ong was not a college
degree holder.
Acting upon this request, the petitioner CSC issued Resolution No.
956978 on November 2, 1995, approving the appointment of Ong
under a Coterminous Temporary status:
In this case, it is clear that Ong does not meet the educational
qualification for the position of Executive Assistant IV. However,
considering that Ong has to her credit 65 units leading to a Bachelors
degree and that the said position is coterminous with the appointing
authority and belongs to his confidential/personal staff, the proposed
appointment of Ong may be allowed under Coterminous Temporary
status.
WHEREFORE, the instant request of Administrator Felicisimo O.
Joson, Jr. is hereby granted. Accordingly, the appointment of Priscilla
E. Ong to the position of Executive Assistant IV, POEA, may be
approved under Coterminous Temporary status.5[5]
However, on February 6, 1996, Director Nelson Acebedo of the CSC
National Capital Region (NCR) issued a post audit report on the
Item 9(c), Part II, Memorandum Circular No. 38, Series of 1993
3[3]
which reads:
Appointees to confidential/personal staff must meet only the
educational requirements prescribed under CSC MC #14, s. 1993. The
civil service eligibility, experience, training and other requirements are
dispensed with.
4[4] Rollo, p. 33.
5[5] Id. at 34.
issuance of Ongs appointment made on July 1, 1995, and invalidated
the same. A motion for reconsideration was filed, stressing, among
others, that the Department of Budget Management (DBM) allowed
the POEA to create such a position not earlier than July 1, 1995 and
that no less than the petitioner itself approved the appointment under a
coterminous temporary status. Upon the instructions of Director
Acebedo, the effectivity of Ongs appointment was changed from July
1, 1995 to November 2, 1995.6[6]
Considering the said adjustment in the effectivity date of Ongs
appointment, the respondent then requested approval for the payment
of her salary for services rendered for the period of July 1, 1995 to
October 31, 1995.
The petitioner denied the request for the payment of Ongs salary in
Resolution No. 974094 dated October 16, 1997.7[7] Citing Rep. Act
No. 7430 also known as the Attrition Law which, in part, states that no
appointment shall be made to fill up a vacancy unless an authority has
been granted by it,8[8] the petitioner posited that the authority to fill the
position was granted only on November 2, 1995 when it issued CSC
Resolution No. 956978. The request for the payment of salary referred
to the period prior to the date of authority to fill the position; such
claim cannot, therefore, be allowed. The petitioner concluded that, as
the appointing authority, it is the respondent who shall be personally
liable for the payment of salaries as provided in Item 5(a), Part I, CSC
MC No. 38, s. 1993, which states:
5. Liability of Appointing Authority and Other Officers
a. The appointing authority shall be personally liable for
the salary of appointees whose appointments have been
6[6] Id. at 35.
7[7] Id. at 35-37.
8[8] Id. at 36.
disapproved for violation of pertinent laws such as RA
7041 and RA 7430. 9[9]
The respondent filed a motion for reconsideration, averring that Ong
was appointed to a newly-created position which does not require any
such authority from the petitioner. The respondent emphasized in his
motion that the DBM approved the creation of the position for Ong.
He asserted that, if at all, it is the POEA who should be liable under
the principle of quantum meruit since the latter was the one benefited.
Thus:
Admittedly, the herein movant requested an Authority to fill the said
position which was not necessary under the premise since the position
involved was a newly created position. In the first place, the
Department of Budget and Management through the Director of CPCB
granted the request for the creation of said position due to the dire
need and necessity of said provision. POEA could not have
transgressed any provision of RA 7430 and its implementing rules
when POEA appointed Ms. Ong to the said newly created position on
July 1, 1995.
POEA should pay Ms. Ong for her services since POEA was the one
benefited not the herein movant in his personal capacity. The principle
of quantum meruit dictates that not only is the one who rendered
services who should paid (sic) but equally important, is that the one
benefited from such services must be the one who should pay the
services. If the herein movant would be made personally liable to pay
for her services, just the same, it is tantamount to unjust enrichment on
the part of the government at the movants expense10[10]
On June 8, 1998, the petitioner issued Resolution No. 981399 denying
the respondents motion for reconsideration.11[11] It affirmed its ruling
9[9] Id. at 37
10[10] Id. at 39.
11[11] Id. at 38-41.
that the effectivity date of Ongs appointment should be reckoned from
November 2, 1995 when it granted the authority to the respondent to
fill the position, and not July 1, 1995 as asserted by the respondent. It
also declared that Ongs appointment was not included in the POEAs
Report on Personnel Action (ROPA) submitted to the petitioner for the
month of July 1995:
POEA, as an accredited agency is mandated by CSC rules to submit
within fifteen (15) days of each ensuing month to the Civil Service
Regional office of Field Office concerned two copies of Monthly
Report on Personnel Action, together with certified true copy of
appointments acted upon (Item, 2.2.7, Rule V, CSC Memorandum
Circular No. 27, s. 1994). In the instant case, POEA failed to comply
with this rule when it did not include the appointment of Ong in its
July ROPA.12[12]
The petitioner also held that the POEA only submitted Ongs
appointment in its ROPA for the month of November 1995. Such
belated report rendered the appointment in July ineffective.13[13] The
petitioner concluded that there was clearly no legal basis for the
payment of Ongs salary prior to November 2, 1995, and that the
principle of quantum meruit invoked by the respondent was not
applicable.
The respondent moved for a clarification of CSC Resolution No.
981399, pointing out that the petitioner did not rule on the matter of
POEAs alleged violation of the Attrition Law, particularly on the
failure to secure prior authority to fill. The respondent asserted that the
POEAs alleged failure to include the proposed appointment of Ong in
12[12] Id. at 40.
Rule V, Item 2.2.9 of the Implementing Guidelines in the CSC
13[13]
Accreditation Program reads as follows:
That appointment issued within the month but not listed in the ROPA
for the said month shall become ineffective thirty days from issuance.
(Rollo, p. 40.)
its July 1995 ROPA was justified because Ongs appointment was still
the subject of a request for exemption from the requirement of
Memorandum Circular (MC) No. 38, s. 1993. The respondent received
CSC Resolution No. 956978 approving Ongs appointment under a
coterminous temporary status only on November 5, 1995; hence, the
appointment was included only in the November ROPA. The
respondent pointed out that the task and duty of preparing and
submitting the monthly ROPA lies with the officials of the Personnel
Department of the POEA. Finally, the respondent averred, if there was,
indeed, a failure to comply with the CSC Circular No. 27, Series of
1994, it would be quite unfair and unjust for the petitioner to order the
respondent to pay the salary of Ong out of his (the respondents)
personal funds.
The petitioner denied the motion of the respondent in Resolution No.
991839 dated August 17, 1999. It held that the respondent as the
appointing authority, was accountable for all the appointments he
issued; he cannot, thus, hide behind the mistakes of his subordinates.
The petitioner also reiterated its ruling that the appointment of Ong
was made in violation of the CSC Law and its rules. As such, the
respondent must assume responsibility for the payment of Ongs salary.
Thus:
WHEREFORE, the CSC Resolution No. 981399 dated June 8, 1998 is
hereby clarified. Accordingly, the payment of salaries, benefits and
other emoluments from July 1, 1995 to October 30, 1995 of Priscilla
Ong, whose appointment was in violation of R.A. 7430 (Attrition
Law), shall be the personal liability of then Administrator Felicisimo
O. Joson.14[14]
The respondent filed a motion for reconsideration of the resolution.
The petitioner treated the pleading as a second motion for
reconsideration, and denied the same in Resolution No. 001956 dated
August 30, 2000, in this wise:
14[14] Rollo, p. 45.
WHEREFORE, the second Motion for Reconsideration of Felicisimo
O. Joson, Jr. is hereby DENIED. Accordingly, the CSC Resolution No.
974094 dated October 16, 1997 stands.15[15]
The petitioner filed another motion seeking for the reconsideration of
the CSC Resolution No. 991839 pointing out that Ong may be
considered a de facto public officer who is entitled to the payment of
salaries for actual services rendered. The CSC outrightly denied the
motion in CSC Resolution No. 002778 dated December 13, 2000:
WHEREFORE, the instant motion for reconsideration is hereby
DENIED for lack of merit. Consequently, CSC Resolution No. 991839
dated August 17, 1999 stands. This case is considered closed and
terminated.16[16]
Unfazed, the respondent appealed the CSC resolutions to the Court of
Appeals. On August 12, 2002, the CA rendered the assailed judgment
in favor of herein respondent, ruling that Ong was considered a de
facto officer and is entitled to the payment of her salary. The
dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, the instant petition for
review is hereby GRANTED. Resolution No. 002778 dated 13
December 2000 rendered by public respondent Civil Service
Commission, denying payment of Miss Priscilla Ongs compensation
from 1 July 1995 to 31 October 1995, is hereby SET ASIDE.17[17]
Hence, this petition for review on certiorari raising the lone issue that:
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT PRISCILLA ONG IS ENTITLED TO PAYMENT OF
15[15] Id. at 47.
16[16] Id. at 50.
17[17] Id. at 32.
HER SALARIES FROM THE GOVERNMENT FOR BEING A
DE FACTO OFFICER.
The petitioner maintains that Ong cannot be entitled to the payment of
salary prior to November 2, 1995 because of the following: (a) Ong
did not possess the necessary qualification for the position; (b) her
appointment was made in violation of the Civil Service Law and its
rules; (c) there was no prior authority to appoint, in violation of Rep.
Act No. 7430; and, (d) the appointment was not reported in the July
ROPA, making such appointment ineffective.
We rule for the respondent.
The records show that the position of Executive Assistant IV in the
POEA Administrators office was created with the approval of the
DBM on July 1, 1995. This was pursuant to a request made by the
respondent for a position in his office under a contractual status. It is
quite apparent that the respondent intended the position for his
confidential assistant, Priscilla Ong, whom he considered efficient and
competent on the job, albeit without a college degree. The respondent
was aware of the appointees lack of qualification which is precisely
the reason why he requested for an exemption from the requirements
of the MC No. 38 s. 1993, particularly on the educational requirement
of appointees to confidential staff positions.
On November 2, 1995, the petitioner granted the respondents request
and stated that the appointment of Ong may be approved under a
coterminous temporary status.18[18]
Chapter II, Section 6 (2) of the Civil Service Law provides that
18[18]
service in the government is classified under career or non-career.
Section 9. Non-Career Service. - The Non-Career Service shall be
characterized by (1) entrance on bases other than those of the usual
tests of merit and fitness utilized for the career service; and (2) tenure
which is limited to a period specified by law, or which is coterminous
with that of the appointing authority or subject to his pleasure, or

which is limited to the duration of a particular project for which
purpose employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personnel or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their
positions at the pleasure of the President and their personal or
confidential staff(s);
(3) Chairmen and members of commissions and boards with fixed
terms of office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the
government is in accordance with a special contract to undertake a
specific work or job, requiring special or technical skills not available
in the employing agency, to be accomplished within a specific period,
which in no case shall exceed one year, and performs or accomplishes
the specific work or job, under his own responsibility with a minimum
of direction and supervision from the hiring agency;
(5) Emergency and seasonal personnel.
Sec. 27. Employment Status. - Appointment in the career service shall
be permanent or temporary.
1) Permanent appointment. A permanent appointment shall be
issued to a person who meets all the requirements for the position to
which he is being appointed, including the appropriate eligibility
prescribed, in accordance with the provisions of law, rules and
standards promulgated in pursuance thereof.
2) Temporary appointment. In the absence of appropriate eligibles
and it becomes necessary ion the public interest to fill a vacancy, a
temporary appointment shall be issued to a person who meets all the
requirements for the position to which he is being appointed except the
appropriate civil service eligibility: Provided, That such temporary
The task of the petitioner is to insure that the appointee has all the
qualifications for the position; otherwise it disapproves the
appointment.19[19] In this case, the petitioner approved the appointment
of Ong under a coterminous temporary status; coterminous, because
the appointment shall only be during the tenure of the appointing
power; and temporary, because the appointee did not meet all the
requirements for the position. As such, the appointment could be
recalled anytime. The petitioner took into account the fact that Ong
was then enrolled in CAP College, Makati City and had 65 units
credited to her leading to a four-year course in Bachelor of Science in
Business Administration, and that she just needed 61 units more to
complete the same.
Under Section 4, Rule V of the Omnibus Rules, Ongs appointment is
in order, viz:
Except as otherwise provided herein, a person who meets all the
requirements of the position including the appropriate civil service
eligibility shall be appointed to a position in the first and second
levels. However, when the immediate filling of a vacancy becomes
necessary, taking into account the public interest, and a person with
an appropriate civil service eligibility is not actually and immediately
available, a person without the appropriate civil service eligibility but
appointment shall not exceed twelve months, but the appointee may be
replaced sooner if a qualified civil service eligible becomes available.
Section 14. An appointment may also be coterminous which shall be
issued to a person whose entrance and continuity in the service is
based on the trust and confidence of the appointing authority or that
which is subject to his pleasure, or co-existent with his tenure, or
limited by the duration of project or subject to the availability of funds.
(Rule V, of the Rules Implementing Book V of Executive Order No.
292 and other pertinent Civil Service Laws).
who meets the other requirements of the position may be appointed.
His appointment shall be temporary for a period of not more than
twelve (12) months and he may be replaced at any time with one who
has an appropriate civil service eligibility.
In approving the appointment of Ong, the petitioner took into account
the exigency and urgency of filling up the position of Executive
Assistant, as embodied in the letter of the respondent for exemption
from MC No. 38:
Our request for exemption from MC # 38 series of 1993 is anchored
on the fact that I have no regular holder of an Executive Assistant,
although it is included in the POEA budget. As earlier mentioned in
our letter-request, as the administrationship of POEA keeps on
changing, the Executive Assistant post remains attached to another
employee who can not be asked to vacate the post because of the
security of tenure of the incumbent at the time the Executive Assistant
post was declared confidential in nature. We recognize and support the
reason behind the promulgation of CSC MC # 38 series 1993.
However, please consider the circumstances behind this request for
exemption. Ms. Ong has been the holder of the position since my
appointment last July 1992 under the Ramos government.
May I reiterate that the position of Ms. Ong is temporary in nature and
co-terminous with my term. Moreover, she is now enrolled at the CAP
College taking up BS in Business Administration.20[20]
The respondent reiterated the urgency of Ongs appointment in his
letter-request for the payment of Ongs salary:
Please note that the Office of the Administrator is the center of all
communications coming in and out of POEA as well as the focal point
of all major activities whether internal or external concerns. As such,
the smooth operations of this office would not have been possible
without the able and dedication of Ms. Ong who faithfully discharged
her gargantuan duties as Executive Assistant to the highest official of
POEA. It would be an injustice to Ms. Ong if she is not properly
compensated for a job very well done especially in such a sensitive
position.21[21]
With the foregoing, it can not be said that for want of a college degree
as required under MC No. 38, s. 1993 for confidential/personal
positions, Ongs appointment was in contravention of the CSC Law and
its rules. While it is conceded that the respondent intended the
appointment of Ong to be contractual only, the petitioner approved the
same in Resolution No. 956978, under a Coterminous-Temporary
status. The appointment of Ong on July 1, 1995, is, therefore, valid.
We reject the petitioners contention that Ongs appointment was invalid
since the respondent appointed her to the position without first
securing an authority to fill as mandated by the second to the last
paragraph of Section 3 of Rep. Act No. 7430. The said provision
reads:
SECTION 3. Attrition. Within five (5) years from the approval of the
Act, no appointment shall be made to fill vacated positions in any
government office as a result of resignation, retirement, dismissal,
death or transfer to another office of an officer or employee:
Provided, however, That this prohibition shall not apply in the
following instances:
(a) Where the position is head of a primary organic unit
such as chief of division;
(b) Where the position is the lone position in the
organizational unit and it corresponds to a particular
expertise that is intrinsic to the desired basic capability
of the unit concerned;
 (c) Where the positions are basic positions for the initial
operations of newly created or activated agencies or, in
the case of other agencies, where the positions are vital
and necessary for the continued and efficient operation
of said agencies;
(d) Where the positions are difficult to fill considering the
qualifications required therefore, as in the case of
doctors, lawyers and other professionals;
(e) Where the positions are found in agencies declared to be
understaffed;
(f) Positions in Congress or in the Judiciary;
(g) Appointments or designations extended by the President;
(h) Where the positions are found in local government units;
(i) Teaching personnel; and
(j) Where the replacement come from existing employees.
Provided, further, That the exemptions from this prohibition shall
require authorization by the Civil Service Commission; Provided,
finally, That no appointment shall be issued by the appointing
authority nor approved by the Civil Service Commission without said
authorization.22[22]
Appointments made in violation of this Act shall be null and void.
In CSC Resolution No. 974094, the petitioner denied the respondents
motion for the POEA to pay Ongs salary based on the second to the
last paragraph of Section 3, viz:
The Commission further finds no merit in the request because of the
mandatory provision of Republic Act 7430 (Attrition Law) which
states as follows:
No appointment shall be made to fill up a vacancy unless an authority
has been granted by the Commission.23[23]
But even a cursory reading of Section 3 of Rep. Act No. 7430 will
readily show that it applies only to appointments to fill vacant position
in a government office as a result of resignation, retirement, dismissal,
death, or transfer to another office of an officer or employee within
five years from the approval of the law. Under the law, attrition is
defined as the reduction of personnel as a result of resignation,
retirement, dismissal in accordance with existing laws, death or
transfer to another office.24[24]
The appointment of Ong to the position of the Executive Assistant IV
in the Office of the respondent is not covered by Rep. Act No. 7430
because Ong was appointed to a newly-created position as part of the
confidential/personal staff of the respondent. The position was
approved by the DBM. The petitioner attested the appointment as
coterminous temporary. The position to which Ong was appointed was
not rendered vacant as a result of the resignation, retirement, dismissal,
death or transfer of an employee to another office, as provided by the
law. Thus, the petitioner cannot argue that the respondent violated the
Attrition Law in appointing Ong.
The law must not be read in truncated parts; its provisions must be
read in relation to the whole law. It is the cardinal rule in statutory
construction that a statutes clauses and phrases must not be taken as
detached and isolated expressions, but the whole and every part
thereof must be considered in fixing the meaning of any of its parts in
order to produce a harmonious whole.25[25] Every part of the statute
must be interpreted with reference to the context, i.e., that every part of
the statute must be considered together with other parts of the statute
and kept subservient to the general intent of the whole enactment.26[26]
We find the respondents justification for the failure of the POEA to
include Ongs appointment in its ROPA for July 1995 as required by
CSC Memorandum Circular No. 27, Series of 1994 to be in order. The
records show that the POEA did not include the contractual
appointment of Ong in its July ROPA because its request for
exemption from the educational requisite for confidential staff
members provided in MC No. 38 had yet been resolved by the CSC.
The resolution of the petitioner granting such request was received
only in November, 1995. The POEA, thereafter, reported the
appointment in its November, 1995 ROPA.
Having been validly appointed to the position of Executive Assistant
IV in the Office of the respondent, Ong is a de jure officer and not a de
facto officer as held by the Court of Appeals. The broad definition of
what constitutes an officer de facto was formulated by Lord Holt in
Parker v. Kent,27[27] and reiterated by Lord Ellenborough and full
Kings Bench in 1865 in Rex v. Bedford Level,28[28] One who has the
reputation of being the officer he assumes and yet is not a good officer
in point of law. A de facto officer is one who is in possession of the
office and discharging its duties under color of authority.29[29] By color
of authority is meant that derived from an election or appointment,
however irregular or informal, so that the incumbent is not a mere
volunteer. The difference between the basis of the authority of a de
jure officer and that of a de facto officer is that one rests on right, the
other on reputation. It may be likened to the difference between
character and reputation. One is the truth of a man, the other is what is
thought of him.30[30] It is the color of authority, not the color of title
that distinguishes an officer de facto from a usurper.31[31] Being a de
jure officer, Ong is entitled to receive all the salaries and emoluments
appertaining to the position.32[32]
Irrefragably, Ong assumed the position and discharged her functions as
Executive Assistant IV on July 1, 1995. Thenceforth, she was entitled
to the payment of her salary, as provided for in Section 10 of Rule V
of the Omnibus Rules of the Civil Service Commission on the matter
of Appointments, viz:
An appointment issued in accordance with pertinent laws and rules
shall take effect immediately upon its issuance by the appointing
authority, and if the appointee has assumed the duties of the position,
he shall be entitled to receive his salary at once, without awaiting the
approval of his appointment by the Commission. The appointment
shall remain effective until disapproved by the Commission. In no case
shall an appointment take effect earlier than the date of its
issuance.33[33]
MC No. 38, s. 1993, likewise reads:
7. Effectivity of Appointment
a. The effectivity of an appointment shall be the date of actual
assumption by the appointee but not earlier than the date of issuance of
the appointment, which is the date of signing by the appointing
authority.
b. No appointment shall be made earlier than the date of issuance,
except in the case of change of status in view of qualifying in written
examination, the effectivity of which is the date of release of the result
of the examination. However, the issuance of such appointments shall
be within the period of the temporary appointment or provided the
temporary appointment has not yet expired
Moreover, the Court of Appeals took note of CSC Resolution No.
953263 dated May 23, 1995 which states, thus:
If the appointment was disapproved on grounds which do not
constitute a violation of the civil service law, such as the failure of the
appointee to meet the Qualification Standards (QS) prescribed for the
position, the same is considered effective until disapproved by the
Commission or any of its regional or field offices. The appointee is
meanwhile entitled to payment of salaries from the government.
Furthermore, if a motion for reconsideration or an appeal from the
disapproval is seasonably filed with the proper office the appointment
is still considered to be effective. The disapproval becomes final only
after the same is affirmed by the Commission.34[34]
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.
The assailed Decision of the Court of Appeals, insofar as it is
consistent with this Decision, is AFFIRMED.
SO ORDERED.
Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna,
and Tinga, JJ., concur.
Davide, Jr., C.J., and Puno, J., on official leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 13-04-03-SC December 10, 2013
RE: NOMINATION OF ATTY. LYNDA CHAGUILE, IBP
IFUGAO PRESIDENT, AS REPLACEMENT FOR IBP
GOVERNOR FOR NORTHERN LUZON, DENIS B. HABAWEL
x---------------x
A.M. No. 13-05-08-SC
RE: ALLEGED NULLITY OF THE ELECTION OF IBP
SOUTHERN LUZON GOVERNOR VICENTE M. JOYAS AS
IBP EXECUTIVE VICE PRESIDENT [FOR 2011-2013]
x---------------x
A.M. No. 13-06-11-SC
RE: LETTER RESQUEST OF THE NATIONAL SECRETARY
OF THE IBP RE PROPOSED OATH TAKING BEFORE THE
SUPREME COURT OF THE ELECTED IBP REGIONAL
GOVERNORS AND THE EXECUTIVE VICE PRESIDENT
FOR THE TERM 2013 TO 2015
RESOLUTION
LEONEN, J.:
This is yet another controversy involving the leadership of the
Integrated Bar of the Philippines (IBP) that could have been resolved
at the Integrated Bar of the Philippines’ level but was instead referred
to this aking away precious resources that could have been better
applied to resolve other conflicts for the public interest.
The consolidated cases involve two Administrative Matters. The first
Administrative Matter (A.M. No. 13-04-03-SC) arose from a Motion
filed by Atty. Marlou B. Ubano, IBP Governor for Western Visayas.
Atty. Ubano sought to invalidate or have this Court declare as ultra
vires the portion of the March 21, 2013 Resolution of the IBP Board of
Governors which approved the nomination of Atty. Lynda Chaguile as
replacement of IBP Governor for Northern Luzon, Denis B. Habawel.
The second Administrative Matter arose from another Motion filed by
Atty. Ubano who sought to nullify the May 22, 2013 election for IBP
Executive Vice President (EVP) and restrain Atty. Vicente M. Joyas
from discharging the duties of IBP EVP/Acting President. In a
Resolution dated June 18, 2013, this Court consolidated the second
Administrative Matter with the first.
A.M. No. 13-04-03-SC
The first Administrative Matter is an incident arising from: (1) A.M.
No. 09-5-2-SC (In the Matter of the Brewing Controversies in the
Election in the· Integrated Bar of the Philippines, Atty. Marven B.
Daquilanea, Movant-Intervenor; Presidents of IBP Chapter in
Western Visayas Region, Intervenors; IBP Capiz Chapter, Intervenor);
and (2) A.C. No. 8292 (Attys. Marcial M Magsino, Manuel M
Maramba, and Nasser Marohomsalic v. Attys. Rogelio A. Vinluan,
Abelardo C. Estrada, Bonifacio T. Barandon, Jr., Evergisto S.
Escalon, and Raymund Jorge A. Mercado).
On March 27, 2013, Atty. Marlou B. Ubano, IBP Governor for
Western Visayas, filed a Motion (Original Motion) in relation to A.M.
No. 09-5-2-SC. Atty. Ubano sought to invalidate or have this Court
declare as ultra vires the portion of the March 21, 2013 Resolution of
the IBP Board of Governors which approved the nomination of Atty.
Lynda Chaguile as the replacement of IBP Governor for Northern
Luzon, Denis B. Habawel. In this Original Motion, Atty. Ubano noted
that on December 4, 2012, this Court approved an amendment to
Article I, Section 4 of the IBP By-Laws which considers as ipso facto
resigned from his or her post any official of the Integrated Bar of the
Philippines who files a Certificate of Candidacy for any elective public
office. Under the amended By-Laws, the resignation takes effect on
the starting date of the official campaign period.1 Atty. Ubano alleged
that the IBP Governor for Northern Luzon, Denis B. Habawel, filed a
Certificate of Candidacy to run for the position of Provincial Governor
of the Province of Ifugao on or before October 5, 2012, and that on or
before December 21, 2012, IBP President, Roan Libarios, filed a
Certificate of Substitution to run as a substitute congressional
candidate for the First District of Agusan del Norte.2
Atty. Ubano further alleged that "[i]n light of the impending ipso facto
resignation of Pres. Libarios on 30 March 2013,"3 the IBP Board of
Governors agreed to constitute a five (5)-member Executive
Committee (Ex Com) to "prevent hiatus in the leadership of the IBP."4
The Executive Committee was "tasked to temporarily administer the
affairs of the IBP without prejudice to the outcome of the Honorable
Court’s resolution of the pending incident."5 Atty. Ubano also alleged
that Atty. Habawel nominated Atty. Lynda Chaguile, IBP Ifugao
Chapter President, as his successor to the position of IBP Governor for
Northern Luzon.6 Atty. Ubano claimed that Atty. Libarios began
"dictating the tenor of the IBP [Board of Governors] Resolution about
the creation of Ex Com"7 and, without prior deliberation and voting,
declared that the Board of Governors approved the succession of Atty.
Chaguile as IBP Governor for Northern Luzon. Atty. Ubano, together
with two (2) other IBP Governors, allegedly objected. However, when
the matter was put to a vote, the other governors, Atty. Habawel
included, approved Atty. Chaguile’s replacement of Atty. Habawel as
IBP Governor for Northern Luzon.8
In this Original Motion, Atty. Ubano challenged the IBP Board of
Governor’s approval of Atty. Chaguile’s succession as IBP Governor
for Northern Luzon on two grounds: First, there was, as yet, no
vacancy. Atty. Habawel was himself present at the meeting where his
replacement was named. There was, therefore, no need to name a
replacement.9 Second, the right to elect the successor of a resigned
IBP Governor is vested, not in the IBP Board of Governors, but in the
delegates of the concerned region; thus, the IBP Board of Governors’
approval of the nominee to succeed Atty. Habawel is ultra vires.10In
support of this second ground, Atty. Ubano cited the third paragraph of
Section 44 of the IBP By-Laws: Sec. 44. Removal of members. x x x x
x x[x] In case of any vacancy in the office of Governor for whatever
cause, the delegates from the region shall by majority vote, elect a
successor from among the members of the Chapter to which the
resigned governor is a member to serve as governor for the unexpired
portion of the term.11 In a Resolution dated April 2, 2013, this Court
resolved to treat this Original Motion as an Administrative Matter
separate from A.M. No. 09-5-2-SC and A.C. No. 8292. It was re-
docketed as A.M. No. 13-04-03-SC. This Court required the IBP
Board of Governors to file its Comment. In its Comment, the IBP
Board of Governors assailed the first ground raised by Atty. Ubano by
saying that it was not necessary for a position to be absolutely vacant
before a successor may be appointed or elected.12 As for the second
ground, the IBP Board of Governors argued that it has been the
"tradition"13 of the Integrated Bar of the Philippines that "where the
unexpired term is only for a very short period of time, it is usually the
Board of Governors which appoint [sic]a replacement or an officer in
charge to serve the unexpired term."14 The IBP Board of Governors
cited seven (7) precedents attesting to this "tradition":
1. On January 24, 1979, the IBP Board of Governors
"unanimously resolved to designate Jose F. Lim, Vice
President of the IBP Samar Chapter, [as]acting Governor and
ex-oficio Vice President for Eastern Visayas in view of the
absence of Gov. Juan G. Figueroa."15
2.On June 1, 1984, the IBP Board of Governors approved the
replacements of two (2) governors who resigned to run in the
Batasang Pambansa elections:
a. The President of the IBP Baguio-Benguet Chapter,
Reynaldo A. Cortes, was elected by the IBP Board of
Governors to replace Gov. Honorato Aquino who
himself nominated Cortes;
b."The President of the IBP Southern Leyte Chapter,
Porfirio P. Siaynco, was elected by the Board to replace
Gov. Cirilo Montejo."16
3. On January 27, 1989, the IBP Board of Governors "elected
Nancy Sison Roxas, Treasurer of the House of Delegates, as
Governor for Central Luzon" in lieu of Cesar L. Paras, who
passed away.17
4. On October 7, 1991, Governor for Eastern Mindanao,
Teodoro Palma Gil, who was previously appointed as a
Regional Trial Court (RTC) judge, recommended that Teodoro
Nano, Jr., President of the IBP Davao Oriental Chapter, be his
replacement.18 On November 8, 1991, Nano was eventually
elected by the IBP Board of Governors as Governor for Eastern
Mindanao.19
5. On September 26, 1998, the IBP "Board of Governors
confirmed the designation of Teofilo S. Pilando, Jr. as
Governor for Northern Luzon, to serve the unexpired portion of
the term of Gov. Roy S. Pilando, who ran for public office."20
6. On September 12, 2002, the IBP Board of Governors
"resolved to appoint acting Governor Rogelio Velarde as
 regular Governor of Southern Luzon Region after learning of
the death of the regular Governor, Josefina S. Angara."21
7. On August 17, 2006, the IBP Board of Governors "appointed
Abelardo C. Estrada as OIC for IBP Northern Luzon [in lieu
of] Silvestre H. Bello who was facing a disqualification case as
Governor of IBP Northern Luzon."22
In his Reply, Atty. Ubano questioned the IBP Board of Governors’
claim that it is not necessary for a position to be absolutely vacant
before a successor may be appointed or elected. Citing the third
paragraph of Section 44of the IBP By-Laws’ use of the word
"vacancy" (i.e., "any vacancy in the office of Governor") and
"resignation" (i.e., "resigned governor"), Atty. Ubano claimed that the
text of the By-Laws is "abundantly clear and unequivocal that there
must be first a "vacancy" or a prior resignation before the delegates of
the Region can lawfully elect a successor x x x."23
Atty. Ubano likewise challenged the precedents cited by the IBP
Board of Governors and claimed that no such tradition of appointing
the successor of a resigned governor existed.24 He pointed out that
prior to its amendment in March 2, 1993, the IBP By-Laws had
allowed the IBP Board of Governors to elect, and not appoint, "a
successor ofa resigned Governor."25 However, the amended By-Laws
now require that a successor be elected by the delegates of the
concerned region.26 Even if it were true that the IBP Board of
Governors had a tradition of appointing the successor of a resigned
governor, the tradition cannot be validated in view of the first
paragraph of Article 7 of the Civil Code which reads:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or custom
or practice to the contrary.27
Meanwhile, on April 23, 2013, Atty. Ubano filed another Motion
(Urgent Motion to Defer/Restrain Performance of Duties as Successor
Governor of IBP Northern Luzon Region) seeking to prevent Atty.
Chaguile from exercising the functions of IBP Governor for Northern
Luzon.
This Court also received on May 16, 2013 an undated Resolution
purportedly signed by delegates of the IBP Northern Luzon Region.
The signatories called for an election on May 18, 2013 to name Atty.
Habawel’s successor.
On May 20, 2013, these same signatories filed before this Court their
Opposition to Atty. Chaguile’s nomination. As with the second ground
cited by Atty. Ubano in his Original Motion, this Opposition was
anchored on the third paragraph of Section 44 of the IBP By-Laws.
Also on May 20, 2013, Atty. Ubano filed a "Motion for Leave to File
Reply with Very Urgent Motion to Restrain Atty. Chaguile from
Voting in the EVP Election on 22 May 2013."28 Attached to the
Motion was his "Reply with Very Urgent Motion to Restrain Atty.
Chaguile from Voting in the EVP Election on 22 May 2013."29 Atty.
Ubano also sent a letter to Associate Justice Mariano C. del Castillo
"pray[ing] and beg[ging] the indulgence of the Honorable Court to
immediately restrain Atty. Lynda Chaguile from voting in the IBP
[Executive Vice President]Election to be held on 22 May2013."30
In a Resolution dated June 4, 2013, this Court required the IBP Board
of Governors to file its Comment on Atty. Ubano’s (1) Urgent Motion
to Defer/Restrain Performance of Duties as Successor Governor of
IBP Northern Luzon Region; (2) Motion for Leave to File Reply; and
(3) Reply. It also required the IBP Board of Governors to comment on
the Opposition filed by the signatories purporting to be the delegates
of the IBP Northern Luzon Region.
On July 8, 2013, the IBP Board of Governors filed a Compliance (i.e.,
Comment in Compliance) with this Court’s June 4, 2013 Resolution.
With respect to Atty. Ubano’s Urgent Motion to Defer/Restrain
Performance of Duties as Successor Governor of IBP Northern Luzon
Region, the IBP Board of Governors pointed out that Atty. Chaguile’s
term expired on June 30, 2013.31
As to the Opposition filed by signatories purporting to be the delegates
of the IBP Northern Luzon Region, the IBP Board of Governors
alleged that the term of the House of Delegates of Northern Luzon for
2011 to 2013 expired on March 31, 2013. As such, the Opposition
signed by the purported delegates was ultra vires, and therefore, null
and void.32 The IBP Board of Governors pointed out that "[t]he issue
about the eligibility of Atty. Lynda Chaguile as replacement Governor
for Atty. Denis B. Habawel was traversed over in the Comment x x x
dated April 24, 2013."33
A.M. No. 13-05-08-SC
The second Administrative Matter assails the conduct of the May 22,
2013 election of the IBP Executive Vice President (EVP). In this
election, Atty. Vicente M. Joy as was elected IBP Governor for
Southern Luzon.
On May 31, 2013,Atty. Ubano filed an Urgent Omnibus Motion to (1)
nullify the May 22, 2013 IBP Executive Vice President election and
(2) restrain Atty. Vicente M. Joyas from discharging the duties of
EVP/Acting President. This Motion was docketed as A.M. No. 13-05-
08-SC. In this Court’s Resolution dated June 18, 2013, this
Administrative Matter was consolidated with A.M. No. 13-04-03-
SC(the first Administrative Matter).
Atty. Ubano sought to nullify the May 22, 2013 election on two (2)
grounds:
First, he claimed that the IBP election of the EVP was marred by
inordinate haste, grave irregularities, patent hostility, manifest bias and
prejudice, as well as the presiding officer’s absolute lack of
independence.34
Second, he claimed that the election violated Section 47 of the IBP
By-Laws which requires that the EVP be elected by a vote of at least
five (5) Governors. Atty. Ubano emphasized that Atty. Chaguile’s vote
in favor of Atty. Joyas was invalid, as Atty. Chaguile’s appointment as
governor was itself ultra vires, and therefore,void ab initio.
Section 47 of the IBP By-Laws, as amended pursuant to this Court’s
Resolution dated April 11, 2013 in A.M. No. 09-5-2-SC and A.C. No.
8292, now reads:
Sec. 47. Election of National President Executive Vice President. –The
Integrated Bar of the Philippines shall have a President, an Executive
Vice President, and nine (9) regional Governors. The Governors shall
be ex-officio Vice President for their respective regions.
The Board of Governors shall elect the President and Executive Vice
President from among themselves each by a vote of at least five (5)
Governors. Upon expiration of the term of the President, the Executive
Vice-President shall automatically succeed as President.
In the Compliance that the IBP Board of Governors filed in A.M. No.
13-04-03-SC, it addressed Atty. Ubano’s allegations as follows:
1. On the conduct of the election
a. The Report on the Conduct of Election filed by the
Regional Trial Court - Pasig Executive Judge (and
Supreme Court Designated Observer)35 indicates that
Atty. Ubano’s objection to the appointment of the
presiding officer was thoroughly discussed and properly
put to a vote.36 Further, there is no factual basis for
claiming that the presiding officer was not independent.
Atty. Ubano was also noted to have been allowed the
most number of interventions and the longest time spent
for deliberations.37
b. Atty. Ubano was properly ruled out of order when he
moved that the elections be moved to a later date and
when he objected to the participation of Atty.
Chaguile.38
2. On the supposed invalidity of Atty. Chaguile’s vote, the IBP
Board of Governors pointed out that, as of the time of the
election, there was no basis for invalidating the vote.39
Stripped of technical maneuverings and legal histrionics, we are called
to rule upon the validity of Atty. Lynda Chaguile’s appointment as IBP
Governor for Northern Luzon in lieu of Atty. Denis B. Habawel. The
resolution of this matter is decisive of the validity of her acts as IBP
Governor for Northern Luzon — including her participation in the
election of the IBP EVP.
Likewise, we are asked to review the conduct of the election for the
IBP EVP. We must determine whether the election was attended by
irregularities, biases, and prejudice that would invalidate its results.
We note that certain issues raised in several Motions filed as part of
the first Administrative Matter have been rendered moot and
academic.
In the first Administrative Matter, Atty. Ubano sought to (1) declare as
ultra vires or as invalid the portion of the IBP Board of Governors
Omnibus Resolution dated March 21, 2013 which approved the
nomination of Atty. Chaguile as IBP Governor for Northern Luzon in
lieu of Atty. Denis Habawel and (2) restrain Atty. Chaguile from
exercising the functions of IBP Governor for Northern Luzon, among
which was voting in the May 22, 2013 election for IBP EVP.Also in
the first Administrative Matter, several signatories purporting to be the
delegates of the IBP Northern Luzon Region opposed Atty. Chaguile’s
nomination on substantially the same grounds as Atty. Ubano.
As pointed out by the IBP Board of Governorsin its Compliance, "the
term of Atty. Lynda Chaguile as Governor for Northern Luzon expired
on June 30, 2013."40 A new Governor for Northern Luzon, Atty.
Oliver Cachapero, was elected.41 As Atty. Chaguile is no longer
serving as IBP Governor for Northern Luzon, the matter of ousting or
restraining Atty. Chaguile from exercising the functions of such office
is no longer an available relief.
As we have explained in Pormento v. Estrada:42
As a rule, this Court may only adjudicate actual, ongoing
controversies. The Court is not empowered to decide moot questions
or abstract propositions, or to declare principles or rules of law which
cannot affect the result as to the thing in issue in the case before it. In
other words, when a case is moot, it becomes non-justiciable.
An action is considered "moot" when it no longer presents a justiciable
controversy because the issues involved have become academic or
dead or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is
likely to be raised again between the parties. There is nothing for the
court to resolve as the determination thereof has been overtaken by
subsequent events.43
However, we recognize that the validity of Atty. Chaguile’s
appointment as Governor for Northern Luzon affects the validity of
her actions as the occupant of thisoffice, especially her participation in
the IBP Board of Governors’ election of the IBP EVP, which is the
subject of the second Administrative Matter.
Atty. Ubano cited two grounds as bases for claiming that the IBP
Board of Governors improperly approved Atty. Chaguile’s succession
as Governor for Northern Luzon. First, there was no vacancy at the
time of Atty. Chaguile’s designation. Atty. Habawel was then still
Governor for Northern Luzon, and there was no need to name a
replacement yet. Second, the IBP Board of Governors acted ultra vires
or beyond its competence considering that the third paragraph of
Section 44 of the IBP By-Laws vests the right to elect the successor of
a resigned IBP governor inthe delegates of the concerned region and
not in the IBP Board of Governors.
On the first ground, we sustain the position of the IBP Board of
Governors.
Indeed, it is not only erroneous but also absurd to insist that a vacancy
must actually and literally exist at the precise moment that a successor
to an office is identified. Where a vacancy is anticipated with
reasonable certainty—as when a term is ending or the effectivity of a
resignation or a retirement is forthcoming—it is but reasonable that
those who are in a position to designate a replacement act promptly.
New officials are elected before the end of an incumbent’s term;
replacements are recruited (and even trained) ahead of an anticipated
resignation or retirement. This is necessary to ensure the smooth and
effective functioning of an office. Between prompt and lackadaisical
action, the former is preferable. It is immaterial that there is an
identified successor-in-waiting so long as there are no simultaneous
occupants of an office. On the second ground, the third paragraph of
Section 44 of the IBP By-Laws clearly provides that "the delegates
from the region shall by majority, elect a successor from among the
members of the Chapter to which the resigned governor is a member."
There is no ambiguity in this text. We are surprised that the IBP—an
institution expected to uphold the rule of law—has chosen to rely on
"tradition" to validate its action. The IBP Board of Governors
arrogated unto itself a power which is vested in the delegates of the
concerned IBP region. This arrogation is a manifest violation of the
clear and unmistakable terms of the IBP’s By-Laws. We cannot
countenance this. No amount of previous practice or "tradition" can
validate such a patently erroneous action. It is, therefore, lear that Atty.
Chaguile’s designation as IBP Governor for Northern Luzon is tainted
with irregularity, and therefore, invalid.
Nevertheless, following the adoption of the IBP Board of Governors
Omnibus Resolution dated March 21, 2013at the time Atty. Ubano
filed the Original Motion and up until June 30, 2013 when her "term x
x x expired,"44 Atty. Chaguile acted as and performed the functions of
the IBP Governor for Northern Luzon. This is an accomplished fact
which no amount of legal abstraction can undo. It is in this context,
with the backdrop of this consummated truth,that we rule on the
Administrative Matters before us. Given these circumstances, we hold
that Atty. Chaguile took on the role of IBP Governor for Northern
Luzon in a de facto capacity.
De facto means "in point of fact."45 To speak of something as being
de factois,thus,to say that it is "[a]ctual [or] existing in fact"46 as
opposed to "[e]xisting by right or according to law,"47 that is, de jure.
Being factual though not being founded on right or law, de facto
is,therefore, "illegitimate but in effect."48
The concept of a de facto officer was explained in Civil Service
Commission v. Joson, Jr.:49
The broad definition of what constitutes an officer de facto was
formulated by Lord Holt in Parker v. Kent, and reiterated by Lord
Ellenborough and full King’s Bench in 1865 in Rex v. Bedford Level,
"One who has the reputation of being the officer he assumes and yet is
not a good officer in point of law." A de facto officer is one who is in
possession of the office and discharging its duties under color of
authority. By color of authority is meant that derived from an election
or appointment, however irregular or informal, so that the incumbent is
not a mere volunteer.50 (Emphasis and underscoring supplied)
A de facto officer is distinguished form a de jure officer, as follows:
The difference between the basis of the authority of a de jure officer
and that of a de facto officer is that one rests on right, the other on
reputation. It may be likened to the difference between character and
reputation. One is the truth of a man, the other is what is thought of
him.51
Moreover, as against a mere usurper, "[i]t is the color of authority, not
the color of title that distinguishes an officer de facto from a
usurper."52 Thus, a mere usurper is one "who takes possession of [an]
office and undertakes to act officially without any color of right or
authority, either actual or apparent."53 A usurper is no officer at all.54
The expanse of the de facto doctrine was established early in the
development of our jurisprudence. In Luna v. Rodriguez,55 the
doctrine was established to contemplate situations where the duties of
the office were exercised: (a) Without a known appointment or
election, but under such circumstances of reputation or acquiescence
as were calculated to induce people, without inquiry, to submit to or
invoke his action, supposing him to be the officer he assumes to be; (b)
under color of a known or valid appointment or election, where the
officer has failed to conform to some precedent requirement or
condition, for example, a failure to take the oath or give a bond, or
similar defect; (c) under color of a known election or appointment,
void because the officer was not eligible, or because there was a want
of power in the electing or appointing body, or by reason of some
defect or irregularity in its exercise, such ineligibility, want of power
or defect being unknown to the public; and (d) under color of an
election, or appointment, by or pursuant to a public unconstitutional
law, before the same is adjudged to be such.56 (Emphases and
underscoring supplied)
This coverage, affirmed and reiterated in subsequent jurisprudence,57
unequivocally includes officers whose election is void because the
body that elected (or otherwise designated) them lacked the capacity to
do so. This is precisely the situation in this case: The power to elect an
IBP Governor is lodged in the delegates of the concerned region, not
in the IBP Board of Governors; yet the IBP Board of Governors
approved Atty. Chaguile’s nomination as IBP Governor for Northern
Luzon.
To be a de facto officer, all of the following elements must be present:
1) There must be a de jure office;
2) There must be color of right orgeneral acquiescence by the
public; and
3) There must be actual physical possession of the office in
good faith.58 (Underscoring supplied)
In the present case, there is no dispute that a de jure office—that of
IBP Governor for Northern Luzon—exists.
Neither is there any dispute that Atty. Chaguile took possession of and
performed the functions of such office. In fact, the Motions submitted
as part of the first Administrative Matter were precisely intended to
put a stop to her performance of these functions. Likewise, Atty.
Chaguile took possession of and performed the functions of the IBP
Governor for Northern Luzon through a process, albeit "irregular or
informal, so that [she] is not a mere volunteer,"59 that is, not through
her own actions but through those of the IBP Board of Governors.
Thus, she did so under "color of authority," as defined in settled
jurisprudence (e.g., Civil Service Commission v. Joson, Jr.,60
Dimaandal v. Commission on Audit,61 and Dennis A.B. Funa v. Acting
Secretary of Justice Alberto C. Agra 62).
The IBP Board of Governors’ approval was secured through a process
that it characterized as a "tradition," allowing it to appoint a
replacement for an officer who vacates his or her office shortly before
his or her term expires. It cited seven (7) cases, spanning a period of
more than twenty-six (26) years, in which this tradition was exercised.
Of these, three (3) occurred after the March 2, 1993 amendment of the
IBP By-Laws which requires that a successor governor be elected by
the delegates of the concerned region. Thus, the "tradition" persisted
even after the amended By-Laws had vested the power to elect a
replacement in the delegates of the concerned region.
Being in violation of the IBP By-Laws (as amended on March 2,
1993), this supposed tradition cannot earn our imprimatur. Be that as it
may, in all of the occasions cited by the IBP Board of Governors, the
authority of replacement governors was derived from a process, which,
though irregular, enabled them to act as and be accepted as governors.
It was with this backdrop that Atty. Chaguile herself was designated as
IBP Governor for Northern Luzon. Illumined by this context, thecolor
of authority or right under which Atty. Chaguile became IBP Governor
for Northern Luzon is all the more stark.
This same color of authority or right negates any insinuation that Atty.
Chaguile assumed office out of her own design or contrivance; that is,
that she did so in bad faith. She precisely relied on established
practice, now established as invalid but nevertheless historically
accepted. Atty. Ubano alleged that then IBP President Roan Libarios
imposed upon the IBP Board of Governors the approval of Atty.
Chaguile’s nomination; that Atty. Habawel wrongly participated in the
vote to approve Atty. Chaguile’s nomination; and that the IBP Board
of Governors itself violated the IBP By-Laws. Yet, he failed to allege
that Atty. Chaguile was her self a party to any scheme or artifice that
might have been designed so that she would be able to secure the IBP
Governorship for Northern Luzon. Furthermore, no evidence was
presented to show that there was coercion imposed on the other
governors of the Integrated Bar of the Philippines.
We note that on May 16, 2013,signatories claiming to be delegates of
the IBP Northern Luzon Region submitted to this Court a copy of an
undated Resolution calling for an election to name Atty. Denis B.
Habawel’s successor as IBP Governor for Northern Luzon. We also
note that on May 20, 2013, the same individuals submitted their
Opposition to Atty. Chaguile’s nomination as Atty. Habawel’s
replacement. On the basis of this, there appears to be a ground for
arguing that there was no "general acquiescence by the public"63 to
Atty. Chaguile’s having replaced Atty. Habawel.
The second requisite for being a de facto officer, as spelled out in
Tuandav. Sandiganbayan,64 reads: "There must be color of right or
general acquiescence by the public."65 Clearly, the requisite is stated
in the alternative. Color of right also suffices. We have already
discussed how Atty. Chaguile took on the role of IBP Governor for
Northern Luzon with color of right (or authority).
We fail to see how the action of six(6) individuals66sustains the
assertion that the public never acquiesced to Atty. Chaguile’s having
replaced Atty. Habawel. The requisite speaks of "general
acquiescence." To be "general" is not to be "absolute." It is to speak of
a commonality that exists for the most partbut not necessarily entirely.
It admits of exceptions. That there are those who count themselves as
objectors merely attests to their existence. It does not, in and of itself,
repudiate that which may generally exist. Thus,to equate the action of
a handful ofactive objectors with the utter lack of "general
acquiescence" would be non sequitur.
Granting that these six(6) individuals are in fact the legitimate
delegates of the IBP Northern Luzon Region and even if we disregard
their sheer number, they still fail to represent or embody the "public."
They are direct participants, having been the individuals whose right to
elect the IBP Governor for Northern Luzon was supposedly
undermined. Precisely, their being direct participants –meaning,
persons whose supposed rights were violated –makes them actual
parties to the controversy. That they themselves chose to file an
Opposition and submit themselves to this Court’s adjudication of this
case evidences their own acknowledgement of this.
The de facto doctrine was devised to benefit the public. On the validity
of actions made by de facto officers, it is settled that "the acts of the de
facto officer are just as valid for all purposes as those of a de jure
officer, in so far as the public or third persons who are interested
therein are concerned."67 This is premised on the reality that "[t]hird
persons x x x cannot always investigate the right of one assuming to
hold an important office. They have aright to assume that officials
apparently qualified and in office are legally such."68
The third party affected by the nature of the assumption into office by
Atty. Chaguile is the mass of lawyers belonging to the Integrated Bar
of the Philippines. Again, the whole legal profession becomes witness
to how the selection of its leaders has practically become annual
intramurals of both political and legal controversy. In our April 11,
2013 Resolution in A.M. No. 09-5-2-SC and A.C. No. 8292, we
observed that this has brought about disenchantment within the ranks
of the Integrated Bar of the Philippines. In truth, many suspect that
these elections are contests between exclusive groups that maneuver to
find allies year in and year out to control the helm of this mandatory
lawyers’ organization.
The disposition we give to this case is also partly to quiet these
conflicts and to deny any reward to further legal controversy. After all,
in our April 11, 2013 Resolution in A.M. No. 09-5-2-SC and A.C. No.
8292, we created a permanent Committee for IBP Affairs "to primarily
attend to the problems and needs of a very important professional body
and to make recommendation for its improvement and
strengthening."69
Should that initiative still fail, this Court should seriously review the
present modality of the Integrated Bar. Instead of individual
membership, a more functional alternative might be organizational
membership. This means that voluntary organizations such as the Free
Legal Assistance Group (FLAG), the Alternative Law Groups (ALG),
the Philippine Bar Association (PBA), the U.P. Women Lawyers’
Circle (WILOCI), and other organizations can coalesce and nominate
leaders to comprise a council. Thus, every lawyer will have a mature
choice to determine which of these organizations best represents his or
her interests. This harmonizes better with their right to free
association.
All considered, the circumstances under which Atty. Chaguile’s
nomination was approved and under which Atty. Chaguile
subsequently assumed the role of IBP Governor for Northern Luzon
are sufficient to induce a general belief that she was properly the IBP
Governor for Northern Luzon and that her actions in this office were
properly invoked.
Having said these, we agree with a point raised by Atty. Ubano. As
with statutes, the IBP By-Laws’ "violation or non-observance [ought]
not be excused by disuse, or custom, or practice to the contrary."70
We do not validate the IBP Board of Governors’ erroneous practice.
To reiterate our earlier words: "We cannot countenance this. No
amount of previous practice or "tradition" can validate such a patently
erroneous action."
Nonetheless, even as we decry the IBP Board of Governor’s reliance
on "tradition," we do not lose sight of the fact, palpable and
immutable, that Atty. Chaguile has so acted as IBP Governor for
Northern Luzon. Thankfully, our legal system has an established
means through which we are able to avert the "chaos that would result
from multiple and repetitious [challenges to] every action taken by
[an] official whose claim to office could be open to question."71 It is
strictly in view of this that we make a determination that Atty.
Chaguile was the de facto IBP Governor for Northern Luzon.We are
not validating a wrong; we are merely addressing an exigency.
Having established that Atty. Chaguile was the IBP Governor for
Northern Luzon in a de facto capacity, we turn to the validity of her
actions as a de facto officer.
To reiterate, one that is de facto is "illegitimate but in effect."72 Thus,
it is settled that "the acts of the de facto officer are just as valid for all
purposes as those of a de jure officer, in so far as the public or third
persons who are interested therein are concerned."73 This is necessary
so as to protect the sanctity of their dealings with those relying on their
ostensible authority:"[t]hird persons x x x cannot always investigate
the right of one assuming to hold an important office. They have a
right to assume that officials apparently qualified and in office are
legally such."74
Accordingly, we hold that all official actions of Atty. Chaguile as de
facto IBP Governor for Northern Luzon must be deemed valid,
binding, and effective, as though she were the officer validly appointed
and qualified for the office. It follows that her participation and vote in
the election for IBP EVP held on May 22, 2013 are in order.
We now proceed to the points raised by Atty. Ubano assailing the
conduct of the May 22, 2013 election for the IBP EVP.
The Report on the Conduct of Election prepared by this Court’s
designated observer, Executive Judge Danilo S. Cruz, reveals that
Atty. Ubano’s objections were properly and thoroughly discussed. He
was given a considerable length of time to air and argue his points. It
was only after thorough discussions that Atty. Ubano’s Motion to
postpone the elections—which he insisted on raising even when the
body was in the process of nominating candidates for the position of
EVP—was declared out of order.75 Atty. Ubano himself was then
nominated for IBP EVP.76 He accepted his nomination subject to the
resolution of his Motion for Reconsideration in A.M. No. 09-5-2-SC
and A.C. No. 8292, as well as the resolution of the first Administrative
Matter.77
Before the members of the IBP Board of Governors placed their votes,
Atty. Ubano had sought to have Atty. Chaguile’s ballot segregated and
sealed pending the resolution of his Motion for Reconsideration in
A.M. No. 09-5-2-SC and A.C. No. 8292, as well as the resolution of
the first Administrative Matter. His Motion was denied.78 Votes were
then cast, followed by tally and canvassing. After the votes had been
tallied, Atty. Vicente M. Joyas received five (5) votes while Atty.
Ubano received four(4) votes. The Certificate of Election was then
prepared, certified by the presiding officer and noted by this Court’s
observer.79
Atty. Ubano was accorded more than an ample opportunity to arguehis
position. More importantly, his position was amply considered by the
body. Another IBP governor, IBP Greater Manila Governor Dominic
C.M. Solis, even initially supported Atty. Ubano’s insistence that the
election be postponed, but Atty. Solis subsequently withdrew
hissupport.80
In his Urgent Omnibus Motion which gave rise to the second
Administrative Matter, Atty. Ubano made an issue out of Atty. Vicente
M. Joyas’ having designated IBP National Secretary Nasser A.
Marohomsalic as Chairman of the Commission on Elections
considering that Atty.Joyas supposedly lacked the authority to do so.
Atty. Ubano made much of Atty. Joyas’ status as IBP Governor for
Southern Luzon. Atty. Ubano, however, lost sight of the fact that Atty.
Joyas was likewise the Chairman of the IBP Executive Committee.
The Report on the Conduct of Election prepared by Executive Judge
Danilo S. Cruz recalls the pertinent events as follows:
The election was scheduled at 11 A.M. Chairman Joyas called the
meeting to order at11:05 A.M. National Secretary Marohomsalic
certified that all members of the Board were notified of the election
schedule and that with the presence of five (5) members of the
Board,81 there was a quorum. The Chairman placed on record that the
undersigned Court Observer was in attendance.
Chairman Joyas said the meeting was for the purpose of electing the
EVP for 2011-2013 and designated the COMELEC for the election,
thus: Secretary Marohomsalic as Chairman, Atty. Rosario T. Setlas-
Reyes, as second member, and IBP Head Executive Assistant Aurora
G. Geronimo as third member and recorder of the proceedings.
Chairman Joyas then relinquished the Chair to COMELEC Chairman
Nasser A. Marohomsalic.82
Atty. Ubano’s own description of the circumstances leading to the
creation of the Executive Committee states:
In light of the impending ipso facto resignation of Pres. Libarios on 30
March 2013 which is the start of the official campaign period, the IBP
[Board of Governors]discussed a mechanism to prevent hiatus [sic]in
the leadership of the IBP. After debate and deliberation, it was agreed
to constitute a five (5)[-] member Executive Committee ("Ex Com")
tasked to temporarily administer the affairs of the IBP x x x.83
From Atty. Ubano’s description of the Executive Committee’s
function, it is evident that its principal purpose is to ensure that the
functions of the IBP National President shall continue to be performed
despite IBP National President Roan Libarios’ resignation.
Conformably with the Omnibus Resolution creating the Executive
Committee, Atty. Vicente M. Joyas was designated as the Executive
Committee Chairman. It is pursuant to this designation and the
Executive Committee’s general function that Atty. Joyas designated
the Commission on Elections for the election of the IBP EVP.
Further, Section 50 (d) of the IBP By-Laws provides:
(d) Secretary: The Secretary shall attend all meetings of the Board of
Governors, and keep a record of all the proceedings thereof; prepare
and maintain a register of all members of the Integrated Bar; notify
national officers as well as members of national committees of their
election or appointment; cause to be prepared the necessary official
ballots for the election of Governors; and perform such other duties as
are assigned to him by these By-Laws, by the President and by the
Board of Governors.(Underscoring supplied)
As IBP National Secretary, Atty. Marohomsalic may, therefore,
properly perform such other duties assigned to him by the IBP
National President. Thus, Atty. Vicente M. Joyas, acting for the IBP
Executive Committee(in his capacity as its Chairman) and pursuant to
the Executive Committee’s purpose of ensuring that the functions of
the IBP National President shall continue to be performed, was in a
position to designate the IBP National Secretary to perform a duty
other than those explicitly articulated in the IBP By-Laws. As regards
this case, that duty was to be the duty of the Chairman of the
Commission on Elections. In turn, it was in his capacity as
Commission on Elections Chairman that Atty. Marohomsalic presided
over the conduct of the election.
In sum, we fail to see how the election could have been tainted with
the presiding officer’s absolute lack of independence, manifest bias
and prejudice, patent hostility, and inordinate haste.84 We find no
reason to invalidate the election.
The Integrated Bar of the Philippines has long been beset by
leadership crises.1âwphi1 Our April 11, 2013 Resolution in A.M. No.
09-5-2-SC and A.C. No. 8292—the same cases from which the subject
matter of this Resolution arose—chronicled the long, acrimonious
history of the leadership of the Integrated Bar of the Philippines. It is, Discharging the Duties of EVP/Acting President until the Final
at the very least, strange that the Integrated Bar has suffered these Resolution of the Issues is DENIED.
episodes while other lawyers’ organizations have not. Again, it is
worth while to consider if there are other means of integrating the Let a copy of this Resolution be given to the Supreme Court Oversight
members of the Bar— alternative ways that might enable the Committee on the Integrated Bar of the Philippines reorganized by
Integrated Bar to satisfy its objectives more effectively, democratize virtue of Memorandum Order No. 20-2013 on June 13, 2013 for its
its leadership, and minimize its need to seek the intervention of this proper advice.
Court.
SO ORDERED.
The leadership of our Integrated Bar must find a better way of
resolving its conflicts other than elevating these matters to this Court. MARVIC MARIO VICTOR F. LEONEN
It cannot fail to show maturity in resolving its own conflicts. It Associate Justice
behooves the members of the legal profession to avoid being
solitigious that they lose sightof the primordial public interests that WE CONCUR:
must be upheld in every case and conflict that is raised to the level of
this Court. MARIA LOURDES P.A. SERENO
Chief Justice
Otherwise, the Integrated Bar of the Philippines will continue to
alienate its mass membership through political contestations that may
be viewed as parochial intramurals from which only a few lawyers I Dissent, (Please see
I join J. Velasco's Dissenting
benefit. It will be generations of leaders who model needless litigation Dissenting Opinion)
Opinion
and wasted time and energy. This is not what an integrated bar of a PRESBITERO J.
ANTONIO T. CARPIO
noble profession should be.1âwphi1 VELASCO, JR.
Associate Justice
Associate Justice
WHEREFORE, the Motion to Declare dated March 27, 2013 as Ultra
Vires or Invalid the Urgent Motion to Defer/Restrain Performance of TERESITA J.
ARTURO D. BRION
Duties as Successor Governor of IBP Northern Luzon Regiondated LEONARDO-DE CASTRO
Associate Justice
April 22, 2013and the Very Urgent Motion to Restrain Atty. Chaguile Associate Justice
from Voting in the EVP Election on May22, 2013 dated May 20,
2013filed by Atty. Marlou B. Ubano are DENIED for being moot and DIOSDADO M. PERALTA LUCAS P. BERSAMIN
academic. Associate Justice Associate Justice

We DECLARE that Atty. Lynda Chaguilewas indeed a de factoofficer I join the dissent of J.
during her tenure as IBP Governor for Northern Luzon and that her Velasco
acts as de factoofficer—includingher having voted in the May 22, ROBERTO ABAD
MARIANO C. DEL
2013 electionfor the Executive Vice President of the Integrated Bar of Associate Justice
CASTILLO
the Philippines—are valid, binding,and effective. The Urgent Associate Justice
Omnibus Motion to (1) Nullify the EVP Election on May 22, 2013 and
(2) Restrain Gov. Vicente M. Joyas of Southern Luzon Region from
 MARTIN S. VILLARAMA
VELASCO,
JOSE PORTUGAL PEREZ JR.,
JR.
Associate Justice
Associate Justice
NACHURA,
JOSE CATRAL
BIENVENIDO L. REYES LEONARDO-DE
MENDOZA
Associate Justice
Associate Justice CASTRO,

ESTELA M. PERLAS-BERNABE
-versus- BRION,
Associate Justice
PERALTA,
EN BANC
BERSAMIN,

DEL CASTILLO,*
ARLIN B. OBIASCA, 35[1] G.R. No.
176707 ABAD,

Petitioner, VILLARAMA, JR.,

Present: PEREZ and

MENDOZA, JJ.

PUNO, C.J., JEANE O. BASALLOTE,

CARPIO,
Respondent.
CORONA,
Promulgated:
CARPIO MORALES,

35[1] Based on documents submitted by petitioner himself, his full name is Arlin
Balane Obiasca. However, he also refers to himself in the records a
 February 17, The facts of this case are undisputed.
2010

On May 26, 2003, City Schools Division

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Superintendent Nelly B. Beloso appointed respondent Jeane
---------x
O. Basallote to the position of Administrative Officer II,

Item No. OSEC-DECSB-ADO2-390030-1998, of the

DECISION
Department of Education (DepEd), Tabaco National High
CORONA, J.:
School in Albay.36[2]

When the law is clear, there is no other recourse but to

apply it regardless of its perceived harshness. Dura lex sed Subsequently, in a letter dated June 4, 2003,37[3] the

lex. Nonetheless, the law should never be applied or new City Schools Division Superintendent, Ma. Amy O.

interpreted to oppress one in order to favor another. As a Oyardo, advised School Principal Dr. Leticia B. Gonzales

court of law and of justice, this Court has the duty to that the papers of the applicants for the position of

adjudicate conflicting claims based not only on the cold

provision of the law but also according to the higher

principles of right and justice.

Administrative Officer II of the school, including those of Respondent tried to obtain Gozales signature but the

respondent, were being returned and that a school ranking latter refused despite repeated requests. When respondent

should be informed Oyardo of the situation, she was instead advised to

return to her former teaching position of Teacher I.

accomplished and submitted to her office for review. In
Respondent followed the advice.
addition, Gonzales was advised that only qualified

applicants should be endorsed.

Meanwhile, on August 25, 2003, Oyardo appointed

petitioner Arlin B. Obiasca to the same position of

Respondent assumed the office of Administrative
Administrative Officer II. The appointment was sent to and
Officer II on June 19, 2003. Thereafter, however, she
was properly attested by the CSC.38[4] Upon learning this,
received a letter from Ma. Teresa U. Diaz, Human Resource
respondent filed a complaint with the Office of the Deputy
Management Officer I of the City Schools Division of
Ombudsman for Luzon against Oyardo, Gonzales and Diaz.
Tabaco City, Albay, informing her that her appointment

could not be forwarded to the Civil Service Commission

(CSC) because of her failure to submit the position

description form (PDF) duly signed by Gonzales.

 In its decision, the Ombudsman found Oyardo and On motion for reconsideration, the protest was

Gonzales administratively liable for withholding information reinstated but was eventually dismissed for lack of

from respondent on the status of her appointment, and merit.41[7] Respondent appealed the dismissal of her protest

suspended them from the service for three months. Diaz was to the CSC Regional Office which, however, dismissed the

absolved of any wrongdoing.39[5] appeal for failure to show that her appointment had been

received and attested by the CSC.42[8]

Respondent also filed a protest with CSC Regional

Office V. But the protest was dismissed on the ground that it Respondent elevated the matter to the CSC. In its

should first be submitted to the Grievance Committee of the November 29, 2005 resolution, the CSC granted the appeal,

DepEd for appropriate action.40[6] approved respondents appointment and recalled the approval

of petitioners appointment.43[9]
 The CA found that respondent possessed all the

Aggrieved, petitioner filed a petition for certiorari in qualifications and none of the disqualifications for the

the Court of Appeals (CA) claiming that the CSC acted position of Administrative Officer II; that due to the

without factual and legal bases in recalling his appointment. respondents valid appointment, no other appointment to the

He also prayed for the issuance of a temporary restraining same position could be made without the position being first

order and a writ of preliminary injunction. vacated; that the petitioners appointment to the position was

thus void; and that, contrary to the argument of petitioner

that he had been deprived of his right to due process when

In its September 26, 2006 decision,44[10] the CA
he was not allowed to participate in the proceedings in the
denied the petition and upheld respondents appointment
CSC, it was petitioner who failed to exercise his right by
which was deemed effective immediately upon its issuance
failing to submit a single pleading despite being furnished
by the appointing authority on May 26, 2003. This was
with copies of the pleadings in the proceedings in the CSC.
because respondent had accepted the appointment upon her

assumption of the duties and responsibilities of the position.

The CA opined that Diaz unreasonably refused to

affix her signature on respondents PDF and to submit

respondents appointment to the CSC on the ground of non-

submission of respondents PDF. The CA ruled that the PDF According to petitioner, without the CSC attestation,

was not even required to be submitted and forwarded to the respondents appointment as Administrative Officer II was

CSC. never completed and never vested her a permanent title. As

such, respondents appointment could still be recalled or

withdrawn by the appointing authority. Petitioner further

Petitioner filed a motion for reconsideration but his
argues that, under the Omnibus Rules Implementing Book V
motion was denied on February 8, 2007.45[11]
of Executive Order (EO) No. 292,47[13] every appointment

is required to be submitted to the CSC within 30 days from

Hence, this petition.46[12]
the date of issuance; otherwise, the appointment becomes

ineffective.48[14] Thus, respondents appointment issued on

Petitioner maintains that respondent was not validly May 23, 2003 should have been transmitted to the CSC not

appointed to the position of Administrative Officer II later than June 22, 2003 for proper attestation. However,

because her appointment was never attested by the CSC. because respondents appointment was not sent to the CSC
within the proper period, her appointment ceased to be After due consideration of the respective arguments of

effective and the position of Administrative Officer II was the parties, we deny the petition.

already vacant when petitioner was appointed to it.

The law on the matter is clear. The problem is

In her comment,49[15] respondent points out that her petitioners insistence that the law be applied in a manner

appointment was wrongfully not submitted by the proper that is unjust and unreasonable.

persons to the CSC for attestation. The reason given by

Petitioner relies on an overly restrictive reading of
Oyardo for the non-submission of respondents appointment
Section 9(h) of PD 80750[16] which states, in part, that an
papers to the CSC the alleged failure of respondent to have
appointment must be submitted by the appointing authority
her PDF duly signed by Gonzales was not a valid reason
to the CSC within 30 days from issuance, otherwise, the
because the PDF was not even required for the attestation of
appointment becomes ineffective:
respondents appointment by the CSC.

Sec. 9. Powers and Functions of the

Commission. The [CSC] shall administer the Civil
Service and shall have the following powers and
functions:
 xxx xxx xxx Based on the foregoing provisions, petitioner argues
(h) Approve all appointments, whether
that respondents appointment became effective on the day of
original or promotional, to positions in the civil service,
except those of presidential appointees, members of the
Armed Forces of the Philippines, police forces, firemen her appointment but it subsequently ceased to be so when
and jailguards, and disapprove those where the
appointees do not possess the appropriate eligibility or the appointing authority did not submit her appointment to
required qualifications. An appointment shall take
effect immediately upon issue by the appointing
the CSC for attestation within 30 days.
authority if the appointee assumes his duties
immediately and shall remain effective until it is
disapproved by the [CSC], if this should take place,
without prejudice to the liability of the appointing Petitioner is wrong.
authority for appointments issued in violation of
existing laws or rules: Provided, finally, That the [CSC]
shall keep a record of appointments of all officers and
employees in the civil service. All appointments The real issue in this case is whether the deliberate
requiring the approval of the [CSC] as herein
provided, shall be submitted to it by the appointing failure of the appointing authority (or other responsible
authority within thirty days from issuance,
otherwise the appointment becomes ineffective officials) to submit respondents appointment paper to the
thirty days thereafter. (Emphasis supplied)

CSC within 30 days from its issuance made her appointment

This provision is implemented in Section 11, Rule V ineffective and incomplete. Substantial reasons dictate that it
of the Omnibus Rules Implementing Book V of EO 292 did not.
(Omnibus Rules):
Before discussing this issue, however, it must be
Section 11. An appointment not submitted to the
[CSC] within thirty (30) days from the date of issuance brought to mind that CSC resolution dated November 29,
which shall be the date appearing on the fact of the
appointment, shall be ineffective. xxx
2005 recalling petitioners appointment and approving that of

respondent has long become final and executory. In this case, petitioner did not file a petition for

reconsideration of the CSC resolution dated November 29,

REMEDY TO ASSAIL 2005 before filing a petition for review in the CA. Such fatal
CSC DECISION
OR RESOLUTION
procedural lapse on petitioners part allowed the CSC

resolution dated November 29, 2005 to become final and

Sections 16 and 18, Rule VI of the Omnibus Rules
executory.51[17] Hence, for all intents and purposes, the
provide the proper remedy to assail a CSC decision or
CSC resolution dated November 29, 2005 has become
resolution:
immutable and can no longer be amended or

Section 16. An employee who is still not modified.52[18] A final and definitive judgment can no
satisfied with the decision of the [Merit System
Protection Board] may appeal to the [CSC] within longer be changed, revised, amended or reversed.53[19]
fifteen days from receipt of the decision.
Thus, in praying for the reversal of the assailed Court of
The decision of the [CSC] is final and
executory if no petition for reconsideration is filed
within fifteen days from receipt thereof.

xxx xxx xxx

Section 18. Failure to file a protest, appeal,

petition for reconsideration or petition for review
within the prescribed period shall be deemed a
waiver of such right and shall render the subject
action/decision final and executory. (Emphasis
supplied)
Appeals decision which affirmed the final and executory that a petition for reconsideration should be filed, otherwise,

CSC resolution dated November 29, 2005, petitioner would the CSC decision will become final and executory, viz.:

want the Court to reverse a final and executory judgment

and disregard the doctrine of immutability of final

The decision of the [CSC] is final and
executory if no petition for reconsideration is filed
judgments. within fifteen days from receipt thereof.

True, a dissatisfied employee of the civil service is not

preempted from availing of remedies other than those

Note that the foregoing provision is a specific remedy
provided in Section 18 of the Omnibus Rules. This is
as against CSC decisions involving its administrative
precisely the purpose of Rule 43 of the Rules of Court,
function, that is, on matters involving appointments, whether
which provides for the filing of a petition for review as a
original or promotional, to positions in the civil
remedy to challenge the decisions of the CSC.
service,54[20] as opposed to its quasi-judicial function

While Section 18 of the Omnibus Rules does not

supplant the mode of appeal under Rule 43, we cannot

disregard Section 16 of the Omnibus Rules, which requires

where it adjudicates the rights of persons before it, in Roa,57[23] the Court ruled that if an appeal or remedy

accordance with the standards laid down by the law.55[21] obtains or is available within the administrative machinery,

this should be resorted to before resort can be made to the

courts.58[24] While the doctrine of exhaustion of

The doctrine of exhaustion of administrative remedies
administrative remedies is subject to certain
requires that, for reasons of law, comity and convenience,
exceptions,59[25] these are not present in this case.
where the enabling statute indicates a procedure for

administrative review and provides a system of

administrative appeal or reconsideration, the courts will not Thus, absent any definitive ruling that the second

entertain a case unless the available administrative remedies paragraph of Section 16 is not mandatory and the filing of a

have been resorted to and the appropriate authorities have petition for reconsideration may be dispensed with, then the

been given an opportunity to act and correct the errors

committed in the administrative forum.56[22] In Orosa v.

Court must adhere to the dictates of Section 16 of the the relevant part of Section 9(h) which states that an

Omnibus Rules. appointment shall take effect immediately upon issue by

the appointing authority if the appointee assumes his

duties immediately and shall remain effective until it is

Moreover, even in its substantive aspect, the petition
disapproved by the [CSC]. This provision is reinforced by
is bereft of merit.
Section 1, Rule IV of the Revised Omnibus Rules on

Appointments and Other Personnel Actions, which reads:

SECTION 9(H) OF PD
807 ALREADY
AMENDED BY
SECTION 12 BOOK V Section 1. An appointment issued in
OF accordance with pertinent laws and rules shall take
EO 292 effect immediately upon its issuance by the
appointing authority, and if the appointee has
assumed the duties of the position, he shall be entitled
to receive his salary at once without awaiting the
approval of his appointment by the Commission. The
It is incorrect to interpret Section 9(h) of Presidential appointment shall remain effective until
disapproved by the Commission. x x x (Emphasis
supplied)
Decree (PD) 807 as requiring that an appointment must be

submitted by the appointing authority to the CSC within 30

More importantly, Section 12, Book V of EO 292
days from issuance, otherwise, the appointment would
amended Section 9(h) of PD 807 by deleting the requirement
become ineffective. Such interpretation fails to appreciate
that all appointments subject to CSC approval be submitted have been made had there been no intention to effect a

to it within 30 days. Section 12 of EO 292 provides: change in the meaning of the law or rule.61[27] The word,

phrase or sentence excised should accordingly be considered

Sec. 12. Powers and Functions. - The
Commission shall have the following powers and inoperative.62[28]
functions:
xxx xxx xxx
(14) Take appropriate action on all appointments and The dissent refuses to recognize the amendment of
other personnel matters in the Civil Service, including
extension of Service beyond retirement age; Section 9(h) of PD 807 by EO 292 but rather finds the

(15) Inspect and audit the personnel actions and requirement of submission of appointments within 30 days
programs of the departments, agencies, bureaus, offices,
local government units and other instrumentalities of not inconsistent with the authority of the CSC to take
the government including government -owned or
controlled corporations; conduct periodic review of the
decisions and actions of offices or officials to whom appropriate action on all appointments and other personnel
authority has been delegated by the Commission as well
as the conduct of the officials and the employees in matters. However, the intention to amend by deletion is
these offices and apply appropriate sanctions whenever
necessary. unmistakable not only in the operational meaning of EO 292

but in its legislative history as well.

As a rule, an amendment by the deletion of certain

words or phrases indicates an intention to change its

meaning.60[26] It is presumed that the deletion would not

 PD 807 and EO 292 are not inconsistent insofar as such specific adverse effect is contemplated under Section

they require CSC action on appointments to the civil service. 12 (14) and (15) of EO 292. Certainly, the two provisions

This is evident from the recognition accorded by EO 292, are materially inconsistent with each other. And to insist on

specifically under Section 12 (14) and (15) thereof, to the reconciling them by restoring the restrictive period and

involvement of the CSC in all personnel actions and punitive effect of Section 9(h) of PD 807, which EO 292

programs of the government. However, while a restrictive deliberately discarded, would be to rewrite the law by mere

period of 30 days within which appointments must be judicial interpretation.64[30]

submitted to the CSC is imposed under the last sentence of

Not even the historical development of civil service
Section 9(h) of PD 807, none was adopted by Section 12
laws can justify the retention of such restrictive provisions.
(14) and (15) of EO 292. Rather, provisions subsequent to
Public Law No. 5,65[31] the law formally establishing a
Section 12 merely state that the CSC (and its liaison staff in
civil service system, merely directed that all heads of offices
various departments and agencies) shall periodically
notify the Philippine Civil Service Board in writing without
monitor, inspect and audit personnel actions.63[29]
delay of all appointments x x x made in the classified
Moreover, under Section 9(h) of PD 807, appointments not

submitted within 30 days to the CSC become ineffective, no

service.66[32] The Revised Administrative Code of 1917 approval by the CSC was subjected to a 30-day period. That,

was even less stringent as approval by the Director of the however, has been lifted and abandoned by EO 292.

Civil Service of appointments of temporary and emergency

employees was required only when practicable. Finally, There being no requirement in EO 292 that

Republic Act (RA) 226067[33] imposed no period within appointments should be submitted to the CSC for attestation

which appointments were attested to by local government within 30 days from issuance, it is doubtful by what

treasurers to whom the CSC delegated its authority to act on authority the CSC imposed such condition under Section 11,

personnel actions but provided that if within 180 days after Rule V of the Omnibus Rules. It certainly cannot restore

receipt of said appointments, the CSC shall not have made what EO 292 itself already and deliberately removed. At the

any correction or revision, then such appointments shall be very least, that requirement cannot be used as basis to

deemed to have been properly made. Consequently, it was unjustly prejudice respondent.

only under PD 807 that submission of appointments for

Under the facts obtaining in this case, respondent

promptly assumed her duties as Administrative Officer II

when her appointment was issued by the appointing

authority. Thus, her appointment took effect immediately

and remained effective until disapproved by the CSC.68[34]
Respondents appointment was never disapproved by the
CSC. In fact, the CSC was deprived of the opportunity to act
promptly as it was wrongly prevented from doing so. More
importantly, the CSC subsequently approved respondents
appointment and recalled that of petitioner, which recall
has already become final and immutable.
Second, it is undisputed that respondents appointment
was not submitted to the CSC, not through her own fault but
because of Human Resource Management Officer I Ma.
Teresa U. Diazs unjustified refusal to sign it on the feigned
and fallacious ground that respondents position description
form had not been duly signed by School Principal Dr.
Leticia B. Gonzales.69[35] Indeed, the CSC even sanctioned
Diaz for her failure to act in the required manner.70[36]
Similarly, the Ombudsman found both City Schools
Division Superintendent Ma. Amy O. Oyardo and Gonzales
administratively liable and suspended them for three months
for willfully withholding information from respondent on
the status of her appointment.
xxx xxx
xxx
All along, [respondent] was made to believe that
her appointment was in order. During the same period,
respondent Gonzales, with respondent Oyardos
knowledge, indifferently allowed [respondent] to plea
for the signing of her [position description form], when
they could have easily apprised [respondent] about the
revocation/withdrawal of her appointment. Worse,
when [respondent] informed Oyardo on 25 June 2003
about her assumption of office as [Administrative
Officer II], the latter directed [respondent] to go back to
 her post as Teacher I on the ground that [respondent] consequences of Gonzaless and Oyardos malfeasance.
had not been issued an attested appointment as
[Administrative Officer II], even when [Oyardo] knew
Otherwise, the Court would be recognizing a result that is
very well that [respondents] appointment could not be
processed with the CSC because of her order to re-
evaluate the applicants. This act by [Oyardo] is a unconscionable and unjust by effectively validating the
mockery of the trust reposed upon her by [respondent],
who, then in the state of quandary, specifically sought following inequities: respondent, who was vigilantly
[Oyardos] advice on what to do with her appointment,
in the belief that her superior could enlighten her on the
following up her appointment paper, was left to hang and
matter.

It was only on 02 July 2003 when [Gonzales], in dry; to add insult to injury, not long after Oyardo advised
her letter, first made reference to a re-ranking of the
applicants when [respondent] learned about the recall her to return to her teaching position, she (Oyardo)
by [Oyardo] of her appointment. At that time, the
thirty-day period within which to submit her
appointed petitioner in respondents stead.
appointment to the CSC has lapsed. [Oyardos] and
Gonzales act of withholding information about the real
status of [respondents] appointment unjustly deprived
her of pursuing whatever legal remedies available to her The obvious misgiving that comes to mind is why
at that time to protect her interest.71[37]
Gonzales and Oyardo were able to promptly process

petitioners appointment and transmit the same to the CSC

Considering these willful and deliberate acts of the
for attestation when they could not do so for respondent.
co-conspirators Diaz, Oyardo and Gonzales that caused
There is no doubt that office politics was moving behind the
undue prejudice to respondent, the Court cannot look the
scenes.
other way and make respondent suffer the malicious

In effect, Gonzales and Oyardos scheming and

plotting unduly deprived respondent of the professional

advancement she deserved. While public office is not paper to the CSC. As indubitably shown in this case, even

property to which one may acquire a vested right, it is respondents vigilance could not guard against the malice and

nevertheless a protected right.72[38] grave abuse of discretion of her superiors.

It cannot be overemphasized that respondents There is no dispute that the approval of the CSC is a

appointment became effective upon its issuance by the legal requirement to complete the appointment. Under

appointing authority and it remained effective until settled jurisprudence, the appointee acquires a vested legal

disapproved by the CSC (if at all it ever was). Disregarding right to the position or office pursuant to this completed

this rule and putting undue importance on the provision appointment.73[39] Respondents appointment was in fact

requiring the submission of the appointment to the CSC already approved by the CSC with finality.

within 30 days will reward wrongdoing in the appointment

The purpose of the requirement to submit the
process of public officials and employees. It will open the
appointment to the CSC is for the latter to approve or
door for scheming officials to block the completion and
disapprove such appointment depending on whether the
implementation of an appointment and render it ineffective
appointee possesses the appropriate eligibility or required
by the simple expedient of not submitting the appointment
qualifications and whether the laws and rules pertinent to the
process of appointment have been followed.74[40] With this position of Administrative Officer II provided by the
CSC. She therefore qualified for permanent
appointment.75[41]
in mind, respondents appointment should all the more be

deemed valid.
There is no doubt that, had the appointing authority

Respondents papers were in order. What was sought only submitted respondents appointment to the CSC within

from her (the position description form duly signed by the said 30 days from its issuance, the CSC would (and

Gonzales) was not even a prerequisite before her could ) have approved it. In fact, when the CSC was later

appointment papers could be forwarded to the CSC. More apprised of respondents prior appointment when she

significantly, respondent was qualified for the position. protested petitioners subsequent appointment, it was

Thus, as stated by the CA: respondents appointment which the CSC approved.

Petitioners appointment was recalled. These points were

The evidence also reveals compliance with the
procedures that should be observed in the selection never rebutted as petitioner gave undue emphasis to the non-
process for the vacant position of Administrative
Officer II and the issuance of the appointment to the attestation by the CSC of respondents appointment, without
respondent: the vacancy for the said position was
published on February 28, 2003; the Personnel any regard for the fact that the CSC actually approved
Selection Board of Dep-Ed Division of Tabaco City
conducted a screening of the applicants, which included
the respondent and the petitioner; the respondents respondents appointment.
qualifications met the minimum qualifications for the
 Third, the Court is urged to overlook the injustice
done to respondent by citing Favis v. Rupisan76[42] and
Tomali v. Civil Service Commission.77[43]
However, reliance on Favis is misplaced. In Favis, the
issue pertains to the necessity of the CSC approval, not the
submission of the appointment to the CSC within 30 days
from issuance. Moreover, unlike Favis where there was an
apparent lack of effort to procure the approval of the CSC,
respondent in this case was resolute in following up her
appointment papers. Thus, despite Favis having assumed the
responsibilities of PVTA Assistant General Manager for
almost two years, the Court affirmed her removal, ruling
that:
The tolerance, acquiescence or mistake of the
proper officials, resulting in the non-observance of the
pertinent rules on the matter does not render the legal
requirement, on the necessity of approval by the
Commissioner of Civil Service of appointments,
ineffective and unenforceable.78[44] (Emphasis
supplied)
Taken in its entirety, this case shows that the lack
of CSC approval was not due to any negligence on
respondents part. Neither was it due to the tolerance,
acquiescence or mistake of the proper officials. Rather,
the underhanded machinations of Gonzales and Oyardo,
as well as the gullibility of Diaz, were the major reasons
why respondents appointment was not even forwarded to
the CSC.
Tomali, likewise, is not applicable. The facts are
completely different. In Tomali, petitioner Tomalis
appointment was not approved by the CSC due to the The Court also found that [t]here (was) nothing on

belated transmittal thereof to the latter. The Court, citing record to convince us that the new OMA Director (had)

Favis, ruled that the appointees failure to secure the CSCs unjustly favored private respondent nor (had) exercised his

approval within the 30-day period rendered her appointment power of appointment in an arbitrary, whimsical or despotic

ineffective. It quoted the Merit Systems Protection Boards manner.80[46]

finding that there is no showing that the non-submission was

The peculiar circumstances in Tomali are definitely
motivated by bad faith, spite, malice or at least attributed to
not present here. As a matter of fact, the situation was
the fault of the newly installed [Office of Muslim Affairs]
exactly the opposite. As we have repeatedly stressed,
Executive Director. The Court observed:
respondent was not remiss in zealously following up the

Petitioner herself would not appear to be all that status of her appointment. It cannot be reasonably claimed
blameless. She assumed the position four months after
her appointment was issued or months after that
that the failure to submit respondents appointment to the
appointment had already lapsed or had become
ineffective by operation of law. Petitioner's
appointment was issued on 01 July 1990, but it was CSC was due to her own fault. The culpability lay in the
only on 31 May 1991 that it was submitted to the CSC,
a fact which she knew, should have known or should manner the appointing officials exercised their power with
have at least verified considering the relatively long
interval of time between the date of her appointment
and the date of her assumption to office.79[45]
arbitrariness, whim and despotism. The whole scheme was negligent in following up the submission of his appointment

intended to favor another applicant. to the CSC for approval, he should not be prejudiced by any

willful act done in bad faith by the appointing authority to

Therefore, the lack of CSC approval in Favis and
prevent the timely submission of his appointment to the
Tomali should be taken only in that light and not overly
CSC. While it may be argued that the submission of
stretched to cover any and all similar cases involving the 30-
respondents appointment to the CSC within 30 days was one
day rule. Certainly, the CSC approval cannot be done away
of the conditions for the approval of respondents
with. However, an innocent appointee like the respondent
appointment, however, deliberately and with bad faith, the
should not be penalized if her papers (which were in the
officials responsible for the submission of respondents
custody and control of others who, it turned out, were all
appointment to the CSC prevented the fulfillment of the said
scheming against her) did not reach the CSC on time. After
condition. Thus, the said condition should be deemed
all, her appointment was subsequently approved by the CSC
fulfilled.
anyway.

The Court has already had the occasion to rule that an

Under Article 1186 of the Civil Code, [t]he condition
appointment remains valid in certain instances despite non-
shall be deemed fulfilled when the obligor voluntarily
compliance of the proper officials with the pertinent CSC
prevents its fulfillment. Applying this to the appointment

process in the civil service, unless the appointee himself is

rules. In Civil Service Commission v. Joson, Jr.,81[47] the [Memorandum Circular] No. 38 had yet been resolved
by the CSC. The resolution of the petitioner granting
such request was received only in November, 1995. The
CSC challenged the validity of the appointment of Ong on
POEA, thereafter, reported the appointment in its
November, 1995 ROPA.82[48]
the ground that, among others, it was not reported in the July

1995 Report of Personnel Action (ROPA), thus making such

The Court reached the same conclusion in the recent
appointment ineffective. The subject rule provided that an
case of Chavez v. Ronidel83[49] where there was a similar
appointment issued within the month but not listed in the
inaction from the responsible officials which resulted in
ROPA for the said month shall become ineffective thirty
non-compliance with the requirement:
days from issuance. Rejecting the CSCs contention, the

Court held that there was a legitimate justification for such Lastly, we agree with the appellate court that
respondent's appointment could not be invalidated
delayed observance of the rule: solely because of [Presidential Commission for the
Urban Poors (PCUPs)] failure to submit two copies of
the ROPA as required by CSC Resolution No. 97368.
xxxx
We find the respondent's justification for the
failure of the POEA to include Ong's appointment in its
xxx xxx
ROPA for July 1995 as required by CSC Memorandum
xxx
Circular No. 27, Series of 1994 to be in order. The
records show that the [Philippine Overseas
Employment Administration (POEA)] did not include
the contractual appointment of Ong in its July ROPA
because its request for exemption from the educational
requisite for confidential staff members provided in
 We quote with approval the appellate court's
ratiocination in this wise:
To our minds, however, the invalidation of the
[respondent's] appointment based on this sole
technical ground is unwarranted, if not harsh and
arbitrary, considering the factual milieu of this case.
For one, it is not the [respondent's] duty to comply
with the requirement of the submission of the ROPA
and the certified true copies of her appointment to [the
Civil Service Commission Field Office or] CSCFO
within the period stated in the aforequoted CSC
Resolution. The said resolution categorically provides
that it is the PCUP, and not the appointee as in the case
of the [respondent] here, which is required to comply
with the said reportorial requirements.
Moreover, it bears pointing out that only a few
days after the [petitioner] assumed his new post as
PCUP Chairman, he directed the PCUP to hold the
processing of [respondent's] appointment papers in
abeyance, until such time that an assessment thereto is
officially released from his office. Unfortunately, up to
this very day, the [respondent] is still defending her
right to enjoy her promotional appointment as DMO V.
Naturally, her appointment failed to comply with
the PCUP's reportorial requirements under CSC
Resolution No. 97-3685 precisely because of the
[petitioner's] inaction to the same.
We believe that the factual circumstances of this
case calls for the application of equity. To our minds,
the invalidation of the [respondent's] appointment
due to a procedural lapse which is undoubtedly
beyond her control, and certainly not of her own
making but that of the [petitioner], justifies the
relaxation of the provisions of CSC Board Resolution
No. 97-3685, pars. 6,7 and 8. Hence, her appointment
must be upheld based on equitable considerations, and
that the non-submission of the ROPA and the certified
true copies of her appointment to the CSCFO within the
period stated in the aforequoted CSC Resolution should
not work to her damage and prejudice. Besides, the
[respondent] could not at all be faulted for
negligence as she exerted all the necessary vigilance
and efforts to reap the blessings of a work promotion.
Thus, We cannot simply ignore her plight. She has
fought hard enough to claim what is rightfully hers and,
as a matter of simple justice, good conscience, and
equity, We should not allow Ourselves to prolong her
agony.
All told, We hold that the [respondent's]
appointment is valid, notwithstanding the aforecited
procedural lapse on the part of PCUP which obviously
was the own making of herein [petitioner]. (Emphasis
supplied)
Respondent deserves the same sympathy from the
Court because there was also a telling reason behind the
non-submission of her appointment paper within the 30-day
period.
The relevance of Joson and Chavez to this case cannot
be simply glossed over. While the agencies concerned in
those cases were accredited agencies of the CSC which
could take final action on the appointments, that is not the
case here. Thus, any such differentiation is unnecessary. It
did not even factor in the Courts disposition of the issue in
Joson and Chavez. What is crucial is that, in those cases, the
Court upheld the appointment despite the non-compliance
with a CSC rule because (1) there were valid justifications
for the lapse; (2) the non-compliance was beyond the control
of the appointee and (3) the appointee was not negligent. All
these reasons are present in this case, thus, there is no basis
in saying that the afore-cited cases are not applicable here.
Similar things merit similar treatment.
Fourth, in appointing petitioner, the appointing
authority effectively revoked the previous appointment of
respondent and usurped the power of the CSC to withdraw
or revoke an appointment that had already been accepted by
the appointee. It is the CSC, not the appointing authority,
which has this power.84[50] This is clearly provided in
Section 9, Rule V of the Omnibus Rules:
Section 9. An appointment accepted by the
appointee cannot be withdrawn or revoked by the
appointing authority and shall remain in force and
effect until disapproved by the [CSC]. xxxx
(Emphasis supplied)
Thus, the Court ruled in De Rama v. Court of
Appeals85[51] that it is the CSC which is authorized to
recall an appointment initially approved when such
appointment and approval are proven to be in disregard of
applicable provisions of the civil service law and
regulations.
 Petitioner seeks to inflexibly impose the condition of doubtful basis will not only produce unjust consequences

submission of the appointment to the CSC by the appointing but also corrupt the appointment process. Obviously, such

authority within 30 days from issuance, that is, regardless of undesirable end result could not have been the intention of

the negligence/diligence of the appointee and the bad the law.

faith/good faith of the appointing authority to ensure

The power to revoke an earlier appointment through
compliance with the condition. However, such stance
the appointment of another may not be conceded to the
would place the appointee at the mercy and whim of the
appointing authority. Such position is not only contrary to
appointing authority even after a valid appointment has
Section 9, Rule V and Section 1, Rule IV of the Omnibus
been made. For although the appointing authority may not
Rules. It is also a dangerous reading of the law because it
recall an appointment accepted by the appointee, he or she
unduly expands the discretion given to the appointing
can still achieve the same result through underhanded
authority and removes the checks and balances that will rein
machinations that impedes or prevents the transmittal of the
in any abuse that may take place. The Court cannot
appointment to the CSC. In other words, the insistence on a
countenance such erroneous and perilous interpretation of
strict application of the condition regarding the submission
the law.
of the appointment to the CSC within 30 days, would give

the appointing authority the power to do indirectly what he Accordingly, petitioners subsequent appointment was

or she cannot do directly. An administrative rule that is of void. There can be no appointment to a non-vacant position.
The incumbent must first be legally removed, or her Costs against petitioner.

appointment validly terminated, before another can be

appointed to succeed her.86[52]

In sum, the appointment of petitioner was inconsistent SO ORDERED.

with the law and well-established jurisprudence. It not only

disregarded the doctrine of immutability of final judgments

but also unduly concentrated on a narrow portion of the

RENATO C. CORONA
provision of law, overlooking the greater part of the
Associate Justice
provision and other related rules and using a legal doctrine

rigidly and out of context. Its effect was to perpetuate an

injustice.

WHEREFORE, the petition is hereby DENIED.

WE CONCUR:
REYNATO S. PUNO

Chief Justice
 ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

 Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

MARTIN S. VILLARAMA, JR. JOSE P. PEREZ Chief Justice

Associate Justice Associate Justice

JOSE C. MENDOZA

Associate Justice

CERTIFICATION