Carolina R. Javier vs. Sandiganbayan, et al., G.R. Nos.

14702627, September 11, 2009, Facts: Javier was charged with malversation of public funds. Javier was the private sector representative in the National Book Development Board (NBDB), which was created by Republic Act (R.A.) No. 8047, otherwise known as the Book Publishing Industry Development Act. R.A. No. 8047 provided for the creation of the NBDB, which was placed under the administration and supervision of the Office of the President. The NBDB is composed of eleven (11) members who are appointed by the President, five (5) of whom come from the government, while the remaining six (6) are chosen from the nominees of organizations of private book publishers, printers, writers, book industry related activities, students and the private education sector. The Ombudsman found probable cause to indict Javier for violation of the Anti-Graft and Corrupt Practices Act and recommended the filing of the corresponding information. In an Information dated February 18, 2000, Javier was charged with violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act before the Sandiganbayan. The Commission on Audit also charged Javier with malversation of public funds, as defined and penalized under Article 217 of the Revised Penal Code. Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan. On October 10, 2000, Javier filed a Motion to Quash Information, averring that the Sandiganbayan has no jurisdiction to hear the case as the information did not allege that she is a public official who is classified as Grade 27 or higher. Neither did the information charge her as a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayans jurisdiction. She also averred that she is not a public officer or employee and that she belongs to the NBDB only as a private sector representative under R.A. No. 8047, hence, she may not be charged under the Anti-Graft and Corrupt Practices Act before the Sandiganbayan or under any statute which covers public officials. Moreover, she claimed that she

does not perform public functions and is without any administrative or political power to speak of that she is serving the private book publishing industry by advancing their interest as participant in the governments book development policy. On January 17, 2001, the Sandiganbayan issued a Resolution denying Javiers motion. Javier filed a petition for certiorari before the Supreme Court. Javier hinges her petition on the ground that the Sandiganbayan has committed grave abuse of discretion amounting to lack of jurisdiction for not quashing the two informations charging her with violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code on malversation of public funds. She advanced the following arguments in support of her petition, to wit: first, she is not a public officer, and second, she was being charged under two (2) informations, which is in violation of her right against double jeopardy. Issue: WON a private sector representative is a public officer Held: The Supreme Court ruled that Javier was a public officer: To substantiate her claim, petitioner maintained that she is not a public officer and only a private sector representative, stressing that her only function among the eleven (11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain priority status for the book publishing industry. At the time of her appointment to the NDBD Board, she was the President of the BSAP, a book publishers association. As such, she could not be held liable for the crimes imputed against her, and in turn, she is outside the jurisdiction of the Sandiganbayan. The NBDB is the government agency mandated to develop and support the Philippine book publishing industry. It is a statutory government agency created by R.A. No. 8047, which was enacted

into law to ensure the full development of the book publishing industry as well as for the creation of organization structures to implement the said policy. To achieve this end, the Governing Board of the NBDB was created to supervise the implementation. . . A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions. A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, the law invested her with some portion of the sovereign functions of the government, so that the purpose of the government is achieved. In this case, the government aimed to enhance the book publishing industry as it has a significant role in the national development. Hence, the fact that she was appointed from the public sector and not from the other branches or agencies of the government does not take her position outside the meaning of a public office. She was appointed to the Governing Board in order to see to it that the purposes for which the law was enacted are achieved. The Governing Board acts collectively and carries out its mandate as one body. The purpose of the law for appointing members from the private sector is to ensure that they are also properly represented in the implementation of government objectives to cultivate the book publishing industry. Moreover, the Court is not unmindful of the definition of a public officer pursuant to the Anti-Graft Law, which provides that a public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government.

Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a public office. Petitioner was appointed by the President to the Governing Board of the NDBD. Though her term is only for a year that does not make her private person exercising a public function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature of ones appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer. On the other hand, the Revised Penal Code defines a public officer as any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer. Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A. No. 8047, verily, she is a public officer who takes part in the performance of public functions in the government whether as an employee, agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and promulgation of several rules and regulations implementing R.A. No. 8047. She was supposed to represent the country in the canceled book fair in Spain. In fine, We hold that petitioner is a public officer. On the issue of double jeopardy, the Supreme Court ruled that there was no double jeopardy.

Records show that the Informations in Criminal Case Nos. 25867 and 25898 refer to offenses penalized by different statues, R.A. No. 3019 and RPC, respectively. It is elementary that for double jeopardy to attach, the case against the accused must have been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon valid information sufficient in form and substance and the accused pleaded to the charge. In the instant case, petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law. She was not yet arraigned in the criminal case for malversation of public funds because she had filed a motion to quash the latter information. Double jeopardy could not, therefore, attach considering that the two cases remain pending before the Sandiganbayan and that herein petitioner had pleaded to only one in the criminal cases against her. It is well settled that for a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.[38] The third and fourth requisites are not present in the case at bar. Preclaro v Sandiganbayan Facts: Accused is a project manager/consultant of the Chemical Mineral Division, Industrial Technology Development Institute, Department of Science and Technology, a component of the Industrial Development Institute which is an agency of the DOST. He is to supervise the construction of the ITDI-CMD building, while the Jaime Sta. Maria Construction undertook the construction. The structure is jointly funded by the Philippine and Japanese Governments.

While the said construction has not yet been completed, accused either directly requested and/or demanded for himself the sum of P200,000.00, claimed as part of the expected profit of the contractor. Petitioner was charged for violation of the Anti-Graft and Corrupt Practices Act for committing said offense in relation to the performance of his official duties. Petitioner asserts in a petition for review that he is not a public officer because he was neither elected nor appointed to a public office, but merely a private individual hired by the ITDI on contractual basis for a particular project and for a specified period. Hence the Sandiganbayan erred in taking cognizance of the case. Section 2 (b) of RA 3019 defines a public officer to include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government Issue: WON a private individual hired on a contractual basis by the government is a public officer. Held: Yes. The word includes used in defining a public officer indicates that the definition is not restrictive. The terms classified, unclassified or exemption service were the old categories of position in the civil service which have been reclassified into Career Service and NonCareer Service by PD 807 providing for the organization of the Civil Service Commission by the Administrative Code of 1987. A private individual hired on a contractual basis as Project Manager for a government undertaking falls under the non-career service category of the Civil Service and thus is a public officer as defined by Sec 2(b) of RA 3019. Under Book V, Title I, Subtitle A, Chapter 2, Sec 6(2) of the Administrative Code of 1987, non-career service in particular is characterized by 1) entrance other than those of the usual test 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. Section 9(4) of the same provides that Non-Career Service It shall include Contractual personnel or those 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.

Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because he, both as chairman of the NCC and of the EXPOCORP was not a public officer. Issue: WON petitioner, as Chair of the NCC, was not a public officer. Held: No. A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer (Mechem). The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. We hold that the NCC performs executive functions. The executive power is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance. The executive function, therefore, concerns the implementation of the policies as set forth by law. The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports) thereof: Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nations historical and cultural heritage and resources, as well as artistic creations.

Laurel v Desierto Facts: Petitioner is the Chair of the National Centennial Commission (NCC), tasked to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress. Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created and Petitioner was elected Expocorp Chief Executive Officer. An investigation of the anomalies in the construction and operation of the centennial projects was effected and the Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report recommending for the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, in violation of the anti-graft law. The Evaluation and Preliminary Investigation Bureau issued a resolution finding probable cause to indict petitioner before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594.

In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial Celebrations in 1998: Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important vehicle for fostering nationhood and a strong sense of Filipino identity; Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values; Whereas, the success of the Centennial Celebrations may be insured only through long-range planning and continuous developmental programming; Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly in communication and information dissemination, is necessary for long-range planning and continuous developmental programming; Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the multi-sectoral components from the business, cultural, and business sectors to serve as effective instruments from the launching and overseeing of this long-term project; Hence, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer.

Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA). Facts: On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC), vice Agustin R. Bengzon. Bautista was designated as Undersecretary for Maritime Transport of the department under Special Order No. 2006171 dated October 23, 2006.[1] On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary.[2] On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of Bautistas appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment. On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA vice Vicente T. Suazo, Jr.[3] and she assumed her duties and responsibilities as such on February 2, 2009. Contentions:

Funa v Ermita Nature of the case: This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, to declare as unconstitutional the designation of respondent Undersecretary Maria Elena H. 1. Bautistas concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution, as interpreted and explained by this Court in Civil Liberties Union v. Executive Secretary,[5] and reiterated in Public Interest Center, Inc. v. Elma.[6] He points out that while it was clarified in Civil Liberties Union that the prohibition does not apply to those positions held in ex-officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTC Undersecretary,

as can be gleaned from the provisions of its charter, Presidential Decree (P.D.) No. 474,[7] as amended by Executive Order (EO) No. 125-A.[8] Moreover, the provisions on the DOTC in the Administrative Code of 1987, specifically Sections 23 and 24, Chapter 6, Title XV, Book IV do not provide any ex-officio role for the undersecretaries in any of the departments attached agencies. The fact that Bautista was extended an appointment naming her as OIC of MARINA shows that she does not occupy it in an ex-officio capacity since an ex-officio position does not require any further warrant or appoint.[9] 2. even if Bautistas appointment or designation as OIC of MARINA was intended to be merely temporary, still, such designation must not violate a standing constitutional prohibition, citing the rationale in Achacoso v. Macaraig.[10] Section 13, Article VII of the 1987 Constitution does not enumerate temporariness as one (1) of the exceptions thereto. And since a temporary designation does not have a maximum duration, it can go on for months or years. In effect, the temporary appointment/designation can effectively circumvent the prohibition. Allowing undersecretaries or assistant secretaries to occupy other government posts would open a Pandoras Box as to let them feast on choice government positions. Thus, in case of vacancy where no permanent appointment could as yet be made, the remedy would be to designate one (1) of the two (2) Deputy Administrators as the Acting Administrator. Such would be the logical course, the said officers being in a better position in terms of knowledge and experience to run the agency in a temporary capacity. Should none of them merit the Presidents confidence, then the practical remedy would be for Undersecretary Bautista to first resign as Undersecretary in order to qualify her as Administrator of MARINA. As to whether she in fact does not receive or has waived any remuneration, the same does not matter because remuneration is not an element in determining whether there has been a violation of Section 13, Article VII of the 1987 Constitution.[11] 3. Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINA Administrator. The reason is that with respect to the affairs in the maritime industry, the recommendations of the MARINA may be the subject of counter or

opposing recommendations from the Undersecretary for Maritime Transport. In this case, the DOTC Undersecretary for Maritime Transport and the OIC of MARINA have become one (1) and the same person. There is no more checking and counter-checking of powers and functions, and therein lies the danger to the maritime industry. There is no longer a person above the Administrator of MARINA who will be reviewing the acts of said agency because the person who should be overseeing MARINA, the Undersecretary for Maritime Transport, has effectively been compromised.[12] 4. Finally, petitioner contends that there is a strong possibility in this case that the challenge herein can be rendered moot through the expediency of simply revoking the temporary appointment/designation. But since a similar violation can be committed in the future, there exists a possibility of evading review, and hence supervening events should not prevent the Court from deciding cases involving grave violation of the 1987 Constitution, as this Court ruled in Public Interest Center. Notwithstanding its mootness therefore, should it occur, there is a compelling reason for this case to be decided: the issue raised being capable of repetition, yet evading review.[13] Respondents counterarguments 1. On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present petition moot and academic. 2. 3. Bautistas concurrent designation as MARINA OIC and DOTC Undersecretary was constitutional. There was no violation of Section 13, Article VII of the 1987 Constitution because respondent Bautista was merely designated acting head of MARINA on September 1, 2008. She was designated MARINA OIC, not appointed MARINA Administrator. With the resignation of Vicente T. Suazo, Jr.,

the position of MARINA Administrator was left vacant, and pending the appointment of permanent Administrator, respondent Bautista was designated OIC in a temporary capacity for the purpose of preventing a hiatus in the discharge of official functions. Her case thus falls under the recognized exceptions to the rule against multiple offices, i.e., without additional compensation (she did not receive any emolument as MARINA OIC) and as required by the primary functions of the office. Besides, Bautista held the position for four (4) months only, as in fact when she was appointed MARINA Administrator on February 2, 2009, she relinquished her post as DOTC Undersecretary for Maritime Transport, in acknowledgment of the proscription on the holding of multiple offices.[16]

Maritime Transport and the administratorship of MARINA are closely related and is governed by Section 7, paragraph 2, Article IX-B of the 1987 Constitution rather than by Section 13, Article VII. In other words, it was a mere secondary argument. The fact remains that, incompatible or not, Section 13, Article VII still does not allow the herein challenged designation.[19] Issue: whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members and their deputies and assistants. Held: On the issue of Mootness, 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. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.[24] However, as we held in Public Interest Center, Inc. v. Elma,[25] supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public. On Incompatible Offices The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive officials specified therein, without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions

4. As to petitioners argument that the DOTC Undersecretary for Maritime Transport and MARINA Administrator are incompatible offices, respondents cite the test laid down in People v. Green,[17] which held that [T]he offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are compatible at common law. Thus, respondents point out that any recommendation by the MARINA Administrator concerning issues of policy and administration go to the MARINA Board and not the Undersecretary for Maritime Transport. The Undersecretary for Maritime Transport is, in turn, under the direct supervision of the DOTC Secretary. Petitioners fear that there is no longer a person above the Administrator of MARINA who will be reviewing the acts of said agency (the Undersecretary for Maritime Transport) is, therefore, clearly unfounded.[18]

5. In his Reply, petitioner contends that respondents argument on the incompatibility of positions was made on the mere assumption that the positions of DOTC Undersecretary for

of said office. The reason is that these posts do not comprise any other office within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. Apart from their bare assertion that respondent Bautista did not receive any compensation when she was OIC of MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in an ex-officio capacity as required by the primary functions of her office as DOTC Undersecretary for Maritime Transport.

Given the vast responsibilities and scope of administration of the MARINA, we are hardly persuaded by respondents submission that respondent Bautistas designation as OIC of MARINA was merely an imposition of additional duties related to her primary position as DOTC Undersecretary for Maritime Transport. It appears that the DOTC Undersecretary for Maritime Transport is not even a member of the Maritime Industry Board, which includes the DOTC Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the following as members: Executive Secretary (Office of the President), Philippine Ports Authority General Manager, Department of National Defense Secretary, Development Bank of the Philippines General Manager, and the Department of Trade and Industry Secretary.

The disqualification laid down in Section 13, Article VII is aimed at preventing the concentration of powers in the Executive Department officials, specifically the President, Vice-President, Members of the Cabinet and their deputies and assistants. Civil Liberties Union traced the history of the times and the conditions under which the Constitution was framed, and construed the Constitution consistent with the object sought to be accomplished by adoption of such provision, and the evils sought to be avoided or remedied. We recalled the practice, during the Marcos regime, of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned or controlled corporations. This practice of holding multiple offices or positions in the government led to abuses by unscrupulous public officials, who took advantage of this scheme for purposes of self-enrichment. The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission would draft into the proposed Constitution the provisions under consideration, which were envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. Dennis B. Funa vs. Executive Secretary Ed while the designation was in the nature of an acting and temporary capacity, the words hold the office were employed. Such holding of office pertains to both appointment and designation because the appointee or designate performs the duties and functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible offices, refers to the holding of the office, and not to the nature of the appointment or designation, words which were not even found in Section 13, Article VII nor in Section 7, paragraph 2, Article IX-B. To hold an office means to possess or occupy the same, or to be in possession and administration,[37] which implies nothing less than the actual discharge of the functions and duties of the office.

It must be stressed though that while the designation was in the nature of an acting and temporary capacity, the words hold the office were employed. Such holding of office pertains to both appointment and designation because the appointee or designate performs the duties and functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible offices, refers to the holding of the office, and not to the nature of the appointment or designation, words which were not even found in Section 13, Article VII nor in Section 7, paragraph 2, Article IX-B. To hold an office means to possess or occupy the same, or to be in possession and administration, which implies nothing less than the actual discharge of the functions and duties of the office.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Petition Granted Obiasca v Bassalote Facts: On May 26, 2003, City Schools Division Superintendent Nelly B. Beloso appointed respondent Jeane O. Basallote to the position of Administrative Officer II, Item No. OSEC-DECSB-ADO2-3900301998, of the Department of Education (DepEd), Tabaco National High School in Albay. Subsequently, in a letter dated June 4, 2003, the new City Schools Division Superintendent, Ma. Amy O. Oyardo, advised School Principal Dr. Leticia B. Gonzales that the papers of the applicants for the position of Administrative Officer II of the school, including those of respondent, were being returned and that a school ranking should be accomplished and submitted to her office for review. In addition, Gonzales was advised that only qualified applicants should be endorsed. Respondent assumed the office of Administrative Officer II on June 19, 2003. Thereafter, however, she received a letter from Ma. Teresa U. Diaz, Human Resource Management Officer I of the City Schools Division of 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. Respondent tried to obtain Gonzales signature but the latter refused despite repeated requests. When respondent informed Oyardo of the situation, she was instead advised to return to her former teaching position of Teacher I. Respondent followed the advice.

Meanwhile, on August 25, 2003, Oyardo appointed petitioner Arlin B. Obiasca to the same position of Administrative Officer II. The appointment was sent to and was properly attested by the CSC. Upon learning this, respondent filed a complaint with the Office of the Deputy Ombudsman for Luzon against Oyardo, Gonzales and Diaz. In its decision, the Ombudsman found Oyardo and Gonzales administratively liable for withholding information from respondent on the status of her appointment, and suspended them from the service for three months. Diaz was absolved of any wrongdoing. CSC Regional Office V: the protest was dismissed on the ground that it should first be submitted to the Grievance Committee of the DepEd for appropriate action. MR: the protest was reinstated but was eventually dismissed for lack of merit. Respondent appealed the dismissal of her protest to the CSC Regional Office which, however, dismissed the appeal for failure to show that her appointment had been received and attested by the CSC. CSC: In its November 29, 2005 resolution, the CSC granted the appeal, approved respondents appointment and recalled the approval of petitioners appointment. CA : In its September 26, 2006 decision, the CA denied the petition and upheld respondents appointment which was deemed effective immediately upon its issuance by the appointing authority on May 26, 2003. This was because respondent had accepted the appointment upon her assumption of the duties and responsibilities of the position. Contentions: Petitioner maintains that respondent was not validly appointed to the position of Administrative Officer II because her appointment was never attested by the CSC. According to petitioner, without the CSC attestation, respondents appointment as Administrative Officer II was never completed and never vested her a permanent title.

Respondent points out that her appointment was wrongfully not submitted by the proper persons to the CSC for attestation. The reason given by Oyardo for the non-submission of respondents appointment papers to the CSC the alleged failure of respondent to have her PDF duly signed by Gonzales was not a valid reason because the PDF was not even required for the attestation of respondents appointment by the CSC. Issues: WON the deliberate failure of the appointing authority (or other responsible officials) to submit respondents appointment paper to the CSC within 30 days from its issuance made her appointment ineffective and incomplete. NO Held: Section 9(h) of PD 807 Already Amended by Section 12 Book V of EO 292 It is incorrect to interpret Section 9(h) of Presidential Decree (PD) 807 as requiring that an appointment must be submitted by the appointing authority to the CSC within 30 days from issuance, otherwise, the appointment would become ineffective. Such interpretation fails to appreciate the relevant part of Section 9(h) which states that "an 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 disapproved by the [CSC]." This provision is reinforced by Section 1, Rule IV of the Revised Omnibus Rules on Appointments and Other Personnel Actions, which reads: Section 1. 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. x x x (Emphasis supplied) More importantly, Section 12, Book V of EO 292 amended Section 9(h) of PD 807 by deleting the requirement that all appointments

subject to CSC approval be submitted to it within 30 days. Section 12 of EO 292 provides: Sec. 12. Powers and Functions. - The Commission shall have the following powers and functions: xxx xxx xxx

(14) Take appropriate action on all appointments and other personnel matters in the Civil Service, including extension of Service beyond retirement age; (15) Inspect and audit the personnel actions and programs of the departments, agencies, bureaus, offices, local government units and other instrumentalities of the government including government owned or controlled corporations; conduct periodic review of the decisions and actions of offices or officials to whom authority has been delegated by the Commission as well as the conduct of the officials and the employees in these offices and apply appropriate sanctions whenever necessary. 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 34 CSC. 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 35 School Principal Dr. Leticia B. Gonzales. Indeed, the CSC even sanctioned Diaz for her failure to act in the required

manner. 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.

36

The compiled cases which led to this case and the petitions of intervenors called for either the prohibition of the JBC to pass the shortlist, mandamus for the JBC to pass the shortlist, or that the act of appointing the next Chief Justice by GMA is a midnight appointment. A precedent frequently cited by the parties is the In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the RTC of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, shortly referred to here as the Valenzuela case, by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed.

De Castro v. JBC Facts: This case is based on multiple cases field with dealt with the controversy that has arisen from the forthcoming compulsory requirement of Chief Justice Puno on May 17, 2010 or seven days after the presidential election. On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. In its January 18, 2010 meeting en banc, the JBC passed a resolution which stated that they have unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice. As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement in the Philippine Daily Inquirer and the Philippine Star. In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite to the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010. Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy in this case being unresolved.

ISSUES 1. W/N the petitioners have legal standing? 2. W/N there is justiciable controversy that is ripe for judicial determination? 3. W/N the incumbent President appoint the next Chief Justice? 4. W/N mandamus and prohibition will lie to compel the submission of the shortlist of nominees by the JBC? RULING Petitioners have legal standing because such requirement for this case was waived by the Court. Legal standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. But even if, strictly speaking, the petitioners are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised. There is a justiciable issue

We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the interview of constitutional experts, as may be needed. The resolution of the controversy will surely settle with finality the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process. PROHIBITION UNDER SECTION 15, ARTICLE VII DOES NOT APPLY TO APPOINTMENTS TO FILL A VACANCY IN THE SUPREME COURT OR TO OTHER APPOINTMENST TO THE JUDICIARY. Two constitutional provisions seemingly in conflict: The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

Justification of the Supreme Court: First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain. The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be enforced should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the

vacancy. The failure by the President to do so will be a clear disobedience to the Constitution. The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative language.

President for consideration the nominations for the eight vacancies in the Court of Appeals.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President. Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.

Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary. There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive. Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming presidential elections. He assured that on the basis of the (Constitutional) Commissions records, the election ban had no application to appointments to the Court of Appeals. This confirmation was accepted by the JBC, which then submitted to the

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining. The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court. Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity.

xxx The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC.

WRIT OF MANDAMUS DOES NOT LIE AGAINST THE JBC Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way. For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President any President to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. Sec. 9, Article VIII says: xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation.