G.R. No.

174935 April 30, 2008

CIVIL SERVICE COMMISSION, petitioner, vs. TRISTAN C. COLANGGO,
**
respondents.
D E C I S I O N
CORONA, J.:
This petition for review on certiorari
1
seeks to set aside the February 22, 2006 decision
2
of the Court of
Appeals (CA) in CA-G.R. SP No. 79047 and its resolution denying reconsideration.
3

On October 25, 1992, respondent Tristan C. Colanggo took the Professional Board Examination for
Teachers (PBET) and obtained a passing rate of 75.98%. On October 1, 1993, he was appointed Teacher I
and was assigned to Don Ruben E. Ecleo, Sr. Memorial National High School in San Jose, Surigao del
Norte.
Subsequently, a complaint questioning the eligibility of teachers in Surigao del Norte was filed in the Civil
Service Commission (CSC) CARAGA Regional Office No. XIII (CSC-CARAGA) in Butuan City. The CSC-
CARAGA immediately investigated the matter.
In the course of its investigation, the CSC-CARAGA discovered significant irregularities in respondent's
documents. The photographs of "Tristan C. Colanggo" attached respectively to the PBET application form
and to the October 25, 1992 picture seat plan did not resemble respondent. Furthermore, the signature
found in the PBET application form was markedly different from that affixed on respondent's personal
data sheet (PDS). It appeared that someone other than respondent filed his PBET application and still
another person took the exam on his behalf. Thus, the CSC-CARAGA filed a formal charge for dishonesty
and conduct prejudicial to the best interest of service against respondent on January 13, 1999.
4

On September 27, 2000, respondent filed an answer denying the charges against him and moved for a
formal hearing and investigation. The CSC granted the motion and scheduled a hearing on October 31,
2000. Respondent failed to appear on the said date but subsequently filed an omnibus motion for the
production of original documents relative to the charges against him and the presentation of persons
who supervised the October 25, 1992 PBET. His motion was granted and the concerned proctor and
examiners were subpoenaed.
After evaluating the evidence, the CSC found:
On the basis of the photographs attached [to] the PBET application form and the picture seat
plan, it is evident that the person who filed the application form for the PBET is not the same
person who actually took the said examination on October 25, 1992. This disparity of physical
features of the former and latter are evident. The person who filed the PBET has fuller
cheekbones and slanted eyes, thinner lips and has a different hairstyle from that of the John
Doe who took the said examination. On the other hand, the latter has thinner cheekbones,
elongated chin, full lips with a moustache and round eyes. Also, the signatures appearing of
the PBET applicant and that of the PBET examinee are also in different strokes, curves and
slants.
Comparing the signatures on the [PBET application form] and [picture seat plan] vis--vis
those affixed on the PDS of respondent more evidently reveals that the three are different
persons. The photographs and signatures appearing on the [PBET application form] and
[picture seat plan] are far and different from the facial features and signatures from both
John Does. Respondent looks older, has full cheekbones, flatter nose and thin lips. In other
words, the picture and signatures affixed on the PBET application form, picture seat plan
and PDS undoubtedly belong to three different persons which clearly serve a ground to
establish a just cause for CSC-CARAGA to issue a formal charge on January 13, 1999 against
respondent.
5
(emphasis supplied)
The CSC concluded that respondent did not apply for and take the PBET exam. Thus, in Resolution No.
021412, the CSC found respondent guilty of dishonesty and conduct prejudicial to the best interest of
service and ordered his dismissal.
6

Respondent moved for reconsideration but his motion was denied.
7

Aggrieved, respondent filed a petition for certiorari in the CA alleging that the CSC committed grave
abuse of discretion in issuing Resolution No. 021412.
8
He pointed out that the pieces of evidence against
him were inadmissible as they were unauthenticated photocopies of the PBET application form, picture
seat plan and PDS.
On February 22, 2006, the CA granted the petition.
9
It ruled that the photocopies of the PBET application
form, picture seat plan and PDS should have been authenticated.
10
Only documents or public records
duly acknowledged or certified as such in accordance with law could be presented in evidence without
further proof.
11
Consequently, the CA annulled and set aside Resolution No. 021412 and ordered the
dismissal of charges against respondent.
12

The CSC moved for reconsideration
13
but was denied.
14
Hence, this petition.
The CSC essentially avers that the CA erred in finding that it committed grave abuse of discretion in
rendering Resolution No. 021412.
15
The Uniform Rules on Administrative Cases in the Civil Service
16

(Uniform Rules) does not require strict adherence to technical rules of evidence. Thus, it validly
considered the photocopies of the PBET application form, picture seat plan and PDS in resolving the
formal charge against respondent in spite of the fact that they were not duly authenticated.
The petition is meritorious.
Administrative rules of procedure are construed liberally to promote their objective and to assist parties
in obtaining just, speedy and inexpensive determination of their respective claims and defenses.
17

Section 39 of the Uniform Rules provides:
Section 39. The direct evidence for the complainant and the respondent consist of the sworn
statement and documents submitted in support of the complaint or answer as the case may
be, without prejudice to the presentation of additional evidence deemed necessary but was
unavailable at the time of the filing of the complaint and the answer upon which the cross-
examination, by the respondent and the complainant respectively, shall be based. Following
the cross-examination, there may be re-direct or re-cross examination.
Either party may avail himself of the services of counsel and may require the attendance of
witnesses and the production of documentary evidence in his favor through the compulsory
process of subpoena or subpoena duces tecum.
The investigation shall be conducted for the purpose of ascertaining the truth without
necessarily adhering to technical rules applicable in judicial proceedings. It shall be
conducted by the disciplining authority concerned or his authorized representatives.
(emphasis supplied)
The provision above clearly states that the CSC, in investigating complaints against civil servants, is not
bound by technical rules of procedure and evidence applicable in judicial proceedings.
The CSC correctly appreciated the photocopies of PBET application form, picture seat plan and PDS
(though not duly authenticated) in determining whether there was sufficient evidence to substantiate
the charges against the respondent. Worth noting was that respondent never objected to the veracity of
their contents. He merely disputed their admissibility on the ground that they were not authenticated.
As a general rule, a finding of guilt in administrative cases, if supported by substantial evidence (or "that
amount of evidence which a reasonable mind might accept as adequate to justify a conclusion"),
18
will be
sustained by this Court.
19

The CSC graciously granted respondent's motions to ensure that he was accorded procedural due
process. Moreover, it exhaustively discussed the differences in appearances of respondent and the
persons whose photographs were attached to the PBET application form and the picture seat plan. It
likewise compared the various signatures on the said documents.
Resolution No. 021412 reveals that the CSC carefully evaluated the allegations against respondent and
thoroughly examined and weighed the evidence submitted for its consideration. The penalty (of
dismissal) imposed on respondent was therefore fully in accord with law
20
and jurisprudence.
21
We find
no grave abuse of discretion on the part of the CSC.
ACCORDINGLY, the petition is hereby GRANTED. The February 22, 2006 decision and August 17, 2006
resolution of the Court of Appeals in CA-S.P. No. 79047 are REVERSED and SET ASIDE.
Resolution No. 021412 dated October 22, 2002 and the May 19, 2003 resolution of the Civil Service
Commission finding respondent Tristan C. Colanggo GUILTY of dishonesty and conduct prejudicial to the
best interest of service and dismissing him from the service with forfeiture of leave credits and
retirement benefits and disqualifying him from reemployment in the government service are
REINSTATED. SO ORDERED.


G.R. NO. 161067 March 14, 2008
DOMINADOR C. FERRER, JR., Petitioner, vs. SANDIGANBAYAN, HON. EDILBERTO G. SANDOVAL, HON.
FRANCISCO H. VILLARUZ, JR., and HON. RODOLFO G. PALATTAO, as Members of the Sandiganbayan,
Second Division, ANNA MARIA L. HARPER, ESPERANZA G. GATBONTON, and PEOPLE OF THE
PHILIPPINES, Respondents.
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
Does a finding of lack of administrative liability of a respondent government official bar the filing of a
criminal case against him for the same acts?
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to annul the
Resolutions of the Sandiganbayan, Second Division (public respondent) dated July 2, 2003
1
and October
22, 2003
2
in Criminal Case No. 26546. The Resolution of July 2, 2003 denied the Motion for Re-
determination of Probable Cause filed by accused Dominador G. Ferrer (petitioner), while the Resolution
of October 22, 2003 denied petitioner's Motion for Reconsideration and/or Motion to Quash.
The following are the factual antecedents:
On January 29, 2001, an Information
3
for violation of Section 3 (e) of Republic Act (R.A.) No. 3019 was
filed against petitioner, as follows:
That on or about August 20, 1998 or for sometime prior or subsequent thereto, in Manila, Philippines,
and within the jurisdiction of this Honorable Court, DOMINADOR C. FERRER, JR., being the Administrator
of the Intramuros Administration (IA), Manila, while in the performance of his official and administrative
functions as such, and acting with manifest partiality, evident bad faith and gross inexcusable negligence,
did then and there, willfully, unlawfully and criminally give unwarranted benefits to Offshore
Construction and Development Company, by causing the award of the Lease Contracts to said company,
involving Baluarte de San Andres, Ravellin de Recolletos, and Baluarte de San Francisco de Dilao,
Intramuros, Manila, without conducting any public bidding as required under Joint Circular No. 1 dated
September 30, 1989 of the Department of Budget and Management, Department of Environment and
Natural Resources and Department of Public Works and Highways, and by allowing the construction of
new structures in said leased areas without any building permit or clearance required under the
Intramuros Charter (P.D. 1616) and the National Building Code, to the damage and prejudice of public
interest.
CONTRARY TO LAW.
Manila, Philippines, January 29, 2001.
4

and assigned to the Sandiganbayan's Second Division.
On April 4, 2001, petitioner filed a Motion for Reinvestigation, alleging that the Office of the
Ombudsman disregarded certain factual matters which, if considered, will negate the finding of probable
cause.
5

On July 13, 2001, public respondent issued a Resolution denying petitioner's Motion for Reinvestigation.
6

It held that petitioner's contentions are all evidentiary in nature and may be properly considered only in
a full-blown trial.
On September 12, 2001, petitioner filed a Motion for Reconsideration.
7
Shortly thereafter, he filed a
Supplemental Motion for Reconsideration, asserting that the complainants were guilty of forum
shopping, due to the earlier dismissal of the administrative case against him.
8

On December 11, 2001, public respondent issued a Resolution denying the Motion for Reconsideration.
9

Petitioner filed a Motion for Leave to File a Second Motion for Reconsideration.
10
Again, he cited as his
ground the alleged forum shopping of the private complainants.
On April 29, 2002, public respondent issued a Resolution denying the Motion for Leave to File a Second
Motion for Reconsideration.
11
It held that there was no forum shopping since the administrative and
criminal cases are two different actions, so neither resolution on the same would have the effect of res
judicata on the other. The public respondent dismissed the second motion for reconsideration as a pro
forma and prohibited motion.
Petitioner then filed a Petition for Certiorari with this Court, docketed as G.R. No. 153592, which assailed
the Resolution of public respondent dated April 29, 2002 as having been issued with grave abuse of
discretion amounting to lack of jurisdiction. On July 1, 2002, the Court dismissed the petition for having
been filed out of time and for failure to pay the required docket fees.
12

Petitioner filed a Motion for Reconsideration
13
which the Court denied with finality in its Resolution
dated September 4, 2002.
14

On May 19, 2003, before he can be arraigned, petitioner filed yet another motion with public
respondent, this time a Motion for Re-determination of Probable Cause,
15
invoking the ruling of the
Office of the President (OP), dated February 29, 2000,
16
which absolved petitioner of administrative
liability. The OP reviewed the administrative case filed against petitioner with the Presidential
Commission Against Graft and Corruption (PCAGC) and held that petitioner acted in good faith and
within the scope of his authority.
On July 2, 2003, the Sandiganbayan issued herein assailed Resolution denying the Motion for Re-
determination of Probable Cause, stating as follows:
The Court resolves to deny the motion for re-determination of probable cause, the argument advanced
therein having been passed upon and resolved by this Court in accused's motion to dismiss as well as
motion for reconsideration and where the resolution of this Court was sustained by the Supreme Court.
17

On August 4, 2003, upon his receipt of the Resolution, petitioner filed a Motion for Reconsideration
and/or to Quash Information,
18
arguing that the Supreme Court's dismissal of his petition for certiorari
was based on a mere technicality.1avvphi1 He reiterated his argument that since he has been cleared of
administrative liability, the criminal case that was pending against him should likewise be dismissed.
The public respondent denied the motion in the other assailed Resolution dated October 22, 2003,
stating as follows:
Finding no merit in the accused [sic] Motion for Reconsideration and/or Motion to Quash dated August
4, 2003 and considering the Opposition of the prosecution, the same is DENIED.
Indeed, the dismissal of the administrative complaint does not negate the existing criminal case pending
before the Court. Moreover the grounds and arguments raised thereat could be considered matter of
defense that is more and properly to be considered during a full blown trial.
WHEREFORE, the Motion for Reconsideration and/or Motion to Quash by the accused is denied for lack
of merit.
x x x x
SO ORDERED.
19

Hence, the present Petition for Certiorari, seeking to annul the Resolutions of the Sandiganbayan for
having been issued with grave abuse of discretion and in excess of and/or without jurisdiction.
Petitioner insists that the Sandiganbayan should have dismissed the criminal case filed against him, since
the alleged wrongful acts complained of in the case are the same as those alleged in the administrative
case against him which have been dismissed.
Both the public and private prosecutors contend that the issues raised by petitioner have already been
raised and passed upon; and that the assailed Resolutions of the Sandiganbayan merely reiterate its
earlier Resolutions denying petitioner's motion for reinvestigation and various motions for
reconsideration questioning the Ombudsman's finding of probable cause.
20
They claim that the issue
became settled and final as early as the December 11, 2001 Resolution of the public respondent, which
denied petitioner's motions for reinvestigation.
21
They further argue that this Court's denial of
petitioner's earlier petition for certiorari (G.R. No. 153592) barred petitioner from filing the present
petition.
The respondents cite jurisprudence, which states that the dismissal of an administrative case does not
necessarily bar the filing of a criminal prosecution for the same or similar acts.
22

The petition is devoid of merit.
In Paredes, Jr. v. Sandiganbayan,
23
the Court denied a similar petition to dismiss a pending criminal case
with the Sandiganbayan on the basis of the dismissal of the administrative case against the accused. The
Court ratiocinated, thus:
Petitioners call attention to the fact that the administrative complaint against petitioner Honrada was
dismissed. They invoke our ruling in Maceda v. Vasquez that only this Court has the power to oversee
court personnel's compliance with laws and take the appropriate administrative action against them for
their failure to do so and that no other branch of the government may exercise this power without
running afoul of the principle of separation of powers.
But one thing is administrative liability. Quite another thing is the criminal liability for the same act.
Our determination of the administrative liability for falsification of public documents is in no way
conclusive of his lack of criminal liability. As we have held in Tan v. Comelec, the dismissal of an
administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar
acts which were the subject of the administrative complaint.
24
(Emphasis supplied.)
It is clear from Paredes that the criminal case against petitioner, already filed and pending with the
Sandiganbayan, may proceed despite the dismissal of the administrative case arising out of the same
acts.
The same rule applies even to those cases that have yet to be filed in court. In Tan v. Commission on
Elections,
25
it was held that an investigation by the Ombudsman of the criminal case for falsification and
violation of the Anti-Graft and Corrupt Practices Act and an inquiry into the administrative charges by the
Commission on Elections (COMELEC) are entirely independent proceedings, neither of which results in or
concludes the other. The established rule is that an absolution from a criminal charge is not a bar to an
administrative prosecution, or vice versa.
26
The dismissal of an administrative case does not necessarily
bar the filing of a criminal prosecution for the same or similar acts which were the subject of the
administrative complaint.
27

The Court finds no cogent reason to depart from these rules.
Petitioner argues that the criminal case against him requires a higher quantum of proof for conviction --
that is, proof beyond reasonable doubt -- than the administrative case, which needs only substantial
evidence. He claims that from this circumstance, it follows that the dismissal of the administrative case
should carry with it the dismissal of the criminal case.
This argument, however, has been addressed in jurisprudence. In Valencia v. Sandiganbayan,
28
the
administrative case against the accused was dismissed by the Ombudsman on a finding that the contract
of loan entered into was in pursuance of the police power of the accused as local chief executive,
29
and
that the accused had been re-elected to office.
30
The Ombudsman, however, still found probable cause
to criminally charge the accused in court.
31
When the accused filed a petition with the Supreme Court to
dismiss the criminal case before the Sandiganbayan, the Court denied the petition, thus:
In the final analysis, the conflicting findings of the Ombudsman boil down to issues of fact which,
however, are not within our province to resolve. As has been oft-repeated, this Court is not a trier of
facts. This is a matter best left to the Sandiganbayan.
Petitioners argue that the dismissal by the Ombudsman of the administrative case against them based
on the same subject matter should operate to dismiss the criminal case because the quantum of proof
in criminal cases is proof beyond reasonable doubt, while that
in administrative cases is only substantial evidence. While that may be true, it should likewise be
stressed that the basis of administrative liability differs from criminal liability. The purpose of
administrative proceedings is mainly to protect the public service, based on the time-honored
principle that a public office is a public trust. On the other hand, the purpose of the criminal
prosecution is the punishment of crime.
Moreover, one of the grounds for the dismissal of the administrative case against petitioners is the fact
that they were re-elected to office. Indeed, a re-elected local official may not be held administratively
accountable for misconduct committed during his prior term of office. The rationale for this holding is
that when the electorate put him back into office, it is presumed that it did so with full knowledge of his
life and character, including his past misconduct. If, armed with such knowledge, it still re-elects him,
then such re-election is considered a condonation of his past misdeeds.
However, the re-election of a public official extinguishes only the administrative, but not the criminal,
liability incurred by him during his previous term of office x x x.
x x x x
There is, thus, no reason for the Sandiganbayan to quash the Information against petitioners on the
basis solely of the dismissal of the administrative complaint against them.
32

To sustain petitioner's arguments will be to require the Sandiganbayan and the Ombudsman to merely
adopt the results of administrative investigations which would not only diminish the powers and duties
of these constitutional offices, but also violate the independent nature of criminal and administrative
cases against public officials. This will also amount to untold delays in criminal proceedings before the
Sandiganbayan and Ombudsman, as every criminal trial and investigation before these bodies will be
made to await the results of pending administrative investigations. Such is not the intent of the framers
of the Constitution and the laws governing public officers.
Petitioner cites Larin v. Executive Secretary
33
to support his arguments. That case, however, is not on all
fours with the present case.
In Larin, the accused was first convicted by the Sandiganbayan for violation of the National Internal
Revenue Code and Section 3 (e) of Republic Act No. 3019. On the basis of this conviction, an
administrative case was filed against him. On appeal of the criminal conviction to the Supreme Court,
however, he was acquitted upon a finding that the acts he had committed were neither illegal nor
irregular. When the accused sought a similar dismissal of the administrative case, the Supreme Court
sustained him and ruled that since the same acts for which he was administratively charged had been
found neither illegal nor irregular, his acquittal in the criminal case should entail the dismissal of the
administrative case.
The present case differs from Larin because here, the administrative case was filed independently of the
criminal case. The administrative case was not filed on the basis of a criminal conviction, as in fact, the
administrative case was dismissed without regard for the results of the criminal case. This is in contrast
with Larin, where the administrative case was dismissed only after its basis, the criminal conviction, was
overturned on appeal.
We cannot reverse Larin by ruling that petitioner's discharge from the administrative action should result
in the dismissal of the criminal case. The argument cannot be sustained without violating settled
principles. The rule is that administrative liability is separate and distinct from penal and civil liabilities.
34

In Larin, no less than the Supreme Court acquitted the accused of charges of wrongdoing; in the case at
bar, no court of justice has yet declared petitioner not guilty of committing illegal or irregular acts.
The independent nature of a criminal prosecution dictates that the Sandiganbayan must determine
petitioner's criminal liability without its hands being tied by what transpired in the administrative case.
The court is duty-bound to exercise its independent judgment.
35
It is not ousted of its jurisdiction by the
ruling in the administrative proceeding. It is axiomatic that when the court obtains jurisdiction over a
case, it continues to retain it until the case is terminated.
36

Under the Rules of Court, petitioner's absolution from administrative liability is not even one of the
grounds for a Motion to Quash.
37

Moreover, petitioner lacked the right to file the instant petition. Petitioner already raised the issue of his
discharge from administrative liability in his supplemental motion for reconsideration of the
Sandiganbayan's Resolution dated July 13, 2001.
38
When the motion was denied, he again alleged such
fact in his motion for leave to file a second motion for reconsideration.
39
Both motions have already
been denied by the Sandiganbayan in its Resolutions dated December 11, 2001
40
and April 29, 2002.
41

Petitioner's argument on private respondents' alleged forum shopping was not sustained by the
Sandiganbayan, since administrative and criminal cases are two independent actions. It correctly held
that neither action barred the filing of the other, and that both cases did not pray for a common relief or
share the same parties.
42

Thus, the question on the effect of the administrative case on the criminal case before the
Sandiganbayan was settled as early as the Resolution dated December 11, 2001. When petitioner
questioned this ruling before the Supreme Court in G.R. No. 153592, he again raised the issue of forum-
shopping, but his efforts failed because he filed his petition out of time. With the dismissal of G.R. No.
153592, the Resolution of the Sandiganbayan dated December 11, 2001 has become final.
Such finality was evident in the public respondent's Resolution dated July 2, 2003,
43
which denied
petitioner's Motion for the Re-determination of Probable Cause. In it, the public respondent aptly stated:
The Court resolves to deny the motion for re-determination of probable cause, the argument advanced
therein having been passed upon and resolved by this Court in accused's motion to dismiss as well as
motion for reconsideration and where the resolution of this Court was sustained by the Supreme
Court.
44
(Emphasis supplied)
Thus, the petition now before the Court, which raises the same issues, must necessarily fail.
Petitioner's tactics to delay his arraignment and trial cannot be countenanced. In utter contempt of the
Court's efforts to expedite all judicial proceedings, he has filed a petition which merely raises issues that
have long been resolved with finality. By so doing, petitioner has gone beyond merely exhausting his
available remedies and trodden in the realm of abusing legal processes.
WHEREFORE, premises considered, the petition is DENIED. The Sandiganbayan is ordered to proceed
with the arraignment and trial of Criminal Case No. 26546. Petitioner and his counsel are ADMONISHED
not to engage further in delaying tactics. Costs against petitioner. SO ORDERED.



G.R. No. 173918 April 8, 2008
REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF ENERGY (DOE), petitioner, vs.
PILIPINAS SHELL PETROLEUM CORPORATION, respondent.
D E C I S I O N
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision
dated 4 August 2006 of the Court of Appeals in C.A. G.R. SP No. 82183.
1
The appellate court reversed the
Decision
2
dated 19 August 2003 of the Office of the President in OP NO. Case 96-H-6574 and declared
that Ministry of Finance (MOF) Circular No. 1-85 dated 15 April 1985, as amended, is ineffective for
failure to comply with Section 3 of Chapter 2, Book 7 of the Administrative Code of 1987,
3
which requires
the publication and filing in the Office of the National Administration Register (ONAR) of administrative
issuances. Thus, surcharges provided under the aforementioned circular cannot be imposed upon
respondent Pilipinas Shell Petroleum Corporation.
Respondent is a corporation duly organized existing under the laws of the Philippines. It is engaged in the
business of refining oil, marketing petroleum, and other related activities.
4

The Department of Energy (DOE) is a government agency under the direct control and supervision of the
Office of the President. The Department is mandated by Republic Act No. 7638 to prepare, integrate,
coordinate, supervise and control all plans, programs, projects and activities of the Government relative
to energy exploration, development, utilization, distribution and conservation.
On 10 October 1984, the Oil Price Stabilization Fund (OPSF) was created under Presidential Decree No.
1956 for the purpose of minimizing frequent price changes brought about by exchange rate adjustments
and/or increase in world market prices of crude oil and imported petroleum products.
5

Letter of Instruction No. 1431 dated 15 October 1984 was issued directing the utilization of the OPSF to
reimburse oil companies the additional costs of importation of crude oil and petroleum products due to
fluctuation in foreign exchange rates to assure adequate and continuous supply of petroleum products
at reasonable prices.
6

Letter of Instruction No. 1441, issued on 20 November 1984, mandated the Board of Energy (now, the
Energy Regulatory Board) to review and reset prices of domestic oil products every two months to reflect
the prevailing prices of crude oil and petroleum. The prices were regulated by adjusting the OPSF impost,
increasing or decreasing this price component as necessary to maintain the balance between revenues
and claims on the OPSF.
7

On 27 February 1987, Executive Order No. 137 was enacted to amend P. D. No. 1956. It expanded the
sources and utilization of the OPSF in order to maintain stability in the domestic prices of oil products at
reasonable levels.
8

On 4 December 1991, the Office of Energy Affairs (OEA), now the DOE, informed the respondent that
respondents contributions to the OPSF for foreign exchange risk charge for the period December 1989
to March 1991 were insufficient. OEA Audit Task Force noted a total underpayment of P14,414,860.75 by
respondent to the OPSF. As a consequence of the underpayment, a surcharge of P11,654,782.31 was
imposed upon respondent. The said surcharge was imposed pursuant to MOF Circular No. 1-85, as
amended by Department of Finance (DOF) Circular No. 2-94,
9
which provides that:
2. Remittance of payment to the OPSF as provided for under Section 5 of MOF Order No. 11-
85 shall be made not later than 20
th
of the month following the month of remittance of the
foreign exchange payment for the import or the month of payment to the domestic
producers in the case of locally produced crude. Payment after the specified date shall be
subject to a surcharge of fifteen percent (15%) of the amount, if paid within thirty (30) days
from the due date plus two percent (2%) per month if paid after thirty days.
10
(Emphasis
supplied.)
On 9 December 1991, the OEA wrote another letter
11
to respondent advising the latter of its additional
underpayment to the OPSF of the foreign exchange risk fee in the amount of P10,139,526.56 for the
period April 1991 to October 1991. In addition, surcharges in the amount of P2,806,656.65 were
imposed thereon.
In a letter dated 20 January 1992 addressed to the OEA, respondent justified that its calculations for the
transactions in question were based on a valid interpretation of MOF Order NO. 11-85 dated 12 April
1985 and MOE Circular No. 85-05-82 dated 16 May 1985.
12

On 24 March 1992, respondent paid the OEA in full the principal amount of its underpayment, totaling
P24,554,387.31, but not the surcharges.
13

In a letter
14
dated 15 March 1996, OEA notified the respondent that the latter is required to pay the
OPSF a total amount of P18,535,531.40 for surcharges on the late payment of foreign exchange risk
charges for the period December 1989 to October 1991.
In a letter
15
dated 11 July 1996, the DOE reiterated its demand for respondent to settle the surcharges
due. Otherwise, the DOE warned that it would proceed against the respondents Irrevocable Standby
Letter of Credit to recover its unpaid surcharges.
On 19 July 1996, respondent filed a Notice of Appeal before the Office of the President. The Office of the
President affirmed the conclusion of the DOE, contained in its letters dated 15 March 1996 and 11 July
1996. While it admitted that the implementation of MOF Circular No. 1-85 is contingent upon its
publication and filing with the ONAR, it noted that respondent failed to adduce evidence of lack of
compliance with such requirements. The aforementioned Decision reads:
16

Given the foregoing, the DOEs implementation of MOF Circular 1-85 by imposing surcharges
on Pilipinas Shell is only proper. Like this Office, the DOE is bound to presume the validity of
that administrative regulation.
WHEREFORE, premises considered, the Decision of the Department of Energy, contained in its
letters dated 15 March 1996 and 11 July 1996, is hereby AFFIRMED in toto.
Respondent filed a Motion for Reconsideration of the Decision dated 19 August 2003 of the Office of the
President, which was denied on 28 November 2003.
17

Respondent filed an appeal before the Court of Appeals wherein it presented Certifications dated 9
February 2004
18
and 11 February 2004
19
issued by ONAR stating that DOF Circular No. 2-94 and MOF
Circular No. 1-85 respectively, have not been filed before said office.
The Court of Appeals reversed the Decision of the Office of the President in O.P. CASE No. 96-H-6574 and
ruled that MOF Circular 1-85, as amended, was ineffective for failure to comply with the requirement to
file with ONAR. It decreed that even if the said circular was issued by then Acting Minister of Finance
Alfredo de Roda, Jr. long before the Administrative Code of 1987, Section 3 of Chapter 2, Book 7 thereof
specifies that rules already in force on the date of the effectivity of the Administrative Code of 1987 must
be filed within three months from the date of effectivity of said Code, otherwise such rules cannot
thereafter be the basis of any sanction against any party or persons.
20
According to the dispositive of the
appellate courts Decision:
21

WHEREFORE, the instant petition is hereby GRANTED. The Decision dated August 19, 2003
and the Resolution dated November 28, 2003 of the Office of the President, are hereby
REVERSED.
ACCORDINGLY, the imposition of surcharges upon petitioner is hereby declared without legal
basis.
On 25 September 2006, petitioner filed the present Petition for Review on Certiorari, wherein the
following issues were raised:
22

I
THE SURCHARGE IMPOSED BY MINISTRY OF FINANCE (MOF) CIRCULAR No. 1-85 HAS BEEN
AFFIRMED BY E.O. NO. 137 HAVING RECEIVED VITALITY FROM A LEGISLATIVE ENACTMENT,
MOF CIRCULAR NO. 1-85 CANNOT BE RENDERED INVALID BY THE SUBSEQUENT ENACTMENT
OF A LAW REQUIRING REGISTRATION OF THE MOF CIRCULAR WITH THE OFFICE OF THE
NATIONAL REGISTER
II
ASSUMING THAT THE REGISTRATION OF MOF NO. 1-85 IS REQUIRED, RESPONDENT WAIVED
ITS OBJECTION ON THE BASIS OF NON-REGISTRATION WHEN IT PAID THE AMOUNT REQUIRED
BY PETITIONER.
This petition is without merit.
As early as 1986, this Court in Taada v. Tuvera
23
enunciated that publication is indispensable in order
that all statutes, including administrative rules that are intended to enforce or implement existing laws,
attain binding force and effect, to wit:
We hold therefore that all statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by the
legislature or, at present, directly conferred by the Constitution. Administrative rules and
regulations must also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation. (Emphasis provided.)
Thereafter, the Administrative Code of 1987 was enacted, with Section 3 of Chapter 2, Book VII thereof
specifically providing that:
Filing. (1) Every agency shall file with the University of the Philippines Law Center three (3)
certified copies of every rule adopted by it. Rules in force on the date of effectivity of this
Code which are not filed within three (3) months from the date shall not thereafter be the
basis of any sanction against any party or persons.
(2) The records officer of the agency, or his equivalent functionary, shall carry out the
requirements of this section under pain of disciplinary action.
(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to
public inspection. (Emphasis provided.)
Under the doctrine of Tanada v. Tuvera,
24
the MOF Circular No. 1-85, as amended, is one of those
issuances which should be published before it becomes effective since it is intended to enforce
Presidential Decree No. 1956. The said circular should also comply with the requirement stated under
Section 3 of Chapter 2, Book VII of the Administrative Code of 1987 filing with the ONAR in the
University of the Philippines Law Center for rules that are already in force at the time the
Administrative Code of 1987 became effective. These requirements of publication and filing were put in
place as safeguards against abuses on the part of lawmakers and as guarantees to the constitutional
right to due process and to information on matters of public concern and, therefore, require strict
compliance.
In the present case, the Certifications dated 11 February 2004
25
and 9 February 2004
26
issued by ONAR
prove that MOF Circular No. 1-85 and its amendatory rule, DOF Circular No. 2-94, have not been filed
before said office. Moreover, petitioner was unable to controvert respondents allegation that neither of
the aforementioned circulars were published in the Official Gazette or in any newspaper of general
circulation. Thus, failure to comply with the requirements of publication and filing of administrative
issuances renders MOF Circular No. 1-85, as amended, ineffective.
In National Association of Electricity Consumers for Reforms v. Energy Regulatory Board,
27
this Court
emphasized that both the requirements of publication and filing of administrative issuances intended to
enforce existing laws are mandatory for the effectivity of said issuances. In support of its ruling, it
specified several instances wherein this Court declared administrative issuances, which failed to observe
the proper requirements, to have no force and effect:
Nowhere from the above narration does it show that the GRAM Implementing Rules was
published in the Official Gazette or in a newspaper of general circulation. Significantly, the
effectivity clauses of both the GRAM and ICERA Implementing Rules uniformly provide that
they "shall take effect immediately." These clauses made no mention of their publication in
either the Official Gazette or in a newspaper of general circulation. Moreover, per the
Certification dated January 11, 2006 of the Office of the National Administrative Register
(ONAR), the said implementing rules and regulations were not likewise filed with the said
office in contravention of the Administrative Code of 1987.
Applying the doctrine enunciated in Taada v. Tuvera, the Court has previously declared as
having no force and effect the following administrative issuances: (1) Rules and Regulations
issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation
Committee regarding the accreditation of hospitals, medical clinics and laboratories; (2)
Letter of Instruction No. 1416 ordering the suspension of payments due and payable by
distressed copper mining companies to the national government; (3) Memorandum Circulars
issued by the Philippine Overseas Employment Administration regulating the recruitment of
domestic helpers to Hong Kong; (4) Administrative Order No. SOCPEC 89-08-01 issued by the
Philippine International Trading Corporation regulating applications for importation from the
Peoples Republic of China; (5) Corporation Compensation Circular No. 10 issued by the
Department of Budget and Management discontinuing the payment of other allowances and
fringe benefits to government officials and employees; and (6) POEA Memorandum Circular
No. 2 Series of 1983 which provided for the schedule of placement and documentation fees
for private employment agencies or authority holders.
In all these cited cases, the administrative issuances questioned therein were uniformly struck
down as they were not published or filed with the National Administrative Register. On the
other hand, in Republic v. Express Telecommunications Co., Inc, the Court declared that the
1993 Revised Rules of the National Telecommunications Commission had not become
effective despite the fact that it was filed with the National Administrative Register because
the same had not been published at the time. The Court emphasized therein that "publication
in the Official Gazette or a newspaper of general circulation is a condition sine qua non before
statutes, rules or regulations can take effect."
Petitioners argument that respondent waived the requisite registration of MOF Circular No. 1-85, as
amended, when it paid in full the principal amount of underpayment totaling P24,544,387.31, is
specious. MOF Circular No. 1-85, as amended imposes surcharges, while respondents underpayment is
based on MOF Circular No. 11-85 dated 12 April 1985.
Petitioner also insists that the registration of MOF Circular No. 1-85, as amended, with the ONAR is no
longer necessary since the respondent knew of its existence, despite its non-registration. This argument
is seriously flawed and contrary to jurisprudence. Strict compliance with the requirements of publication
cannot be annulled by a mere allegation that parties were notified of the existence of the implementing
rules concerned. Hence, also in National Association of Electricity Consumers for Reforms v. Energy
Regulatory Board, this Court pronounced:
In this case, the GRAM Implementing Rules must be declared ineffective as the same was
never published or filed with the National Administrative Register. To show that there was
compliance with the publication requirement, respondents MERALCO and the ERC dwell
lengthily on the fact that parties, particularly the distribution utilities and consumer groups,
were duly notified of the public consultation on the ERCs proposed implementing rules.
These parties participated in the said public consultation and even submitted their comments
thereon.
However, the fact that the parties participated in the public consultation and submitted
their respective comments is not compliance with the fundamental rule that the GRAM
Implementing Rules, or any administrative rules whose purpose is to enforce or implement
existing law, must be published in the Official Gazette or in a newspaper of general
circulation. The requirement of publication of implementing rules of statutes is mandatory
and may not be dispensed with altogether even if, as in this case, there was public
consultation and submission by the parties of their comments.
28
(Emphasis provided.)
Petitioner further avers that MOF Circular No. 1-85, as amended, gains its vitality from the subsequent
enactment of Executive Order No. 137, which reiterates the power of then Minister of Finance to
promulgate the necessary rules and regulations to implement the executive order. Such contention is
irrelevant in the present case since the power of the Minister of Finance to promulgate rules and
regulations is not under dispute. The issue rather in the Petition at bar is the ineffectivity of his
administrative issuance for non-compliance with the requisite publication and filing with the ONAR. And
while MOF Circular No. 1-85, as amended, may be unimpeachable in substance, the due process
requirements of publication and filing cannot be disregarded. Moreover, none of the provisions of
Executive Order No. 137 exempts MOF Circular No. 1-85, as amended from the aforementioned
requirements.
IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision dated 4 August
2006 of the Court of Appeals in C.A. G.R. SP No. 82183 is AFFIRMED. No cost. SO ORDERED.


G.R. No. 165416 January 22, 2008
OFFICE OF THE OMBUDSMAN, petitioner, vs. FLORITA A. MASING and JOCELYN A. TAYACTAC,
respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 165584 January 22, 2008
OFFICE OF THE OMBUDSMAN, petitioner, vs. FLORITA A. MASING, respondent.
x - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 165731 January 22, 2008
PAUL L. CANSINO, FELICIDAD MOJICA, VENERANDO MOJICA and RICARTE L. MAMPARO, petitioners,
vs. FLORITA A. MASING and JOCELYN A. TAYACTAC, respondents.
D E C I S I O N
PUNO, C.J.:
These cases involve the issue of whether the Ombudsman may directly discipline public school teachers
and employees, or merely recommend appropriate disciplinary action to the Department of Education,
Culture and Sports (DECS).
In G.R. Nos. 165416 and 165731, respondent Florita A. Masing was the former Principal of the Davao
City Integrated Special School (DCISS) in Bangkal, Davao City. Respondent Jocelyn A. Tayactac was an
office clerk in the same school. In 1997, respondents were administratively charged before the Office of
the Ombudsman for Mindanao for allegedly collecting unauthorized fees, failing to remit authorized
fees, and to account for public funds. The cases were docketed as follows:
1. OMB-MIN-ADM-97-193 for grave misconduct and neglect of duty, against respondent
Masing only;
2. OMB-MIN-ADM-97-249 for violation of Republic Act No. 6713, against respondent Masing
and a schoolteacher;
3. OMB-MIN-ADM-97-253 for violation of Republic Act No. 6713, against respondents Masing
and Tayactac, and several schoolteachers;
4. OMB-MIN-ADM-97-254 for violation of Republic Act No. 6713, against respondent Masing
and several schoolteachers.
The complainants were parents of children studying at the DCISS, among whom were the petitioners in
G.R. No. 165731, namely, Paul L. Cansino, Felicidad Mojica, Venerando Mojica, and Ricarte L. Mamparo.
On July 2, 1998, respondents filed a motion to dismiss on the ground that the Ombudsman has no
jurisdiction over them. Respondents alleged that the DECS has jurisdiction over them which shall
exercise the same through a committee to be constituted under Section 9 of Republic Act (R.A.) No.
4670, otherwise known as the "The Magna Carta for Public School Teachers." The motion was denied, as
well as respondents motion for reconsideration.
On June 30, 2000, the Ombudsman for Mindanao rendered a joint decision finding respondents Masing
and Tayactac guilty, the dispositive portion of which reads:
WHEREFORE, PREMISES CONSIDERED, this Office finds substantial evidence that:
1. Respondent Florita Masing is guilty of gross misconduct, neglect of duty and violation of
Section 4, paragraphs (a), (b), and (c) of RA 6713 in relation to the collection of unauthorized
fees, non-remittance of authorized fees and failure to account for public funds; and of
misconduct in relation to the complaint of Felicidad Mojica, and she is hereby DISMISSED
FROM [THE] SERVICE with all the accessory penalties including forfeiture of retirement
benefits and disqualification from holding public office; and
2. Respondent Jocelyn Tayactac is guilty of simple neglect of duty, and is hereby suspended
for a period of six (6) months. A repetition of the same offense will be met with stiffer
penalty. x x x x
1

Respondents filed a motion for reconsideration which the Ombudsman denied in an Order dated
September 26, 2000. Respondents sought recourse to the Court of Appeals via a petition for review
under Rule 43 of the Rules of Court, docketed as CA-G.R. SP No. 61993. On February 27, 2004, the Court
of Appeals granted the petition, viz:
WHEREFORE, the joint decision of June 30, 2000 and the Order of September 26, 2000 are REVERSED
and SET ASIDE; and Administrative Cases Nos. OMB-MIN-ADM-97-193, OMB-MIN-ADM-97-249, OMB-
MIN-ADM-97-253, and OMB-MIN-ADM-97-254 of the Office of the Ombudsman-Mindanao are hereby
DISMISSED.
The IMMEDIATE REINSTATEMENT of the petitioners with full backwages and other benefits is further
ORDERED in the interest of justice.
2

On April 13, 2004, the Office of the Ombudsman, which was not impleaded as respondent in the cases,
filed an Omnibus Motion to Intervene and for Reconsideration.
3
The Court of Appeals denied the
omnibus motion on the grounds that (1) intervention is not proper because it is sought by the quasi-
judicial body whose judgment is on appeal, and (2) intervention, even if permissible, is belated under
Section 2, Rule 19 of the Rules of Court.
4
Hence, the petition before us by the Office of the Ombudsman,
docketed as G.R. No. 165416.
The complainant-parents filed their own petition for review of the Court of Appeals decision dated
February 27, 2004, docketed as G.R. No. 165731.
In G.R. No. 165584, respondent Florita A. Masing faced yet another administrative case before the Office
of the Ombudsman-Mindanao filed by Erlinda P. Tan.
5
The charges were oppression, serious misconduct,
discourtesy in the conduct of official duties, and physical or mental incapacity or disability due to
immoral or vicious habits.
As in the other administrative cases, respondent Masing filed a motion to dismiss on the ground that the
Office of the Ombudsman has no jurisdiction over the case. The motion was denied, as well as
respondents motion for reconsideration.
On December 27, 1999, the Ombudsman for Mindanao found respondent Masing guilty as charged and
ordered her suspension for six (6) months without pay. The DECS Regional Director, Regional Office No.
XI, was ordered to implement the decision upon its finality.
Respondent Masing filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No.
58735. On July 31, 2003, the Court of Appeals set aside the assailed Ombudsman decision, viz:
WHEREFORE, finding merit in the herein petition, the same is hereby given due course and the decision
of the agency a quo in Case No. OMB-MIN-ADM-97-282 is hereby SET ASIDE, and petitioner is further
declared as entitled to her salary which she failed to receive during the period of her flawed suspension.
6

The Office of the Ombudsman filed an Omnibus Motion to Intervene and for Reconsideration which the
Court of Appeals denied in its Resolution dated September 30, 2004.
7
Hence, this petition by the Office
of the Ombudsman, docketed as G.R. No. 165584.
We consolidated G.R. Nos. 165416 and 165584 in our Resolution dated November 9, 2005. G.R. No.
165731 was consolidated per Resolution dated June 21, 2006.
The Office of the Ombudsman contends
8

I.
THE x x x COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AND IGNORED THE
CLEAR LANGUAGE OF THE CONSTITUTION, LAW AND JURISPRUDENCE WHEN IT RULED THAT
PETITIONER OFFICE OF THE OMBUDSMAN HAS NO AUTHORITY TO DISCIPLINE ERRING
MEMBERS OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS), THIS
CONSIDERING THAT:
(A) THE TAPIADOR [TAPIADOR VS. OFFICE OF THE OMBUDSMAN, 379 SCRA 322
(2002)] CASE CITED BY THE APPELLATE COURT A QUO IS NOT APPLICABLE, AS THE
TAPIADOR OBITER DICTUM CAN NEVER BE CITED AS A VALID RATIO DECIDENDI;
(B) THE FABELLA [FABELLA VS. COURT OF APPEALS, 282 SCRA 256 (1997)] CASE,
WHICH INVOLVED AN ILLEGAL CONSTITUTION OF AN INVESTIGATING COMMITTEE
IN THE DECS, IS NOT APPLICABLE TO THE DISCIPLINARY CASE AGAINST PRIVATE
RESPONDENTS PUBLIC SCHOOL PRINCIPAL AND OFFICE CLERK OF THE DECS;
(C) SECTION 9 OF REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC SCHOOL
TEACHERS) HAS NOT ADDED PUBLIC SCHOOL PRINCIPALS, TEACHERS AND
EMPLOYEES, LIKE HEREIN PRIVATE RESPONDENTS, TO THE LIST OF SPECIAL
PRIVILEGED CLASSES OF PUBLIC SERVANTS EXEMPTED FROM THE OMBUDSMANS
ADMINISTRATIVE DISCIPLINARY AUTHORITY UNDER THE SUBSEQUENT 1987
CONSTITUTION, AND ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF
UNCONSTITUTIONALITY;
(D) THE CONCEDED ADMINISTRATIVE DISCIPLINARY JURISDICTION OF THE
PETITIONER OMBUDSMAN OVER PRIVATE RESPONDENTS, A PUBLIC SCHOOL
PRINCIPAL AND AN OFFICE CLERK OF THE DECS, WHICH IS FULLY SUPPORTED BY
THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6770 (THE OMBUDSMAN ACT OF
1989) AND EXISTING JURISPRUDENCE, CANNOT BE SUPPLANTED BY SECTION 9 OF
REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS); AND
(E) THE POWER OF THE OMBUDSMAN TO DISCIPLINE PUBLIC SERVANTS NOT
EXEMPTED FROM ITS JURISDICTION AND TO IMPLEMENT ITS JUDGMENTS HAS
BEEN AFFIRMED IN LEDESMA VS. COURT OF APPEALS, G.R. NO. 161629, 29 JULY
2005.
9

(F) THE OFFICE OF THE OMBUDSMAN HAS CONCURRENT INVESTIGATIVE AND
DISCIPLINARY AUTHORITY WITH THE DECS OVER PUBLIC SCHOOL TEACHERS,
INCLUDING HEREIN PRIVATE RESPONDENT MASING, AS THERE IS SIMPLY NO
REPUGNANCE BETWEEN THE LAWS CONFERRING INVESTIGATIVE AND
DISCIPLINARY JURISDICTION ON THE OFFICE OF THE OMBUDSMAN (ART. XI, 1987
CONSTITUTION AND R.A. 6770) AND THE LAWS CONFERRING THE SAME
INVESTIGATIVE AND DISCIPLINARY JURISDICTION TO DECS (R.A. 4670 [MAGNA
CARTA FOR PUBLIC SCHOOL TEACHERS] AND P.D. 807, NOW BOOK V OF E.O. 292
[CIVIL SERVICE LAW]).
10

II.
CONTRARY TO THE APPELLATE COURT A QUOS RULING, THE PETITIONER OFFICE OF THE
OMBUDSMAN TIMELY AND RIGHTFULLY FILED ITS OMNIBUS MOTION TO INTERVENE AND
FOR RECONSIDERATION ON A PATENTLY ERRONEOUS DECISION OF THE COURT OF APPEALS
WHICH HAS NOT YET ATTAINED FINALITY.
11

The petitioners in G.R. No. 165731 contend
I.
TAPIADOR V. OFFICE OF THE OMBUDSMAN (379 SCRA 322) CITED BY THE COURT OF APPEALS
IS NOT APPLICABLE, AS THE TAPIADOR OBITER DICTUM CAN NEVER BE CITED AS A VALID
RATIO DECIDENDI. MOREOVER, THE TAPIADOR RULING HAS EFFECTIVELY BEEN ABANDONED
BY THE HONORABLE SUPREME COURT WHEN IT UPHELD THE DISCIPLINARY AUTHORITY OF
THE OMBUDSMAN IN SUBSEQUENT CASES EVEN AS TAPIADOR FAILED TO TAKE INTO
ACCOUNT THE PROPER CONSTITUTIONAL AND STATUTORY BASES OF THE OMBUDSMANS
DISCIPLINARY POWER OVER ALL APPOINTIVE AND ELECTIVE PUBLIC OFFICIALS AND
EMPLOYEES.
II.
TO INSIST THAT PUBLIC SCHOOL TEACHERS PURSUANT TO THE RULING IN FABELLA V. COURT
OF APPEALS (G.R. NO. 110379, 28 NOVEMBER 1997) CAN ONLY BE PROCEEDED AGAINST
ADMINISTRATIVELY THROUGH THE "COMMITTEE" UNDER SECTION 9 OF R.A. NO. 4670
WOULD BE AN UNDUE, UNWARRANTED AND INVALID "CLASSIFICATION" BY JUDICIAL FIAT OF
A CERTAIN GROUP OF PUBLIC SERVANTS WHICH IS VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE OF THE CONSTITUTION. MOREOVER, THE SAID LAW DOES NOT CONFER
JURISDICTION ON THE "COMMITTEE."
III.
SECTION 9 OF REPUBLIC ACT NO. 4670 HAS NOT ADDED PUBLIC SCHOOL TEACHERS TO THE
LIST OF SPECIAL PRIVILEGED CLASSES OF PUBLIC SERVANTS EXEMPTED FROM THE
OMBUDSMANS ADMINISTRATIVE DISCIPLINARY AUTHORITY UNDER THE 1987
CONSTITUTION, AND ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF
UNCONSTITUTIONALITY.
IV.
THE CONCEDED ADMINISTRATIVE DISCIPLINARY JURISDICTION OF THE OMBUDSMAN OVER
THE HEREIN RESPONDENTS, WHICH IS FULLY SUPPORTED BY THE 1987 CONSTITUTION,
REPUBLIC ACT NO. 6770 AND EXISTING JURISPRUDENCE CANNOT BE SUPPLANTED BY
SECTION 9 OF REPUBLIC ACT NO. 4670.
In sum, the pivotal issues are (1) whether the Office of the Ombudsman may intervene and seek
reconsideration of the adverse decisions rendered by the Court of Appeals, and (2) whether the Office of
the Ombudsman may directly discipline public school teachers and employees.
First, the procedural issue. The Office of the Ombudsman was not allowed by the Court of Appeals to
intervene because (1) the motions to intervene were filed after the decisions have already been
rendered in CA-G.R. SP Nos. 58735 and 61993, and (2) the Office of the Ombudsman was the quasi-
judicial body which rendered the impugned decisions.
Section 2, Rule 19 of the Rules of Court provides that a motion for intervention may be filed before
rendition of judgment, viz:
SECTION 2. Time to intervene. The motion to intervene may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties. (emphasis ours)
We have ruled however that allowance or disallowance of a motion for intervention rests on the sound
discretion of the court
12
after consideration of the appropriate circumstances.
13
Rule 19 of the Rules of
Court is a rule of procedure whose object is to make the powers of the court fully and completely
available for justice.
14
Its purpose is not to hinder or delay but to facilitate and promote the
administration of justice.
15
Thus, interventions have been allowed even beyond the prescribed period in
the Rule in the higher interest of justice. Interventions have been granted to afford indispensable parties,
who have not been impleaded, the right to be heard even after a decision has been rendered by the trial
court,
16
when the petition for review of the judgment was already submitted for decision before the
Supreme Court,
17
and even where the assailed order has already become final and executory.
18
In Lim v.
Pacquing,
19
the motion for intervention filed by the Republic of the Philippines was allowed by this Court
to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the
parties.
In the cases at bar, the rulings of the Court of Appeals adversely affected the all-important jurisdiction of
the Office of the Ombudsman. The rulings aggrieved the Office of the Ombudsman for they have serious
consequences on its effectiveness as the body charged by the Constitution with the prosecution of
officials and employees of the government suspected of violating our laws on graft and corruption.
In Civil Service Commission v. Dacoycoy,
20
we recognized the standing of the Civil Service Commission
(CSC) to appeal a decision of the Court of Appeals which reversed its decision finding Dacoycoy guilty of
nepotism and ordering his dismissal from the service. Although the CSC was the quasi-judicial body
which rendered the decision appealed to the Court of Appeals, it became the party aggrieved or
adversely affected by its decision which "seriously prejudices the civil service system."
21
In Constantino-
David v. Pangandaman-Gania,
22
we likewise ruled that the CSC may seek a review of decisions of the
Court of Appeals that are detrimental to its constitutional mandate as the central personnel agency of
the government.
23

However, rather than remand the cases at bar to the Court of Appeals for a ruling on the merits of the
Ombudsmans motions for reconsideration, we shall resolve the legal issues involved in the interest of
speedy justice.
The authority of the Ombudsman to act on complaints filed against public officers and employees is
explicit in Article XI, Section 12 of the 1987 Constitution, viz:
The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and shall, in appropriate cases, notify the complainants of
the action taken and the result thereof. (emphasis ours)
Article XI, Section 13 of the same Constitution delineates the powers, functions and duties of the
Ombudsman as follows:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in
the performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as
may be provided by law, to furnish it with copies of documents relating to contracts and
transactions entered into by his office involving the disbursement or use of public funds or
properties, to the Commission on Audit for appropriate and report any irregularity action.
(5) Request any government agency for assistance and information necessary in the discharge
of its responsibilities, and to examine, if necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when circumstances so warrant and with
due prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in
the Government and make recommendations for their elimination and the observance of
high standards of ethics and efficiency.
(8) Promulgate its rules and procedure and exercise such other powers or perform such
functions or duties as may be provided by law.
The enumeration of these powers is non-exclusive.
24
Congress enacted R.A. No. 6770,
25
otherwise known
as The Ombudsman Act of 1989, on November 17, 1989 giving the Office such other powers that it may
need to efficiently perform the task given by the Constitution,
26
viz:
Section 15. Powers, Functions and Duties.- The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission
of any public officer or employee, office or agency, when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage,
from any investigatory agency of the Government, the investigation of such cases;
(2) Direct, upon complaint or at its own instance, any officer or employee of the Government,
or of any subdivision, agency or instrumentality thereof, as well as any government-owned or
controlled corporations with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in the performance
of duties;
(3) Direct the officer concerned to take appropriate action against a public officer or
employee at fault or who neglects to perform an act or discharge a duty required by law, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this
Act; Provided, That the refusal by any officer without just cause to comply with an order of
the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or
employee who is at fault or who neglects to perform an act or discharge a duty required by
law shall be a ground for disciplinary action against said officer;
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it
may provide in its rules of procedure, to furnish it with copies of documents relating to
contracts or transactions entered into by his office involving the disbursement or use of public
funds or properties, and report any irregularity to the Commission on Audit for appropriate
action;
(5) Request any government agency for assistance and information necessary in the discharge
of its responsibilities, and to examine, if necessary, pertinent records and documents;
(6) Publicize matters covered by is investigation of the matters mentioned in paragraphs (1),
(2), (3) and (4) hereof, when circumstances so warrant and with due prudence: Provided, That
the Ombudsman under its rules and regulations may determine what cases may not be made
public: Provided, further, That any publicity issued by the Ombudsman shall be balanced, fair
and true;
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud and corruption in
the Government, and make recommendations for their elimination and the observance of
high standards of ethics and efficiency;
(8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any
investigation or inquiry, including the power to examine and have access to bank accounts
and records;
(9) Punish for contempt in accordance with the Rules of Court and under the same procedure
and with the same penalties provided therein;
(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as
shall ensure the effective exercise or performance of the powers, functions, and duties herein
or hereinafter provided;
(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth amassed after February 25, 1986 and the prosecution of the parties
involved therein. x x x x
27

In fine, the manifest intent of the lawmakers was to bestow on the Office of the Ombudsman full
administrative disciplinary authority in accord with the constitutional deliberations.
28
Unlike the
Ombudsman-like agencies of the past the powers of which extend to no more than making findings of
fact and recommendations, and the Ombudsman or Tanodbayan under the 1973 Constitution who may
file and prosecute criminal, civil or administrative cases against public officials and employees only in
cases of failure of justice, the Ombudsman under the 1987 Constitution and R.A. No. 6770 is intended to
play a more active role in the enforcement of laws on anti-graft and corrupt practices and other offenses
committed by public officers and employees.
29
The Ombudsman is to be an "activist watchman," not
merely a passive one.
30
He is vested with broad powers to enable him to implement his own actions.
31

Respondents, however, insist that the findings of the Ombudsman are mere recommendations, and that
he may not directly impose administrative sanctions on public officials and employees, citing Tapiador v.
Office of the Ombudsman
32
where the following statement is found, viz:
x x x x Besides, assuming arguendo, that petitioner was administratively liable, the
Ombudsman has no authority to directly dismiss the petitioner from the government service,
more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article
XI of the 1987 Constitution, the Ombudsman can only "recommend" the removal of the
public official or employee found to be at fault, to the public official concerned.
The foregoing is now a settled issue. In Ledesma v. Court of Appeals,
33
we explained Tapiador and ruled
categorically that:
x x x x Under Section 13(3) of Article XI of the 1987 Constitution, it is provided:
Section 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
. . .
(3) Direct the officer concerned to take appropriate action against a public official
or employee at fault, and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith. (Emphasis supplied)
Petitioner insists that the word "recommend" be given its literal meaning; that is, that the
Ombudsmans action is only advisory in nature rather than one having any binding effect,
citing Tapiador v. Office of the Ombudsman, thus:
. . . Besides, assuming arguendo, that petitioner were administratively liable, the
Ombudsman has no authority to directly dismiss the petitioner from the
government service, more particularly from his position in the BID. Under Section
13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can
only "recommend" the removal of the public official or employee found to be at
fault, to the public official concerned.
For their part, the Solicitor General and the Office of the Ombudsman argue that the word
"recommend" must be taken in conjunction with the phrase "and ensure compliance
therewith." The proper interpretation of the Courts statement in Tapiador should be that
the Ombudsman has the authority to determine the administrative liability of a public
official or employee at fault, and direct and compel the head of the office or agency
concerned to implement the penalty imposed. In other words, it merely concerns the
procedural aspect of the Ombudsmans functions and not its jurisdiction.
We agree with the ratiocination of public respondents. Several reasons militate against a
literal interpretation of the subject Constitutional provision. Firstly, a cursory reading of
Tapiador reveals that the main point of the case was the failure of the complainant therein to
present substantial evidence to prove the charges of the administrative case. The statement
that made reference to the power of the Ombudsman is, at best, merely an obiter dictum
and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations
x x x x [h]ence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from
judicial examination. (emphases ours)
We reiterated this ruling in Office of the Ombudsman v. Laja,
34
where we emphasized that "the
Ombudsmans order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is
not merely advisory or recommendatory but is actually mandatory."
35
Implementation of the order
imposing the penalty is, however, to be coursed through the proper officer.
36
Recently, in Office of the
Ombudsman v. Court of Appeals,
37
we also held
While Section 15(3) of RA 6770 states that the Ombudsman has the power to "recommend x x
x removal, suspension, demotion x x x" of government officials and employees, the same
Section 15(3) also states that the Ombudsman in the alternative may "enforce its disciplinary
authority as provided in Section 21" of RA 6770. (emphasis supplied)
Finally, respondent Masing contends that she may be administratively dealt with only by following the
procedure prescribed in Section 9 of R.A. No. 4670 or the The Magna Carta for Public School Teachers.
She cites Fabella v. Court of Appeals.
38

Section 9, R.A. No. 4670 provides
Section 9. Administrative Charges.- Administrative charges against a teacher shall be heard
initially by a committee composed of the corresponding School Superintendent of the
Division or a duly authorized representative who should at least have the rank of a division
supervisor, where the teacher belongs, as chairman, a representative of the local or, in its
absence, any existing provincial or national teachers organization and a supervisor of the
Division, the last two to be designated by the Director of Public Schools. The Committee shall
submit its findings, and recommendations to the Director of Public Schools within thirty days
from the termination of the hearings; Provided, however, That where the school
superintendent is the complainant or an interested party, all the members of the committee
shall be appointed by the Secretary of Education.
In Fabella, several public schoolteachers were administratively charged by then DECS Secretary Isidro
Cario for taking part in mass actions in violation of civil service laws and regulations. A committee was
constituted to hear the charges. The teachers assailed the procedure adopted by the committee in a
petition for certiorari filed before the Regional Trial Court of Quezon City. In affirming the regional trial
courts decision which declared illegal the constitution of the committee, we ruled
x x x x Section 9 of RA 4670 x x x reflects the legislative intent to impose a standard and a
separate set of procedural requirements in connection with administrative proceedings
involving public schoolteachers. x x x [R]ight to due process of law requires compliance with
these requirements laid down by RA 4670.
39

Fabella, however, does not apply to the cases at bar. The public schoolteachers in Fabella were charged
with violations of civil service laws, rules and regulations in administrative proceedings initiated by the
DECS Secretary. In contrast, herein respondents Masing and Tayactac were administratively charged in
letter-complaints duly filed before the Office of the Ombudsman for Mindanao. The charges were for
violations of R.A. No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public
Officials and Employees, collecting unauthorized fees, failure to remit authorized fees, failure to account
for public funds, oppression, serious misconduct, discourtesy in the conduct of official duties, and
physical or mental incapacity or disability due to immoral or vicious habits. In short, the acts and
omissions complained of relate to respondents conduct as public official and employee, if not to
outright graft and corruption.
The authority of the Office of the Ombudsman to conduct administrative investigations is beyond cavil.
40

As the principal and primary complaints and action center
41
against erring public officers and
employees, it is mandated by no less than Section 13(1), Article XI of the Constitution.
42
In conjunction
therewith, Section 19 of R.A. No. 6770 grants to the Ombudsman the authority to act on all
administrative complaints,
43
viz:
Sec. 19. Administrative complaints. The Ombudsman shall act on all complaints relating, but
not limited, to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agencys functions, though in accordance
with law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.
Section 23(1) of the same law provides that administrative investigations conducted by the Office of the
Ombudsman shall be in accordance with its rules of procedure and consistent with due process.
It is erroneous, therefore, for respondents to contend that R.A. No. 4670 confers an exclusive disciplinary
authority on the DECS over public school teachers and prescribes an exclusive procedure in
administrative investigations involving them.
44
R.A. No. 4670 was approved on June 18, 1966. On the
other hand, the 1987 Constitution was ratified by the people in a plebiscite in 1987 while R.A. No. 6770
was enacted on November 17, 1989. It is basic that the 1987 Constitution should not be restricted in its
meaning by a law of earlier enactment. The 1987 Constitution and R.A. No. 6770 were quite explicit in
conferring authority on the Ombudsman to act on complaints against all public officials and employees,
with the exception of officials who may be removed only by impeachment or over members of Congress
and the Judiciary.
45
If an issue should ever arise, therefore, it should rather be whether the 1987
Constitution and R.A. No. 6770 have abrogated R.A. No. 4670. However, repeals by implication are not
favored, and courts have the duty to harmonize, so far as it is practicable, apparently conflicting or
inconsistent provisions. Therefore, the statement in Fabella that Section 9 of R.A. No. 4670 "reflects the
legislative intent to impose a standard and a separate set of procedural requirements in connection with
administrative proceedings involving public schoolteachers" should be construed as referring only to the
specific procedure to be followed in administrative investigations conducted by the DECS.
IN VIEW WHEREOF, the petitions are GRANTED. The assailed Decisions of the Court of Appeals dated
February 27, 2004 and July 31, 2003, as well as its Resolutions dated September 27, 2004 and September
30, 2004, in CA-G.R. SP No. 61993 and CA-G.R. SP No. 58735, respectively, are REVERSED and SET ASIDE.
The Joint Decision dated June 30, 2000 of the Office of the Ombudsman for Mindanao in Administrative
Case Nos. OMB-MIN-ADM-97-193, OMB-MIN-ADM-97-249, OMB-MIN-ADM-97-253 and OMB-MIN-ADM-
97-254 and its Decision dated December 27, 1999 in OMB-MIN-ADM-97-282, as well as its orders
denying reconsideration, are REINSTATED.
SO ORDERED.


G.R. No. 111091 August 21, 1995
ENGINEER CLARO J. PRECLARO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,
respondents.
KAPUNAN, J.:
On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A.
No. 3019 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The information
against him read as follows:
That on or about June 8, 1990, or sometime prior thereto, in Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a public officer,
being then the Project Manager/ Consultant of the Chemical Mineral Division, Industrial
Technology Development Institute, Department of Science and Technology, a component of
the Industrial Development Institute (ITDI for brevity) which is an agency of the Department
of Science and Technology (DOST for brevity), wherein the Jaime Sta. Maria Construction
undertook the construction of the building in Bicutan, Taguig, Metro Manila, with a total cost
of SEVENTEEN MILLION SIX HUNDRED NINETY FIVE THOUSAND PESOS (P17,695,000.00)
jointly funded by the Philippine and Japanese Governments, and while the said construction
has not yet been finally completed, accused either directly requested and/or demanded for
himself or for another, the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00), claimed
as part of the expected profit of FOUR HUNDRED SIXTY THOUSAND PESOS (P460,000.00) in
connection with the construction of that government building wherein the accused had to
intervene under the law in his capacity as Project Manager/Consultant of said construction
said offense having been committed in relation to the performance of his official duties.
CONTRARY TO LAW.
1

On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges against him.
On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan rendered judgment
finding petitioner guilty beyond reasonable doubt. The dispositive portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y Jambalos GUILTY
beyond reasonable doubt of the violation of Section 3, paragraph (b) of Republic Act No.
3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and he is
hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE (1)
MONTH, as the minimum, to TEN (10) YEARS and ONE (1) DAY, as the maximum, perpetual
disqualification from public office and to pay the costs of this action.
SO ORDERED.
2

The antecedent facts are largely undisputed.
On 1 October 1989, the Chemical Mineral Division of the Industrial Technology Development Institute
(ITDI), a component of the Department of Science and Technology (DOST) employed Petitioner under a
written contract of services as Project Manager to supervise the construction of the ITDI-CMD (JICA)
Building at the DOST Compound in Bicutan, Taguig, Metro Manila.
3

The contract was to remain in effect from October 1, 1989 up to the end of the construction period
unless sooner terminated.
4
Petitioner was to be paid a monthly salary drawn from counter-part funds
duly financed by foreign-assisted projects and government funds duly released by the Department of
Budget and Management.
5

In November 1989, to build the aforementioned CMD Structure, DOST contracted the services of the
Jaime Sta. Maria Construction Company with Engr. Alexander Resoso, as the company's project engineer.
6

How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act is narrated in the
Comment of the Solicitor General and amply supported by the records. The material portions are
hereunder reproduced:
xxx xxx xxx
3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta. Maria
Construction Company, was in the process of evaluating a Change Order for some electricals
in the building construction when petitioner approached him at the project site (p. 11, 25,
Ibid.).
4. Unexpectedly, petitioner made some overtures that expenses in the Change Order will be
deductive (meaning, charged to the contractor by deducting from the contract price), instead
of additive (meaning, charged to the owner). Petitioner intimated that he can forget about
the deductive provided he gets P200,000.00, a chunk of the contractor's profit which he
roughly estimated to be around P460,000.00 (pp. 12-13, 22, Ibid.).
5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta. Maria
Construction Company, Resoso thereafter asked petitioner if he wanted a rendezvous for him
to receive the money. Petitioner chose Wendy's Restaurant, corner E. Delos Santos Avenue
and Camias Street, on June 6, 1990 at around 8:00 o'clock in the evening (p. 14, Ibid.).
6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8th of June, perceiving
financial constraints (Ibid.).
7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry." (p. 15, Ibid.)
Petitioner was thereafter asked to bring along the result of the punch list (meaning, the list of
defective or correctible works to be done by the contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct.
1991).
8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the National Bureau of
Investigation (NBI) to report the incident (p. 15, 35, Ibid.).
9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified his conformity (p.
16, TSN, 12 Oct. 1990). Accordingly, Sta. Maria, Sr. was requested to produce the amount of
P50,000.00 in P500.00 denomination to represent the grease money (p. 37, TSN, 6 Sept.
1990).
10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI. Thereafter, the
money was dusted with flourescent powder and placed inside an attache case (pp. 16-17,
Ibid.). Resoso got the attache case and was instructed not to open it. Similarly, he was advised
to proceed at the Wendy's Restaurant earlier than the designated time where a group of NBI
men awaited him and his companion, Sta. Maria, Jr. (pp. 17-18, Ibid.).
11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant in Timog, Quezon City,
to fetch Sta. Maria, Jr. (Ibid.).
12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy's Restaurant. They
were led by the NBI men to a table previously reserved by them which was similarly adjacent
to a table occupied by them (pp. 18-19, Ibid.).
13. Twenty minutes later, petitioner arrived. Supposedly, the following conversation took
place, to wit:
JUSTICE BALAJADIA:
q. When Dave Preclaro arrived, what did he do?
a. We asked him his order and we talked about
the punch list.
q. What was his comment about the punch list?
a. He told us that it is harder to produce small
items than big ones.
q. How long did you converse with Engr. Claro
Preclaro?
a. I think thirty minutes or so.
q. Was Preclaro alone when he came?
a. Yes, Your Honor.
xxx xxx xxx
PROS. CAOILI:
q. When you talk[ed] about his punch list, did you
talk about anything else?
a. Engineer Sta. Maria, Jr., they were conversing
with Dave Preclaro and he told [him], "O, paano
na."
JUSTICE ESCAREAL:
q. Who said "Paano na?"
a. Engineer Sta. Maria, [Jr.]. And then Preclaro
told [him], "Paano, How will the money be
arranged and can I bring it?" he said.
And then Jimmy Sta. Maria, Jr. told him it was
arranged on two bundles on two envelopes.
And then Dave Preclaro told, "Puede" and he
asked Jimmy Sta. Maria, Jr. if there is express
teller and could he deposit during night time but
Engineer Sta. Maria, Jr. told him, "I do not have
any knowledge or I do not have any express teller
you can deposit. I only know credit card."
PROS. CAOILI:
q. When Engr. Sta. Maria intervened and
interviewed him that way, was there anything
that happened?
a. Jimmy Sta. Maria, Jr. handed two envelopes to
Preclaro.
q. Did Claro Preclaro receive these two envelopes
from Engineer Sta. Maria?
a. Yes, sir. (pp. 19-21, Ibid., See also pp. 13-14,
TSN, 29 Oct. 1990.)
14. From the moment petitioner received the two envelopes with his right hand, thereafter
placing them under his left armpit, he was accosted by the NBI men (p. 22, TSN, 12 Oct.
1990).
15. A camera flashed to record the event. Petitioner instinctively docked to avoid the taking
of pictures. In such manner, the two envelopes fell (p. 23, Ibid.).
16. The NBI men directed petitioner to pick up the two envelopes. Petitioner refused. Hence,
one of the NBI men picked up the envelopes and placed them inside a big brown envelope (p.
27, Ibid.)
17. Petitioner was thenceforth brought to the NBI for examination (p. 28; Ibid.).
18. At the NBI Forensic Chemistry Section, petitioner's right palmar hand was tested positive
of flourescent powder. The same flourescent powder, however, cannot be detected in
petitioner's T-shirt and pants (p. 5, TSN, 29 Oct. 1990).
7

xxx xxx xxx
Thus, as brought out at the outset, an information was filed against petitioner which, after due hearing,
resulted in his conviction by the Sandiganbayan. Not satisfied with the decision, petitioner instituted the
present petition for review, ascribing to the Sandiganbayan the following errors:
1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE, INSTEAD OF
DISMISSING IT FOR LACK OF JURISDICTION, THE [PETITIONER] NOT BEING A PUBLIC OFFICER;
and
2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THE ELEMENTS OF THE
OFFENSE CHARGED HAVE BEEN ESTABLISHED BEYOND REASONABLE DOUBT AND/OR THAT
THE GUILT OF THE [PETITIONER] HAS NOT BEEN ESTABLISHED BEYOND REASONABLE DOUBT.
We find the petition unmeritorious.
On the first issue, petitioner asserts that he is not a public officer as defined by Sec. 2(b) of the Anti-Graft
& Corrupt Practices Act (R.A. No. 3019 as amended), because he was neither elected nor appointed to a
public office. Rather, petitioner maintains that he is merely a private individual hired by the ITDI on
contractual basis for a particular project and for a specified period
8
as evidenced by the contract of
services
9
he entered into with the ITDI. Petitioner, to further support his "theory," alleged that he was
not issued any appointment paper separate from the abovementioned contract. He was not required to
use the bundy clock to record his hours of work and neither did he take an oath of office.
10

We are not convinced by petitioner's arguments.
Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b)
thereof "includes 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. . . ."
The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not
restrictive. The terms "classified, unclassified or exemption service" were the old categories of positions
in the civil service which have been reclassified into Career Service and Non-Career Service
11
by PD 807
providing for the organization of the Civil Service Commission
12
and by the Administrative Code of 1987.
13

Non-career service in particular is characterized by
(1) entrance on bases 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.
The Non-Career Service shall include:
(1) Elective officials and their personal 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) Chairman 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; and
(5) Emergency and seasonal personnel. (Emphasis ours.)
14

From the foregoing classification, it is quite evident that petitioner falls under the non-career service
category (formerly termed the unclassified or exemption service) of the Civil Service and thus is a public
officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019).
The fact that petitioner is not required to record his working hours by means of a bundy clock or did not
take an oath of office became unessential considerations in view of the above-mentioned provision of
law clearly including petitioner within the definition of a public officer.
Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft & Corrupt Practices
Act because his intervention "was not required by law but in the performance of a contract of services
entered into by him as a private individual contractor,"
15
is erroneous. As discussed above, petitioner
falls within the definition of a public officer and as such, his duties delineated in Annex "B" of the
contract of services
16
are subsumed under the phrase "wherein the public officer in his official capacity
has to intervene under the law."
17
Petitioner's allegation, to borrow a cliche, is nothing but a mere
splitting of hairs.
Among petitioner's duties as project manager is to evaluate the contractor's accomplishment
reports/billings
18
hence, as correctly ruled by the Sandiganbayan he has the "privilege and authority to
make a favorable recommendation and act favorably in behalf of the government," signing acceptance
papers and approving deductives and additives are some examples.
19
All of the elements of Sec. 3(b) of
the Anti-Graft & Corrupt Practices Act are, therefore, present.
Anent the second issue, we likewise find Petitioner's allegations completely bereft of merit.
Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable doubt and that
the charges against him should be rejected for being improbable, unbelievable and contrary to human
nature.
We disagree.
Proof beyond reasonable doubt does not mean that which produces absolute certainty. Only moral
certainty is required or "that degree of proof which produces conviction in an unprejudiced mind."
20
We
have extensively reviewed the records of this case and we find no reason to overturn the findings of the
Sandiganbayan.
Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies of the
prosecution witnesses. We shall examine the testimonies referred to with meticulousness.
Petitioner asserts that it was improbable for him to have demanded P200,000.00 from Engr. Resoso,
when he could have just talked directly to the contractor himself. It is quite irrelevant from whom
petitioner demanded his percentage share of P200,000.00 whether from the contractor's project
engineer, Engr. Alexander Resoso or directly from the contractor himself Engr. Jaime Sta. Maria Sr. That
petitioner made such a demand is all that is required by Sec. 3(b) of R.A. No. 3019 and this element has
been sufficiently established by the testimony of Engr. Resoso, thus:
xxx xxx xxx
Q You said when you were computing your Change Order Mr. Preclaro
or Dave Preclaro whom you identified approached you, what did you
talk about?
A He mentioned to me that we are deductive in our Change Order
three and four so after our conversation I told this conversation to my
boss that we are deductible in the Change Order three and four and
then my boss told me to ask why it is deductive.
Q Did you ask the accused here, Dave Preclaro why it is considered
deductive?
A Yes, sir.
Q What was his answer if any?
A I asked him that my boss is asking me to ask you how come it became
deductive when my computation is additive and he told me that I have
done so much for your company already and then he picked up cement
bag paper bag and computed our alleged profit amounting to One
Hundred Sixty Thousand Pesos and then he told me that he used to use
some percentage in projects maximum and minimum and in our case
he would use a minimum percentage and multiply to 60 and . . .
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and he said take of the butal and get two Hundred
Thousand Pesos.
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the P200,000.00.
(Emphasis ours.)
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss.
(Emphasis ours.)
JUSTICE BALAJADIA:
Q What is P200,000.00?
A It is Two Hundred Thousand Pesos.
PROS. CAOILI:
Q What did you answer him when he told you that?
A He told me to forget the deductive and electrical and after that I told
my boss what he told me.
Q Who is your boss?
A Santa Maria Sr.
Q What was the reaction of your boss when you relayed the message to
Mr. Preclaro?
A The next day he told me to ask Dave where and when to pick up the
money so the next day I asked Dave "Where do you intend to get the
money, the Boss wanted to know."
Q What was the answer of Dave?
A And he told me, Wendy's Restaurant at 3:00 o'clock.
Q When?
A June 6 Wednesday.
Q When he told you that did you comply with June 6 appointment?
A I told my boss what he told me again that the meeting will take place
at Wendy's Restaurant corner Edsa and Camias Street at around 8:00
o'clock p.m. June 6, Wednesday.
Q What did your boss tell you?
A The next day he told me to ask Dave.
Q What did your boss tell you?
A My boss told me to ask Dave to postpone the meeting on June 6 to be
postponed on June 8 at the same place and same time because my boss
is having financial problem.
Q Did you relay the postponement to Dave Preclaro?
A Yes sir. I told what my boss told me.
Q What was his reaction?
A Dave told me "O.K. lang with me" because we are not in a hurry. Any
way we are the ones to sign the acceptance papers and my boss
instructed me that on Friday to ask Dave to bring along the result of the
punch list and if possible also to bring along the acceptance papers to
be signed by Dave, Lydia Mejia and Dr. Lirag the director.
Q What happened next after meeting with Preclaro to relay the
postponement if any?
A Nothing happened. The next day, Thursday the boss instructed me to
go with him to the NBI to give a statement.
Q Did you go to the NBI and report to the incident to the NBI?
A Yes sir.
Q Did you give a statement before any of the agents of the of the NBI?
A Yes sir.
21

xxx xxx xxx
Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the latter tried to arrange
meetings with him regarding his demand
22
does not weaken the cause against petitioner. It does not at
all prove that petitioner did not ask for money. Conceivably petitioner did not muster enough courage to
ask money directly from the contractor himself. Getting the amount through the project engineer would
be safer because if Mr. Sta. Maria, Sr. had refused to give money, petitioner could always deny having
made the demand.
Petitioner contends that the percentage demanded in the amount of P200,000.00 is too high considering
that the estimated profit of the contractor from the CMD project is only P460,000.00. In petitioner's
words, this would "scare the goose that lays the golden egg."
23
We reject this argument. The
aforementioned contractor's profit is petitioner's own computation as testified to by Engr. Resoso:
xxx xxx xxx
A I asked him that my boss is asking me to ask you how come it became
deductive when my computation is additive and he told me that I have
done so much for your company already and then he picked up cement
bag paper bag and computed our alleged profit amounting to One
Hundred Sixty Thousand Pesos and then he told me that he used to use
some percentage in projects maximum and minimum and in our case he
would use a minimum percentage and multiply to 460 and . . .
(Emphasis ours.)
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and it ended to P215 thousand or P20,000.00 and he
said take of the butal and get the Two Hundred Thousand Pesos.
(Emphasis ours.)
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the P200,000.00.
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss.
24

xxx xxx xxx
The records, however, do not show the true and actual amount that the Sta. Maria Construction will
earn as profit. There is, therefore, no basis for petitioner's contention as the actual profit may be lower
or higher than his estimation.
Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentage proper
compensation since he has allegedly done so much for the Sta. Maria construction company.
25

Petitioner also argues that:
According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. 34-35).
If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00, why would the
petitioner still demand P200,000.00 which would increase the contractor's loss to
P480,000.00!
It might have been different if the changes were additive where STA. MARIA CONSTRUCTION
would have earned more, thereby providing motive for the petitioner to ask for a percentage!
26

But this is precisely what petitioner was bargaining for P200,000.00 in exchange for forgetting about
the deductive
27
and thus prevent the Sta. Maria Construction from incurring losses.
Petitioner's contention that it was impossible for him to make any demands because the final decision
regarding accomplishments and billing lies with the DOST technical committee is unacceptable.
Petitioner is part of the abovementioned technical committee as the ITDI representative consultant. This
is part of his duties under the contract of services in connection with which he was employed by the ITDI.
Even, assuming arguendo that petitioner does not make the final decision, as supervisor/consultant, his
recommendations will necessarily carry much weight. Engr. Resoso testified thus:
PROS. CAOILI:
Q As a Project Engineer to whom do you present your billing papers
accomplishment report or purchase order?
A The billing paper was being taken cared of by the, of our office. I
personally do my job as supervision in the construction.
Q Do you have any counterpart to supervise the project from the
government side?
A Yes, we have.
Yes, the DOST have a technical Committee Infra-Structure Committee
and also the ITDI as its own representative.
Q Who composed the Technical Committee of the DOST?
A A certain Engineer Velasco, Engineer Sande Banez and Engineer
Mejia.
Q How about the ITDI?
A The ITDI representative composed of Dave Preclaro.
Q Who is this Dave Preclaro?
A He is the consultant of ITDI. (Emphasis ours.)
xxx xxx xxx
ATTY. CAOILI:
Q As Project Engineer do you consult to any body regarding your job?
A First if there is any problem in the site I consult my boss.
PROS. CAOILI:
Q How about with the other consultants representing the ITDI and
DOST?
A In the construction site we have meeting every Monday to discuss
any problem.
Q With whom do you discuss this problem?
A The Infra-structure Committee of DOST and the Infra-structure
Committee of ITDI, the architect and the contractor. We had weekly
meetings.
Q What matters if any do you consult with Mr. Claro Preclaro?
ATTY. JIMENEZ:
No basis.
JUSTICE ESCAREAL:
They met on problems on Mondays.
ATTY. JIMENEZ:
But there is no mention of Preclaro specifically.
JUSTICE ESCAREAL:
With the representative of DOST and Preclaro
ATTY. JIMENEZ:
Does that also mean that Preclaro is also among the representatives he
is going to consult with?
Well any way. . .
JUSTICE ESCAREAL:
Witness may answer the question.
Read back the question.
COURT STENOGRAPHER:
Reading back the question as ordered by the Court.
WITNESS:
A Every Monday meeting we tackle with accomplishment report the
billing papers.
28
(Emphasis ours.)
xxx xxx xxx
Petitioner also claims that the testimonies of the prosecution witnesses regarding the entrapment itself
are conflicting, doubtful or improbable:
(aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with flourescent powder
and used in the alleged entrapment.
Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand (P50,000.00) pesos in
P500 denomination to the NBI.
29

There is no such inconsistency. Said witnesses were testifying on two different subjects. Engr. Sta. Maria,
Sr.'s testimony touched on the amount he gave the NBI for use in the entrapment while Engr. Resoso's
declaration referred only to the number of bills dusted with flourescent powder.
Petitioner, likewise, misappreciated the following testimony of Resoso:
PROS. CAOILI:
Q What did he do with the two envelopes upon receiving the same?
A Then he asked Jaime Sta. Maria, Jr. if there is bank teller express, if he
could deposit the money but Mr. Sta. Maria said, "I do not have, I only
have credit cards."
30

Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria, Jr. He was
merely inquiring from the latter if there was an express teller nearby where he could make the deposit.
Mr. Sta. Maria Jr. himself testified as follows:
A He asked me if there was express teller. I told him I do not know then
he asked me whether it is possible to deposit at the Express Teller at
that time. I told him I don't know because I have no express teller card
and he asked me how am I going to arrange, how was it arranged if I
will bring it, can I bring it. Then I told him that it was placed in two
envelopes consisting of 500 Peso bills and then he said "Okay na yan."
31

The failure of the NBI to take photographs of the actual turn-over of the money to petitioner is not fatal
to the People's cause. The transaction was witnessed by several people, among whom were Engr.
Resoso, Mr. Sta. Maria Jr. and the NBI agents whose testimonies on the circumstances before, during
and after the turn-over are consistent, logical and credible.
According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of the actual turn-
over so as not to alert and scare off the petitioner. During cross-examination Agent Balanban Jr. stated:
xxx xxx xxx
Q Now, of course, this entrapment operation, you made certain
preparation to make sure that you would be able to gather evidence in
support of the entrapment?
A Yes sir.
Q As a matter of fact you even brought photographer for the purpose?
A That is right sir.
Q And that photographer was precisely brought along to record the
entrapment?
A Yes sir.
Q From the beginning to the end, that was the purpose?
A At the time of the arrest sir.
ATTY. JIMENEZ:
From the time of the handing over of the envelopes until the
entrapment would have been terminated?
A No sir we plan to take the photograph only during the arrest because
if we take photographs he would be alerted during the handing of the
envelopes. (Emphasis ours.)
Q So you did not intend to take photographs of the act of handing of
the envelopes to the suspect?
A We intended but during that time we cannot take photographs at the
time of the handling because the flash will alert the suspect. (Emphasis
ours.)
JUSTICE ESCAREAL:
Why did you not position the photographer to a far distance place with
camera with telescopic lens?
A We did not Your Honor.
ATTY. JIMENEZ:
So was it your intention to take photographs only at the time that he is
already being arrested?
A Yes sir.
32

xxx xxx xxx
Petitioner insists that when his hands were placed under ultra-violet light, both were found negative for
flourescent powder. This is petitioner's own conclusion which is not supported by evidence. Such self-
serving statement will not prevail over the clear and competent testimony and the report
33
submitted
by the forensic expert of the NBI Ms. Demelen R. dela Cruz, who was the one who conducted the test
and found petitioner's right palmar hand positive for flourescent powder, the same hand he used,
according to witnesses Resoso and Sta. Maria Jr., to get the money from the latter.
xxx xxx xxx
Q Mrs. dela Cruz since when have you been a Forensic Chemist at NBI?
A Since 1981 sir.
Q JUSTICE ESCAREAL:
Q By the way, is the defense willing to admit that the witness is a
competent as . . . .
ATTY. JIMENEZ:
Admitted Your Honor.
PROS. CAOILI:
Madam Witness did you conduct a forensic examination in the person
of one Dave Preclaro y Jambalos?
A Yes sir.
Q If that person whom you examined is here in court would you be able
to recognize him?
ATTY. JIMENEZ:
We admit that the accused is the one examined by the witness.
ATTY. CAOILI:
Did you prepare the result of the examination in writing?
A Yes sir.
PROS. CAOILI:
Showing to you Physic Examination No. 90-961 which for purposes of
identification has already been marked as Exh. H what relation has this
have with the report that you mentioned a while ago?
A This is the same report that I prepared sir.
Q How did you conduct such flourescent examination?
A The left and right hands of the accused were placed under the ultra
violet lamp sir.
Q What was the result?
A It gave a . . . under the ultra violent lamp the palmer hands of the
suspect gave positive result for the presence of flourescent powder.
Q What palmar hands?
A Right hand sir.
Q What other examination did you conduct?
A And also the clothing, consisting of the t-shirts and the pants were
examined. Under the ultra violet lamp the presence of the flourescent
powder of the t-shirts and pants cannot be seen or distinguished
because the fibers or the material of the cloth under the ultra violet
lamp was flouresce.
Q Please tell the Court why the t-shirts and pants under the ultra
violent lamp was flouresce?
A The materials or the fibers of the clothings it could have been dyed
with flourescent dyes sir.
34

xxx xxx xxx
What we find improbable and contrary to human experience is petitioner's claim that he was set up by
Engr. Sta. Maria Sr. and Engr. Resoso for no other purpose but revenge on account, for petitioner's
failure to recommend the Sta. Maria Construction to perform the extra electrical works.
35

The Sandiganbayan has aptly ruled on this matter, thus:
For another, the claim of accused that there was ill-will on the part of the construction
company is hardly plausible. It is highly improbable for the company to embark on a malicious
prosecution of an innocent person for the simple reason that such person had recommended
the services of another construction firm. And it is extremely impossible for such company to
enlist the cooperation and employ the services of the government's chief investigative agency
for such an anomalous undertaking. It is more in accord with reason and logic to presuppose
that there was some sort of a mischievous demand made by the accused in exchange for
certain favorable considerations, such as, favorable recommendation on the completeness of
the project, hassle-free release of funds, erasure of deductives, etc. Indeed, the rationale for
the occurrence of the meeting and the demand for money is infinite and boundless.
36

As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then engaged in the
construction of another DOST building, would not risk his business or livelihood just to exact revenge
which is neither profitable nor logical. As we aptly stated in Maleg v. Sandiganbayan:
37

It is hard to believe that the complainant who is a contractor would jeopardize and prejudice
his business interests and risk being blacklisted in government infrastructure projects,
knowing that with the institution of the case, he may find it no longer advisable nor profitable
to continue in his construction ventures. It is hardly probable that the complainant would
weave out of the blue a serious accusation just to retaliate and take revenge on the accused.
From the foregoing, the conclusion is inescapable that on the basis of the testimonial and documentary
evidence presented during the trial, the guilt of petitioner has been established beyond reasonable
doubt.
WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED. SO ORDERED.

G.R. No. 93711 February 25, 1991
DR. EMILY M. MAROHOMBSAR, petitioner, vs. AHMAD E. ALONTO, JR., in his capacity as President of
the Mindanao State University, and CORAZON BATARA, respondents.
GUTIERREZ, JR., J.:p
The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was appointed Acting
Vice-Chancellor for Academic Affairs of the Mindanao State University (MSU) Marawi Campus by the
respondent President may be removed from office even without cause.
On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-
Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice-
President for External Studies.
On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA
and, as such, the functions of the former were to be exercised by the latter. The petitioner was
appointed acting Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of the
MSU, on May 16, 1989, approved her appointment as acting Vice-Chancellor for Academic Affairs.
On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing her that
he has decided to tap the petitioner's talent for the MSU system as Vice-President for Academic Affairs
which position is under the administrative staff of the respondent MSU President. The petitioner, on the
same date, answered that she cannot accept the position since she has already started several projects
in the OVCAA which she wants to see through.
The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as Vice-Chancellor
for Academic Affairs but the latter did not accept the designation. On May 28, 1990, the respondent
President issued Special Order No. 158-P designating Professor Corazon Batara, the other respondent in
this case, as Officer-in-Charge of the OVCAA.
The petitioner now comes to this Court assailing her removal as Vice-Chancellor by the respondent
President.
On June 21, 1990, the Court issued a temporary restraining order directing the respondents to cease and
desist from enforcing and/or implementing Special Order No. 159-P and from interfering and/or
preventing the petitioner from performing her duties as Vice-Chancellor for Academic Affairs of the
MSU, Marawi Campus.
On November 19, 1990, the petitioner filed a motion to cite respondent Alonto for contempt, alleging
that said respondent, in violation of the temporary restraining order issued by this Court submitted
Special Order No. 158-P to the MSU Board of Regents for approval.
The petitioner asserts that her appointment being permanent, she can be removed only after hearing
and for cause.
Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989, reads as follows:
RESOLVED, that upon recommendation of the President of the University of the
Executive Committee of the Board of Regents the following Special Orders as
amended/corrected are hereby confirmed:
A. DESIGNATIONS
A.1 Major designations
xxx xxx xxx
9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as
Acting Vice Chancellor for Academic Affairs, MSU Marawi Campus, with an
honorarium in accordance with the approved policies of the University, subject to
accounting and auditing rules and regulations, effective January 2, 1989 and shall
remain in force until revoked or amended by competent authority. (Rollo, pp. 5354;
Emphasis supplied)
It may be noted that the special order confirmed by the Board of Regents specifically designated the
petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an acting capacity
is essentially temporary and revocable in character and the holder of such appointment may be removed
anytime even without hearing or cause. (Austria v. Amante, 79 Phil. 780 [1948]; Castro v. Solidum, 97
Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48 [1957]; Valer v. Briones, 9 SCRA 596 [1963]; Abana v.
Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13 SCRA 293 [1965]. A person who accepts an
appointment in an acting capacity extended and received without any protest or reservation and who
acts thereunder for a considerable time cannot later be heard to say that the appointment was, in
reality, permanent and therefore there can be no removal except for cause. (See Cabiling v. Pabualan, 14
SCRA 274 [1965])
There are circumstances, however, which rule against the routine or blind application of the principle
which governs acting appointments to this case.
The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an
office for a limited time until a permanent appointment is extended or a new appointee is chosen.
(Austria v. Amante, supra; Castro v. Solidum, supra; and Valer v. Briones, supra)
The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but
also defines the authority of the appointing power. A public officer appointed in an acting capacity
cannot claim that the appointment shall in time ripen into a permanent one. However, neither can the
appointing power use the principle of temporary appointments to evade or avoid the security of tenure
principle in the Constitution and the Civil Service Law. This is similar to the rule that the head of an office
cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely
fire and hire or rehire subordinates at his personal discretion. It is the nature of the functions attached to
a position, not the nomenclature or title given by the appointing authority which determines its primarily
confidential nature. (Piero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may
inquire into the true nature of an "acting" appointment to determine whether or not it is used as a
device to circumvent the security of tenure principle.
In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU President is
obvious. The petitioner is a career official of MSU for over 27 years. She was Vice-President for External
Studies since 1982. On March 22, 1988, she was given an additional assignment as Officer-in-Charge of
the Office of the Vice-Chancellor for Academic Affairs concurrently with the permanent position as Vice-
President for External Studies.
About nine months later, the Vice-Presidency for External Studies was "merged" with the Vice-
Chancellorship for Academic Affairs. At the same time, the petitioner was appointed acting Vice-
Chancellor for Academic Affairs.
The effect, therefore, was to abolish the petitioner's permanent office and give her a temporary
appointment in the supposedly new office which replaced or absorbed the former office. Another result
was the loss by the petitioner of her permanent status.
There are reasons which indicate that these maneuverings by the respondent President cannot be
characterized as bona fide.
Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides:
Personnel Matters. In accordance with the policies and rules prescribed by the
Board, the specific powers of the President include the following (delegated
powers)
xxx xxx xxx
22. Designation of any Dean, Director, or Department Chairman in acting capacity
or any Officer-in-Charge for any of these positions, for a period of less than one
year, such designation being made without additional compensation for the
position designated except the honorarium attached to said position; PROVIDED,
That the President shall report the designation in the next regular meeting after
winch the designation shall be null and void unless otherwise renewed.
The power to designate is vested in the MSU President. The designation must be less than one year. It
must be reported to the Board of Regents at the next regular meeting. After the meeting, another
designation must be issued if no permanent appointment was made. The earlier designation becomes
void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied.
On the other hand, the power to appoint is vested in the Board of Regents as follows:
Sec. 6. The Board of Regents shall have the following powers and duties, in
addition to its general powers of administration and the exercise of the power of
the corporation;
xxx xxx xxx
(e) To appoint, on the recommendation of the President of the University,
professor, instructors, lecturers and other employees of the University. . . . MSU
Charter, RA 1387
If the President merely designates, the Board of Regents does not confirm the designation. Since it is
only for the information of the Board, the President's action should be merely "noted."
When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting
on an ad interim appointment effected by the President. No other interpretation can be validly made. If
it was a mere designation, it needs no confirmation. The fact that confirmation was needed shows that it
is an ad interim one. An ad interim appointment is one made during the time when the appointing or
confirming body is not in session and there is an existing clear and present urgency caused by an
impending obstruction or paralyzation of the functions assigned to the office if no immediate
appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for
External Studies was abolished and its functions were merged with the Vice-Chancellorship for Academic
Affairs, both the security of tenure of the occupant and the needs of the new office called for the ad
interim appointment.
The respondent cannot use the device of an ambiguous designation to go around the security of tenure
principle. Under the MSU Code, a designation requires a fixed period of not less than one year. The
appointment given to the petitioner was indefinite. She would serve at the pleasure of the MSU
President who is not even the head of the institution because the head is the Board of Regents.
The intent to convert permanent items into temporary ones is apparent. The petitioner states that the
purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers."
(Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers below the
President were converted into positions where the occupants serve at the pleasure of the President and
presumably, the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and
Navy Club alongside the Luneta in Manila, the following acting appointments were submitted for
approval or confirmation:
1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as
Acting Executive Vice-President . . . ;
2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as
Acting Vice President for Academic Affairs . . . ;
3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting
Assistant Vice-President for Academic Affairs . . . ;
4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting
Vice President for Planning and Development . . . ;
5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting
Assistant Vice President for Planning and Development . . . ;
6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer-
in-Charge of the Office of the Vice-President for Administration and Finance . . . ;
7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting
Assistant Vice President for Administration and Finance . . . ;
8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as
Acting Vice-Chancellor for Academic Affairs, MSU Marawi Campus . . . ;
10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting
Vice Chancellor for Administration and Finance . . . ;
11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting Vice
Chancellor for Research and Extension . . . (Rollo, pp. 117-118)
The respondents argue that the permanent item of the petitioner is Professor VI. They state:
xxx xxx xxx
Finally, petitioner has not refuted the fact that the position she actually occupies is
that of Professor VI. This is precisely the reason why petitioner's designation as
Acting VCAA can not be deemed a regular or permanent appointment because, if it
were so, the anomalous situation of one permanently appointed to two public
positions simultaneously would arise. (Rollo, p. 130)
This argument has no merit.
As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of the
Philippines (7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt to
remove them by limiting their terms of office from permanent to a five (5) year term is unconstitutional.
Deans and Directors are selected from faculty members. An appointment as Professor is also needed for
salary rating purposes but does not detract from the permanent nature of the administrative position
(id., at pp. 554 and 556). The fact that Professor Tapales was given another appointment as Director of
the U.P. Conservatory of Music does not mean that the second appointment is only temporary in nature.
In the present case, the fact that Professor Marohombsar has a permanent appointment as Professor
does not detract from the permanent nature of her present appointment as Vice-Chancellor, especially
since the same was duly confirmed by the MSU Board of Regents. The only difference is that her position
as Vice-Chancellor has a fixed term while that of Professor Tapales was until he retired or resigned.
The attempt of the respondent to solve the problem by placing the petitioner in his own administrative
staff as Vice-President for Academic Affairs cannot be countenanced. The petitioner served in this
capacity from 1975 to 1978 after which she became Vice-President for External Studies in 1982. The
proffered position is not only less desirable to the petitioner but she expressly rejected it, preferring to
stay in her present position. She thanked the respondent but stated she would not be effective in the
new position while in the OVCAA she could complete a number of projects and programs. (Rollo, p. 21)
The correctness of the petitioner's stand is explained by this Court in Sta. Maria v. Lopez (31 SCRA 673
[1970]). There are transfers which appear to be promotions or lateral movements but are in truth
demotions. There is no showing that the interest of the service would be served if the proffered
appointment would be forced on her.
No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cario opined, and the
Court agrees with him, that the petitioner may not be removed from the disputed office by the MSU
President without the authority of the Board. And, as correctly stated by the Secretary, Special Order No.
158-P issued by the respondent president designating respondent Batara as officer in-charge of the same
office was unapproved by the Board, hence, the special order cannot revoke, or could not have revoked
the designation of the petitioner as acting Vice-Chancellor. (Annex A, Petitioner's Memorandum, Rollo,
pp. 119-120)
The respondent MSU President, perhaps realizing the vulnerability of his action, submitted Special Order
No. 158-P to the Board of Regents for approval. But such submission was made after the Court already
issued its temporary restraining order and consequently, his action constituted contempt of Court.
Considering, however, that the respondent appears to have acted in the honest albeit mistaken belief
that MSU would progress faster if the executive officers serve at his pleasure and discretion, the Court
rules that declaring him in contempt would be too harsh a remedy. The respondent President is,
nevertheless, admonished for his action. When this Court issues a restraining order, it must be obeyed.
WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawful occupant in a
permanent capacity of the position of Vice-Chancellor for Academic Affairs of MSU Marawi until the end
of her three-year term or her tenure is otherwise lawfully terminated. The motion to cite respondent
Alonto for contempt is DENIED but the respondent is admonished to faithfully heed court orders in the
future. The Temporary Restraining Order issued by this Court on June 21, 1990 is made PERMANENT.
SO ORDERED.


G.R. No. 120295 June 28, 1996
JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful
governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive
elections but who was twice declared by this Court to be disqualified to hold such office due to his alien
citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of
Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown
away their ballots; and that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of
governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by
the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies
existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over
pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary
injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First
Division,
1
promulgated on December 19, 1995
2
and another Resolution of the Comelec en banc
promulgated February 23, 1996
3
denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of
Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another
candidate, filed a petition
4
with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be
disqualified from seeking or holding any public office or position by reason of not yet being a citizen of
the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second Division
of the Comelec promulgated a Resolution
5
granting the petition with the following disposition
6
:
WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the
ground that he is NOT a citizen of the Philippines. Accordingly, respondent's
certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995
elections. So, his candidacy continued and he was voted for during the elections held on said date. On
May 11, 1995, the Comelec en banc
7
affirmed the aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of
Votes
8
dated May 27, 1995 was issued showing the following votes obtained by the candidates for the
position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition
9
praying for his proclamation
as the duly-elected Governor of Sorsogon.
In an order
10
dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995,"
the Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the
purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed
governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition,
11
docketed as SPC No. 95-317, praying
for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged
that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the
Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee
on Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21,
1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the
evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the
alternative, he averred that pursuant to the two cases of Labo vs. Comelec,
12
the Vice-Governor - not Lee
- should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution
13
holding
that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as
duly-elected governor; and that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of
Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to
GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R.
Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he
not having garnered the highest number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and, on the
basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly
elected Governor of Sorsogon having garnered the highest number of votes, and
he having reacquired his Filipino citizenship by repatriation on June 30, 1995 under
the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office
of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the
Clerk of the Commission is directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of
Sorsogon of this resolution immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc
in its Resolution
14
promulgated on February 23, 1996. On February 26, 1996, the present petition was
filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a
Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing
of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions"

15
:
First -- The initiatory petition below was so far insufficient in form and substance
to warrant the exercise by the COMELEC of its jurisdiction with the result that, in
effect, the COMELEC acted without jurisdiction in taking cognizance of and
deciding said petition;
Second -- The judicially declared disqualification of respondent was a continuing
condition and rendered him ineligible to run for, to be elected to and to hold the
Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the effect
thereof retroactive as to cure his ineligibility and qualify him to hold the Office of
Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity
of petitioner's proclamation as duly elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at
issue in G.R. No. 123755, as follows:
1. Resolution
16
of the Second Division, promulgated on May 1, 1995, disqualifying
Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on
the ground that he is not a citizen of the Philippines";
2. Resolution
1
7 of the Comelec en banc, promulgated on May 11, 1995; and
3. Resolution
18
of the Comelec en banc, promulgated also on May 11, 1995
suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the
above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election
Code, which is reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided, after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not rendered
"within the period allowed by law" i.e., "not later than fifteen days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for
disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional
defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are
intimately related in their factual environment and are identical in the ultimate question raised, viz., who
should occupy the position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file
simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to
qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive
effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his
eligibility to run for, be elected to or hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317
considering that said petition is not "a pre-proclamation case, an election protest or a quo warranto
case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing
jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed
Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering
that they were not rendered within the period referred to in Section 78 of the Omnibus Election Code,
viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case.
All the other matters raised are secondary to this.
The Local Government Code of 1991
19
expressly requires Philippine citizenship as a qualification for
elective local officials, including that of provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
or sangguniang bayan, the district where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or
member of the sangguniang panlalawigan, or mayor, vice
mayor or member of the sangguniang panlungsod of highly
urbanized cities must be at least twenty-three (23) years of
age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court
20
as a non-citizen, it is therefore incumbent upon
him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed
under the said statute (R.A. 7160).
Under Philippine law,
21
citizenship may be reacquired by direct act of Congress, by naturalization or by
repatriation. Frivaldo told this Court in G.R. No. 104654
22
and during the oral argument in this case that
he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed
to materialize, notwithstanding the endorsement of several members of the House of Representatives"
due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at
naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate
of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995
over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice
disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a
fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to
boot. Moreover, he now boasts of having successfully passed through the third and last mode of
reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General
himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-
respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S.
Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on
June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the
duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said
date since, clearly and unquestionably, he garnered the highest number of votes in the elections and
since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now
discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President
Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution,
forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a
serious and contentious issue of policy which the present government, in the exercise of prudence and
sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution",
adding that in her memorandum dated March 27, 1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them
"to cease and desist from undertaking any and all proceedings within your functional area of
responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."
23

This memorandum dated March 27, 1987
24
cannot by any stretch of legal hermeneutics be construed as
a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones
25

and a repeal may be express or implied. It is obvious that no express repeal was made because then
President Aquino in her memorandum -- based on the copy furnished us by Lee -- did not categorically
and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect.
In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule
of statutory construction that repeals by implication are not favored. An implied repeal will not be
allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly
repugnant and patently inconsistent that they cannot co-exist".
26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not
every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987
Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be
treated as an executive policy addressed to the Special Committee to halt the acceptance and processing
of applications for repatriation pending whatever "judgment the first Congress under the 1987
Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the
first Congress -- once created -- to deal with the matter. If she had intended to repeal such law, she
should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully
couched her presidential issuance in terms that clearly indicated the intention of "the present
government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new
Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered
to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on
common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings,"
asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just
one day or on June 30, 1995 . . .", which "prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in
Malacaang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special
Committee was reactivated only on June 8, 1995, when presumably the said Committee started
processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the
Committee required. Under these circumstances, it could not be said that there was "indecent haste" in
the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was
intended solely for the personal interest of respondent,"
2
7 the Solicitor General explained during the
oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who
applied and were considered for repatriation, a list of whom was submitted by him to this Court, through
a Manifestation
28
filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the
performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a
ground to conclude that such proceedings were necessarily tainted. After all, the requirements of
repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome.
In fact, P.D.
725
29
itself requires very little of an applicant, and even the rules and regulations to implement the said
decree were left to the Special Committee to promulgate. This is not unusual since, unlike in
naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In
the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his
country and his province prior to his naturalization in the United States -- a naturalization he insists was
made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in
conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic
space, wasted no time in returning to his country of birth to offer once more his talent and services to
his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation
argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee.
At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the
Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion
of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only
be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local
Government Code "must exist on the date of his election, if not when the certificate of candidacy is
filed," citing our decision in G.R. 104654
30
which held that "both the Local Government Code and the
Constitution require that only Philippine citizens can run and be elected to public office." Obviously,
however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was
valid or not -- and NOT the effective date thereof. Since the Court held his naturalization to be invalid,
then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the
Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . . where he
intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of the
election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least twenty-
three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular date or time when the
candidate must possess citizenship, unlike that for residence (which must consist of at least one year's
residency immediately preceding the day of election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for holding an elective public office,
31
and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now,
an official begins to govern or to discharge his functions only upon his proclamation and on the day the
law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 --
the very day
32
the term of office of governor (and other elective officials) began -- he was therefore
already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities
thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This
is the liberal interpretation that should give spirit, life and meaning to our law on qualifications
consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be
required at the time of election or at the time of the filing of the certificates of candidacies, as Lee
insists? Literally, such qualifications -- unless otherwise expressly conditioned, as in the case of age and
residence -- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at
the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this
Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons,
33
if the purpose of the citizenship
requirement is to ensure that our people and country do not end up being governed by aliens, i.e.,
persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead
achieved by construing the citizenship qualification as applying to the time of proclamation of the
elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral argument
34
to the effect that
the citizenship qualification should be possessed at the time the candidate (or for that matter the
elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen,
also specifies as another item of qualification, that he be a "registered voter". And, under the law
35
a
"voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much
less a validly registered one -- if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the law intended
the citizenship qualification to be possessed prior to election consistent with the requirement of being a
registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a
redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct
from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the
voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the
need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY
he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province
. . . where he intends to be elected." It should be emphasized that the Local Government Code requires
an elective official to be a registered voter. It does not require him to vote actually. Hence, registration --
not the actual voting -- is the core of this "qualification". In other words, the law's purpose in this second
requirement is to ensure that the prospective official is actually registered in the area he seeks to govern
-- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a
registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial
declaration . . . In fact, he cast his vote in his precinct on May 8, 1995."
36

So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been
a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact,
his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was
allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995."
3
7
It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned from the date of
proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section
253 of the Omnibus Election Code
38
gives any voter, presumably including the defeated candidate, the
opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the
Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising
from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such
remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning
candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G.
Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon
of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the
highest number of votes in the immediately preceding elections and such oath had already cured his
previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo
RETROACTED to the date of the filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines,
39
"(l)aws shall have no retroactive effect, unless the
contrary is provided." But there are settled exceptions
40
to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,
41
curative statutes are those which undertake to cure errors and irregularities,
thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and
contracts which otherwise would not produce their intended consequences by reason of some statutory
disability or failure to comply with some technical requirement. They operate on conditions already
existing, and are necessarily retroactive in operation. Agpalo,
42
on the other hand, says that curative
statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are
intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very
nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or
irregularities and to render valid and effective attempted acts which would be otherwise ineffective for
the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a
retrospective law, nor within the general rule against the retrospective operation of statutes.
43

A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy,
thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of
"many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could
not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their
husbands or the termination of their marital status" and who could neither be benefitted by the 1973
Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine
citizenship . . ." because "such provision of the new Constitution does not apply to Filipino women who
had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these
women -- the right to re-acquire Filipino citizenship even during their marital coverture, which right did
not exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right
in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-
acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos
would have had to undergo the tedious and cumbersome process of naturalization, but with the advent
of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of
repatriation.
The Solicitor General
44
argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342),
since they are intended to supply defects, abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain
evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino
citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the
legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is
given to a statute or amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof."
45
It is obvious to the Court that the
statute was meant to "reach back" to those persons, events and transactions not otherwise covered by
prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil
right equally as important as the freedom of speech, liberty of abode, the right against unreasonable
searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative
intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been
said that a remedial statute must be so construed as to make it effect the evident purpose for which it
was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the
future, then it will be so applied although the statute does not in terms so direct, unless to do so would
impair some vested right or violate some constitutional guaranty."
46
This is all the more true of P.D. 725,
which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo
considering that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much
later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an American citizen,
nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the
repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to
the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case,
it was the intent of the legislative authority that the law should apply to past events -- i.e., situations and
transactions existing even before the law came into being -- in order to benefit the greatest number of
former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed
right of citizenship, and such legislative intention is to be given the fullest effect and expression, then
there is all the more reason to have the law apply in a retroactive or retrospective manner to situations,
events and transactions subsequent to the passage of such law. That is, the repatriation granted to
Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier
mentioned, there is nothing in the law that would bar this or would show a contrary intention on the
part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything
unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that
there will result the impairment of any contractual obligation, disturbance of any vested right or breach
of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation
of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by
his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If
P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to
delay the processing of applications for any substantial length of time, then the former Filipinos who may
be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may be prejudiced
for causes outside their control. This should not be. In case of doubt in the interpretation or application
of laws, it is to be presumed that the law-making body intended right and justice to prevail.
4
7
And as experience will show, the Special Committee was able to process, act upon and grant applications
for repatriation within relatively short spans of time after the same were filed.
48
The fact that such
interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a
result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the
government is possible only where a person's repatriation has the effect of wiping out a liability of his to
the government arising in connection with or as a result of his being an alien, and accruing only during
the interregnum between application and approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated, should now prevail.
Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as
having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all
questions about his possession of the nationality qualification -- whether at the date of proclamation
(June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March
20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be
deemed settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship
restored -- as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of
said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his
repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code
would disqualify him "from running for any elective local position?"
49
We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said
oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo
wrote that he "had long renounced and had long abandoned his American citizenship -- long before May
8, 1995. At best, Frivaldo was stateless in the interim -- when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship."
50

On this point, we quote from the assailed Resolution dated December 19, 1995:
51

By the laws of the United States, petitioner Frivaldo lost his American citizenship
when he took his oath of allegiance to the Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an
oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have
not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or arbitrariness or
abuse.
52

The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution
53
of the Comelec Second Division in SPA No. 95-028 as
affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after
five (5) days or on May 17, 1995, no restraining order having been issued by this Honorable Court.
54

Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final
and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo
now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory
way before the 1995 elections, and these "judicial pronouncements of his political status as an American
citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the
Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in
connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992
elections. That he was disqualified for such elections is final and can no longer be changed. In the words
of the respondent Commission (Second Division) in its assailed Resolution:
55

The records show that the Honorable Supreme Court had decided that Frivaldo
was not a Filipino citizen and thus disqualified for the purpose of the 1988 and
1992 elections. However, there is no record of any "final judgment" of the
disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the
Commission said in its Order of June 21, 1995 (implemented on June 30, 1995),
directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino
citizen "having been declared by the Supreme Court in its Order dated March 25,
1995, not a citizen of the Philippines." This declaration of the Supreme Court,
however, was in connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status
with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship
under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of
Immigration,
56
we held:
Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding court or administrative authority
decides therein as to such citizenship is generally not considered res judicata,
hence it has to be threshed out again and again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317
because the only "possible types of proceedings that may be entertained by the Comelec are a pre-
proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation
only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's
"recourse was to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution
5
7 has given the Comelec ample power to "exercise
exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all
elective . . . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in
the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has
invariably recognized the Commission's authority to hear and decide petitions for annulment of
proclamations -- of which SPC No. 95-317 obviously is one.
58
Thus, in Mentang vs. COMELEC,
59
we ruled:
The petitioner argues that after proclamation and assumption of office, a pre-
proclamation controversy is no longer viable. Indeed, we are aware of cases
holding that pre-proclamation controversies may no longer be entertained by the
COMELEC after the winning candidate has been proclaimed. (citing Gallardo vs.
Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs.
COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that
the proclamation is no proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the power to make such
declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs.
COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must "be done within ten (10)
days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's
proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,
60
"the fact remains that he (Lee) was not the choice
of the sovereign will," and in Aquino vs. COMELEC,
61
Lee is "a second placer, . . . just that, a second
placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the
aforesaid Labo
62
case, as follows:
The rule would have been different if the electorate fully aware in fact and in law
of a candidate's disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In
such case, the electorate may be said to have waived the validity and efficacy of
their votes by notoriously misapplying their franchise or throwing away their
votes, in which case, the eligible candidate obtaining the next higher number of
votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been shown,
and none was alleged, that petitioner Labo was notoriously known as an ineligible
candidate, much less the electorate as having known of such fact. On the contrary,
petitioner Labo was even allowed by no less than the Comelec itself in its
resolution dated May 10, 1992 to be voted for the office of the city Payor as its
resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of
candidacy had not yet become final and subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because
Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his
certificate of candidacy was not yet final on election day as there was in both cases a pending motion for
reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like
Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon
was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness
within the realm of notoriety;" in other words, that the voters intentionally wasted their ballots knowing
that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-
governor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was, to paraphrase
Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does
not entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to
the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch
as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed.
Hence, Lee's proclamation was patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated
May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of
citizenship should be annulled because they were rendered beyond the fifteen (15) day period
prescribed by Section 78, of the Omnibus Election Code which reads as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided after notice and
hearing, not later than fifteen days before the election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the
subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc
63
on
February 23, 1996; which both upheld his election. At any rate, it is obvious that Section 78 is merely
directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest and upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong. (emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's
memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of
P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the
said issuance is not a statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;
64
viz., "(u)nder CA
No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . .
repatriation". He also contends that by allowing Frivaldo to register and to remain as a registered voter,
the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a
non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed
earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose
of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which
were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of
a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the
denial of a certificate of candidacy on the ground of a false material representation therein as required
by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely
directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No.
120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid
because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In
dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of
discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications
even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is
merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No.
120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course
under Section 78 must be filed within the 25-day period prescribed therein. The present case however
deals with the period during which the Comelec may decide such petition. And we hold that it may be
decided even after the fifteen day period mentioned in Section 78. Here, we rule that a decision
promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond
the 25-day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of
Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our
holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly
involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that
Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections.
That is settled. But his supervening repatriation has changed his political status -- not in 1988 or 1992,
but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation,
saying that "informal renunciation or abandonment is not a ground to lose American citizenship". Since
our courts are charged only with the duty of determining who are Philippine nationals, we cannot rule on
the legal question of who are or who are not Americans. It is basic in international law that a State
determines ONLY those who are its own citizens -- not who are the citizens of other countries.
65
The
issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not
been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding
and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous
elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly
known". First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if
there is, such knowledge can be true post facto only of the last two previous elections. Third, even the
Comelec and now this Court were/are still deliberating on his nationality before, during and after the
1995 elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of
elective local officials, i.e., candidates, and not elected officials, and that the citizenship qualification
[under par. (a) of that section] must be possessed by candidates, not merely at the commencement of
the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of
"elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were
intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of
differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the
citizenship qualification should be possessed at election day or prior thereto, it would have specifically
stated such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for
governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground,
among others, that the law specifically provides that it is only after taking the oath of allegiance that
applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the
provision states. We hold however that the provision should be understood thus: that after taking the
oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition
(or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application
therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to
Section 39 of the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very
wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this
Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of
Law." We agree -- we must all follow the rule of law. But that is NOT the issue here. The issue is how
should the law be interpreted and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of how to interpret
and apply laws relating to elections: literal or liberal; the letter or the spirit, the naked provision or its
ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions;
harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far
better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.
Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute
unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.
E P I L O G U E
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an
elective official at the latest as of the time he is proclaimed and at the start of the term of office to which
he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not
having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by
virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the
remedial or curative nature of the law granting him a new right to resume his political status and the
legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship
and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the pendency of which he was
stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the vital
requirement of Filipino citizenship as of the start of the term of office of governor, and should have been
proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well.
The foregoing, of course, are precisely consistent with our holding that lack of the citizenship
requirement is not a continuing disability or disqualification to run for and hold public office. And once
again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to
hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our country to give
fullest effect to the manifest will of our people,
66
for in case of doubt, political laws must be interpreted
to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal
niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the end that
the will of the people in the choice of public officials may not be defeated by mere
technical objections (citations omitted).
6
7
The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference
to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the
sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a
reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely sound public policy to cause
elective offices to be filled by those who are the choice of the majority. To successfully challenge a
winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so
patently antagonistic
68
to constitutional and legal principles that overriding such ineligibility and thereby
giving effect to the apparent will of the people, would ultimately create greater prejudice to the very
democratic institutions and juristic traditions that our Constitution and laws so zealously protect and
promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have
refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his
failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could
have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and
thus hold his consequent dual citizenship as a disqualification "from running for any elective local
position." But the real essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the
ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy,
legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in
the larger social context consistent with Frivaldo's unique situation approximating venerability in
Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the
dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to
this country. At the first opportunity, he returned to this land, and sought to serve his people once more.
The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this
Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it
not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of
birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal
technicality, of his consuming intention and burning desire to re-embrace his native Philippines even
now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose
cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all,
Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world.
But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but
beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied
in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of
Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent
Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has
no merit.
No costs. SO ORDERED.

G.R. No. L-18428 August 30, 1962
MARIANO G. ALMEDA, SR., and VALERIANA F. ALMEDA, petitioners, vs. THE HON. JESUS Y. PEREZ,
Judge of the Court of First Instance of Manila, and the REPUBLIC OF THE PHILIPPINES, respondents.
LABRADOR, J.:
This is a petition for prohibition and certiorari, with preliminary injunction, filed by petitioners seeking to
set aside and declare null and void the orders, dated March 15, 1961 and May 8, 1961, of the respondent
Judge Jesus Y. Perez of the Court of First Instance of Manila, in Civil Case No. 44693 of said court. The
first order allowed the filing of an amended petition for forfeiture against petitioners; the second denied
a motion for the reconsideration thereof and for the dismissal of the amended petition for forfeiture.
In October, 1961, Epifanio T. Villegas and Jesus A. Mendoza, filed a complaint with the Secretary of
Justice, charging Mariano G. Almeda, Sr. with having acquired, during his incumbency as government
employee, cash and properties from unknown sources in the total amount of P121,407.98 which
acquisitions, according to the complaint, were manifestly out of proportion to the salary and other lawful
income of said Mariano G. Almeda, Sr., and, therefore, in violation of the provisions of Republic Act No.
1379, otherwise known as the Anti-Graft Law. Pursuant to the provisions of said Act, a preliminary
investigation was conducted by a committee of investigators designated by the Secretary of Justice. In a
resolution of said investigators, dated November 4, 1960, it was certified that there is reasonable ground
to believe that from 1950 to 1959, Mariano G. Almeda, Sr. acquired properties manifestly out of
proportion to his salary as Assistant Director of the National Bureau of Investigation, and to his other
lawful income.
On the basis of the findings of the investigators, the Solicitor General, representing the Republic of the
Philippines as petitioner, filed on November 12, 1960, with, Court of First Instance of Manila, a petition
for forfeiture against Mariano G. Almeda, Sr., docketed as Civil Case No. 44693. It charges him with
having committed while engaged in the performance of his official and, in consequence of said graft, had
acquired properties and made cash disbursements from 1950 to 1959 grossly disproportionate to his
lawful income. His wife was included as a co-respondent in her capacity as wife of Mariano G. Almeda,
Sr. and as co-owner of their conjugal properties.
Petitioners herein filed their answer on December 1960 and thereafter the case was set for hearing, but
February 15, 1961, the Solicitor General filed a "Motion for Leave to Amend Petition for Forfeiture". The
judge granted the motion but rejected the inclusion of Mariano F. Almeda, Jr. as party respondent. On
March 25, 196 the Solicitor General filed the amended petition for forfeiture, adding other counts and
items of alleged unlawful acquisitions and disbursements thus increasing the alleged cash from
unexplained sources received by the respondent from the years 1950-59 to P208,682.45, as against
respondent's salary and other lawful income of only P59,860.97. Respondents, petitioners herein,
objected to the amendment on the ground that the new counts or charges already been investigated
and dismissed after investigation, and respondents had not been given a new preliminary investigation
with respect to the new counts or charges that the proceeding under Republic Act No. 1379 being
criminal in nature, the petition may not be amended as substance without respondents' consent. It is
also claim that the amendments were presented only to delay the proceedings to the prejudice of the
respondents, and that the new counts or charges could not be included because one year had already
elapsed after a general election in violation of the provisions of Republic Act No. 1379. After the filing of
memoranda by the parties the respondent judge issued the order sought to be reviewed, authorizing the
presentation of the second amended petition but without including therein Mariano F. Almeda, Jr. as a
party respondent. The court ruled as follows:
The Court finds no merit to the contention that the amended petition seeks to include new
counts which were previously dismissed by the investigating Fiscals because no such dismissal
appears in the resolution of said investigating fiscal and moreover, the only function of the
investigating fiscals in the preliminary investigation was to determine whether or not there is
probable cause that respondents have acquired properties beyond their means. The items of
receipts and disbursements or acquisitions referred to as new counts by the respondents are
but allegations in detail respecting the main allegation that respondents unlawfully acquired
the properties described in the amended petition. The new allegations of receipts and
disbursements embodied in the amended petition objected to by the respondents merely
supplement or amplify the facts of unlawful acquisition originally alleged in the original
petition. These amendments hence relate back to the date of the filing of the original petition
so that the prohibition contained in Rep. Act 1379 that no petition shall be filed within one
year before a general election cannot apply with respect to the new items of receipts and
disbursements. The Court finds no merit in the respondents' contention that the amended
petition should not be admitted on the allegation that this proceeding is penal in nature and
no amendment as to matters of substance can be admitted after the respondents have filed
their answer because this is a civil case and the rules respecting amendments in civil cases
and not of informations in criminal cases should govern the admission of amendments in this
case. The mere fact that a preliminary investigation is required to be held in a proceeding of
this nature does not make the same a criminal proceeding. Hence, the rule that amendments
of pleadings are favored and should be liberally allowed in the furtherance of justice should
be applied.
With reference to the objection that no preliminary investigation was conducted insofar as
the new respondent Mariano P. Almeda is concerned, the Court finds said objection to be
well-founded because no preliminary investigation was in fact conducted insofar as said new
respondent is concerned in violation of Sec. 2 of Rep. Act 1379.
WHEREFORE, the Court hereby orders the petitioner to file, within ten days, a second
amended petition without including therein, Mariano F. Almeda as party respondent or make
reference therein with respect to said person.
SO ORDERED.
The principal contention of the petitioners herein, respondents in the court below, is that Republic Act
No. 1379 is penal in substance and effect, hence the presentation of the amended petition without the
benefit of a previous preliminary investigation under the Act cannot be allowed; that the amendment
would have the effect of presenting charge (under Republic Act No. 1379) within one year from the date
of a general election; and lastly that amendment may not be made on a matter of substance after the
defendants had pleaded.
A study of the provisions of Republic Act No. 1379 readily discloses that the proceeding for forfeiture is
in nature and not criminal, as claimed by the petitioners. A test has been suggested to determine
whether the proceeding for forfeiture is civil or criminal, thus:
. . . Forfeiture proceedings may be either civil or criminal in nature, and may be in rem or in
personam. If they are under a statute such that if an indictment is presented forfeiture can be
included in the criminal case they are in nature, although they may be civil in form; and where
it must be gathered from the statute that the action is meant to be criminal in its nature it
cannot be considered as civil. If however, the proceeding does not involve the conviction of
wrongdoer for the offense charged the proceeding is of a civil nature; and under statutes
which specifically so provision where the act or omission for which the forfeiture is imposed is
not also a misdemeanor, such forfeiture may be sued for recovered in a civil action. (37 CJS,
Forfeitures, Sec. 5, pp. 15-16).
In the first place a proceedings under the Act (Rep. Act No. 1379) does, not terminate in the imposition
of penalty but merely in the forfeiture of the properties illegally acquired in favor of the state. (Sec. 6) In
the second place the procedure outlined in the law leading to forfeiture is that provided for in a civil
action. Thus there is a petition (Sec. 3), then an answer (Sec. 4), and lastly, a hearing. The preliminary
investigation which is require prior to the filing of the petition, in accordance with Sec. 2 of the Act, is
provided expressly to be one similar to a preliminary investigation in a criminal in a criminal case. If the
investigation is only similar to that in a criminal case, but other steps in the proceedings are those for
civil proceedings, it stands to reason that the proceeding is not criminal. Had it been a criminal
proceeding there would been, after a preliminary investigation, a reading of information, a plea of guilty
or not guilty, and a trial thereafter, with the publication of the judgement in the presence of the
defendant. But these proceedings as above set forth, are not provided for in the law.1wph1.t
Section 12 of the law provides a penalty to the public officer, but said penalty is against the employee or
officer for the transfer or conveyance of any unlawfully acquired properties. The law therefore penalizes
an officer for transferring or conveying properties unlawfully acquired but does not do so for making the
unlawful acquisition; it merely imposes the penalty of forfeiture of the properties unlawfully acquired.
As the proceeding for forfeiture, as pointed out and as provided for in the law, is not a penal proceeding
but a civil one for the forfeiture of the properties illegally acquired, and as the procedure outlined in the
law is that which is followed in civil actions, amendment of the charges or the petition for forfeiture may
be made as in ordinary civil actions; i.e., the amendments may be made before trial or in the course of
trial without need of another investigation. It also follows that amendments setting forth newly
discovered acquisitions may be in the petition without obtaining the consent of the respondent.
WHEREFORE, the petition should be, as it is hereby, denied, with costs. So ordered.


G.R. No. L-19052 December 29, 1962
MANUEL F. CABAL, petitioner, vs. HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA,
respondents.
CONCEPCION, J.:
This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the Hon.
Ruperto Kapunan, Jr., as Judge of the Court of First Instance of Manila, from further proceeding in
Criminal Case No. 60111 of said court, and to set aside an order of said respondent, as well as the whole
proceedings in said criminal case. .
On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of Nation
Defense a letter-complaint charging petitioner Manuel Cabal, then Chief of Staff of the Armed Forces of
the Philippines, with "graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer and
gentleman dictatorial tendencies, giving false statements of his as sets and liabilities in 1958 and other
equally reprehensible acts". On September 6, 1961, the President of the Philippines created a committee
of five (5) members, consisting of former Justice Marceliana R. Montemayor, as Chairman, former
Justices Buenaventura Ocampo and Sotero Cabahug, and Generals Basilio J. Valdez and Guillermo B.
Francisco, to investigate the charge of unexplained wealth contained in said letter-complaint and submit
its report and recommendations as soon as possible. At the beginning of the investigation, on September
15, 1961, the Committee, upon request of complainant Col. Maristela, or considered petitioner herein to
take the witness stand and be sworn to as witness for Maristela, in support of his aforementioned charge
of unexplained wealth. Thereupon, petitioner objected, personally and through counsel, to said request
of Col. Maristela and to the aforementioned order of the Committee, invoking his constitutional right
against self-incrimination. The Committee insisted that petitioner take the witness stand and be sworn
to, subject to his right to refuse to answer such questions as may be incriminatory. This notwithstanding,
petitioner respectfully refused to be sworn to as a witness to take the witness stand. Hence, in a
communication dated September 18, 1961, the Committee referred the matter to respondent City Fiscal
of Manila, for such action as he may deem proper. On September 28, 1961, the City Fiscal filed with the
Court of First Instance of Manila a "charge" reading as follows:
The undersigned hereby charges Manuel F. Cabal with contempt under section 580 of the
Revised Administrative Code in relation to sections I and 7, Rule 64 of the Rules of Court,
committed as follows:
That on or about September 15, 1961, in the investigation conducted at the U.P.
Little Theater:, Padre Faura, Manila, by the Presidential Committee, which was
created by the President of the Republic of the Philippines in accordance with law
to investigate the charges of alleged acquisition by respondent of unexplained
wealth and composed of Justice Marceliano Montemayor, as Chairman, and
Justices Buenaventura Ocampo and Sotero Cabahug and Generals Basilio Valdez
and Guillermo Francisco, as members, with the power, among others, to compel
the attendance of witnesses and take their testimony under oath, respondent who
was personally present at the time before the Committee in compliance with a
subpoena duly issued to him, did then and there willfully, unlawfully, and
contumaciously, without any justifiable cause or reason refusal and fail and still
refuses and fails to obey the lawful order of the Committee to take the witness
stand, be sworn and testify as witness in said investigation, in utter disregard of
the lawful authority of the Committee and thereby obstructing and degrading the
proceedings before said body.
Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of
contempt of the Presidential Committee and accordingly disciplined as in contempt of court
imprisonment until such time as he shall obey the subject order of said committee.
This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII thereof,
presided over by respondent Judge. On October 2, 1961, the latter issued an order requiring petitioner
to show cause and/or answer the charge filed against him within ten (10) days. Soon thereafter, or on
October 4, 1961, petitioner filed with respondent Judge a motion to quash the charge and/or order to
show cause, upon the ground: (1) that the City Fiscal has neither authority nor personality to file said
char and the same is null and void, for, if criminal, the charge has been filed without a preliminary
investigation, and, civil, the City Fiscal may not file it, his authority in respect of civil cases being limited
to representing the City of Manila; (2) that the facts charged constitute no offense for section 580 of the
Revised Administrative Code, upon which the charge is based, violates due process, in that it is vague
and uncertain as regards the offense therein defined and the fine imposable therefor and that it fail to
specify whether said offense shall be treated also contempt of an inferior court or of a superior court (3)
that more than one offense is charged, for the contempt imputed to petitioner is sought to be punished
as contempt of an inferior court, as contempt of a superior court an as contempt under section 7 of Rule
64 of the Rules Court; (4) that the Committee had no power to order an require petitioner to take the
witness stand and be sworn to, upon the request of Col. Maristela, as witness for the latter, inasmuch as
said order violates petitioner's constitutional right against self-incrimination.
By resolution dated October 14, 1961. respondent Judge denied said motion to quash. Thereupon, or on
October 20, 1961, petitioner began the present action for the purpose adverted to above, alleging that,
unless restrained by this court, respondent Judge may summarily punish him for contempt, and that
such action would not be appealable.
In their answer, respondents herein allege, inter alia, that the investigation being conducted by the
Committee above referred to is administrative, not criminal, in nature; that the legal provision relied
upon by petitioner in relation to preliminary investigations (Section '08-C, Republic Act No. 409, as
amended by Republic Act No. 1201) is inapplicable to contempt proceedings; that, under section 580 of
the Revised Administrative Code. contempt against an administrative officer is to be dealt with as
contempt of a superior court; that petitioner herein is charged with only one offense; and that, tinder
the constitutional guarantee against self-incrimination, petitioner herein may refuse, not to take the
witness stand, but to answer incriminatory questions.
At the outset, it is not disputed that the accused in a criminal case may refuse, not only to answer
incriminatory questions, but, also, to take the witness stand (3 Wharton's Criminal Evidence, pp. 1959-
1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before
the aforementioned Committee is civil or criminal in character.
In this connection, it should be noted that, although said Committee was created to investigate the
administrative charge of unexplained wealth, there seems to be no question that Col. Maristela does not
seek the removal of petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As a matter
of fact he no longer holds such office. It seems, likewise conceded that the purpose of the charge against
petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise known as the Anti-
Graft Law, which authorizes the forfeiture to the State of property of a public officer or employee which
is manifestly out of proportion to his salary as such public officer or employee and his other lawful
income and the income from legitimately acquired property. Such for forfeiture has been held, however,
to partake of the nature of a penalty.
In a strict signification, a forfeiture is a divestiture property without compensation, in
consequence of a default an offense, and the term is used in such a sense in this article. A
forfeiture, as thus defined, is imposed by way of punishment not by the mere convention of
the parties, but by the lawmaking power, to insure a prescribed course of conduct. It is a
method deemed necessary by the legislature to restrain the commission of an offense and to
aid in the prevention of such a offense. The effect of such a forfeiture is to transfer the title to
the specific thing from the owner to the sovereign power (23 Am. Jur. 599) (Emphasis ours.)
In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a liability to pay a
definite sum of money as the consequence of violating the provisions of some statute or
refusal to comply with some requirement of law." It may be said to be a penalty imposed for
misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.)
As a consequence, proceedings for forfeiture of proper are deemed criminal or penal, and, hence, the
exemption of defendants in criminal case from the obligation to be witnesses against themselves are
applicable thereto.
Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or
imprisonment against any person are deemed to be civil proceedings in rem. Such
proceedings are criminal in nature to the extent that where the person using the res illegally is
the owner or rightful possessor of it, the forfeiture proceeding is in the nature of a
punishment. They have been held to be so far in the nature criminal proceedings that a
general verdict on several count in an information is upheld if one count is good. According to
the authorities such proceedings, where the owner of the property appears, are so far
considered as quasi-criminal proceeding as to relieve the owner from being a witness against
himself and to prevent the compulsory production of his books and papers. ... (23 Am. Jur.
612; emphasis ours.)
Although the contrary view formerly obtained, the late decisions are to the effect that suits
for forfeitures incurred by the commission of offenses against the law are so far of quasi-
criminal nature as to be within the reason of criminal proceedings for all purposes of ... that
portion of the Fifth Amendment which declares that no person shall be compelled in any
criminal case to be a witness against himself. .... It has frequently been held upon
constitutional grounds under the various State Constitution, that a witness or party called as
witness cannot be made to testify against himself as to matters which would subject his
property to forfeiture. At early common law no person could be compelled to testify against
himself or to answer any question which would have had a tendency to expose his property to
a forfeiture or to form a link in a chain of evidence for that purpose, as well as to incriminate
him. Under this common-law doctrine of protection against compulsory disclosures which
would tend to subject the witness to forfeiture, such protection was claimed and availed of in
some early American cases without placing the basis of the protection upon constitutional
grounds. (23 Am. Jur., 616; emphasis ours.)
Proceedings for forfeitures are generally considered to be civil and in the nature of
proceedings in rem. The statute providing that no judgment or other proceedings in civil cases
shall be arrested or reversed for any defect or want of form is applicable to them. In some
aspects, however, suits for penalties and forfeitures are of quasi-criminal nature and within
the reason of criminal proceedings for all the purposes of ... that portion of the Fifth
Amendment which declares, that no person shall be compelled in any criminal case to be a
witness against himself. The proceeding is one against the owner, as well as against the
goods; for it is his breach of the laws which has to be proved to establish the forfeiture and
his property is sought to be forfeited. (15 Am. Jur., Sec. 104, p. 368; emphasis
ours.)lawphil.net
The rule protecting a person from being compelled to furnish evidence which would
incriminate him exists not only when he is liable criminally to prosecution and punishment,
but also when his answer would tend to expose him to a ... forfeiture .... (58 Am. Jur., See. 43,
p. 48; emphasis ours.)
As already observed, the various constitutions provide that no person shall be compelled in
any criminal case to be a witness against himself. This prohibition against compelling a person
to take the stand as a witness against himself applied only to criminal, quasi-criminal, and
penal proceedings, including a proceeding civil in form for forfeiture of property by reason of
the commission of an offense, but not a proceeding in which the penalty recoverable is civil or
remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49: emphasis ours.)
The privilege of a witness not to incriminate himself is not infringed by merely asking the
witness a question which he refuses to answer. The privilege is simply an option of refusal,
and not a prohibition of inquiry. A question is not improper merely because the answer may
tend to incriminate but, where a witness exercises his constitutional right not to answer, a
question by counsel as to whether the reason for refusing to answer is because the answer
may tend to incriminate the witness is improper.
The possibility that the examination of the witness will be pursued to the extent of requiring
self-incrimination will not justify the refusal to answer questions. However, where the position
of the witness is virtually that of an accused on trial, it would appear that he may invoke the
privilege in support of a blanket refusal to answer any and all questions. (C.J.S., p. 252;
emphasis ours.)
A person may not be compelled to testify in an action against him for a penalty or to answer
any question as a witness which would subject him to a penalty or forfeiture, where the
penalty or forfeiture is imposed as a vindication of the public justice of the state.
In general, both at common law and under a constitution provision against compulsory self-
incrimination, a person may not be compelled to answer any question as a witness which
would subject him to a penalty or forfeiture, or testify in action against him for a penalty.
The privilege applies where the penalty or forfeiture recoverable, or is imposed in vindication
of the public justice the state as a statutory fine or penalty, or a fine or penalty for violation of
a municipal ordinance, even though the action or proceeding for its enforcement is not
brought in a criminal court but is prosecuted through the modes of procedure applicable to
ordinary civil remedy. (98 C. J. S., pp. 275-6.)
Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a proceeding to
declaration a forfeiture of certain property because of the evasion of a certain revenue law, "though
technically a civil proceeding is in substance and effect a criminal one", and that suits for penalties and
forfeitures are within the reason criminal proceedings for the purposes of that portion the Fifth
Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a
criminal case to be a witness against himself. Similarly, a proceeding for the removal of an officer was
held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of
the Fifth Amendment applies "to all cases in which the action prosecution is not to establish, recover or
redress private and civil rights, but to try and punish persons charged with the commission of public
offenses" and "a criminal case is a action, suit or cause instituted to punish an infraction the criminal
laws, and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal
case ...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-1151). Hence, the Lawyer
Reports Annotated (Vol. 29, p. 8), after an extensive examination of pertinent cases, concludes that said
constitutional provision applies whenever the proceeding is not "purely remedial", or intended "as a
redress for a private grievance", but primarily to punish "a violation of duty or a public wrong and to
deter others from offending in likewise manner. ...".
We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the
theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No.
1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure,
was rejected by this Court upon the ground that said forfeiture proceeding in civil in nature. This
doctrine refers, however, to the purely procedural aspect of said proceeding, and has no bearing the
substantial rights of the respondents therein, particularly their constitutional right against self-
incrimination.
WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently from
proceeding further in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so ordered.


G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON
MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO
AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM
(SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents.
CORTES, J:
Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social
Security System Employees Association (SSSEA) from striking and order the striking employees to return
to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to
strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages
with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the
officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building,
preventing non-striking employees from reporting for work and SSS members from transacting business
with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which
ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS
suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be
issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants
(petitioners herein) be ordered to pay damages; and that the strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which
included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA)
on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay;
conversion of temporary or contractual employees with six (6) months or more of service into regular
and permanent employees and their entitlement to the same salaries, allowances and benefits given to
other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS
deducted certain amounts from the salaries of the employees and allegedly committed acts of
discrimination and unfair labor practices [Rollo, pp. 21-241].
The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the
application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion
to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this
motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo,
pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and
converted the restraining order into an injunction upon posting of a bond, after finding that the strike
was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was
also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition
with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a
resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to
the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the
Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137].
Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988
denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners'
motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the
motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the
Court of Appeals [Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining
the petitioners from staging another strike or from pursuing the notice of strike they filed with the
Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp.
151-152].
The Court, taking the comment as answer, and noting the reply and supplemental reply filed by
petitioners, considered the issues joined and the case submitted for decision.
The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case
initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as
jurisdiction lay with the Department of Labor and Employment or the National Labor Relations
Commission, since the case involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are
covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have
the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional
Trial Court may enjoin the employees from striking.
In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners,
the Court of Appeals held that since the employees of the SSS, are government employees, they are not
allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS'
complaint for damages, from continuing with their strike.
Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of
Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when
it took cognizance of the case and enjoined the strike are as follows:
1. Do the employees of the SSS have the right to strike?
2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the
strikers from continuing with the strike and to order them to return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall
guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31].
By itself, this provision would seem to recognize the right of all workers and employees, including those
in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in
the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as
"all branches, subdivisions, instrumentalities, and agencies of the Government, including government-
owned or controlled corporations with original charters," that "[t]he right to self-organization shall not
be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also
provides that "[tlhe right of the people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec.
8]. Thus, while there is no question that the Constitution recognizes the right of government employees
to organize, it is silent as to whether such recognition also includes the right to strike.
Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of
these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987
Constitution would show that in recognizing the right of government employees to organize, the
commissioners intended to limit the right to the formation of unions or associations only, without
including the right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-
organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the
apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission,
explained:
MR. LERUM. I think what I will try to say will not take that long. When we
proposed this amendment providing for self-organization of government
employees, it does not mean that because they have the right to organize, they
also have the right to strike. That is a different matter. We are only talking about
organizing, uniting as a union. With regard to the right to strike, everyone will
remember that in the Bill of Rights, there is a provision that the right to form
associations or societies whose purpose is not contrary to law shall not be
abridged. Now then, if the purpose of the state is to prohibit the strikes coming
from employees exercising government functions, that could be done because the
moment that is prohibited, then the union which will go on strike will be an illegal
union. And that provision is carried in Republic Act 875. In Republic Act 875,
workers, including those from the government-owned and controlled, are allowed
to organize but they are prohibited from striking. So, the fear of our honorable
Vice- President is unfounded. It does not mean that because we approve this
resolution, it carries with it the right to strike. That is a different matter. As a
matter of fact, that subject is now being discussed in the Committee on Social
Justice because we are trying to find a solution to this problem. We know that this
problem exist; that the moment we allow anybody in the government to strike,
then what will happen if the members of the Armed Forces will go on strike? What
will happen to those people trying to protect us? So that is a matter of discussion
in the Committee on Social Justice. But, I repeat, the right to form an organization
does not carry with it the right to strike. [Record of the Constitutional Commission,
vol. 1, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code
(P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities
exercising governmental functions, but excluding entities entrusted with proprietary functions:
.Sec. 11. Prohibition Against Strikes in the Government. The terms and
conditions of employment in the Government, including any political subdivision
or instrumentality thereof, are governed by law and it is declared to be the policy
of this Act that employees therein shall not strike for the purpose of securing
changes or modification in their terms and conditions of employment. Such
employees may belong to any labor organization which does not impose the
obligation to strike or to join in strike: Provided, however, That this section shall
apply only to employees employed in governmental functions and not those
employed in proprietary functions of the Government including but not limited to
governmental corporations.
No similar provision is found in the Labor Code, although at one time it recognized the right of
employees of government corporations established under the Corporation Code to organize and bargain
collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art.
244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and
conditions of employment of all government employees, including employees of government owned and
controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276].
Understandably, the Labor Code is silent as to whether or not government employees may strike, for
such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally
silent on the matter.
On June 1, 1987, to implement the constitutional guarantee of the right of government employees to
organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to
organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and
rules governing concerted activities and strikes in the government service shall be observed, subject to
any legislation that may be enacted by Congress." The President was apparently referring to
Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which,
"prior to the enactment by Congress of applicable laws concerning strike by government employees ...
enjoins under pain of administrative sanctions, all government officers and employees from staging
strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in
temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At
present, in the absence of any legislation allowing government employees to strike, recognizing their
right to do so, or regulating the exercise of the right, they are prohibited from striking, by express
provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be
stated that the validity of Memorandum Circular No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he
civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see
also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government
employees"] and that the SSS is one such government-controlled corporation with an original charter,
having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC,
G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's
memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was
illegal.
The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment
[G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing
between workers in the private sector and government employees with regard to the right to strike:
The general rule in the past and up to the present is that 'the terms and conditions
of employment in the Government, including any political subdivision or
instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act,
R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as
amended). Since the terms and conditions of government employment are fixed by
law, government workers cannot use the same weapons employed by workers in
the private sector to secure concessions from their employers. The principle behind
labor unionism in private industry is that industrial peace cannot be secured
through compulsion by law. Relations between private employers and their
employees rest on an essentially voluntary basis. Subject to the minimum
requirements of wage laws and other labor and welfare legislation, the terms and
conditions of employment in the unionized private sector are settled through the
process of collective bargaining. In government employment, however, it is the
legislature and, where properly given delegated power, the administrative heads
of government which fix the terms and conditions of employment. And this is
effected through statutes or administrative circulars, rules, and regulations, not
through collective bargaining agreements. [At p. 13; Emphasis supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to
the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the nature of the
public employer and the peculiar character of the public service, it must
necessarily regard the right to strike given to unions in private industry as not
applying to public employees and civil service employees. It has been stated that
the Government, in contrast to the private employer, protects the interest of all
people in the public service, and that accordingly, such conflicting interests as are
present in private labor relations could not exist in the relations between
government and those whom they employ. [At pp. 16-17; also quoted in National
Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-
179].
E.O. No. 180, which provides guidelines for the exercise of the right to organize of government
employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation
where the terms and conditions of employment involved are not among those fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or improvements thereof,
except those that are fixed by law, may be the subject of negotiations between
duly recognized employees' organizations and appropriate government
authorities.
The same executive order has also provided for the general mechanism for the settlement of labor
disputes in the public sector to wit:
.SECTION 16. The Civil Service and labor laws and procedures, whenever
applicable, shall be followed in the resolution of complaints, grievances and cases
involving government employees. In case any dispute remains unresolved after
exhausting all the available remedies under existing laws and procedures, the
parties may jointly refer the dispute to the [Public Sector Labor- Management]
Council for appropriate action.
Government employees may, therefore, through their unions or associations, either petition the
Congress for the betterment of the terms and conditions of employment which are within the ambit of
legislation or negotiate with the appropriate government agencies for the improvement of those which
are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public
Sector Labor - Management Council for appropriate action. But employees in the civil service may not
resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to
pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules
and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization,
which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the
government, including any political subdivision or instrumentality thereof and government- owned and
controlled corporations with original charters are governed by law and employees therein shall not strike
for the purpose of securing changes thereof."
II
The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an
injunction may be issued to restrain it.
It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction
of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining
the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of
government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More
importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over
unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no
jurisdiction over the dispute.
This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction
under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and
issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management
Council has not been granted by law authority to issue writs of injunction in labor disputes within its
jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor
dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is
appropriate.
Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded
with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent
any further disruption of public service, the respondent judge, in the same order, admonished the
parties to refer the unresolved controversies emanating from their employer- employee relationship to
the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply
and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the
individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory
injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to
pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission,
dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and
who are reporting for work pending the resolution of the administrative cases against them are entitled
to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the
Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy
is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it
has already become final.
WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for
review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No.
13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated
December 13,1988 is DENIED. SO ORDERED.


G.R. No. L-23957 March 18, 1967
ROMAN D. ABELLERA, plaintiff-appellee and appellant, vs. THE CITY OF BAGUIO, ET AL., defendants-
appellants and appellee.
REYES, J.B.L., J.:
Direct appeal on points of law from a decision of the Court of First Instance of Baguio, in its Case No.
1436.
For having paid, out of city funds, various treasury warrants and/or checks which turned out to have
been forged, causing loss to the city in the total amount of P8,750.48, Roman D. Abellera, cashier in the
office of the City Treasurer of Baguio, was charged administratively on January 18, 1960 for "Dishonesty
and Gross Negligence in the Performance of Official Duties (Case No. R-22111). After the lapse of the
period of preventive suspension, he was automatically reinstated to the service on May 24, 1960.
On June 6, 1961, the Commissioner of Civil Service found him guilty as charged and considered said
respondent "resigned effective the date following his last day of duty with prejudice to reinstatement in
positions involving money and/or property responsibility." In view of the foregoing decision, Abellera
was dismissed on July 10, 1961, and the position of cashier was filled in by one Francisco Rillera. In the
meantime, upon denial by the Commissioner of his motion for new trial, Abellera appealed to the Civil
Service Board of Appeals.
On January 25, 1963, the Civil Service Board of Appeals modified the ruling of the Commissioner of Civil
Service by reducing the penalty imposed on the employee to two months suspension, without pay.
Otherwise, the decision of the Commissioner was affirmed in all other respects. After some delay
attending the exchange of communication between the City Treasurer of Baguio and the Civil Service
Commissioner, Abellera was finally allowed to report for work on November 11, 1963.
On January 17, 1963, however, alleging that he has not been reinstated to his former position of cashier,
but was only required to do work other than that of a cashier, and he has not been paid any salary,
including the back salaries due him from July 10, 1961, Abellera filed an action for mandamus in the
Court of First Instance of Baguio against the City of Baguio, the City Council, the City Auditor, and the City
Treasurer, the latter being sued both in his official as well as his personal capacities; seeking for his
reinstatement to the position of city cashier with back salaries from July 10, 1961; for moral damages in
the sum of P5,000.00; exemplary damages for P5,000.00; attorneys' fees, in the sum of P1,500.00 and
20% of the recoverable salaries, plus costs of the suit.
In their answer, respondents contended that petitioner was not reinstated as cashier due to the
cancellation of his bond; that said cancellation of bond was recommended by the City Treasurer
following the ruling in the administrative case, finding petitioner negligent in his duties. It was also
alleged that petitioner was offered the position of Special Deputy
1
with compensation at P3,960.00 per
annum. Respondent City Treasurer further claimed that in refusing to reinstate petitioner to the position
of cashier, he had in mind only the best interest of the government. The parties thereafter submitted the
case for judgment on the pleadings.
In its decision of June 8, 1964, the lower court declared that the action of the City Treasurer in not giving
petitioner the work of a cashier was justified by the decision of the Civil Service Board of Appeals,
reducing merely the penalty by providing a 2 months suspension, but otherwise affirming the decision of
the Commissioner of Civil Service in all other respects. But the respondents were ordered to pay
Abellera's salary from the date of his suspension on July 10, 1961 until November 10, 1963, deducting
therefrom the two-months' pay corresponding to the penalty imposed by the Civil Service Board of
Appeals. Respondents were also directed to reinstate him to a position in the service of the city
government with salary at P330.00 a month, but which will not involve the custody of funds and/or
property. The court did not award any damages, because no bad faith can be attributed to anyone,
including the City Treasurer, and also because municipal corporations cannot be held civilly liable for the
misfeasance or malfeasance of any of its officers or employees. Both parties appealed to this Court.
Appellants City of Baguio and its officials assail the correctness of the award of back salaries to petitioner
from July 10, 1961 to November 10, 1963. It is claimed that since petitioner was found guilty of
negligence by the Civil Service Board of Appeals although the penalty originally imposed by the
Commissioner of Civil Service was reduced to only 2 months suspension, his (Abellera's) suspension from
the service cannot be considered unjustified to entitle him to payment of the salaries during the period
in question. It is also contended that such payment of back salaries is discretionary in the proper
department head, in this case, the Secretary of Finance. On the other hand, petitioner as appellant
claims that the lower court erred in not ordering the respondents, particularly the City Treasurer, to pay
him damages and in not ordering his reinstatement to the position of cashier in the office of the City
Treasurer of Baguio.
The rule on payment of back Salaries during the period of suspension of a member of the civil Service
who is subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries
corresponding to the period when an employee is not allowed to work may be decreed not only if he is
found innocent of the charges which cause his suspension (Sec. 35, Rep. Act 2260), but also when the
suspension is unjustified.
2

In the present case, upon receipt of the decision of the Civil Service Commissioner finding petitioner-
appellant guilty, but even before the period to appeal had expired, respondents dismissed the latter
from the service and another one was appointed to replace him. The separation of petitioner before the
decision of the Civil Service Commissioner had become final was evidently premature. Respondents
should have realized that the employee still had the right to appeal the Commissioner's decision to the
Civil Service Board of Appeals within a specified period, and the possibility of that decision being
reversed or modified. As it did happen, on such appeal by the petitioner, the penalty imposed by the
Commissioner was reduced by the reviewing Board to only 2 months suspension. And yet, by
respondents' action, petitioner was deprived of work for more than 2 years. Clearly, Abellera's second
suspension from office, from July 10, 1961 to November 10, 1963, was unjustified,
3
and the payment of
the salaries corresponding to said period is, consequently, proper. Otherwise, Abellera would, in effect,
suffer a suspension longer than that meted him by the Civil Service Board of Appeals.1wph1.t
It is also contended by the respondents-appellants that under its charter, the City of Baguio is exempted
from liability for damages or injuries caused by the failure of any city officials to enforce any provision of
law or ordinance, or by the negligence of said officials in enforcing or attempting to enforce the same
(Sec. 2547, Rev. Adm. Code). But, this is not an instance of "failure" of the city officials to take action or
"negligence" in the enforcement of the law. The unjustified action of the respondents here is not that it
was the product of negligence, than of haste or overzeal. The exempting provision invoked is not,
therefore, applicable.
Respondents-appellants, likewise, cited a 1959 ruling of the Auditor General to support their contention
that the payment of back salaries of suspended employees depends upon the discretion of the proper
department head. It may be pointed out that the aforecited ruling, part of which was quoted in
appellants' brief (pp. 13-14) was referring to the authority of the Civil Service Commissioner to suspend
employees pursuant to Section 695 of the Revised Administrative Code. The ruling, therefore, must have
been based on Section 269 of the same Code which provides that when the chief of a bureau or office
suspends a subordinate official or employ, the person suspended shall not receive pay during the
suspension, unless so ordered by the department head. These provisions of the Revised Administrative
Code, however, are deemed to have been superseded by Republic Act 2260 (Revised Civil Service Act),
which contained provisions on discipline of government officials and employees (Chapter VII), and on
preventive suspension (Sec. 35). And, under this later legislation, the authorization of the department
head is no longer necessary before back salaries may be paid.
Coming to the petitioner-appellant's assignment of error, we have to sustain the ruling of the lower
court. Considering that there is no question that by petitioner's act, which was found even by the Civil
Service Board of Appeals to be negligent, the city lost the amount of P8,750.48, his dismissal by the
respondent city officials cannot entirely be attributed to malice or bad faith. In the absence of positive
showing to the contrary, we have to accept respondents' explanation that the action complained of was
prompted by their belief that it was being done for the best interest of the city government.
In view of the foregoing considerations, the decision appealed from is hereby affirmed, with costs
against respondents-appellants. So ordered.