G.R. No.

116033, February 26, 1997

ALFREDO L. AZARCON, PETITIONER,
VS.
SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES AND JOSE C.
BATAUSA, RESPONDENTS.
DECISION
PANGANIBAN, J.:
Does the Sandiganbayan have jurisdiction over a private individual who is
charged with malversation of public funds as a principal after the said
individual had been designated by the Bureau of Internal Revenue as a
custodian of distrained property? Did such accused become a public officer
and therefore subject to the graft courts jurisdiction as a consequence of
such designation by the BIR?
These are the main questions in the instant petition for review of
respondent Sandiganbayans Decision[1] in Criminal Case No. 14260
promulgated on March 8, 1994, convicting petitioner of malversation of
public funds and property, and Resolution [2] dated June 20, 1994, denying
his motion for new trial or reconsideration thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-moving business,
hauling dirt and ore.[3] His services were contracted by the Paper
Industries Corporation of the Philippines (PICOP) at its concession in
Mangagoy, Surigao del Sur. Occasionally, he engaged the services of subcontractors like Jaime Ancla whose trucks were left at the formers
premises.[4] From this set of circumstances arose the present controversy.
x x x It appears that on May 25, 1983, a Warrant of Distraint of
Personal Property was issued by the Main Office of the Bureau of
Internal Revenue (BIR) addressed to the Regional Director (Jose
Batausa) or his authorized representative of Revenue Region 10,
Butuan City commanding the latter to distraint the goods, chattels
or effects and other personal property of Jaime Ancla, a subcontractor of accused Azarcon and, a delinquent taxpayer. The
Warrant of Garnishment was issued to accused Alfredo Azarcon
ordering him to transfer, surrender, transmit and/or remit to BIR
the property in his possession owned by taxpayer Ancla. The
Warrant of Garnishment was received by accused Azarcon on June
17, 1985.[5]
Petitioner Azarcon, in signing the Receipt for Goods, Articles, and Things
Seized Under Authority of the National Internal Revenue, assumed the
undertakings specified in the receipt the contents of which are reproduced
as follows:

(I), the undersigned, hereby acknowledge to have received from

Amadeo V. San Diego, an Internal Revenue Officer, Bureau of
Internal Revenue of the Philippines, the following described goods,
articles, and things:
Kind of property
Motor number
Chassis No.
Number of CXL
Color
Owned By

Isuzu dump truck

E120-229598
SPZU50-1772440
6
Blue
Mr. Jaime Ancla

the same having been this day seized and left in (my) possession
pending investigation by the Commissioner of Internal Revenue or
his duly authorized representative. (I) further promise that (I) will
faithfully keep, preserve, and, to the best of (my) ability, protect
said goods, articles, and things seized from defacement,
demarcation, leakage, loss, or destruction in any manner; that (I)
will neither alter nor remove, nor permit others to alter or remove
or dispose of the same in any manner without the express
authority of the Commissioner of Internal Revenue; and that (I) will
produce and deliver all of said goods, articles, and things upon the
order of any court of the Philippines, or upon demand of the
Commissioner of Internal Revenue or any authorized officer or
agent of the Bureau of Internal Revenue.[6]
Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to
the BIRs Regional Director for Revenue Region 10 B, Butuan City stating
that
x x x while I have made representations to retain possession of
the property and signed a receipt of the same, it appears now that
Mr. Jaime Ancla intends to cease his operations with us. This is
evidenced by the fact that sometime in August, 1985 he
surreptitiously withdrew his equipment from my custody. x x x In
this connection, may I therefore formally inform you that it is my
desire to immediately relinquish whatever responsibilities I have
over the above-mentioned property by virtue of the receipt I have
signed. This cancellation shall take effect immediately. x x x .[7]
Incidentally, the petitioner reported the taking of the truck to the security
manager of PICOP, Mr. Delfin Panelo, and requested him to prevent this
truck from being taken out of the PICOP concession. By the time the order
to bar the trucks exit was given, however, it was too late. [8]
Regional Director Batausa responded in a letter dated May 27, 1986, to wit:
An analysis of the documents executed by you reveals that while
you are (sic) in possession of the dump truck owned by JAIME
ANCLA, you voluntarily assumed the liabilities of safekeeping and

preserving the unit in behalf of the Bureau of Internal Revenue.

This is clearly indicated in the provisions of the Warrant of
Garnishment which you have signed, obliged and committed to
surrender and transfer to this office. Your failure therefore, to
observe said provisions does not relieve you of your
responsibility.[9]
Thereafter, the Sandiganbayan found that
On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document
Processor of Revenue Region 10 B, Butuan City, sent a progress
report to the Chief of the Collection Branch of the surreptitious
taking of the dump truck and that Ancla was renting out the truck
to a certain contractor by the name of Oscar Cueva at PICOP (Paper
Industries Corporation of the Philippines, the same company which
engaged petitioners earth moving services), Mangagoy, Surigao
del Sur. She also suggested that if the report were true, a warrant
of garnishment be reissued against Mr. Cueva for whatever amount
of rental is due from Ancla until such time as the latters tax
liabilities shall be deemed satisfied. x x x However, instead of
doing so, Director Batausa filed a letter-complaint against the
(herein Petitioner) and Ancla on 22 January 1988, or after more
than one year had elapsed from the time of Mrs. Calos report. [10]
Provincial Fiscal Pretextato Montenegro forwarded the records of the
complaint x x x to the Office of the Tanodbayan on May 18, 1988. He was
deputized Tanodbayan prosecutor and granted authority to conduct
preliminary investigation on August 22, 1988, in a letter by Special
Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan) Conrado
Vasquez.[11]
Along with his co-accused Jaime Ancla, petitioner Azarcon was charged
before the Sandiganbayan with the crime of malversation of public funds or
property under Article 217 in relation to Article 222 of the Revised Penal
Code (RPC) in the following Information [12]filed on January 12, 1990, by
Special Prosecution Officer Victor Pascual:
That on or about June 17, 1985, in the Municipality of Bislig,
Province of Surigao del Sur, Philippines, and within the jurisdiction
of this Honorable Court, accused Alfredo L. Azarcon, a private
individual but who, in his capacity as depository/administrator of
property seized or deposited by the Bureau of Internal Revenue,
having voluntarily offered himself to act as custodian of one Isuzu
Dumptruck (sic) with Motor No. E120-22958, Chasis No. SPZU 501772440, and number CXL-6 and was authorized to be such under
the authority of the Bureau of Internal Revenue, has become a
responsible and accountable officer and said motor vehicle having
been seized from Jaime C. Ancla in satisfaction of his tax liability in
the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONE
PESOS and 59/100 (P80,831.59) became a public property and the
value thereof as public fund, with grave abuse of confidence and

conspiring and confederating with said Jaime C. Ancla, likewise, a

private individual, did then and there wilfully, (sic) unlawfully and
feloniously misappropriate, misapply and convert to his personal
use and benefit the aforementioned motor vehicle or the value
thereof in the aforestated amount, by then and there allowing
accused Jaime C. Ancla to remove, retrieve, withdraw and tow
away the said Isuzu Dumptruck (sic) with the authority, consent
and knowledge of the Bureau of Internal Revenue, Butuan City, to
the damage and prejudice of the government in the amount of
P80,831.59 in a form of unsatisfied tax liability.
CONTRARY TO LAW.
The petitioner filed a motion for reinvestigation before the Sandiganbayan
on May 14, 1991, alleging that: (1) the petitioner never appeared in the
preliminary investigation; and (2) the petitioner was not a public officer,
hence a doubt exists as to why he was being charged with malversation
under Article 217 of the Revised Penal Code. [13] The Sandiganbayan
granted the motion for reinvestigation on May 22, 1991. [14] After the
reinvestigation, Special Prosecution Officer Roger Berbano, Sr.,
recommended the withdrawal of the information [15] but was overruled by
the Ombudsman.[16]
A motion to dismiss was filed by petitioner on March 25, 1992 on the
ground that the Sandiganbayan did not have jurisdiction over the person of
the petitioner since he was not a public officer. [17] On May 18, 1992, the
Sandiganbayan denied the motion.[18]
When the prosecution finished presenting its evidence, the petitioner then
filed a motion for leave to file demurrer to evidence which was denied on
November 16, 1992, for being without merit. [19] The petitioner then
commenced and finished presenting his evidence on February 15, 1993.
The Respondent Courts Decision
On March 8, 1994, respondent Sandiganbayan [20] rendered a Decision,[21]
the dispositive portion of which reads:
WHEREFORE, the Court finds accused Alfredo Azarcon y Leva
GUILTY beyond reasonable doubt as principal of Malversation of
Public Funds defined and penalized under Article 217 in relation to
Article 222 of the Revised Penal Code and, applying the
Indeterminate Sentence Law, and in view of the mitigating
circumstance of voluntary surrender, the Court hereby sentences
the accused to suffer the penalty of imprisonment ranging from
TEN (10) YEARS and ONE (1) DAY of prision mayor in its maximum
period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of Reclusion Temporal. To indemnify the Bureau of Internal
Revenue the amount of P80,831.59; to pay a fine in the same
amount without subsidiary imprisonment in case of insolvency; to
suffer special perpetual disqualification; and, to pay the costs.

Considering that accused Jaime Ancla has not yet been brought
within the jurisdiction of this Court up to this date, let this case be
archived as against him without prejudice to its revival in the event
of his arrest or voluntary submission to the jurisdiction of this
Court.
SO ORDERED.
Petitioner, through new counsel,[22] filed a motion for new trial or
reconsideration on March 23, 1994, which was denied by the
Sandiganbayan in its Resolution[23] dated December 2, 1994.
Hence, this petition.

V. The B.I.R. has only itself to blame for not promptly selling the
distrained property of accused Jaime C. Ancla in order to realize the
amount of back taxes owed by Jaime C. Ancla to the Bureau. [24]
In fine, the fundamental issue is whether the Sandiganbayan had
jurisdiction over the subject matter of the controversy. Corollary to this is
the question of whether petitioner can be considered a public officer by
reason of his being designated by the Bureau of Internal Revenue as a
depositary of distrained property.
The Courts Ruling
The petition is meritorious.

The Issues

Jurisdiction of the Sandiganbayan

The petitioner submits the following reasons for the reversal of the
Sandiganbayans assailed Decision and Resolution:
I. The Sandiganbayan does not have jurisdiction over crimes
committed solely by private individuals.
II. In any event, even assuming arguendo that the appointment of
a private individual as a custodian or a depositary of distrained
property is sufficient to convert such individual into a public officer,
the petitioner cannot still be considered a public officer because:
[A]
There is no provision in the National Internal Revenue Code
which authorizes the Bureau of Internal Revenue to
constitute private individuals as depositaries of distrained
properties.
[B]
His appointment as a depositary was not by virtue of a
direct provision of law, or by election or by appointment by
a competent authority.
III. No proof was presented during trial to prove that the distrained
vehicle was actually owned by the accused Jaime Ancla;
consequently, the governments right to the subject property has
not been established.
IV. The procedure provided for in the National Internal Revenue
Code concerning the disposition of distrained property was not
followed by the B.I.R., hence the distraint of personal property
belonging to Jaime C. Ancla and found allegedly to be in the
possession of the petitioner is therefore invalid.

It is hornbook doctrine that in order (to) ascertain whether a court has

jurisdiction or not, the provisions of the law should be inquired into. [25]
Furthermore, the jurisdiction of the court must appear clearly from the
statute law or it will not be held to exist. It cannot be presumed or
implied.[26] And for this purpose in criminal cases, the jurisdiction of a
court is determined by the law at the time of commencement of the
action.[27]
In this case, the action was instituted with the filing of this information on
January 12, 1990; hence, the applicable statutory provisions are those of
P.D. No. 1606, as amended by P.D. No. 1861 on March 23, 1983, but prior
to their amendment by R.A. No. 7975 on May 16, 1995. At that time,
Section 4 of P.D. No. 1606 provided that:
SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law
is higher than prision correccional or imprisonment for six (6)
years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses
or felonies mentioned in this paragraph where the penalty
prescribed by law does not exceed prision correccional or
imprisonment for six (6) years or a fine of P6,000.00 shall be tried
by the proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court and Municipal Circuit Trial Court.
xxx

xxx

xxx

c. by appointment by competent authority.[28]

In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or employees,
including those employed in government-owned or controlled
corporations, they shall be tried jointly with said public officers and
employees.
xxx

xxx

x x x.

The foregoing provisions unequivocally specify the only instances when the
Sandiganbayan will have jurisdiction over a private individual, i.e. when the
complaint charges the private individual either as a co-principal,
accomplice or accessory of a public officer or employee who has been
charged with a crime within its jurisdiction.
Azarcon: A Public Officer or A Private Individual?
The Information does not charge petitioner Azarcon of being a co-principal,
accomplice or accessory to a public officer committing an offense under
the Sandiganbayans jurisdiction. Thus, unless petitioner be proven a
public officer, the Sandiganbayan will have no jurisdiction over the crime
charged. Article 203 of the RPC determines who are public officers:
Who are public officers. -- For the purpose of applying the
provisions of this and the preceding titles of the book, any person
who, by direct provision of the law, popular election, popular
election or appointment by competent authority, shall take part in
the performance of public functions in the Government of the
Philippine Islands, or shall perform in said Government or in any of
its branches public duties as an employee, agent, or subordinate
official, of any rank or classes, shall be deemed to be a public
officer.
Thus,
(to) be a public officer, one must be -(1) Taking part in the performance of public functions in the
government, or
Performing in said Government or any of its branches public duties
as an employee, agent, or subordinate official, of any rank or class;
and
(2) That his authority to take part in the performance of public
functions or to perform public duties must be -a. by direct provision of the law, or
b. by popular election, or

Granting arguendo that the petitioner, in signing the receipt for the truck
constructively distrained by the BIR, commenced to take part in an activity
constituting public functions, he obviously may not be deemed authorized
by popular election. The next logical query is whether petitioners
designation by the BIR as a custodian of distrained property qualifies as
appointment by direct provision of law, or by competent authority. [29] We
answer in the negative.
The Solicitor General contends that the BIR, in effecting constructive
distraint over the truck allegedly owned by Jaime Ancla, and in requiring
the petitioner Alfredo Azarcon who was in possession thereof to sign a pro
forma receipt for it, effectively designated petitioner a depositary and,
hence, citing U.S. vs. Rastrollo, [30] a public officer.[31] This is based on the
theory that
(t)he power to designate a private person who has actual
possession of a distrained property as a depository of distrained
property is necessarily implied in the BIRs power to place the
property of a delinquent tax payer (sic) in distraint as provided for
under Sections 206, 207 and 208 (formerly Sections 303, 304 and
305) of the National Internal Revenue Code, (NIRC) x x x. [32]
We disagree. The case of U.S. vs. Rastrollo is not applicable to the case
before us simply because the facts therein are not identical, similar or
analogous to those obtaining here. While the cited case involved a judicial
deposit of the proceeds of the sale of attached property in the hands of the
debtor, the case at bench dealt with the BIRs administrative act of
effecting constructive distraint over alleged property of taxpayer Ancla in
relation to his back taxes, property which was received by petitioner
Azarcon. In the cited case, it was clearly within the scope of that courts
jurisdiction and judicial power to constitute the judicial deposit and give
the depositary a character equivalent to that of a public official. [33]
However, in the instant case, while the BIR had authority to require
petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did
not grant it power to appoint Azarcon a public officer.
It is axiomatic in our constitutional framework, which mandates a limited
government, that its branches and administrative agencies exercise only
that power delegated to them as defined either in the Constitution or in
legislation or in both.[34] Thus, although the appointing power is the
exclusive prerogative of the President, x x x [35] the quantum of powers
possessed by an administrative agency forming part of the executive
branch will still be limited to that conferred expressly or by necessary or
fair implication in its enabling act. Hence, (a)n administrative officer, it
has been held, has only such powers as are expressly granted to him and
those necessarily implied in the exercise thereof. [36] Corollarily, implied
powers are those which are necessarily included in, and are therefore of
lesser degree than the power granted. It cannot extend to other matters
not embraced therein, nor are not incidental thereto. [37] For to so extend

the statutory grant of power would be an encroachment on powers

expressly lodged in Congress by our Constitution. [38] It is true that Sec.
206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to
effect a constructive distraint by requiring any person to preserve a
distrained property, thus:
x x x x x x

xxx

The constructive distraint of personal property shall be effected by

requiring the taxpayer or any person having possession or control
of such property to sign a receipt covering the property distrained
and obligate himself to preserve the same intact and unaltered and
not to dispose of the same in any manner whatever without the
express authority of the Commissioner.
xxx

xxx

x x x

However, we find no provision in the NIRC constituting such person a public

officer by reason of such requirement. The BIRs power authorizing a
private individual to act as a depositary cannot be stretched to include the
power to appoint him as a public officer. The prosecution argues that
Article 222 of the Revised Penal Code x x x defines the individuals covered
by the term officers under Article 217 [39] x x x of the same Code. [40] And
accordingly, since Azarcon became a depository of the truck seized by the
BIR he also became a public officer who can be prosecuted under Article
217 x x x.[41]
The Court is not persuaded. Article 222 of the RPC reads:
Officers included in the preceding provisions. -- The provisions of
this chapter shall apply to private individuals who, in any capacity
whatever, have charge of any insular, provincial or municipal
funds, revenues, or property and to any administrator or depository
of funds or property attached, seized or deposited by public
authority, even if such property belongs to a private individual.
Legislative intent is determined principally from the language of a statute.
Where the language of a statute is clear and unambiguous, the law is
applied according to its express terms, and interpretation would be
resorted to only where a literal interpretation would be either impossible or
absurd or would lead to an injustice. [42] This is particularly observed in the
interpretation of penal statutes which must be construed with such
strictness as to carefully safeguard the rights of the defendant x x x. [43]
The language of the foregoing provision is clear. A private individual who
has in his charge any of the public funds or property enumerated therein
and commits any of the acts defined in any of the provisions of Chapter
Four, Title Seven of the RPC, should likewise be penalized with the same
penalty meted to erring public officers. Nowhere in this provision is it
expressed or implied that a private individual falling under said Article 222
is to be deemed a public officer.

After a thorough review of the case at bench, the Court thus finds
petitioner Alfredo Azarcon and his co-accused Jaime Ancla to be both
private individuals erroneously charged before and convicted by
Respondent Sandiganbayan which had no jurisdiction over them. The
Sandiganbayans taking cognizance of this case is of no moment since
(j)urisdiction cannot be conferred by x x x erroneous belief of the court
that it had jurisdiction.[44] As aptly and correctly stated by the petitioner in
his memorandum:
From the foregoing discussion, it is evident that the petitioner did
not cease to be a private individual when he agreed to act as
depositary of the garnished dump truck. Therefore, when the
information charged him and Jaime Ancla before the
Sandiganbayan for malversation of public funds or property, the
prosecution was in fact charging two private individuals without
any public officer being similarly charged as a co-conspirator.
Consequently, the Sandiganbayan had no jurisdiction over the
controversy and therefore all the proceedings taken below as well
as the Decision rendered by Respondent Sandiganbayan, are null
and void for lack of jurisdiction.[45]
WHEREFORE, the questioned Resolution and Decision of the
Sandiganbayan are hereby SET ASIDE and declared NULL and VOID for
lack of jurisdiction. No costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

G.R. No. 145368, April 12, 2002

SALVADOR H. LAUREL, PETITIONER,
VS.
HON. ANIANO A. DESIERTO, IN HIS CAPACITY AS OMBUDSMAN,
RESPONDENT.

succeeding years shall be incorporated in the budget of the Office

of the President.
Subsequently, a corporation named the Philippine Centennial Expo 98
Corporation (Expocorp) was created. [4] Petitioner was among the nine (9)
Expocorp incorporators, who were also its first nine (9) directors. Petitioner
was elected Expocorp Chief Executive Officer.

DECISION
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative Order
No. 223 constituting a Committee for the preparation of the National
Centennial Celebration in 1998. The Committee was mandated to take
charge of the nationwide preparations for the National Celebration of the
Philippine Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress.[1]
Subsequently, President Fidel V. Ramos issued Executive Order No. 128,
reconstituting the Committee for the preparation of the National
Centennial Celebrations in 1998. It renamed the Committee as the
National Centennial Commission. Appointed to chair the reconstituted
Commission was Vice-President Salvador H. Laurel. Presidents Diosdado M.
Macapagal and Corazon C. Aquino were named Honorary Chairpersons. [2]
Characterized as an ad-hoc body, the existence of the Commission shall
terminate upon the completion of all activities related to the Centennial
Celebrations.[3] Like its predecessor Committee, the Commission was
tasked to take charge of the nationwide preparations for the National
Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged
with the responsibility to prepare, for approval of the President, a
Comprehensive Plan for the Centennial Celebrations within six (6) months
from the effectivity of the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and
administrative staff support by a Secretariat to be composed of,
among others, detailed personnel from the Presidential
Management Staff, the National Commission for Culture and the
Arts, and the National Historical Institute. Said Secretariat shall be
headed by a full time Executive Director who shall be designated
by the President.
Sec. 4. The Commission shall be funded with an initial budget to
be drawn from the Department of Tourism and the presidents
Contingent Fund, in an amount to be recommended by the
Commission, and approved by the President. Appropriations for

On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege

speech in the Senate denouncing alleged anomalies in the construction
and operation of the Centennial Exposition Project at the Clark Special
Economic Zone. Upon motion of Senator Franklin Drilon, Senator
Cosetengs privilege speech was referred to the Committee on
Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative
Order No. 35, creating an ad hoc and independent citizens committee to
investigate all the facts and circumstances surrounding the Philippine
centennial projects, including its component activities. Former Senator
Rene A.V. Saguisag was appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the
Secretary of the Senate its Committee Final Report No. 30 dated February
26, 1999. Among the Committees recommendations was the prosecution
by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of
EXPOCORP for violating the rules on public bidding, relative to the award of
centennial contracts to AK (Asia Construction & Development Corp.); for
exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to
AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for
participating in the scheme to preclude audit by COA of the funds infused
by the government for the implementation of the said contracts all in
violation of the anti-graft law.[5]
Later, on November 5, 1999, the Saguisag Committee issued its own
report. It recommended the further investigation by the Ombudsman,
and indictment, in proper cases of, among others, NCC Chair Salvador H.
Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation
to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the Office
of the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation
Report, recommending:
1.

that a formal complaint be filed and preliminary investigation be

conducted before the Evaluation and Preliminary Investigation
Bureau (EPIB), Office of the Ombudsman against former NCC and
EXPOCORP chair Salvador H. Laurel, former EXPOCORP President
Teodoro Q. Pea and AK President Edgardo H. Angeles for violation

of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD

1594 and COA Rules and Regulations;
2.

That the Fact Finding and Intelligence Bureau of this Office, act as
the nominal complainant.[6]

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the

Evaluation and Preliminary Investigation Bureau, directed petitioner to
submit his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners
motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13,
2000 Order but the motion was denied in an Order dated October 5, 2000.

C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP
WAS NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTIGRAFT & CORRUPT PRACTICES ACT.[7]
In addition, petitioner in his reply[8] invokes this Courts decision in Uy vs.
Sandiganbayan,[9] where it was held that the jurisdiction of the
Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e.,
over public officers of Grade 27 and higher. As petitioners position was
purportedly not classified as Grade 27 or higher, the Sandiganbayan and,
consequently, the Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Courts decision in Uy, we
held that it is the prosecutor, not the Ombudsman, who has the authority
to file the corresponding information/s against petitioner in the regional
trial court. The Ombudsman exercises prosecutorial powers only in cases
cognizable by the Sandiganbayan.

On October 25, 2000, petitioner filed the present petition for certiorari.
In its Resolution of February 22, 2000, the Court expounded:
On November 14, 2000, the Evaluation and Preliminary Investigation
Bureau issued a resolution finding probable cause to indict respondents
SALVADOR H. LAUREL and TEODORO Q. PEA before the Sandiganbayan
for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to
Republic Act No. 1594. The resolution also directed that an information for
violation of the said law be filed against Laurel and Pea. Ombudsman
Aniano A. Desierto approved the resolution with respect to Laurel but
dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary
restraining order, commanding respondents to desist from filing any
information before the Sandiganbayan or any court against petitioner for
alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the
parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he
is not a public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL
WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION
WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT
PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE
CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A
PUBLIC OFFICE.

The clear import of such pronouncement is to recognize the

authority of the State and regular provincial and city prosecutors
under the Department of Justice to have control over prosecution
of cases falling within the jurisdiction of the regular courts. The
investigation and prosecutorial powers of the Ombudsman relate to
cases rightfully falling within the jurisdiction of the Sandiganbayan
under Section 15 (1) of R.A. 6770 (An Act Providing for the
Functional and Structural Organization of the Office of the
Ombudsman, and for other purposes) which vests upon the
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan And this is further buttressed by Section 11 (4a)
of R.A. 6770 which emphasizes that the Office of the Special
Prosecutor shall have the power to conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of
the Sandiganbayan. Thus, repeated references to the
Sandiganbayans jurisdiction clearly serve to limit the
Ombudsmans and Special Prosecutors authority to cases
cognizable by the Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for
clarification by the Ombudsman in the same case, the Court set aside the
foregoing pronouncement in its Resolution dated March 20, 2001. The
Court explained the rationale for this reversal:
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified. It pertains to any act or
omission of any public officer or employee when such act or
omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases
cognizable by the Sandiganbayan and those cognizable by regular

courts. It has been held that the clause any illegal act or omission
of any public official is broad enough to embrace any crime
committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute
criminal cases within the jurisdiction of the Sandiganbayan, should
not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction
over cases cognizable by the Sandiganbayan. The law defines
such primary jurisdiction as authorizing the Ombudsman to take
over, at any stage, from any investigatory agency of the
government, the investigation of such cases. The grant of this
authority does not necessarily imply the exclusion from its
jurisdiction of cases involving public officers and employees by
other courts. The exercise by the Ombudsman of his primary
jurisdiction over cases cognizable by the Sandiganbayan is not
incompatible with the discharge of his duty to investigate and
prosecute other offenses committed by public officers and
employees. Indeed, it must be stressed that the powers granted
by the legislature to the Ombudsman are very broad and
encompass all kinds of malfeasance, misfeasance and nonfeasance committed by public officers and employees during their
tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should
not be equated with the limited authority of the Special Prosecutor
under Section 11 of RA 6770. The Office of the Special Prosecutor
is merely a component of the Office of the Ombudsman and may
only act under the supervision and control and upon authority of
the Ombudsman. Its power to conduct preliminary investigation
and to prosecute is limited to criminal cases within the
jurisdiction of the Sandiganbayan. Certainly, the lawmakers
did not intend to confine the investigatory and prosecutory power
of the Ombudsman to these types of cases. The Ombudsman is
mandated by law to act on all complaints against officers and
employees of the government and to enforce their administrative,
civil and criminal liability in every case where the evidence
warrants. To carry out this duty, the law allows him to utilize the
personnel of his office and/or designate any fiscal, state prosecutor
or lawyer in the government service to act as special investigator
or prosecutor to assist in the investigation and prosecution of
certain cases. Those designated or deputized to assist him work
under his supervision and control. The law likewise allows him to
direct the Special Prosecutor to prosecute cases outside the

Sandiganbayans jurisdiction in accordance with Section 11 (4c) of

RA 6770.
The prosecution of offenses committed by public officers and
employees is one of the most important functions of the
Ombudsman. In passing RA 6770, the Congress deliberately
endowed the Ombudsman with such power to make him a more
active and effective agent of the people in ensuring accountability
in public office. A review of the development of our Ombudsman
law reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds
upon which petitioner relies. We first address the argument that petitioner,
as Chair of the NCC, was not a public officer.
The Constitution[10] describes the Ombudsman and his Deputies as
protectors of the people, who 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. Among the
awesome powers, functions, and duties vested by the Constitution [11] upon
the Office of the Ombudsman is to [i]nvestigate 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.
The foregoing constitutional provisions are substantially reproduced in R.A.
No. 6770, otherwise known as the Ombudsman Act of 1989. Sections 13
and 15(1) of said law respectively provide:
SEC. 13. Mandate. The Ombudsman and his Deputies, as
protectors of the people shall act promptly on complaints file in any
form or manner against officers or employees of the Government,
or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the
evidence warrants in order to promote efficient service by the
Government to the people.
SEC. 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 Government, the investigation of such
cases;
x x x.

The coverage of the law appears to be limited only by Section 16, in

relation to Section 13, supra:
SEC 16. Applicability. The provisions of this Act shall apply to all
kinds of malfeasance, misfeasance and non-feasance that have
been committed by any officer or employee as mentioned in
Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or employee of the
government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations. [12]

Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions
that can be described as legislative or judicial. May the functions of the
NCC then be described as executive?
We hold that the NCC performs executive functions. The executive power
is generally defined as the power to enforce and administer the laws. It is
the power of carrying the laws into practical operation and enforcing their
due observance.[17] The executive function, therefore, concerns the
implementation of the policies as set forth by law.
The Constitution provides in Article XIV
Technology, Arts, Culture, and Sports) thereof:

(Education,

Science

and

Neither the Constitution nor the Ombudsman Act of 1989, however, defines
who public officers are. A definition of public officers cited in
jurisprudence[13] is that provided by Mechem, a recognized authority on the
subject:

Sec. 15. Arts and letters shall enjoy the patronage of the State.
The State shall conserve, promote, and popularize the nations
historical and cultural heritage and resources, as well as artistic
creations.

A public office is the right, authority and duty, created and

conferred by law, by which, for a given period, either fixed by law
or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public.
The individual so invested is a public officer. [14]

In its preamble, A.O. No. 223 states the purposes for the creation of the
Committee for the National Centennial Celebrations in 1998:

The characteristics of a public office, according to Mechem, include the

delegation of sovereign functions, its creation by law and not by contract,
an oath, salary, continuance of the position, scope of duties, and the
designation of the position as an office.[15]
Petitioner submits that some of these characteristics are not present in the
position of NCC Chair, namely: (1) the delegation of sovereign functions;
(2) salary, since he purportedly did not receive any compensation; and (3)
continuance, the tenure of the NCC being temporary.
Mechem describes the delegation to the individual of some of the
sovereign functions of government as [t]he most important characteristic
in determining whether a position is a public office or not.
The most important characteristic which distinguishes an office
from an employment or contract is that the creation and conferring
of an office involves a delegation to the individual of some of the
sovereign functions of government, to be exercised by him for the
benefit of the public; that some portion of the sovereignty of the
country, either legislative, executive or judicial, attaches, for the
time being, to be exercised for the public benefit. Unless the
powers conferred are of this nature, the individual is not a public
officer.[16]

Whereas, the birth of the Republic of the Philippines is to be

celebrated in 1998, and the centennial presents an important
vehicle for fostering nationhood and a strong sense of Filipino
identity;
Whereas, the centennial can effectively showcase Filipino heritage
and thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be
insured only through long-range planning and continuous
developmental programming;
Whereas, the active participation of the private sector in all areas
of special expertise and capability, particularly in communication
and information dissemination, is necessary for long-range
planning and continuous developmental programming;
Whereas, there is a need to create a body which shall initiate and
undertake the primary task of harnessing the multisectoral
components from the business, cultural, and business sectors to
serve as effective instruments from the launching and overseeing
of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the need to strengthen the said Committee to
ensure a more coordinated and synchronized celebrations of the Philippine
Centennial and wider participation from the government and non-

government or private organizations. It also referred to the need to

rationalize the relevance of historical links with other countries.
The NCC was precisely created to execute the foregoing policies
and objectives, to carry them into effect. Thus, the Commission was
vested with the following functions:

Furthermore, the NCC was not without a role in the countrys economic
development, especially in Central Luzon. Petitioner himself admitted as
much in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:

(a)

To undertake the overall study, conceptualization, formulation and

implementation of programs and projects on the utilization of culture,
arts, literature and media as vehicles for history, economic
endeavors, and reinvigorating the spirit of national unity and sense of
accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National
Exposition 98 within Metro Manila, the original eight provinces, and
Clark Air Base as its major venues;

(b)

To act as principal coordinator for all the activities related to

awareness and celebration of the Centennial;

(c)

To serve as the clearing house for the preparation and dissemination

of all information about the plans and events for the Centennial
Celebrations;

(d)

To constitute working groups which shall

implementation of the programs and projects;

(e)

To prioritize the refurbishment of historical sites and structures

nationwide. In this regard, the Commission shall formulate schemes
(e.g. lease-maintained-and-transfer, build-operate-transfer, and
similar arrangements) to ensure the preservation and maintenance of
the historical sites and structures;

(f)

To call upon any government agency or instrumentality and

corporation, and to invite private individuals and organizations to
assist it in the performance of its tasks; and,

(g)

undertake

the

Submit regular reports to the President on the plans, programs,

projects, activities as well as the status of the preparations for the
Celebration.[18]

It bears noting the President, upon whom the executive power is vested, [19]
created the NCC by executive order. Book III (Office of the President),
Chapter 2 (Ordinance Power), Section 2 describes the nature of executive
orders:
SEC. 2. Executive Orders. Acts of the President providing for rules
of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be
promulgated in executive orders. [Underscoring ours.]

And in addition to that expounded by Former President Ramos,

dont you agree that the task of the centennial commission was
also to focus on the long term over all socio economic development
of the zone and Central Luzon by attracting investors in the area
because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I
wanted to touch on by lack of material time I could not but that is a
very important point. When I was made Chairman I wanted the
Expo to be in Batangas because I am a Batangeo but President
Ramos said Mr. Vice President the Central Luzon is suffering,
suffering because of the eruption of Mt. Pinatubo let us try to
catalize [sic] economic recovery in that area by putting this Expo in
Clark Field and so it was done I agreed and Your Honor if I may also
mention we wanted to generate employment aside from attracting
business investments and employment.
And the Estrada
administration decided to junk this project there 48, 40 thousand
people who lost job, they were employed in Expo. And our target
was to provide 75 thousand jobs. It would have really calibrated,
accelerated the development of Central Luzon. Now, I think they
are going back to that because they had the airport and there are
plan to revive the Expo site into key park which was the original
plan.
There can hardly be any dispute that the promotion of industrialization and
full employment is a fundamental state policy.[20]
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that the
holding by a municipality of a town fiesta is a proprietary rather than a
governmental function. Petitioner argues that the holding of a nationwide
celebration which marked the nations 100th birthday may be likened to a
national fiesta which involved only the exercise of the national
governments proprietary function.[22] In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised
Administrative Code] simply gives authority to the municipality to
[celebrate] a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in
essence an act for the special benefit of the community and not for
the general welfare of the public performed in pursuance of a
policy of the state. The mere fact that the celebration, as claimed,

was not to secure profit or gain but merely to provide

entertainment to the town inhabitants is not a conclusive test. For
instance, the maintenance of parks is not a source of income for
the town, nonetheless it is [a] private undertaking as distinguished
from the maintenance of public schools, jails, and the like which
are for public service.
As stated earlier, there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case
are to be considered and will be decisive. The basic element,
however beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function becomes private
or propriety in character. Easily, no governmental or public policy
of the state is involved in the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine.
Note that the Court cautioned that there can be no hard and fast rule for
purposes of determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive. Thus, in footnote 15 of Torio, the Court,
citing an American case, illustrated how the surrounding circumstances
plus the political, social, and cultural backgrounds could produce a
conclusion different from that in Torio:
We came across an interesting case which shows that surrounding
circumstances plus the political, social, and cultural backgrounds
may have a decisive bearing on this question. The case of Pope v.
City of New Haven, et al. was an action to recover damages for
personal injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have been caused
by defendants negligence. The defendants demurred to the
complaint invoking the defense that the city was engaged in the
performance of a public governmental duty from which it received
no pecuniary benefit and for negligence in the performance of
which no statutory liability is imposed. This demurrer was
sustained by the Superior Court of New Haven Country. Plaintiff
sought to amend his complaint to allege that the celebration was
for the corporate advantage of the city. This was denied. In
affirming the order, the Supreme Court of Errors of Connecticut
held inter alia:
Municipal corporations are exempt from liability for the negligent
performance of purely public governmental duties, unless made
liable by statute.
A municipality corporation, which under permissive authority of its
charter or of statute, conducted a public Fourth of July celebration,
including a display of fireworks, and sent up a bomb intended to
explode in the air, but which failed to explode until it reached the

ground, and then killed a spectator, was engaged in the

performance of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two
dissented.
At any rate the rationale of the Majority Opinion is evident from
[this] excerpt:
July 4th, when that date falls upon Sunday, July 5 th, is made a
public holiday, called Independence Day, by our statutes. All or
nearly all of the other states have similar statutes. While there is
no United States statute making a similar provision, the different
departments of the government recognize, and have recognized
since the government was established, July 4 th as a national
holiday. Throughout the country it has been recognized and
celebrated as such. These celebrations, calculated to entertain
and instruct the people generally and to arouse and stimulate
patriotic sentiments and love of country, frequently take the form
of literary exercises consisting of patriotic speeches and the
reading of the Constitution, accompanied by a musical program
including patriotic air sometimes preceded by the firing of cannon
and followed by fireworks. That such celebrations are of
advantage to the general public and their promotion a proper
subject of legislation can hardly be questioned. x x x
Surely, a town fiesta cannot compare to the National Centennial
Celebrations. The Centennial Celebrations was meant to commemorate
the birth of our nation after centuries of struggle against our former
colonial master, to memorialize the liberation of our people from
oppression by a foreign power. 1998 marked 100 years of independence
and sovereignty as one united nation. The Celebrations was an occasion to
reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it,
it was a vehicle for fostering nationhood and a strong sense of Filipino
identity, an opportunity to showcase Filipino heritage and thereby
strengthen Filipino values. The significance of the Celebrations could not
have been lost on petitioner, who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people,
we wanted to rekindle the love for freedom, love for country, that
is the over-all goal that has to make everybody feel proud that he
is a Filipino, proud of our history, proud of what our forefather did
in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public
office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his
tenure is of little consequence. A salary is a usual but not a necessary
criterion for determining the nature of the position. It is not conclusive.
The salary is a mere incident and forms no part of the office. Where a

salary or fees is annexed, the office is provided for it is a naked or honorary

office, and is supposed to be accepted merely for the public good. [23]
Hence, the office of petitioner as NCC Chair may be characterized as an
honorary office, as opposed to a lucrative office or an office of profit, i.e.,
one to which salary, compensation or fees are attached. [24] But it is a public
office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an
ad-hoc body make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and
duration, and certainly a position which is merely temporary and
local cannot ordinarily be considered an office. But, says Chief
Justice Marshall, if a duty be a continuing one, which is defined by
rules prescribed by the government and not by contract, which an
individual is appointed by government to perform, who enters on
the duties pertaining to his station without any contract defining
them, if those duties continue though the person be changed, -- it
seems very difficult to distinguish such a charge or employment
from an office of the person who performs the duties from an
officer.
At the same time, however, this element of continuance can
not be considered as indispensable, for, if the other
elements are present it can make no difference, says
PEARSON, C.J., whether there be but one act or a series of
acts to be done, -- whether the office expires as soon as the
one act is done, or is to be held for years or during good
behavior.[25]
Our conclusion that petitioner is a public officer finds support in In Re
Corliss.[26] There the Supreme Court of Rhode Island ruled that the office of
Commissioner of the United States Centennial Commission is an office of
trust as to disqualify its holder as elector of the United States President
and Vice-President. (Under Article II of the United States Constitution, a
person holding an office of trust or profit under the United States is
disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial
Commission holds an office of trust under the United States, and
that he is therefore disqualified for the office of elector of President
and Vice-President of the United States.
The commission was created under a statute of the United States
approved March 3, 1871. That statute provides for the holding of
an exhibition of American and foreign arts, products, and
manufactures, under the auspices of the government of the
United States, and for the constitution of a commission, to consist
of more than one delegate from each State and from each Territory
of the United States, whose functions shall continue until close of
the exhibition, and whose duty it shall be to prepare and

superintend the execution of the plan for holding the exhibition.

Under the statute the commissioners are appointed by the
President of the United States, on the nomination of the governor
of the States and Territories respectively. Various duties were
imposed upon the commission, and under the statute provision
was to be made for it to have exclusive control of the exhibit before
the President should announce, by proclamation, the date and
place of opening and holding the exhibition. By an act of Congress
approved June 1st, 1872, the duties and functions of the
commission were further increased and defined. That act created
a corporation, called The Centennial Board of Finance, to
cooperate with the commission and to raise and disburse the
funds. It was to be organized under the direction of the
commission. The seventh section of the act provides that the
grounds for exhibition shall be prepared and the buildings erected
by the corporation, in accordance with plans which shall have been
adopted by the United States Centennial Commission; and the
rules and regulations of said corporation, governing rates for
entrance and admission fees, or otherwise affecting the rights,
privileges, or interests of the exhibitors, or of the public, shall be
fixed and established by the United States Centennial Commission;
and no grant conferring rights or privileges of any description
connected with said grounds or buildings, or relating to said
exhibition or celebration, shall be made without the consent of the
United States Centennial Commission, and said commission shall
have power to control, change, or revoke all such grants, and shall
appoint all judges and examiners and award all premiums. The
tenth section of the act provides that it shall be the duty of the
United States Centennial Commission to supervise the closing up of
the affairs of said corporation, to audit its accounts, and submit in
a report to the President of the United States the financial results of
the centennial exhibition.
It is apparent from this statement, which is but partial, that the
duties and functions of the commission were various, delicate, and
important; that they could be successfully performed only by men
of large experience and knowledge of affairs; and that they were
not merely subordinate and provisional, but in the highest degree
authoritative, discretionary, and final in their character. We think
that persons performing such duties and exercising such functions,
in pursuance of statutory direction and authority, are not to be
regarded as mere employees, agents, or committee men, but that
they are, properly speaking, officers, and that the places which
they hold are offices. It appears, moreover, that they were
originally regarded as officers by Congress; for the act under which
they were appointed declares, section 7, that no compensation for
services shall be paid to the commissioners or other officers,
provided for in this act, from the treasury of the United States.
The only other officers provided for were the alternates
appointed to serve as commissioners when the commissioners
were unable to attend.

Having arrived at the conclusion that the NCC performs executive functions
and is, therefore, a public office, we need no longer delve at length on the
issue of whether Expocorp is a private or a public corporation. Even
assuming that Expocorp is a private corporation, petitioners position as
Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of
the NCC. Consequently, his acts or omissions as CEO of Expocorp must be
viewed in the light of his powers and functions as NCC Chair. [27]
Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public
officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt
Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of
said law, which reads:
SEC. 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
A public officer, under R.A. No. 3019, is defined by Section 2 of said law
as follows:
SEC. 2. Definition of terms. As used in this Act, the term

Moreover, the question of whether petitioner is a public officer under the

Anti-Graft and Corrupt Practices Act involves the appreciation of evidence
and interpretation of law, matters that are best resolved at trial.
To illustrate, the use of the term includes in Section 2 (b) indicates that
the definition is not restrictive. [28] The Anti-Graft and Corrupt Practices Act
is just one of several laws that define public officers. Article 203 of the
Revised Penal Code, for example, provides that a public officer is:
x x x any person who, by direct provision of law, popular election or
appointment by competent authority, takes part in the
performance of public functions in the Government of Philippines,
or performs in said Government or in any of its branches public
duties as an employee, agent or subordinate official, of any rank or
class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of
1987,[29] on the other hand, states:
Officer as distinguished from clerk or employee, refers to a
person whose duties not being of a clerical or manual nature,
involves the exercise of discretion in the performance of the
functions of the government. When used with reference to a
person having authority to do a particular act or perform a
particular person in the exercise of governmental power, officer
includes any government employee, agent or body having
authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code
of Conduct and Ethical Standards for Public Officials and Employees), one
may be considered a public official whether or not one receives
compensation, thus:
Public Officials include elective and appointive officials and
employees, permanent or temporary, whether in the career or noncareer service including military and police personnel, whether or
not they receive compensation, regardless of amount.

xxx

Which of these definitions should apply, if at all?

(b) Public officer 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 as defined in the preceding
paragraph. [Emphasis supplied.]

Assuming that the definition of public officer in R.A. No. 3019 is exclusive,
the term compensation, which is not defined by said law, has many
meanings.

It is clear from Section 2 (b), above, that the definition of a public officer
is expressly limited to the application of R.A. No. 3019. Said definition does
not apply for purposes of determining the Ombudsmans jurisdiction, as
defined by the Constitution and the Ombudsman Act of 1989.

Under particular circumstances, compensation has been held to include

allowance for personal expenses, commissions, expenses, fees, an
honorarium, mileage or traveling expenses, payments for services,
restitution or a balancing of accounts, salary, and wages. [30]
How then is compensation, as the term is used in Section 2 (b) of R.A.
No. 3019, to be interpreted?

Did petitioner receive any compensation at all as NCC Chair? Granting that
petitioner did not receive any salary, the records do not reveal if he
received any allowance, fee, honorarium, or some other form of
compensation. Notably, under the by-laws of Expocorp, the CEO is entitled
to per diems and compensation.[31] Would such fact bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues
lest we preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction
issued in the Courts Resolution dated September 24, 2001 is hereby
LIFTED.
SO ORDERED.
Puno, and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., (Chairman), no part due to close relation to a party.

G.R. No. 162059, January 22, 2008

HANNAH EUNICE D. SERANA, Petitioner,
VS.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
REYES, R.T., J.:
CAN the Sandiganbayan try a government scholaran iskolar ng bayan a**
accused, along with her brother, of swindling government fundsccused of
being the swindler ng bayan?
MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan,
at ang kanyang kapatid, na kapwa pinararatangan ng estafa ng
pera ng bayan?
The jurisdictional question is posed in this petition for Certiorari with Prayer
for the Issuance of Temporary Restraining Order or Preliminary Injunction
certiorari assailing the Resolutions[1] of the Sandiganbayan, Fifth Division,
denying petitioners motion to quash the information and herdenying
petitioners motion for reconsideration.
The Antecedents
Petitioner Hannah Eunice D. Serana was a senior student of the University
of the Philippines-Cebu (UP). A student of a state university is known as a
government scholar. She was appointed by then President Joseph Estrada
on December 21, 1999 as a student regent of UP, to serve a one-year term
starting January 1, 2000 and ending on December 31, 2000.
In the early part of 2000, petitioner discussed with President Estrada the
renovation of Vinzons Hall Annex in UP Diliman. [2] On September 4, 2000,
petitioner, with her siblings and relatives, registered with the Securities
and Exchange Commission the Office of the Student Regent Foundation,
Inc. (OSRFI).[3]
One of the projects of the OSRFI was the renovation of the Vinzons Hall
Annex.[4] President Estrada gave Fifteen Million Pesos (P15,000,000.00) to
the OSRFI as financial assistance for the proposed renovation. The source
of the funds, according to the information, wais disputed the Office of the
President.
The renovation of Vinzons Hall Annex failed to materialize. [5] The
succeeding student regent, Kristine Clare Bugayong, and Christine Jill De
Guzman, Secretary General of the KASAMA sa U.P., a system-wide alliance
of student councils within the state university, consequently filed a
complaint for Malversation of Public Funds and Property with the Office of
the Ombudsman.[6]

On July 3, 2003, the Ombudsman, after due investigation, found probable

cause to indict petitioner and her brother Jade Ian D. Serana forof estafa,
docketed as Criminal Case No. 27819 of the Sandiganbayan.[7] The
Information against her reads:
The undersigned Special Prosecution Officer III, Office of the
Special Prosecutor, hereby accuses HANNAH EUNICE D. SERANA
and JADE IAN D. SERANA of the crime of Estafa, defined and
penalized under Paragraph 2(a), Article 315 of the Revised Penal
Code, as amended committed as follows:
That on October, 24, 2000, or sometime prior or subsequent
thereto, in Quezon City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, above-named accused,
HANNAH EUNICE D. SERANA, a high-ranking public officer, being
then the Student Regent of the University of the Philippines,
Diliman, Quezon City, while in the performance of her official
functions, committing the offense in relation to her office and
taking advantage of her position, with intent to gain, conspiring
with her brother, JADE IAN D. SERANA, a private individual, did
then and there wilfully, unlawfully and feloniously defraud the
government by falsely and fraudulently representing to former
President Joseph Ejercito Estrada that the renovation of the Vinzons
Hall of the University of the Philippines will be renovated and
renamed as President Joseph Ejercito Estrada Student Hall, and
for which purpose accused HANNAH EUNICE D. SERANA requested
the amount of FIFTEEN MILLION PESOS (P15,000,000.00), Philippine
Currency, from the Office of the President, and the latter relying
and believing on said false pretenses and misrepresentation gave
and delivered to said accused Land Bank Check No. 91353 dated
October 24, 2000 in the amount of FIFTEEN MILLION PESOS
(P15,000,000.00), which check was subsequently encashed by
accused Jade Ian D. Serana on October 25, 2000 and
misappropriated for their personal use and benefit, and despite
repeated demands made upon the accused for them to return
aforesaid amount, the said accused failed and refused to do so to
the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW. (Underscoring supplied)
Petitioner moved to quash the information. She claimed that the
Sandiganbayan does not have any jurisdiction over the offense charged or
over her person, in her capacity as UP student regent.
Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A.
No. 8249, enumerates the crimes or offenses over which the
Sandiganbayan has jurisdiction. [8] It has no jurisdiction over the crime of
estafa.[9] It only has jurisdiction over crimes covered by Title VII, Chapter II,
Section 2 (Crimes Committed by Public Officers), Title VII, Book II of the
Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes

Against Property), Book II of the RPC is not within the Sandiganbayans

jurisdiction.
ShePetitioner also arguedreasoned that it was President Estrada, and not
the government, that was duped. Even assuming that she received the
P15,000,000.00, that amount came from Estrada, and not from the coffers
of the government.[10]
Petitioner likewise posited that the Sandiganbayan had no jurisdiction over
her person. AShe claimed that as a student regent, she was not a public
officer since she merely represented her peers, in contrast to the other
regents whothat held their positions in an ex officio capacity. She addsed
that she was a simple student and did not receive any salary as a student
regent.

that the Sandiganbayan also has jurisdiction over other offenses

committed by public officials and employees in relation to their
office. From this provision, there is no single doubt that this Court
has jurisdiction over the offense of estafa committed by a public
official in relation to his office.
Accused-movants claim that being merely a member in
representation of the student body, she was never a public officer
since she never received any compensation nor does she fall under
Salary Grade 27, is of no moment, in view of the express provision
of Section 4 of Republic Act No. 8249 which provides:
Sec. 4. Jurisdiction The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:

Petitioner She further contended also claimed that she had no power or
authority to receive monies or funds. She claimed such power was vested
with the Board of Regents (BOR) as a whole. Hence, Since it was not
alleged in the information that it was among her functions or duties to
receive funds, or that the crime was committed in connection with her
official functions, the same is beyond the jurisdiction of the Sandiganbayan
citing the case of Soller v. Sandiganbayan.[11]

(A) x x x

The Ombudsman opposed the motion. [12] It disputed petitioners

interpretation of the law. Section 4(b) of Presidential Decree (P.D.) No.
1606 clearly contains the catch -all phrase in relation to office, thus, the
Sandiganbayan has jurisdiction over the charges against petitioner. In the
same breath, the prosecution countered that the source of the money is a
matter of defense. It should be threshed out during a full-blown trial. [13]

xxxx

(1) Officials of the executive branch occupying the

positions of regional director and higher, otherwise
classified as Grade 27 and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:

(g) Presidents, directors or trustees, or managers of

government-owned or controlled corporations, state
universities or educational institutions or foundations.
(Italics supplied)

According to the Ombudsman, petitioner, despite her protestations, iwas a

public officer. As a member of the BOR, she hads the general powers of
administration and exerciseds the corporate powers of UP. Based on
Mechems definition of a public office, petitioners stance that she was not
compensated, hence, thus not a public officer, is erroneous. Compensation
is not an essential part of public office. Parenthetically, compensation has
been interpreted to include allowances. By this definition, petitioner was
compensated.[14]

It is very clear from the aforequoted provision that the

Sandiganbayan has original exclusive jurisdiction over all offenses
involving the officials enumerated in subsection (g), irrespective of
their salary grades, because the primordial consideration in the
inclusion of these officials is the nature of their responsibilities and
functions.

Sandiganbayan Disposition

A meticulous review of the existing Charter of the University of the

Philippines reveals that the Board of Regents, to which accusedmovant belongs, exclusively exercises the general powers of
administration and corporate powers in the university, such as: 1)
To receive and appropriate to the ends specified by law such sums
as may be provided by law for the support of the university; 2) To
prescribe rules for its own government and to enact for the
government of the university such general ordinances and
regulations, not contrary to law, as are consistent with the
purposes of the university; and 3) To appoint, on recommendation
of the President of the University, professors, instructors, lecturers
and other employees of the University; to fix their compensation,

In a Resolution dated November 14, 2003, the Sandiganbayan denied

petitioners motion for lack of merit.[15] It ratiocinated:
The focal point in controversy
Sandiganbayan over this case.

is

the

jurisdiction

of

the

It is extremely erroneous to hold that only criminal offenses

covered by Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code are within the jurisdiction of this Court. As correctly
pointed out by the prosecution, Section 4(b) of R.A. 8249 provides

Is accused-movant included in the contemplated provision of law?

hours of service, and such other duties and conditions as it may

deem proper; to grant to them in its discretion leave of absence
under such regulations as it may promulgate, any other provisions
of law to the contrary notwithstanding, and to remove them for
cause after an investigation and hearing shall have been had.
It is well-established in corporation law that the corporation can act
only through its board of directors, or board of trustees in the case
of non-stock corporations. The board of directors or trustees,
therefore, is the governing body of the corporation.
It is unmistakably evident that the Board of Regents of the
University of the Philippines is performing functions similar to those
of the Board of Trustees of a non-stock corporation. This draws to
fore the conclusion that being a member of such board, accusedmovant undoubtedly falls within the category of public officials
upon whom this Court is vested with original exclusive jurisdiction,
regardless of the fact that she does not occupy a position classified
as Salary Grade 27 or higher under the Compensation and Position
Classification Act of 1989.
Finally, this court finds that accused-movants contention that the
same of P15 Million was received from former President Estrada
and not from the coffers of the government, is a matter a defense
that should be properly ventilated during the trial on the merits of
this case.[16]
On November 19, 2003, petitioner filed a motion for reconsideration. [17] The
motion was denied with finality in a Resolution dated February 4, 2004. [18]
Issue
Petitioner is now before this Court, contending that THE RESPONDENT
COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION
AND DISMISING THE CASE NOTWITHSTANDING THAT IS HAS NO
JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION. [19]
In her discussion, she reiterates her four-fold argument below, namely: (a)
the Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a
public officer with Salary Grade 27 and she paid her tuition fees; (c) the
offense charged was not committed in relation to her office; (d) the funds
in question personally came from President Estrada, not from the
government.

We would ordinarily dismiss this petition for certiorari outright on

procedural grounds. Well-established is the rule that when a motion to
quash in a criminal case is denied, the remedy is not a petition for
certiorari, but for petitioners to go to trial, without prejudice to reiterating
the special defenses invoked in their motion to quash. [20] Remedial
measures as regards interlocutory orders, such as a motion to quash, are
frowned upon and often dismissed. [21] The evident reason for this rule is to
avoid multiplicity of appeals in a single action.[22]
In Newsweek, Inc. v. Intermediate Appellate Court,[23] the Court clearly
illustrated explained and illustrated the rule and the exceptions, thus:
As a general rule, an order denying a motion to dismiss is merely
interlocutory and cannot be subject of appeal until final judgment
or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure
to be followed in such a case is to file an answer, go to trial and if
the decision is adverse, reiterate the issue on appeal from the final
judgment. The same rule applies to an order denying a motion to
quash, except that instead of filing an answer a plea is entered and
no appeal lies from a judgment of acquittal.
This general rule is subject to certain exceptions. If the court, in
denying the motion to dismiss or motion to quash, acts without or
in excess of jurisdiction or with grave abuse of discretion, then
certiorari or prohibition lies. The reason is that it would be unfair to
require the defendant or accused to undergo the ordeal and
expense of a trial if the court has no jurisdiction over the subject
matter or offense, or is not the court of proper venue, or if the
denial of the motion to dismiss or motion to quash is made with
grave abuse of discretion or a whimsical and capricious exercise of
judgment. In such cases, the ordinary remedy of appeal cannot be
plain and adequate. The following are a few examples of the
exceptions to the general rule.
In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to
dismiss based on lack of jurisdiction over the subject matter, this
Court granted the petition for certiorari and prohibition against the
City Court of Manila and directed the respondent court to dismiss
the case.
In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion
to quash based on lack of jurisdiction over the offense, this Court
granted the petition for prohibition and enjoined the respondent
court from further proceeding in the case.

Our Ruling
The petition cannot be granted.
Preliminarily, the denial of a motion to
quash is not correctible by certiorari.

In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a

motion to dismiss based on improper venue, this Court granted the
petition for prohibition and enjoined the respondent judge from
taking cognizance of the case except to dismiss the same.

In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to

dismiss based on bar by prior judgment, this Court granted the
petition for certiorari and directed the respondent judge to dismiss
the case.
In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a
motion to dismiss based on the Statute of Frauds, this Court
granted the petition for certiorari and dismissed the amended
complaint.
In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition
for certiorari after the motion to quash based on double jeopardy
was denied by respondent judge and ordered him to desist from
further action in the criminal case except to dismiss the same.
In People v. Ramos (83 SCRA 11), the order denying the motion to
quash based on prescription was set aside on certiorari and the
criminal case was dismissed by this Court.[24]
We do not find the Sandiganbayan to have committed a grave abuse of
discretion.
The jurisdiction of the Sandiganbayan is
set by P.D. No. 1606, as amended, not by
R.A. No. 3019, as amended.
We first address petitioners contention that the jurisdiction of the
Sandiganbayan is determined by Section 4 of R.A. No. 3019 (The AntiGraft and Corrupt Practices Act, as amended). We note that petitioner
refers to Section 4 of the said law yet quotes Section 4 of P.D. No. 1606,
as amended, in her motion to quash before the Sandiganbayan. [25] She
repeats the reference in the instant petition for certiorari[26] and in her
memorandum of authorities.[27]
We cannot bring ourselves to write this off as a mere clerical or
typographical error. It bears stressing that petitioner repeated this claim
twice despite corrections made by the Sandiganbayan. [28]
Her claim has no basis in law. It is P.D. No.1606, as amended, rather than
R.A. No. 3019, as amended, that determines the jurisdiction of the
Sandiganbayan. A brief legislative history of the statute creating the
Sandiganbayan is in order. The Sandiganbayan was created by P.D. No.
1486, promulgated by then President Ferdinand E. Marcos on June 11,
1978. It was promulgated to attain the highest norms of official conduct
required of public officers and employees, based on the concept that public
officers and employees shall serve with the highest degree of
responsibility, integrity, loyalty and efficiency and shall remain at all times
accountable to the people.[29]

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was
promulgated on December 10, 1978. P.D. No. 1606 expanded the
jurisdiction of the Sandiganbayan.[30]
P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983,
further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved
on March 30, 1995 made succeeding amendments to P.D. No. 1606, which
was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of
R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As
it now stands, the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade 27 and higher, of
the Compensation and Position Classification Act of 989 (Republic Act
No. 6758), specifically including:
"_____ (a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors,
engineers, and other city department heads;
"_____(b) City mayor, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city
department heads;
"_____(c ) Officials of the diplomatic service occupying the position of
consul and higher;
" _____(d) Philippine army and air force colonels, naval captains, and all
officers of higher rank;
"_____(e) Officers of the Philippine National Police while occupying the
position of provincial director and those holding the rank of senior
superintended or higher;
" _____(f) City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman and special
prosecutor;

" _____(g) Presidents, directors or trustees, or managers of

government-owned or controlled corporations, state universities or
educational institutions or foundations.
" _____(2) Members of Congress and officials thereof classified as Grade
Grade '27' and up under the Compensation and Position
Classification Act of 1989;
" _____(3) Members of the judiciary without prejudice to the provisions
of the Constitution;
" _____(4) Chairmen and members of Constitutional Commission,
without prejudice to the provisions of the Constitution; and
" _____(5) All other national and local officials classified as Grade
Grade '27' and higher under the Compensation and Position
Classification Act of 1989.
B. Other offenses of felonies whether simple or complexed with other
crimes committed by the public officials and employees mentioned in
subsection a of this section in relation to their office.
C. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
" _____In cases where none of the accused are occupying positions
corresponding to Salary Grade Grade '27' or higher, as prescribed in
the said Republic Act No. 6758, or military and PNP officer mentioned
above, exclusive original jurisdiction thereof shall be vested in the
proper regional court, metropolitan trial court, municipal trial court,
and municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Blg. 129, as
amended.
" _____The Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or order of regional trial
courts whether in the exercise of their own original jurisdiction or of
their appellate jurisdiction as herein provided.
" _____The Sandiganbayan shall have exclusive original jurisdiction over
petitions for the issuance of the writs of mandamus, prohibition,
certiorari, habeas corpus, injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that may arise in cases filed
or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986: Provided, That the jurisdiction over these petitions shall
not be exclusive of the Supreme Court.
" _____The procedure prescribed in Batas Pambansa Blg. 129, as well
as the implementing rules that the Supreme Court has promulgated
and may thereafter promulgate, relative to appeals/petitions for review

to the Court of Appeals, shall apply to appeals and petitions for review
filed with the Sandiganbayan. In all cases elevated to the
Sandiganbayan and from the Sandiganbayan to the Supreme Court,
the Office of the Ombudsman, through its special prosecutor, shall
represent the People of the Philippines, except in cases filed pursuant
to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
" _____In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or employees,
including those employed in government-owned or controlled
corporations, they shall be tried jointly with said public officers and
employees in the proper courts which shall exercise exclusive
jurisdiction over them.
" _____Any provisions of law or Rules of Court to the contrary
notwithstanding, the criminal action and the corresponding civil action
for the recovery of civil liability shall, at all times, be simultaneously
instituted with, and jointly determined in, the same proceeding by the
Sandiganbayan or the appropriate courts, the filing of the criminal
action being deemed to necessarily carry with it the filing of the civil
action, and no right to reserve the filing such civil action separately
from the criminal action shall be recognized: Provided, however, That
where the civil action had heretofore been filed separately but
judgment therein has not yet been rendered, and the criminal case is
hereafter filed with the Sandiganbayan or the appropriate court, said
civil action shall be transferred to the Sandiganbayan or the
appropriate court, as the case may be, for consolidation and joint
determination with the criminal action, otherwise the separate civil
action shall be deemed abandoned."
Upon the other hand, R.A. No. 3019 is a penal statute approved on August
17, 1960. The said law represses certain acts of public officers and private
persons alike which constitute graft or corrupt practices or which may lead
thereto.[31] Pursuant to Section 10 of R.A. No. 3019, all prosecutions for
violation of the said law should be filed with the Sandiganbayan. [32]
R.A. No. 3019 does not contain an enumeration of the cases over which
the Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019
erroneously cited by petitioner, deals not with the jurisdiction of the
Sandiganbayan but with prohibition on private individuals. We quote:
Section 4. Prohibition on private individuals. (a) It shall be
unlawful for any person having family or close personal relation
with any public official to capitalize or exploit or take advantage of
such family or close personal relation by directly or indirectly
requesting or receiving any present, gift or material or pecuniary
advantage from any other person having some business,
transaction, application, request or contract with the government,
in which such public official has to intervene. Family relation shall
include the spouse or relatives by consanguinity or affinity in the
third civil degree. The word close personal relation shall include

close personal friendship, social and fraternal connections, and

professional employment all giving rise to intimacy which assures
free access to such public officer.

the offense is committed by public officials and employees mentioned in

Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is
committed in relation to their office.

(b) It shall be unlawful for any person knowingly to induce or cause

any public official to commit any of the offenses defined in Section
3 hereof.

In Perlas, Jr. v. People,[37] the Court had occasion to explain that the
Sandiganbayan has jurisdiction over an indictment for estafa versus a
director of the National Parks Development Committee, a government
instrumentality. The Court held then:

In fine, the two statutes differ in that P.D. No. 1606, as amended, defines
the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended,
defines graft and corrupt practices and provides for their penalties.
Sandiganbayan has jurisdiction over
the offense of estafa.
Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is
not among those crimes cognizable byover which the Sandiganbayan has
jurisdiction. We note that in hoisting this argument, petitioner isolated the
first paragraph of Section 4 of P.D. No. 1606, without regard to the
succeeding paragraphs of the said provision.
The rule is well-established in this jurisdiction that statutes should receive
a sensible construction so as to avoid an unjust or an absurd conclusion. [33]
Interpretatio talis in ambiguis semper fienda est, ut evitetur inconveniens
et absurdum. Where there is ambiguity, such interpretation as will avoid
inconvenience and absurdity is to be adopted. Kung saan mayroong
kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at
katawa-tawa.
Every section, provision or clause of the statute must be expounded by
reference to each other in order to arrive at the effect contemplated by the
legislature.[34] The intention of the legislator must be ascertained from the
whole text of the law and every part of the act is to be taken into view. [35] In
other words, petitioners interpretation lies in direct opposition to the rule
that a statute must be interpreted as a whole under the principle that the
best interpreter of a statute is the statute itself. [36] Optima statuti
interpretatrix est ipsum statutum. Ang isang batas ay marapat na
bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na
ang pinakamainam na interpretasyon ay ang mismong batas.
Section 4(B) of P.D. No. 1606 reads:
B. Other offenses or felonies whether simple or complexed with
other crimes committed by the public officials and employees
mentioned in subsection a of this section in relation to their office.
Evidently, the Sandiganbayan has jurisdiction over other felonies
committed by public officials in relation to their office. We see no plausible
or sensible reason to exclude estafa as one of the offenses included in
Section 4(bB) of P.D. No. 1606. Plainly, estafa is one of those other
felonies. The jurisdiction is simply subject to the twin requirements that (a)

The National Parks Development Committee was created originally

as an Executive Committee on January 14, 1963, for the
development of the Quezon Memorial, Luneta and other national
parks (Executive Order No. 30). It was later designated as the
National Parks Development Committee (NPDC) on February 7,
1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos
and Teodoro F. Valencia were designated Chairman and ViceChairman respectively (E.O. No. 3). Despite an attempt to
transfer it to the Bureau of Forest Development, Department of
Natural Resources, on December 1, 1975 (Letter of Implementation
No. 39, issued pursuant to PD No. 830, dated November 27,
1975), the NPDC has remained under the Office of the President
(E.O. No. 709, dated July 27, 1981).
Since 1977 to 1981, the annual appropriations decrees listed NPDC
as a regular government agency under the Office of the President
and allotments for its maintenance and operating expenses were
issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3).
The Sandiganbayans jurisdiction over estafa was reiterated with greater
firmness in Bondoc v. Sandiganbayan.[38] Pertinent parts of the Courts
ruling in Bondoc read:
Furthermore, it is not legally possible to transfer Bondocs cases to
the Regional Trial Court, for the simple reason that the latter would
not have jurisdiction over the offenses. As already above
intimated, the inability of the Sandiganbayan to hold a joint trial of
Bondocs cases and those of the government employees separately
charged for the same crimes, has not altered the nature of the
offenses charged, as estafa thru falsification punishable by
penalties higher than prision correccional or imprisonment of six
years, or a fine of P6,000.00, committed by government employees
in conspiracy with private persons, including Bondoc. These
crimes are within the exclusive, original jurisdiction of the
Sandiganbayan. They simply cannot be taken cognizance of by the
regular courts, apart from the fact that even if the cases could be
so transferred, a joint trial would nonetheless not be possible.
Petitioner UP student regent
is a public officer.

Petitioner also contends that she is not a public officer. She does not
receive any salary or remuneration as a UP student regent. This is not the
first or likely the last time that We will be called upon toare required to
define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled
that it is difficult to pin down the definition of a public officer. [39] The 1987
Constitution does not define who are public officers. Rather, the varied
definitions and concepts are found in different statutes and jurisprudence.
In Aparri v. Court of Appeals,[40] the Court held that:
A public office is the right, authority, and duty created and
conferred by law, by which for a given period, either fixed by law or
enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the
government, to be exercise by him for the benefit of the public
([Mechem Public Offices and Officers,] Sec. 1). The right to hold a
public office under our political system is therefore not a natural
right. It exists, when it exists at all only because and by virtue of
some law expressly or impliedly creating and conferring it
(Mechem Ibid., Sec. 64). There is no such thing as a vested
interest or an estate in an office, or even an absolute right to hold
office. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have
any vested right in an office or its salary (42 Am. Jur. 881).
In Laurel v. Desierto,[41] the Court adopted the definition of Mechem of a
public office:
A public office is the right, authority and duty, created and
conferred by law, by which, for a given period, either fixed by law
or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public.
The individual so invested is a public officer. [42]
Petitioner claims that she is not a public officer with Salary Grade 27; she
is, in fact, a regular tuition fee-paying student. This is likewise bereft of
merit. It is not only the salary grade that determines the jurisdiction of the
Sandiganbayan. The Sandiganbayan also has jurisdiction over other
officers enumerated in P.D. No. 1606. In Geduspan v. People,[43] We held
that while the first part of Section 4(A) covers only officials with Salary
Grade 27 and higher, its second part specifically includes other executive
officials whose positions may not be of Salary Grade 27 and higher but who
are by express provision of law placed under the jurisdiction of the said
court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is
placed there by express provision of law.[44]
Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan
with jurisdiction over Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state universities or
educational institutions or foundations. We find no reason to disturb the
findings of the Sandiganbayan that Petitioner falls under this category. As

the Sandiganbayan pointed out, the BOR performs functions similar to

those of a board of trustees of a non-stock corporation. [45] By express
mandate of law, We find that petitioner is, indeed, a public officer as
contemplated by P.D. No. 1606 the statute defining the jurisdiction of the
Sandiganbayan.
Moreover, it is well established that compensation is not an essential
element of public office. [46] At most, it is merely incidental to the public
office.[47]
We uphold that the conclusions of the Sandiganbayan that Delegation of
sovereign functions is essential in the public office. An investment in an
individual of some portion of the sovereign functions of the government, to
be exercised by him for the benefit of the public makes one a public officer.
[48]

The administration of the UP is a sovereign function in line with Article XIV

of the Constitution. UP performs a legitimate governmental function by
providing advanced instruction in literature, philosophy, the sciences, and
arts, and giving professional and technical training. [49] Moreover, UP is
maintained by the Government and it declares no dividends and is not a
corporation created for profit.[50] Petitioner is therefore a public officer by
express mandate of P.D. No. 1606 and jurisprudence.
The offense charged was committed
in relation to public office, according
to the Information.
Petitioner likewise argues that even assuming that she is a public officer,
the Sandiganbayan would still not have jurisdiction over the offense
because it was not committed in relation to her office.
According to petitioner, she had no power or authority to act without the
approval of the BOR. She adds there was no Board Resolution issued by
the BOR authorizing her to contract with then President Estrada; and that
her acts were not ratified by the governing body of the state university.
Resultantly, her act was done in a private capacity and not in relation to
public office.
It is axiomatic that jurisdiction is determined by the averments in the
information.[51] More than that, jurisdiction is not affected by the pleas or
the theories set up by defendant or respondent in an answer, a motion to
dismiss, or a motion to quash. [52] Otherwise, jurisdiction would become
dependent almost entirely upon the whims of defendant or respondent. [53]
In the case at bench, the information alleged, in no uncertain terms that
petitioner, being then a student regent of U.P., while in the performance of
her official functions, committing the offense in relation to her office and
taking advantage of her position, with intent to gain, conspiring with her
brother, JADE IAN D. SERANA, a private individual, did then and there

wilfully, unlawfully and feloniously defraud the government x x x.

(Underscoring supplied)

WHEREFORE, the petition is DENIED for lack of merit DUE COURSE and
DISMISSED.

Clearly, there was no grave abuse of discretion on the part of the

Sandiganbayan when it did not quash the information based on this
ground.

SO ORDERED.

Source of funds is a defense that should

be raised during trial on the merits.
It is contended anew that the amount came from President Estradas
private funds and not from the government coffers. Petitioner insists the
charge has no leg to stand on.
We cannot agree. The information alleges that the funds came from the
Office of the President and not its then occupant, President Joseph Ejercito
Estrada. Under the information, it is averred that petitioner requested the
amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from
the Office of the President, and the latter relying and believing on said false
pretenses and misrepresentation gave and delivered to said accused Land
Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen
Million Pesos (P15,000,000.00).
Again, the Court sustains the Sandiganbayan observation that the source
of the P15,000,000 is a matter of defense that should be ventilated during
the trial on the merits of the instant case.[54]
A lawyer owes candor, fairness
and honesty to the Court.
As a parting note, petitioners counsel, Renato G.
dela Cruz,
misrepresented his reference to Section 4 of P.D. No. 1606 as a quotation
from Section 4 of R.A. No. 3019. A review of his motion to quash, the
instant petition for certiorari and his memorandum, unveils the
misquotation. We urge petitioners counsel to observe Canon 10 of the
Code of Professional Responsibility, specifically Rule 10.02 of the Rules
stating that a lawyer shall not misquote or misrepresent.
The Court stressed the importance of this rule in Pangan v. Ramos,[55]
where Atty Dionisio D. Ramos used the name Pedro D.D. Ramos in
connection with a criminal case. The Court ruled that Atty. Ramos resorted
to deception by using a name different from that with which he was
authorized. We severely reprimanded Atty. Ramos and warned that a
repetition may warrant suspension or disbarment.[56]
We admonish petitioners counsel to be more careful and accurate in his
citation. A lawyers conduct before the court should be characterized by
candor and fairness.[57] The administration of justice would gravely suffer if
lawyers do not act with complete candor and honesty before the courts. [58]

Ynares-Santiago, Austria-Martinez, Corona, and Nachura, JJ., concur.

G.R. Nos. 147026-27, September 11, 2009

CAROLINA R. JAVIER, PETITIONER,
VS.
THE FIRST DIVISION OF THE SANDIGANBAYAN AND THE PEOPLE OF
THE PHILIPPINES, RESPONDENTS.
DECISION
PERALTA, J.:
Before the Court is a petition for certiorari[1] under Rule 65 of the Rules of
Court filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and
25898, entitled "People of the Philippines, Plaintiff versus Carolina R. Javier,
Accused," seeking to nullify respondent Sandiganbayan's: (1) Order [2] dated
November 14, 2000 in Criminal Case No. 25867, which denied her Motion
to Quash Information; (2) Resolution[3] dated January 17, 2001 in Criminal
Case No. 25898, which denied her Motion for Reconsideration and Motion
to Quash Information; and (3) Order [4] dated February 12, 2001, declaring
that a motion for reconsideration in Criminal Case No. 25898 would be
superfluous as the issues are fairly simple and straightforward.
The factual antecedents follow.
On June 7, 1995, Republic Act (R.A.) No. 8047, [5] or otherwise known as the
"Book Publishing Industry Development Act", was enacted into law.
Foremost in its policy is the State's goal in promoting the continuing
development of the book publishing industry, through the active
participation of the private sector, to ensure an adequate supply of
affordable, quality-produced books for the domestic and export market.
To achieve this purpose, the law provided for the creation of the National
Book Development Board (NBDB or the Governing Board, for brevity),
which shall be under the administration and supervision of the Office of the
President. The Governing Board shall be composed of eleven (11) members
who shall be appointed by the President of the Philippines, five (5) of whom
shall come from the government, while the remaining six (6) shall be
chosen from the nominees of organizations of private book publishers,
printers, writers, book industry related activities, students and the private
education sector.
On February 26, 1996, petitioner was appointed to the Governing Board as
a private sector representative for a term of one (1) year. [6] During that
time, she was also the President of the Book Suppliers Association of the
Philippines (BSAP). She was on a hold-over capacity in the following year.
On September 14, 1998, she was again appointed to the same position and
for the same period of one (1) year. [7] Part of her functions as a member of
the Governing Board is to attend book fairs to establish linkages with
international book publishing bodies. On September 29, 1997, she was
issued by the Office of the President a travel authority to attend the Madrid
International Book Fair in Spain on October 8-12, 1997. [8] Based on her

itinerary of travel,[9] she was paid P139,199.00 [10] as her travelling

expenses.
Unfortunately, petitioner
international book fair.

was

not

able

to

attend

the

scheduled

On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner

to immediately return/refund her cash advance considering that her trip
was canceled.[11] Petitioner, however, failed to do so. On July 6, 1998, she
was issued a Summary of Disallowances [12] from which the balance for
settlement amounted to P220,349.00. Despite said notice, no action was
forthcoming from the petitioner.
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director
of the NBDB, filed with the Ombudsman a complaint against petitioner for
malversation of public funds and properties. She averred that despite the
cancellation of the foreign trip, petitioner failed to liquidate or return to the
NBDB her cash advance within sixty (60) days from date of arrival, or in
this case from the date of cancellation of the trip, in accordance with
government accounting and auditing rules and regulations. Dr. Apolonio
further charged petitioner with violation of Republic Act (R.A.) No. 6713 [13]
for failure to file her Statement of Assets and Liabilities.
The Ombudsman found probable cause to indict petitioner for violation of
Section 3(e) of R.A. No. 3019, [14] as amended, and recommended the filing
of the corresponding information. [15] It, however, dismissed for insufficiency
of evidence, the charge for violation of R.A. No. 6713.
In an Information dated February 18, 2000, petitioner was charged with
violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit:
That on or about October 8, 1997, or for sometime prior or
subsequent thereto, in the City of Quezon, Philippines and within
the jurisdiction of this Honorable Court, the aforenamed accused, a
public officer, being then a member of the governing Board of the
National Book Development Board (NBDB), while in the
performance of her official and administrative functions, and acting
with evident bad faith or gross inexcusable negligence, did then
and there willfully, unlawfully and criminally, without any justifiable
cause, and despite due demand by the Resident Auditor and the
Executive Director of NBDB, fail and refuse to return and/or
liquidate her cash advances intended for official travel abroad
which did not materialize, in the total amount of P139,199.00 as of
September 23, 1999, as required under EO No. 248 and Sec. 5 of
COA Circular No. 97-002 thereby causing damage and undue injury
to the Government.
CONTRARY TO LAW.[16]
The case was docketed as Criminal Case No. 25867 and raffled to the First
Division.

Meanwhile, the Commission on Audit charged petitioner with Malversation

of Public Funds, as defined and penalized under Article 217 of the Revised
Penal Code, for not liquidating the cash advance granted to her in
connection with her supposed trip to Spain. During the conduct of the
preliminary investigation, petitioner was required to submit her counteraffidavit but she failed to do so. The Ombudsman found probable cause to
indict petitioner for the crime charged and recommended the filing of the
corresponding information against her. [17]

grade 28 and as such, is accountable for the public funds she

received as case advance in connection with her trip to Spain from
October 8-12, 1997, per LBP Check No. 10188 in the amount of
P139,199.00, which trip did not materialize, did then and there
willfully, unlawfully and feloniously take, malverse, misappropriate,
embezzle and convert to her own personal use and benefit the
aforementioned amount of P139,199.00, Philippine currency, to the
damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.[21]

Thus, an Information dated February 29, 2000 was filed before the
Sandiganbayan, which was docketed as Criminal Case No. 25898, and
raffled to the Third Division, the accusatory portion of which reads:

In its Resolution dated October 5, 2000, the Third Division ordered the
consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. [22]

That on or about and during the period from October 8, 1997 to

February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a high ranking officer,
being a member of the Governing Board of the National Book
Development Board and as such, is accountable for the public
funds she received as cash advance in connection with her trip to
Spain from October 8-12, 1997, per LBP Check No. 10188 in the
amount of P139,199.00, which trip did not materialize, did then
and there willfully, unlawfully and feloniously take, malverse,
misappropriate, embezzle and convert to her own personal use and
benefit the aforementioned amount of P139,199.00, Philippine
currency, to the damage and prejudice of the government in the
aforesaid amount.

On October 10, 2000, petitioner filed a Motion to Quash Information, [23]

averring that the Sandiganbayan has no jurisdiction to hear Criminal Case
No. 25867 as the information did not allege that she is a public official who
is classified as Grade "27" or higher. Neither did the information charge her
as a co-principal, accomplice or accessory to a public officer committing an
offense under the Sandiganbayan's jurisdiction. She also averred that she
is not a public officer or employee and that she belongs to the Governing
Board only as a private sector representative under R.A. No. 8047, hence,
she may not be charged under R.A. No. 3019 before the Sandiganbayan or
under any statute which covers public officials. Moreover, she claimed that
she does not perform public functions and is without any administrative or
political power to speak of - that she is serving the private book publishing
industry by advancing their interest as participant in the government's
book development policy.

CONTRARY TO LAW.[18]

In an Order[24] dated November 14, 2000, the First Division [25] denied the
motion to quash with the following disquisition:

During her arraignment in Criminal Case No. 25867, petitioner pleaded not
guilty. Thereafter, petitioner delivered to the First Division the money
subject of the criminal cases, which amount was deposited in a special
trust account during the pendency of the criminal cases.
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case
No. 25898 on May 16, 2000 in order to determine jurisdictional issues. On
June 3, 2000, petitioner filed with the same Division a Motion for
Consolidation[19] of Criminal Case No. 25898 with Criminal Case No. 25867,
pending before the First Division. On July 6, 2000, the People filed an
Urgent Ex-Parte Motion to Admit Amended Information [20] in Criminal Case
No. 25898, which was granted. Accordingly, the Amended Information
dated June 28, 2000 reads as follows:
That on or about and during the period from October 8, 1997 to
February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a high ranking officer,
being a member of the Governing Board of the National Book
Development Board equated to Board Member II with a salary

The fact that the accused does not receive any compensation in
terms of salaries and allowances, if that indeed be the case, is not
the sole qualification for being in the government service or a
public official. The National Book Development Board is a statutory
government agency and the persons who participated therein even
if they are from the private sector, are public officers to the extent
that they are performing their duty therein as such.
Insofar as the accusation is concerned herein, it would appear that
monies were advanced to the accused in her capacity as Director
of the National Book Development Board for purposes of official
travel. While indeed under ordinary circumstances a member of
the board remains a private individual, still when that individual is
performing her functions as a member of the board or when that
person receives benefits or when the person is supposed to travel
abroad and is given government money to effect that travel, to
that extent the private sector representative is a public official
performing public functions; if only for that reason, and not even
considering situation of her being in possession of public funds

even as a private individual for which she would also covered by

provisions of the Revised Penal Code, she is properly charged
before this Court.
On November 15, 2000, the First Division accepted the consolidation of the
criminal cases against petitioner and scheduled her arraignment on
November 17, 2000, for Criminal Case No. 25898. On said date, petitioner
manifested that she is not prepared to accept the propriety of the
accusation since it refers to the same subject matter as that covered in
Criminal Case No. 25867 for which the Sandiganbayan gave her time to file
a motion to quash. On November 22, 2000, petitioner filed a Motion to
Quash the Information[26] in Criminal Case No. 25898, by invoking her right
against double jeopardy. However, her motion was denied in open court.
She then filed a motion for reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution [27] denying
petitioner's motion with the following disquisition:
The accused is under the jurisdiction of this Court because Sec. 4
(g) of P.D. 1606 as amended so provides, thus:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:

statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of
which precludes prosecution of the other.
Petitioner hinges the present petition on the ground that the
Sandiganbayan has committed grave abuse of discretion amounting to lack
of jurisdiction for not quashing the two informations charging her with
violation of the Anti-Graft Law and the Revised Penal Code on malversation
of public funds. She advanced the following arguments in support of her
petition, to wit: first, she is not a public officer, and second, she was being
charged under two (2) informations, which is in violation of her right
against double jeopardy.
A motion to quash an Information is the mode by which an accused assails
the validity of a criminal complaint or Information filed against him for
insufficiency on its face in point of law, or for defects which are apparent in
the face of the Information.[28]
Well-established is the rule that when a motion to quash in a criminal case
is denied, the remedy is not a petition for certiorari, but for petitioners to
go to trial, without prejudice to reiterating the special defenses invoked in
their motion to quash. Remedial measures as regards interlocutory orders,
such as a motion to quash, are frowned upon and often dismissed. The
evident reason for this rule is to avoid multiplicity of appeals in a single
action.[29]

xxxx
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
xxxx
The offense is office-related because the money for her travel
abroad was given to her because of her Directorship in the National
Book Development Board.
Furthermore, there are also allegations to hold the accused liable
under Article 222 of the Revised Penal Code which reads:
Art. 222. Officers included in the preceding provisions. The provisions of this chapter shall apply to private
individuals who, in any capacity whatever, have charge of
any insular, provincial or municipal funds, revenues, or
property and to any administrator or depository of funds or
property attached , seized or deposited by public authority,
even if such property belongs to a private individual.
Likewise, the Motion to Quash the Information in Criminal Case No.
25898 on the ground of litis pendencia is denied since in this
instance, these two Informations speak of offenses under different

The above general rule, however admits of several exceptions, one of

which is when the court, in denying the motion to dismiss or motion to
quash, acts without or in excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies. The reason is that it would be
unfair to require the defendant or accused to undergo the ordeal and
expense of a trial if the court has no jurisdiction over the subject matter or
offense, or is not the court of proper venue, or if the denial of the motion to
dismiss or motion to quash is made with grave abuse of discretion or a
whimsical and capricious exercise of judgment. In such cases, the ordinary
remedy of appeal cannot be plain and adequate.[30]
To substantiate her claim, petitioner maintained that she is not a public
officer and only a private sector representative, stressing that her only
function among the eleven (11) basic purposes and objectives provided for
in Section 4, R.A. No. 8047, is to obtain priority status for the book
publishing industry. At the time of her appointment to the NDBD Board,
she was the President of the BSAP, a book publishers association. As such,
she could not be held liable for the crimes imputed against her, and in turn,
she is outside the jurisdiction of the Sandiganbayan.
The NBDB is the government agency mandated to develop and support the
Philippine book publishing industry. It is a statutory government agency
created by R.A. No. 8047, which was enacted into law to ensure the full
development of the book publishing industry as well as for the creation of
organization structures to implement the said policy. To achieve this end,
the Governing Board of the NBDB was created to supervise the

implementation. The Governing Board was vested with powers and

functions, to wit:
a) assume responsibility for carrying out and implementing the
policies, purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies and
guidelines for undertaking activities relative to promoting book
development, production and distribution as well as an incentive
scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that
editors, compilers and especially authors are paid justly and
promptly royalties due them for reproduction of their works in any
form and number and for whatever purpose;
d) conduct or contract research on the book publishing industry
including monitoring, compiling and providing data and information
of book production;
e) provide a forum for interaction among private publishers, and, for
the purpose, establish and maintain liaison will all the segments of
the book publishing industry;
f) ask the appropriate government authority to ensure effective
implementation of the National Book Development Plan;
g) promulgate rules and regulations for the implementation of this Act
in consultation with other agencies concerned, except for Section 9
hereof on incentives for book development, which shall be the
concern of appropriate agencies involved;
h) approve, with the concurrence of the Department of Budget and
Management (DBM), the annual and supplemental budgets
submitted to it by the Executive director;
i) own, lease, mortgage, encumber or otherwise real and personal
property for the attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper
administration of its affairs, the conduct of its operations or the
accomplishment of its purposes and objectives;
k) receive donations, grants, legacies, devices and similar
acquisitions which shall form a trust fund of the Board to
accomplish its development plans on book publishing;
l) import books or raw materials used in book publishing which are
exempt from all taxes, customs duties and other charges in behalf
of persons and enterprises engaged in book publishing and its
related activities duly registered with the board;
m) promulgate rules and regulations governing the matter in which
the general affairs of the Board are to be exercised and amend,
repeal, and modify such rules and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for the
positions of the Executive Officer and Deputy Executive Officer of
the Board;
o) adopt rules and procedures and fix the time and place for holding
meetings: Provided, That at least one (1) regular meeting shall be
held monthly;
p) conduct studies, seminars, workshops, lectures, conferences,
exhibits, and other related activities on book development such as

indigenous authorship, intellectual property rights, use of

alternative materials for printing, distribution and others; and
q) exercise such other powers and perform such other duties as may
be required by the law.[31]
A perusal of the above powers and functions leads us to conclude that they
partake of the nature of public functions. A public office is the right,
authority and duty, created and conferred by law, by which, for a given
period, either fixed by law or enduring at the pleasure of the creating
power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public officer. [32]
Notwithstanding that petitioner came from the private sector to sit as a
member of the NBDB, the law invested her with some portion of the
sovereign functions of the government, so that the purpose of the
government is achieved. In this case, the government aimed to enhance
the book publishing industry as it has a significant role in the national
development. Hence, the fact that she was appointed from the public
sector and not from the other branches or agencies of the government
does not take her position outside the meaning of a public office. She was
appointed to the Governing Board in order to see to it that the purposes for
which the law was enacted are achieved. The Governing Board acts
collectively and carries out its mandate as one body. The purpose of the
law for appointing members from the private sector is to ensure that they
are also properly represented in the implementation of government
objectives to cultivate the book publishing industry.
Moreover, the Court is not unmindful of the definition of a public officer
pursuant to the Anti-Graft Law, which provides that a public officer includes
elective and appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt service receiving
compensation, even nominal, from the government.[33]
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been
elected or appointed to a public office. Petitioner was appointed by the
President to the Governing Board of the NDBD. Though her term is only for
a year that does not make her private person exercising a public function.
The fact that she is not receiving a monthly salary is also of no moment.
Section 7, R.A. No. 8047 provides that members of the Governing Board
shall receive per diem and such allowances as may be authorized for every
meeting actually attended and subject to pertinent laws, rules and
regulations. Also, under the Anti-Graft Law, the nature of one's
appointment, and whether the compensation one receives from the
government is only nominal, is immaterial because the person so elected
or appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any
person who, by direct provision of the law, popular election, popular
election or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine

Islands, or shall perform in said Government or in any of its branches public

duties as an employee, agent, or subordinate official, of any rank or
classes, shall be deemed to be a public officer. [34]
Where, as in this case, petitioner performs public functions in pursuance of
the objectives of R.A. No. 8047, verily, she is a public officer who takes part
in the performance of public functions in the government whether as an
employee, agent, subordinate official, of any rank or classes. In fact, during
her tenure, petitioner took part in the drafting and promulgation of several
rules and regulations implementing R.A. No. 8047. She was supposed to
represent the country in the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The next question for the
Court to resolve is whether, as a public officer, petitioner is within the
jurisdiction of the Sandiganbayan.
Presently,[35] the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379,
and Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade "27" and
higher, of the Compensation and Position Classification Act of 989
(Republic Act No. 6758), specifically including:
xxxx
(2) Members of Congress and officials thereof classified as Grade
"Grade '27'" and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of
the Constitution;
(4) Chairmen and members of Constitutional Commission, without
prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade "Grade
'27'" and higher under the Compensation and Position
Classification Act of 1989.
xxxx

Notably, the Director of Organization, Position Classification and

Compensation Bureau, of the Department of Budget and management
provided the following information regarding the compensation and
position classification and/or rank equivalence of the member of the
Governing Board of the NBDB, thus:
Per FY 1999 Personal Services Itemization, the Governing Board of
NDBD is composed of one (1) Chairman (ex-officio), one (1) ViceChairman (ex-officio), and nine (9) Members, four (4) of whom are
ex-officio and the remaining five (5) members represent the private
sector. The said five members of the Board do not receive any
salary and as such their position are not classified and are not
assigned any salary grade.
For purposes however of determining the rank equivalence of said
positions, notwithstanding that they do not have any salary grade
assignment, the same may be equated to Board Member II, SG-28.
[36]

Thus, based on the Amended Information in Criminal Case No. 25898,

petitioner belongs to the employees classified as SG-28, included in the
phrase "all other national and local officials classified as `Grade 27' and
higher under the Compensation and Position Classification Act of 1989."
Anent the issue of double jeopardy, We can not likewise give in to the
contentions advanced by petitioner. She argued that her right against
double jeopardy was violated when the Sandiganbayan denied her motion
to quash the two informations filed against her.
We believe otherwise. Records show that the Informations in Criminal Case
Nos. 25867 and 25898 refer to offenses penalized by different statues, R.A.
No. 3019 and RPC, respectively. It is elementary that for double jeopardy to
attach, the case against the accused must have been dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon valid information sufficient in form and substance and
the accused pleaded to the charge. [37] In the instant case, petitioner
pleaded not guilty to the Information for violation of the Anti-Graft Law. She
was not yet arraigned in the criminal case for malversation of public funds
because she had filed a motion to quash the latter information. Double
jeopardy could not, therefore, attach considering that the two cases remain
pending before the Sandiganbayan and that herein petitioner had pleaded
to only one in the criminal cases against her.
It is well settled that for a claim of double jeopardy to prosper, the
following requisites must concur: (1) there is a complaint or information or
other formal charge sufficient in form and substance to sustain a
conviction; (2) the same is filed before a court of competent jurisdiction;
(3) there is a valid arraignment or plea to the charges; and (4) the accused
is convicted or acquitted or the case is otherwise dismissed or terminated

without his express consent.[38] The third and fourth requisites are not
present in the case at bar.
In view of the foregoing, We hold that the present petition does not fall
under the exceptions wherein the remedy of certiorari may be resorted to
after the denial of one's motion to quash the information. And even
assuming that petitioner may avail of such remedy, We still hold that the
Sandiganbayan did not commit grave abuse of discretion amounting to
lack of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and
Order of the Sandiganbayan are AFFIRMED. Costs against petitioner.
SO ORDERED.
Ynares-Santiago, (Chairperson), Chico-Nazario, Velasco, Jr., and Nachura,
JJ., concur.

G.R. No. 191644, February 19, 2013

DENNIS A.B. FUNA, PETITIONER,
VS.
ACTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL
CONCURRENT CAPACITIES AS ACTING SECRETARY OF THE
DEPARTMENT OF JUSTICE AND AS ACTING SOLICITOR GENERAL,
EXECUTIVE SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE
PRESIDENT, RESPONDENTS.

meanwhile tendered her resignation in order to run for Congress

representing a district in Quezon Province in the May 2010 elections; that
he then relinquished his position as the Government Corporate Counsel;
and that pending the appointment of his successor, Agra continued to
perform his duties as the Acting Solicitor General. [4]
Notwithstanding the conflict in the versions of the parties, the fact that
Agra has admitted to holding the two offices concurrently in acting
capacities is settled, which is sufficient for purposes of resolving the
constitutional question that petitioner raises herein.

DECISION
BERSAMIN, J.:

The Case

Section 13, Article VII of the 1987 Constitution expressly prohibits the
President, Vice-President, the Members of the Cabinet, and their deputies
or assistants from holding any other office or employment during their
tenure unless otherwise provided in the Constitution. Complementing the
prohibition is Section 7, paragraph (2), Article IX-B of the 1987 Constitution,
which bans any appointive official from holding any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, unless otherwise allowed by law or the
primary functions of his position.
These prohibitions under the Constitution are at the core of this special
civil action for certiorari and prohibition commenced on April 7, 2010 to
assail the designation of respondent Hon. Alberto C. Agra, then the Acting
Secretary of Justice, as concurrently the Acting Solicitor General.
Antecedents
The petitioner alleges that on March 1, 2010, President Gloria M.
Macapagal-Arroyo appointed Agra as the Acting Secretary of Justice
following the resignation of Secretary Agnes VST Devanadera in order to
vie for a congressional seat in Quezon Province; that on March 5, 2010,
President Arroyo designated Agra as the Acting Solicitor General in a
concurrent capacity;[1] that on April 7, 2010, the petitioner, in his capacity
as a taxpayer, a concerned citizen and a lawyer, commenced this suit to
challenge the constitutionality of Agras concurrent appointments or
designations, claiming it to be prohibited under Section 13, Article VII of
the 1987 Constitution; that during the pendency of the suit, President
Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as the Solicitor
General; and that Cadiz assumed as the Solicitor General and commenced
his duties as such on August 5, 2010.[2]
Agra renders a different version of the antecedents. He represents that on
January 12, 2010, he was then the Government Corporate Counsel when
President Arroyo designated him as the Acting Solicitor General in place of
Solicitor General Devanadera who had been appointed as the Secretary of
Justice;[3] that on March 5, 2010, President Arroyo designated him also as
the Acting Secretary of Justice vice Secretary Devanadera who had

In Funa v. Ermita,[5] the Court resolved a petition for certiorari, prohibition

and mandamus brought by herein petitioner assailing the constitutionality
of the designation of then Undersecretary of the Department of
Transportation and Communications (DOTC) Maria Elena H. Bautista as
concurrently the Officer-in-Charge of the Maritime Industry Authority. The
petitioner has adopted here the arguments he advanced in Funa v. Ermita,
and he has rested his grounds of challenge mainly on the pronouncements
in Civil Liberties Union v. Executive Secretary [6] and Public Interest Center,
Inc. v. Elma.[7]
What may differentiate this challenge from those in the others is that the
appointments being hereby challenged were in acting or temporary
capacities. Still, the petitioner submits that the prohibition under Section
13, Article VII of the 1987 Constitution does not distinguish between an
appointment or designation of a Member of the Cabinet in an acting or
temporary capacity, on the one hand, and one in a permanent capacity, on
the other hand; and that Acting Secretaries, being nonetheless Members of
the Cabinet, are not exempt from the constitutional ban. He emphasizes
that the position of the Solicitor General is not an ex officio position in
relation to the position of the Secretary of Justice, considering that the
Office of the Solicitor General (OSG) is an independent and autonomous
office attached to the Department of Justice (DOJ). [8] He insists that the fact
that Agra was extended an appointment as the Acting Solicitor General
shows that he did not occupy that office in an ex officio capacity because
an ex officio position does not require any further warrant or appointment.
Respondents contend, in contrast, that Agras concurrent designations as
the Acting Secretary of Justice and Acting Solicitor General were only in a
temporary capacity, the only effect of which was to confer additional duties
to him. Thus, as the Acting Solicitor General and Acting Secretary of
Justice, Agra was not holding both offices in the strict constitutional
sense.[9] They argue that an appointment, to be covered by the
constitutional prohibition, must be regular and permanent, instead of a
mere designation.
Respondents further contend that, even on the assumption that Agras
concurrent designation constituted holding of multiple offices, his
continued service as the Acting Solicitor General was akin to a hold-over;

that upon Agras designation as the Acting Secretary of Justice, his term as
the Acting Solicitor General expired in view of the constitutional prohibition
against holding of multiple offices by the Members of the Cabinet; that
under the principle of hold-over, Agra continued his service as the Acting
Solicitor General until his successor is elected and qualified [10] to
prevent a hiatus in the government pending the time when a successor
may be chosen and inducted into office;[11] and that during his continued
service as the Acting Solicitor General, he did not receive any salaries and
emoluments from the OSG after becoming the Acting Secretary of Justice
on March 5, 2010.[12]
Respondents point out that the OSGs independence and autonomy are
defined by the powers and functions conferred to that office by law, not by
the person appointed to head such office;[13] and that although the OSG is
attached to the DOJ, the DOJs authority, control and supervision over the
OSG are limited only to budgetary purposes.[14]
In his reply, petitioner counters that there was no prevailing special
circumstance that justified the non-application to Agra of Section 13,
Article VII of the 1987 Constitution; [15] that the temporariness of the
appointment or designation is not an excuse to disregard the constitutional
ban against holding of multiple offices by the Members of the Cabinet; [16]
that Agras invocation of the principle of hold-over is misplaced for being
predicated upon an erroneous presentation of a material fact as to the time
of his designation as the Acting Solicitor General and Acting Secretary of
Justice; that Agras concurrent designations further violated the
Administrative Code of 1987 which mandates that the OSG shall be
autonomous and independent.[17]
Issue
Did the designation of Agra as the Acting Secretary of Justice, concurrently
with his position of Acting Solicitor General, violate the constitutional
prohibition against dual or multiple offices for the Members of the Cabinet
and their deputies and assistants?

substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case.[18]
Here, the OSG does not dispute the justiciability and ripeness for
consideration and resolution by the Court of the matter raised by the
petitioner. Also, the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer to bring a suit of this nature has already
been settled in his favor in rulings by the Court on several other public law
litigations he brought. In Funa v. Villar,[19] for one, the Court has held:
To have legal standing, therefore, a suitor must show that he has
sustained or will sustain a direct injury as a result of a
government action, or have a material interest in the issue
affected by the challenged official act. However, the Court has
time and again acted liberally on the locus standi
requirements and has accorded certain individuals, not
otherwise directly injured, or with material interest
affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The
rule on locus standi is after all a mere procedural
technicality in relation to which the Court, in a catena of
cases involving a subject of transcendental import, has
waived, or relaxed, thus allowing non-traditional plaintiffs,
such as concerned citizens, taxpayers, voters or legislators,
to sue in the public interest, albeit they may not have been
personally injured by the operation of a law or any other
government act. In David, the Court laid out the bare
minimum norm before the so-called non-traditional
suitors may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional;

Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently with his
position of Acting Solicitor General was unconstitutional and void for being
in violation of the constitutional prohibition under Section 13, Article VII of
the 1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit: (1) there must
be an actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have the standing to assail the
validity of the subject act or issuance, that is, he must have a personal and

2.) For voters, there must be a showing of obvious interest

in the validity of the election law in question;
3.) For concerned citizens, there must be a showing that
the issues raised are of transcendental importance which
must be settled early; and
4.) For legislators, there must be a claim that the official
action complained of infringes their prerogatives as
legislators.
This case before Us is of transcendental importance, since
it obviously has far-reaching implications, and there is a
need to promulgate rules that will guide the bench, bar,
and the public in future analogous cases. We, thus, assume

a liberal stance and allow petitioner to institute the instant

petition.[20] (Bold emphasis supplied)
In Funa v. Ermita,[21] the Court recognized the locus standi of the petitioner
as a taxpayer, a concerned citizen and a lawyer because the issue raised
therein involved a subject of transcendental importance whose resolution
was necessary to promulgate rules to guide the Bench, Bar, and the public
in similar cases.
But, it is next posed, did not the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of this
suit render this suit and the issue tendered herein moot and academic?
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. [22] Although the controversy could
have ceased due to the intervening appointment of and assumption by
Cadiz as the Solicitor General during the pendency of this suit, and such
cessation of the controversy seemingly rendered moot and academic the
resolution of the issue of the constitutionality of the concurrent holding of
the two positions by Agra, the Court should still go forward and resolve the
issue and not abstain from exercising its power of judicial review because
this case comes under several of the well-recognized exceptions
established in jurisprudence. Verily, the Court did not desist from resolving
an issue that a supervening event meanwhile rendered moot and academic
if any of the following recognized exceptions obtained, namely: (1) there
was a grave violation of the Constitution; (2) the case involved a situation
of exceptional character and was of paramount public interest; (3) the
constitutional issue raised required the formulation of controlling principles
to guide the Bench, the Bar and the public; and (4) the case was capable of
repetition, yet evading review.[23]
It is the same here. The constitutionality of the concurrent holding by Agra
of the two positions in the Cabinet, albeit in acting capacities, was an issue
that comes under all the recognized exceptions. The issue involves a
probable violation of the Constitution, and relates to a situation of
exceptional character and of paramount public interest by reason of its
transcendental importance to the people. The resolution of the issue will
also be of the greatest value to the Bench and the Bar in view of the broad
powers wielded through said positions. The situation further calls for the
review because the situation is capable of repetition, yet evading review. [24]
In other words, many important and practical benefits are still to be gained
were the Court to proceed to the ultimate resolution of the constitutional
issue posed.
2.
Unconstitutionality of Agras concurrent designation as Acting
Secretary of Justice and Acting Solicitor General
At the center of the controversy is the correct application of Section 13,
Article VII of the 1987 Constitution, viz:

Section 13. The President, Vice-President, the Members of the

Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure, directly or
indirectly practice any other profession, participate in any
business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their
office.
A relevant and complementing provision is Section 7, paragraph (2), Article
IX-B of the 1987 Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
The differentiation of the two constitutional provisions was well stated in
Funa v. Ermita,[25] a case in which the petitioner herein also assailed the
designation of DOTC Undersecretary as concurrent Officer-in-Charge of the
Maritime Industry Authority, with the Court reiterating its pronouncement
in Civil Liberties Union v. The Executive Secretary [26] on the intent of the
Framers behind these provisions of the Constitution, viz:
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government
during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies
and assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is
meant to lay down the general rule applicable to all
elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution
is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect
to holding multiple offices or employment in the government
during their tenure, the exception to this prohibition must be read
with equal severity. On its face, the language of Section 13, Article

VII is prohibitory so that it must be understood as intended to be a

positive and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily, wherever the
language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation.
The
phrase
unless
otherwise
provided
in
this
Constitution must be given a literal interpretation to refer
only to those particular instances cited in the Constitution
itself, to wit: the Vice-President being appointed as a member of
the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2)
and (3), Article VII; and, the Secretary of Justice being exofficio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII. (Bold emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with his
position of Acting Solicitor General, therefore, Agra was undoubtedly
covered by Section 13, Article VII, supra, whose text and spirit were too
clear to be differently read. Hence, Agra could not validly hold any other
office or employment during his tenure as the Acting Solicitor General,
because the Constitution has not otherwise so provided. [27]
It was of no moment that Agras designation was in an acting or temporary
capacity. The text of Section 13, supra, plainly indicates that the intent of
the Framers of the Constitution was to impose a stricter prohibition on the
President and the Members of his Cabinet in so far as holding other offices
or employments in the Government or in government-owned or
government controlled-corporations was concerned. [28] In this regard, to
hold an office means to possess or to occupy the office, or to be in
possession and administration of the office, which implies nothing less than
the actual discharge of the functions and duties of the office. [29] Indeed, in
the language of Section 13 itself, supra, the Constitution makes no
reference to the nature of the appointment or designation. The prohibition
against dual or multiple offices being held by one official must be
construed as to apply to all appointments or designations, whether
permanent or temporary, for it is without question that the avowed
objective of Section 13, supra, is to prevent the concentration of powers in
the Executive Department officials, specifically the President, the VicePresident, the Members of the Cabinet and their deputies and assistants. [30]
To construe differently is to open the veritable floodgates of circumvention
of an important constitutional disqualification of officials in the Executive
Department and of limitations on the Presidents power of appointment in
the guise of temporary designations of Cabinet Members, undersecretaries
and assistant secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations. [31]
According to Public Interest Center, Inc. v. Elma,[32] the only two exceptions
against the holding of multiple offices are: (1) those provided for under the
Constitution, such as Section 3, Article VII, authorizing the Vice President to
become a member of the Cabinet; and (2) posts occupied by Executive
officials specified in Section 13, Article VII without additional compensation

in ex officio capacities as provided by law and as required by the primary

functions of the officials offices. In this regard, the decision in Public
Interest Center, Inc. v. Elma adverted to the resolution issued on August 1,
1991 in Civil Liberties Union v. The Executive Secretary, whereby the Court
held that the phrase the Members of the Cabinet, and their deputies or
assistants found in Section 13, supra, referred only to the heads of the
various executive departments, their undersecretaries and assistant
secretaries, and did not extend to other public officials given the rank of
Secretary, Undersecretary or Assistant Secretary. [33] Hence, in Public
Interest Center, Inc. v. Elma, the Court opined that the prohibition under
Section 13 did not cover Elma, a Presidential Assistant with the rank of
Undersecretary.[34]
It is equally remarkable, therefore, that Agras designation as the Acting
Secretary of Justice was not in an ex officio capacity, by which he would
have been validly authorized to concurrently hold the two positions due to
the holding of one office being the consequence of holding the other. Being
included in the stricter prohibition embodied in Section 13, supra, Agra
cannot liberally apply in his favor the broad exceptions provided in Section
7, paragraph 2, Article IX-B of the Constitution (Unless otherwise allowed
by law or the primary functions of his position) to justify his designation as
Acting Secretary of Justice concurrently with his designation as Acting
Solicitor General, or vice versa. Thus, the Court has said
[T]he qualifying phrase unless otherwise provided in this
Constitution in Section 13, Article VII cannot possibly refer to the
broad exceptions provided under Section 7, Article IX-B of the 1987
Constitution. To construe said qualifying phrase as respondents
would have us do, would render nugatory and meaningless the
manifest intent and purpose of the framers of the Constitution to
impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect
to holding other offices or employment in the government during
their tenure. Respondents interpretation that Section 13 of Article
VII admits of the exceptions found in Section 7, par. (2) of Article IXB would obliterate the distinction so carefully set by the framers of
the Constitution as to when the high-ranking officials of the
Executive Branch from the President to Assistant Secretary, on the
one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other,
may hold any other office or position in the government during
their tenure.[35]
To underscore the obvious, it is not sufficient for Agra to show that his
holding of the other office was allowed by law or the primary functions of
his position. To claim the exemption of his concurrent designations from
the coverage of the stricter prohibition under Section 13, supra, he needed
to establish herein that his concurrent designation was expressly allowed
by the Constitution. But, alas, he did not do so.

To be sure, Agras concurrent designations as Acting Secretary of Justice

and Acting Solicitor General did not come within the definition of an ex
officio capacity. Had either of his concurrent designations been in an ex
officio capacity in relation to the other, the Court might now be ruling in his
favor.
The import of an ex officio capacity has been fittingly explained in Civil
Liberties Union v. Executive Secretary,[36] as follows:
x x x. The term ex officio means from office; by virtue of office. It
refers to an authority derived from official character merely, not
expressly conferred upon the individual character, but rather
annexed to the official position. Ex officio likewise denotes an act
done in an official character, or as a consequence of office, and
without any other appointment or authority other than that
conferred by the office. An ex officio member of a board is one
who is a member by virtue of his title to a certain office, and
without further warrant or appointment. x x x.
xxxx
The ex officio position being actually and in legal contemplation
part of the principal office, it follows that the official concerned has
no right to receive additional compensation for his services in the
said position. The reason is that these services are already paid for
and covered by the compensation attached to his principal office. x
x x.
Under the Administrative Code of 1987, the DOJ is mandated to provide
the government with a principal law agency which shall be both its legal
counsel and prosecution arm; administer the criminal justice system in
accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of
the correctional system; implement the laws on the admission and stay of
aliens, citizenship, land titling system, and settlement of land problems
involving small landowners and members of indigenous cultural minorities;
and provide free legal services to indigent members of the society. [37] The
DOJs specific powers and functions are as follows:
(1) Act as principal law agency of the government and as legal
counsel and representative thereof, whenever so required;

(5) Investigate and arbitrate untitled land disputes involving small

landowners and members of indigenous cultural communities;
(6) Provide immigration and naturalization regulatory services and
implement the laws governing citizenship and the admission and
stay of aliens;
(7) Provide legal services to the national government and its
functionaries,
including
government-owned
or
controlled
corporations and their subsidiaries; and
(8) Perform such other functions as may be provided by law. [38]
On the other hand, the Administrative Code of 1987 confers upon the
Office of the Solicitor General the following powers and functions, to wit:
The Office of the Solicitor General shall represent the Government
of the Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding, investigation or
matter requiring the services of lawyers. When authorized by the
President or head of the office concerned, it shall also represent
government owned or controlled corporations. The Office of the
Solicitor General shall discharge duties requiring the services of
lawyers. It shall have the following specific powers and functions:
1. Represent the Government in the Supreme Court and the Court
of Appeals in all criminal proceedings; represent the Government
and its officers in the Supreme Court, the Court of Appeals, and all
other courts or tribunals in all civil actions and special proceedings
in which the Government or any officer thereof in his official
capacity is a party.
2. Investigate, initiate court action, or in any manner proceed
against any person, corporation or firm for the enforcement of any
contract, bond, guarantee, mortgage, pledge or other collateral
executed in favor of the Government. Where proceedings are to be
conducted outside of the Philippines the Solicitor General may
employ counsel to assist in the discharge of the aforementioned
responsibilities.

(2) Investigate the commission of crimes, prosecute offenders and

administer the probation and correction system;

3. Appear in any court in any action involving the validity of any

treaty, law, executive order or proclamation, rule or regulation
when in his judgment his intervention is necessary or when
requested by the Court.

(3) Extend free legal assistance/representation to indigents and

poor litigants in criminal cases and non-commercial civil disputes;

4. Appear in all proceedings involving the acquisition or loss of

Philippine citizenship.

(4) Preserve the integrity of land titles through proper registration;

5. Represent the Government in all land registration and related

proceedings. Institute actions for the reversion to the Government

of lands of the public domain and improvements thereon as well as

lands held in violation of the Constitution.

proceedings which, in his opinion affects the welfare of the people

as the ends of justice may require; and

6. Prepare, upon request of the President or other proper officer of

the National Government, rules and guidelines for government
entities governing the preparation of contracts, making
investments, undertaking of transactions, and drafting of forms or
other writings needed for official use, with the end in view of
facilitating their enforcement and insuring that they are entered
into or prepared conformably with law and for the best interests of
the public.

13. Perform such other functions as may be provided by law. [39]

7. Deputize, whenever in the opinion of the Solicitor General the

public interest requires, any provincial or city fiscal to assist him in
the performance of any function or discharge of any duty
incumbent upon him, within the jurisdiction of the aforesaid
provincial or city fiscal. When so deputized, the fiscal shall be
under the control and supervision of the Solicitor General with
regard to the conduct of the proceedings assigned to the fiscal,
and he may be required to render reports or furnish information
regarding the assignment.
8. Deputize legal officers of government departments, bureaus,
agencies and offices to assist the Solicitor General and appear or
represent the Government in cased involving their respective
offices, brought before the courts and exercise supervision and
control over such legal Officers with respect to such cases.
9. Call on any department, bureau, office, agency or
instrumentality of the Government for such service, assistance and
cooperation as may be necessary in fulfilling its functions and
responsibilities and for this purpose enlist the services of any
government official or employee in the pursuit of his tasks.
10. Departments, bureaus, agencies, offices, instrumentalities and
corporations to whom the Office of the Solicitor General renders
legal services are authorized to disburse funds from their sundry
operating and other funds for the latter Office. For this purpose, the
Solicitor General and his staff are specifically authorized to receive
allowances as may be provided by the Government offices,
instrumentalities and corporations concerned, in addition to their
regular compensation.
11. Represent, upon the instructions of the President, the Republic
of the Philippines in international litigations, negotiations or
conferences where the legal position of the Republic must be
defended or presented.
12. Act and represent the Republic and/or the people before any
court, tribunal, body or commission in any matter, action or

The foregoing provisions of the applicable laws show that one position was
not derived from the other. Indeed, the powers and functions of the OSG
are neither required by the primary functions nor included by the powers of
the DOJ, and vice versa. The OSG, while attached to the DOJ, [40] is not a
constituent unit of the latter, [41] as, in fact, the Administrative Code of 1987
decrees that the OSG is independent and autonomous. [42] With the
enactment of Republic Act No. 9417, [43] the Solicitor General is now vested
with a cabinet rank, and has the same qualifications for appointment, rank,
prerogatives, salaries, allowances, benefits and privileges as those of the
Presiding Justice of the Court of Appeals.[44]
Moreover, the magnitude of the scope of work of the Solicitor General, if
added to the equally demanding tasks of the Secretary of Justice, is
obviously too much for any one official to bear. Apart from the sure peril of
political pressure, the concurrent holding of the two positions, even if they
are not entirely incompatible, may affect sound government operations
and the proper performance of duties. Heed should be paid to what the
Court has pointedly observed in Civil Liberties Union v. Executive
Secretary: [45]
Being head of an executive department is no mean job. It is more
than a full-time job, requiring full attention, specialized knowledge,
skills and expertise. If maximum benefits are to be derived from a
department heads ability and expertise, he should be allowed to
attend to his duties and responsibilities without the distraction of
other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy among
too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be
derived from this concentration of attention, knowledge and
expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained
from a department head spreading himself too thin and taking in
more than what he can handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting
Solicitor General, was not covered by the stricter prohibition under Section
13, supra, due to such position being merely vested with a cabinet rank
under Section 3, Republic Act No. 9417, he nonetheless remained covered
by the general prohibition under Section 7, supra. Hence, his concurrent
designations were still subject to the conditions under the latter
constitutional provision. In this regard, the Court aptly pointed out in Public
Interest Center, Inc. v. Elma:[46]
The general rule contained in Article IX-B of the 1987 Constitution
permits an appointive official to hold more than one office only if

allowed by law or by the primary functions of his position. In the

case of Quimson v. Ozaeta, this Court ruled that, [t]here is no
legal objection to a government official occupying two government
offices and performing the functions of both as long as there is no
incompatibility. The crucial test in determining whether
incompatibility exists between two offices was laid out in People v.
Green - whether one office is subordinate to the other, in the sense
that one office has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in the
functions of the two; x x x Where one office is not subordinate to
the other, nor the relations of the one to the other such as are
inconsistent and repugnant, there is not that incompatibility from
which the law declares that the acceptance of the one is the
vacation of the other. The force of the word, in its application to
this matter is, that from the nature and relations to each other, of
the two places, they ought not to be held by the same person, from
the contrariety and antagonism which would result in the attempt
by one person to faithfully and impartially discharge the duties of
one, toward the incumbent of the other. x x x The offices must
subordinate, one [over] the other, and they must, per se, have the
right to interfere, one with the other, before they are incompatible
at common law. x x x.
xxxx

the PCGG Chairman nor to the CPLC, as neither of them is a

secretary, undersecretary, nor an assistant secretary, even if the
former may have the same rank as the latter positions.
It must be emphasized, however, that despite the non-applicability
of Section 13, Article VII of the 1987 Constitution to respondent
Elma, he remains covered by the general prohibition under Section
7, Article IX-B and his appointments must still comply with the
standard of compatibility of officers laid down therein; failing
which, his appointments are hereby pronounced in violation of the
Constitution.[47]
Clearly, the primary functions of the Office of the Solicitor General are not
related or necessary to the primary functions of the Department of Justice.
Considering that the nature and duties of the two offices are such as to
render it improper, from considerations of public policy, for one person to
retain both,[48] an incompatibility between the offices exists, further
warranting the declaration of Agras designation as the Acting Secretary of
Justice, concurrently with his designation as the Acting Solicitor General, to
be void for being in violation of the express provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agras concurrent
appointment;
the de facto officer doctrine

While Section 7, Article IX-B of the 1987 Constitution applies in

general to all elective and appointive officials, Section 13, Article
VII, thereof applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. In the Resolution in
Civil Liberties Union v. Executive Secretary, this Court already
clarified the scope of the prohibition provided in Section 13, Article
VII of the 1987 Constitution. Citing the case of US v. Mouat, it
specifically identified the persons who are affected by this
prohibition as secretaries, undersecretaries and assistant
secretaries; and categorically excluded public officers who merely
have the rank of secretary, undersecretary or assistant secretary.

In view of the application of the stricter prohibition under Section 13,

supra, Agra did not validly hold the position of Acting Secretary of Justice
concurrently with his holding of the position of Acting Solicitor General.
Accordingly, he was not to be considered as a de jure officer for the entire
period of his tenure as the Acting Secretary of Justice. A de jure officer is
one who is deemed, in all respects, legally appointed and qualified and
whose term of office has not expired.[49]

Another point of clarification raised by the Solicitor General refers

to the persons affected by the constitutional prohibition. The
persons cited in the constitutional provision are the "Members of
the Cabinet, their deputies and assistants." These terms must be
given their common and general acceptation as referring to the
heads of the executive departments, their undersecretaries and
assistant secretaries. Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not covered
by the prohibition, nor is the Solicitor General affected thereby.
(Italics supplied).

During their tenure in the questioned positions, respondents may

be considered de facto officers and as such entitled to emoluments
for actual services rendered. It has been held that "in cases where
there is no de jure, officer, a de facto officer, who, in good faith has
had possession of the office and has discharged the duties
pertaining thereto, is legally entitled to the emoluments of the
office, and may in an appropriate action recover the salary, fees
and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust
that the public should benefit by the services of an officer de facto
and then be freed from all liability to pay any one for such services.
Any per diem, allowances or other emoluments received by the

It is clear from the foregoing that the strict prohibition under

Section 13, Article VII of the 1987 Constitution is not applicable to

That notwithstanding, Agra was a de facto officer during his tenure as

Acting Secretary of Justice. In Civil Liberties Union v. Executive Secretary,[50]
the Court said:

respondents by virtue of actual services rendered in the questioned

positions may therefore be retained by them.
A de facto officer is one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face.[51] He may also be one who is in
possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment,
however irregular or informal, so that the incumbent is not a mere
volunteer.[52] Consequently, the acts of the de facto officer are just as valid
for all purposes as those of a de jure officer, in so far as the public or third
persons who are interested therein are concerned.[53]
In order to be clear, therefore, the Court holds that all official actions of
Agra as a de facto Acting Secretary of Justice, assuming that was his later
designation, were presumed valid, binding and effective as if he was the
officer legally appointed and qualified for the office.[54] This clarification is
necessary in order to protect the sanctity of the dealings by the public with
persons whose ostensible authority emanates from the State. [55] Agras
official actions covered by this clarification extend to but are not limited to
the promulgation of resolutions on petitions for review filed in the
Department of Justice, and the issuance of department orders, memoranda
and circulars relative to the prosecution of criminal cases.
WHEREFORE, the Court GRANTS the petition for certiorari and
prohibition; ANNULS AND VOIDS the designation of Hon. Alberto C. Agra
as the Acting Secretary of Justice in a concurrent capacity with his position
as the Acting Solicitor General for being unconstitutional and violative of
Section 13, Article VII of the 1987 Constitution; and DECLARES that Hon.
Alberto C. Agra was a de facto officer during his tenure as Acting Secretary
of Justice.
No pronouncement on costs of suit.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del
Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, and
Leonen, JJ., concur.

G.R. No. 71562, October 28, 1991

JOSE C. LAUREL V, IN HIS OFFICIAL CAPACITY AS PROVINCIAL
GOVERNOR OF BATANGAS, PETITIONER,
VS.
CIVIL
SERVICE
COMMISSION
AND
LORENZO
SANGALANG,
RESPONDENTS.
RESOLUTION
DAVIDE, JR., J.:
Is the position of Provincial Administrator primarily confidential?
Does the rule on nepotism apply to designation?
May a private citizen who does not claim any better right to a position file a
verified complaint with the Civil Service Commission to denounce a
violation by an appointing authority of the Civil Service Law and rules?
These are the issues raised in this petition.
The antecedent facts are not disputed.
Petitioner, the duly elected Governor of the Province of Batangas, upon
assuming office on 3 March 1980, appointed his brother, Benjamin Laurel,
as Senior Executive Assistant in the Office of the Governor, a non-career
service position which belongs to the personal and confidential staff of an
elective official.[1]
On 31 December 1980, the position of Provincial Administrator of Batangas
became vacant due to the resignation of Mr. Felimon C. Salcedo III.
Allegedly for lack of qualified applicants and so as not to prejudice the
operation of the Provincial Government, petitioner designated his brother,
Benjamin Laurel, as Acting Provincial Administrator effective 2 January
1981 and to continue until the appointment of a regular Provincial
Administrator, unless the designation is earlier revoked. [2]
On 28 April 1981, he issued Benjamin Laurel a promotional appointment as
Civil Security Officer, a position which the Civil Service Commission
classifies as "primarily confidential" pursuant to P.D. No. 868. [3]

and in behalf of herein petitioner, asserts that the latter did not violate the
provision prohibiting nepotism under Section 49 of P.D. No. 807 because,
with respect to the positions of Senior Executive Assistant and Civil
Security Officer, both are primarily confidential in nature; and, with respect
to the position of Provincial Administrator:
"x x x what is prohibited under Section 49 of P.D. 807 is the
appointment of a relative to a career Civil Service position, like that
of a provincial administrator. Governor Laurel did not appoint his
brother, Benjamin, as Provincial Administrator. He merely
designated him 'Acting Provincial Administrator.' And 'appointment'
and 'designation' are two entirely different things. Appointment
implies original establishment of official relation. Designation is
the imposition of new or additional duties upon an officer to be
performed by him in a special manner. It presupposes a previous
appointment of the officer in whom the new or additional duties are
imposed.
Appointment is generally permanent, hence the officer appointed
cannot be removed except for cause; designation is merely
temporary and the new or additional powers may be withdrawn
with or without cause.
Benjamin C. Laurel had already been appointed Senior Executive
Assistant in the Office of the Governor when Governor Laurel
designated him Acting Provincial Administrator."
It is further alleged that there was no violation of the Anti-Graft and
Corrupt Practices Act because:
"As Acting Provincial Administrator, Benjamin is entitled under
Office of the President Memorandum-Circular No. 437, series of
1971, to a monthly representation allowance of P350.00. And said
allowance is 'strictly on reimbursement basis.'"[6]
On 12 July 1983, the Civil Service Commission handed down the aforesaid
Resolution No. 83-358[7] which, inter alia, revokes the designation of
Benjamin as Acting Provincial Administrator on the ground that it is
"nepotic", or in violation of Section 49, P.D. No. 807 on nepotism. The
relevant portion of said section reads as follows:

On 10 January 1983, private respondent Sangalang wrote a letter to the

Civil Service Commission[4] to bring to its attention the "appointment" of
Benjamin Laurel as Provincial Administrator of Batangas by the Governor,
his brother. He alleges therein that: (1) the position in question is a career
position, (2) the appointment violates civil service rules, and (3) since the
Governor authorized said appointee to receive representation allowance,
he violated the Anti-Graft and Corrupt Practices Act. He then asks that the
matter be investigated.

"SECTION 49. Nepotism. - (a) All appointments in the national,

provincial, city and municipal governments or in any branch or
instrumentality thereof, including government-owned or controlled
corporations, made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office, or
of the persons exercising immediate supervision over him, are
hereby prohibited.

In his letter to the Chairman of the Civil Service Commission dated 18

January 1983,[5] Jose A. Oliveros, Acting Provincial Attorney of Batangas, for

As used in this Section, the word relative and members of the

family referred to are those related within the third degree either of
consanguinity or affinity.

(b) The following are exempted from the operation of the rules on
nepotism: (1) persons employed in a confidential capacity, (2)
teachers, (3) physicians, and (4) members of the Armed Forces of
the Philippines: Provided, however, That in each particular
instance full report of such appointment shall be made to the
Commission."
xxx
Although what was extended to Benjamin was merely a designation and
not an appointment, the Civil Service Commission ruled that "the
prohibitive mantle on nepotism would include designation, because what
cannot be done directly cannot be done indirectly." It further held that
Section 24(f) of Republic Act No. 2260 provides that no person appointed to
a position in the non-competitive service (now non-career) shall perform
the duties properly belonging to any position in the competitive service
(now career service). The petitioner, therefore, could not legally and
validly designate Benjamin, who successively occupied the non-career
positions of Senior Executive Assistant and Civil Security Officer, to the
position of Provincial Administrator, a career position under Section 4 of
R.A. No. 5185.
Petitioner's motion to reconsider said Resolution, [8] based on the claim that
the questioned position is primarily confidential in nature, having been
denied in Resolution No. 85-271 of 3 July 1985 [9] wherein the respondent
Civil Service Commission maintains that said position is not primarilyconfidential in nature since it neither belongs to the personal staff of the
Governor nor are the duties thereof confidential in nature considering that
its principal functions involve general planning, directive and control of
administrative and personnel service in the Provincial Office, petitioner
filed the instant petition invoking the following grounds:
"A. Respondent Commission has committed a (sic) grave abuse of
discretion amounting to lack or excess of jurisdiction when it held
that the position of provincial administrator is not a primarilyconfidential position because said ruling is diametrically opposed
to, and in utter disregard of rulings of this Honorable Court as to
what is a primarily-confidential position under Article XII-B, Sec. 2
of the Constitution.
B. Respondent Commission gravely abused its discretion and
acted without jurisdiction when it arrogated unto itself the power to
review a designation made by petitioner by virtue of the powers in
him vested under Section 2077 of the Revised Administrative Code.
C. Respondent Commission exceeded its jurisdiction when it gave
due course to the complaint of private respondent and thereafter
promulgated the resolutions under question in this petition.
D. There is no appeal, nor any other plain, speedy and adequate
remedy in the ordinary course of law available to petitioner to have
the questioned resolutions of respondent Commission reviewed

and thereafter nullified, revoked and set aside, other than this
recourse to a petition for certiorari under Rule 65 of the Rules of
Court.
In the Comment filed for the respondent Commission on 7 October 1985,
the Solicitor General sustains the challenged resolutions and contends that
the position of Provincial Administrator is intended to be part of the career
system and since it requires a specific civil service eligibility, it belongs to
the career service under Section 5(1) of P.D. No. 807 and has not been
declared primarily confidential by the President pursuant to Section 1 of
P.D. No. 868; that the Commission has the authority to review, disapprove,
and set aside even mere designations, as distinguished from
appointments, for Section 2 of P.D. No. 807 vests in it the power to enforce
the laws and rules governing the selection, utilization, training and
discipline of civil servants; and that it can act on Sangalang's complaint
pursuant to Section 37 of P.D. No. 807, for what he filed was not an action
for quo warranto, but an administrative complaint to correct a violation of
the Civil Service law and rules which involved public service and the public
interest. Per Benitez vs. Paredes,[10] reiterated in Taada vs. Tuvera,[11]
where the question is one of public right, the people are regarded as the
real parties in interest, and the relator at whose instigation the proceedings
are instituted need only show that he is a citizen and as such interested in
the execution of the laws.
On 11 December 1985, petitioner filed his Reply to the Comment insisting
therein that the duties, functions and responsibilities of the Provincial
Administrator render said position primarily confidential in nature; the
requirement of a specific service eligibility and absence of a presidential
declaration that the position is primarily confidential do not place the said
position in the career service; the position of Provincial Administrator is in
the non-career service; and that the Benitez vs. Paredes and Taada vs.
Tuvera cases are not applicable in this case. Petitioner insists that the
controlling doctrines are those enunciated in Salazar vs. Mathay,[12] where
this Court held that there are two instances when a position may be
considered primarily confidential, to wit: (a) when the President, upon
recommendation of the Commissioner of Civil Service (now Civil Service
Commission) has declared a position to be primarily confidential; and (2) in
the absence of such declaration, when by the very nature of the functions
of the office, there exists close intimacy between the appointee and the
appointing power which insures freedom of intercourse without
embarrassment or freedom from misgiving or betrayals of personal trust or
confidential matters of state and Piero vs. Hechanova,[13] where this Court
ruled that at least, since the enactment of the 1959 Civil Service Act (R.A.
No. 2260), it is the nature of the position that finally determines whether a
position is primarily confidential, policy determining, or highly technical
and that executive pronouncements can be no more than initial
determinations that are not conclusive in case of conflict, which must be
so, or else "it would then lie within the discretion of the Chief Executive to
deny to any officer, by executive fiat, the protection of section 4, Article XII
of the Constitution."

In his Rejoinder filed on 16 December 1986, the Solicitor General states

that the rulings in the Salazar and Piero cases have been modified and
superseded by Section 6 of P.D. No. 807, and by the third paragraph of
Section 1 of P.D. No. 868, which provides:
"Any provision of law authorizing any official, other than the
President, to declare positions policy-determining, primarily
confidential or highly technical which are exempt from the Civil
Service Law and rules is hereby repealed, and only the President
may declare a position policy-determining, highly technical or
primarily confidential, upon recommendation of the Civil Service
Commission, the Budget Commission and the Presidential
Reorganization Commission."
The Solicitor General further asseverates that the Commission's giving due
course to the complaint of Sangalang is manifestly valid and legal for it is
also in accordance with the declared policies of the State provided for in
Section 2 of P.D. No. 807.
In the Resolution of 9 February 1987, this Court gave due course to the
petition and required the parties to submit simultaneous memoranda.
We shall take up the issues in the order they are presented above.
1. The first issue becomes important because if the questioned position is
primarily confidential, Section 49 of P.D. No. 807 on nepotism would not
apply in the instant case. Interestingly, however, petitioner did not raise it
in the letter to the Chairman of the Civil Service Commission dated 18
January 1983.[14]
On the contrary, he submits, or otherwise admits therein, that said position
is not primarily confidential for it belongs to the career service. He even
emphasized this fact with an air of absolute certainty, thus:
"At this juncture, may I emphasize that what is prohibited under
Sec. 49 of P.D. 807 is the appointment of a relative to a career Civil
Service position, LIKE THAT OF PROVINCIAL ADMINISTRATOR x x x."
(capitalization supplied for emphasis).
The sole ground invoked by him for exemption from the rule on nepotism
is, as above indicated: the rule does not apply to designation -- only to
appointment. He changed his mind only after the public respondent, in its
Resolution No. 83-358, ruled that the "prohibitive mantle on nepotism
would include designation, because what cannot be done directly cannot
be done indirectly" and, more specifically, only when he filed his motion to
reconsider said resolution. Strictly speaking, estoppel has bound petitioner
to his prior admission. Per Article 1431 of the Civil Code, through estoppel
an admission or representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the person relying
thereon.[15]

But even if estoppel were not to operate against him, or regardless thereof,
his claim that the position of Provincial Administrator is primarily
confidential, is without merit.
As correctly maintained by the public respondent and the Solicitor General,
the position of Provincial Administrator is embraced within the Career
Service under Section 5 of P.D. No. 807 as evidenced by the qualifications
prescribed for it in the Manual of Position Descriptions, [16] to wit:
"Education
:
Bachelor's degree preferably in Law/Public or
Business Administration.
Experience : Six years of progressively responsible experience
in planning, directing and administration of provincial government
operations. Experience in private agencies considered are those
that have been more or less similar level of administrative
proficiency.
Eligibility
:
RA 1080 (BAR)/Personnel Management
Officer/Career Service (Professional)/First Grade/Supervisor."
It may be added that the definition of its functions and its distinguishing
characteristics as laid down in the Manual, thus:
xxx
"2. DEFINITION:
Under the direction of the Provincial Governor, responsible for the
overall coordination of the activities of the various national and
local agencies in the province; and general planning, direction and
control of the personnel functions and the administrative services
of the Governor's Office.
3.

DISTINGUISHING CHARACTERISTICS:

This is the class for top professional level management,

administrative and organizational work in the operation of
provincial government with highly complex, involved relationships
with considerable delegation of authority and responsibility and a
high degree of public contact."
render indisputable the above conclusion that the subject position is in the
career service which, per Section 5 of P.D. No. 807, is characterized by (a)
entrance based on merit and fitness to be determined as far as practicable
by competitive examinations, or based on highly technical qualifications,
(b) opportunity for advancement to higher career positions, and (c)
security of tenure. More specifically, it is an open career position, for
appointment to it requires prior qualification in an appropriate
examination.[17] It falls within the second major level of positions in the
career service, per Section 7 of P.D. No. 807, which reads:

"SECTION 7. Classes of Positions in the Career Service. - (a)

Classes of positions in the career service appointment to which
requires examinations shall be grouped into three major levels as
follows:
xxx
(2) The second level shall include professional, technical, and
scientific positions which involve professional, technical, or
scientific work in a non-supervisory or supervisory capacity
requiring at least four years of college work up to Division Chief
level; x x x."
In Piero, et al. vs. Hechanova, et. al.,[18] this Court had the occasion to rule
that:
"It is plain that, at least since the enactment of the 1959 Civil
Service Act (R.A. 2260), it is the nature of the position which finally
determines whether a position is primarily confidential, policy
determining or highly technical. Executive pronouncements can be
no more than initial determinations that are not conclusive in case
of conflict. And it must be so or else it would then lie within the
discretion of the Chief Executive to deny to any officer, by
executive fiat, the protection of Section 4, Article XII [19] of the
Constitution."
This rule stands despite the third paragraph of Section 1 of P.D. No. 868
which pertinently reads:
"x x x and only the President may declare a position policydetermining, highly technical or primarily confidential, upon
recommendation of the Civil Service Commission, the Budget
Commission and the Presidential Reorganization Commission."
for the reason that the latter may be considered merely as the initial
determination of the Executive, which in no case forecloses judicial review.
A rule that exclusively vests upon the Executive the power to declare what
position may be considered policy-determining, primarily confidential, or
highly technical would subvert the provision on the civil service under the
1973 Constitution which was then in force at the time the decree was
promulgated. Specifically, Section 2 of Article XII of said Constitution
makes reference to positions which are policy-determining, primarily
confidential, or highly technical in nature," thereby leaving no room for
doubt that, indeed, it is the nature of the position which finally determines
whether it falls within the above mentioned classification. The 1987
Constitution retains this rule when in Section 2 of Article IX-C, it clearly
makes reference to "positions which are policy-determining, primarily
confidential, or highly technical."
In the light of the foregoing, We cannot accept the view of the Solicitor
General in his Rejoinder [20] that Salazar vs. Mathay[21] and Piero, et al. vs.

Hechanova, et al.[22] have already been modified by Section 6 of P.D. No.

807 and the third paragraph of Section 1 of P.D. No. 868.
Not being primarily confidential, appointment thereto must, inter alia, be
subject to the rule on nepotism.
We likewise agree with the public respondent that there is one further
obstacle to the occupation by Benjamin Laurel of the position of Provincial
Administrator. At the time he was designated as Acting Provincial
Administrator, he was holding the position of Senior Executive Assistant in
the Office of the Governor, a primarily confidential position. He was
thereafter promoted as Civil Security Officer, also a primarily confidential
position. Both positions belong to the non-career service under Section 6
of P.D. No. 807. As correctly ruled by the public respondent, petitioner
cannot legally and validly designate Benjamin Laurel as Acting Provincial
Administrator, a career position, because Section 24(f) of R.A. No. 2260
provides that no person appointed to a position in the non-competitive
service (now non-career) shall perform the duties properly belonging to any
position in the competitive service (now career service).
2. Being embraced in the career service, the position of Provincial
Administrator must, as mandated by Section 25 of P.D. No. 807, be filled up
by permanent or temporary appointment. The first shall be issued to a
person who meets all the requirements for the position to which he is
appointed, including the appropriate eligibility prescribed. In the absence
of appropriate eligibles and it becomes necessary in the public interest to
fill a vacancy, a temporary appointment shall be issued to a person who
meets all the requirements for the position except the appropriate civil
service eligibility, provided, however, that such temporary appointment
shall not exceed twelve months, but the appointee may be replaced sooner
if a qualified civil service eligible becomes available. [23]
Petitioner could not legally and validly appoint his brother Benjamin Laurel
to said position because of the prohibition on nepotism under Section 49 of
P.D. No. 807. They are related within the third degree of consanguinity and
the case does not fall within any of the exemptions provided therein.
Petitioner, however, contends that since what he extended to his brother is
not an appointment, but a DESIGNATION, he is not covered by the
prohibition. Public respondent disagrees, for:
"By legal contemplation, the prohibitive mantle on nepotism would
include designation, because what cannot be done directly cannot
be done indirectly."[24]
We cannot accept petitioner's view. His specious and tenuous distinction
between appointment and designation is nothing more than either a ploy
ingeniously conceived to circumvent the rigid rule on nepotism or a lastditch maneuver to cushion the impact of its violation. The rule admits of
no distinction between appointment and designation. Designation is also
defined as "an appointment or assignment to a particular office"; and "to

designate" means "to indicate, select, appoint or set apart for a purpose or
duty."[25]

"x x x All the authorities unite in saying that the term 'appoint' is
well-known in law and whether regarded in its legal or in its
ordinary acceptation, is applied to the nomination or designation of
an individual x x x." (emphasis supplied).

Commission with recommendation as to the penalty to be imposed or other

action to be taken. This provision gives teeth to the constitutional
exhortation that a public office is a public trust and public officers and
employees must at all times be, inter alia, accountable to the people. [31] An
ordinary citizen who brings to the attention of the appropriate office any
act or conduct of a government official or employee which betrays the
public interest deserves nothing less than the praises, support and
encouragement of society. The vigilance of the citizenry is vital in a
democracy.

In Binamira vs. Garrucho,[27] this Court, per Mr. Justice Isagani M. Cruz,
stated:

WHEREFORE, this petition is DENIED for lack of merit, and the challenged
Resolutions of the Civil Service Commission are AFFIRMED.

In Borromeo vs. Mariano,[26] this Court said:

"Designation may also be loosely defined as an appointment

because it likewise involves the naming of a particular person to a
specified public office. That is the common understanding of the
term. However, where the person is merely designated and not
appointed, the implication is that he shall hold the office only in a
temporary capacity and may be replaced at will by the appointing
authority. In this sense, the designation is considered only an
acting or temporary appointment, which does not confer security
of tenure on the person named."
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that
designation should be differentiated from appointment. Reading this
section with Section 25 of said decree, career service positions may be
filled up only by appointment, either permanent or temporary; hence a
designation of a person to fill it up because it is vacant, is necessarily
included in the term appointment, for it precisely accomplishes the same
purpose. Moreover, if a designation is not to be deemed included in the
term appointment under Section 49 of P.D. No. 807, then the prohibition on
nepotism would be meaningless and toothless. Any appointing authority
may circumvent it by merely designating, and not appointing, a relative
within the prohibited degree to a vacant position in the career service.
Indeed, as correctly stated by public respondent, "what cannot be done
directly cannot be done indirectly."[28]
3. As regards the last issue, We rule that the letter-complaint of Sangalang
was validly given due course by public respondent. Undoubtedly, as shown
above, there was a violation of law committed by petitioner in designating
his brother as Acting Provincial Administrator. Any citizen of the Philippines
may bring that matter to the attention of the Civil Service Commission for
appropriate action conformably with its role as the central personnel
agency to set standards and to enforce the laws and rules governing the
selection, utilization, training and discipline of civil servants, [29] with the
power and function to administer and enforce the constitutional and
statutory provisions on the merit system.[30] Moreover, Section 37 of the
decree expressly allows a private citizen to directly file with the Civil
Service Commission a complaint against a government official or
employee, in which case it may hear and decide the case or may deputize
any department or agency or official or group of officials to conduct an
investigation. The results of the investigation shall be submitted to the

Costs against petitioner.

SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin, and Romero, JJ., concur.

G.R. No. 110544, October 17, 1995

REYNALDO V. TUANDA, MAYOR OF THE MUNICIPALITY OF
JIMALALUD,
NEGROS
ORIENTAL,
HERMINIGILDO
FABURADA,
(FORMER VICE-MAYOR), SANTOS A. VILLANUEVA, INCUMBENT
MEMBER OF THE SANGGUNIANG BAYAN, MANUEL LIM, NICANOR R.
AGOSTO, ERENIETA K. MENDOZA, MAXIMINO A. VIERNES,
HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, AND FORMER
MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS
ORIENTAL, PETITIONERS,
VS.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME
BINAOHAN AND DELIA ESTRELLANES, RESPONDENTS.
DECISION
KAPUNAN, J.:
Petitioners institute this special civil action for certiorari and prohibition
under Rule 65 of the Revised Rules of Court to set aside the resolution of
the Sandiganbayan dated 17 February 1992 and its orders dated 19 August
1992 and 13 May 1993 in Criminal Case No. 16936 entitled "People of the
Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for
suspension of their arraignment.
The present controversy arose from the following antecedents:
On 9 February 1989, private respondents Delia Estrellanes and Bartolome
Binaohan were designated as industrial labor sectoral representative and
agricultural labor sectoral representative respectively, for the Sangguniang
Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T.
Santos of the Department of Local Government. Private respondents
Binaohan and Estrellanes took their oath of office on 16 February 1989 and
17 February 1989, respectively.

On 21 July 1991, an information was filed before the Sandiganbayan,

docketed as Criminal Case No. 16936 entitled "People of the Philippines
versus Reynaldo Tuanda, et. al.," charging petitioners thus:
INFORMATION
The undersigned Special Prosecution Officer of the Special
Prosecutor,
hereby
accuses
REYNALDO
V.
TUANDA,
HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO,
ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO,
and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No.
3019, as amended, committed as follows:
That during the period from February 1989 to February 1991 and
subsequent thereto, in the Municipality of Jimalalud, Negros
Oriental, and within the jurisdiction of this Honorable Court,
accused, all public officers, Mayor REYNALDO V. TUANDA, ViceMayor HERMENEGILDO G. FABURADA, Sangguniang Members
MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA,
MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D.
ESTRELLANES and SANTOS A. VILLANUEVA while in the
performance of their official functions and taking advantage of
their public positions, with evident bad faith, manifest partiality,
and conspiring and confederating with each other did, then and
there, willfully and unlawfully cause undue injury to Sectoral
Members Bartolome M. Binaohan and Delia T. Estrellanes by
refusing to pay despite demand the amount of NINETY FIVE
THOUSAND THREE HUNDRED FIFTY PESOS (P95,350.00) and ONE
HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS (P108,900.00)
representing respectively their per diems, salaries and other
privileges and benefits, and such undue injury continuing to the
present to the prejudice and damage of Bartolome Binaohan and
Delia Estrellanes.
CONTRARY TO LAW.[1]

Subsequently, petitioners filed an undated petition with the Office of the

President for review and recall of said designations. The latter, however, in
a letter dated 20 March 1989, denied the petition and enjoined Mayor
Reynaldo Tuanda to recognize private respondents as sectoral
representatives.
On 4 May 1990, private respondents filed a petition for mandamus with the
Regional Trial Court of Negros Oriental, Branch 35, docketed as Special Civil
Action No. 9661, for recognition as members of the Sangguniang Bayan. It
was dismissed on 23 July 1991.
Thereafter, on 20 June 1991, petitioners filed an action with the Regional
Trial Court of Dumaguete City to declare null and void the designations of
private respondents as sectoral representatives, docketed as Civil Case No.
9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the Department
of Local Government, et. al."

On 9 September 1991, petitioners filed a motion with the Sandiganbayan

for suspension of the proceedings in Criminal Case No. 16936 on the
ground that a prejudicial question exists in Civil Case No. 9955 pending
before the Regional Trial Court of Dumaguete City.[2]
On 16 January 1992, the Regional Trial Court rendered a decision declaring
null and void ab initio the designations issued by the Department of Local
Government to the private respondents as sectoral representatives for
having been done in violation of Section 146 (2) of B.P. Blg. 337, otherwise
known as the Local Government Code.[3]
The trial court expounded thus:
The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos,
et al., G.R. No. 84663, along with 7 companion cases of similar import,

(G.R. Nos. 05012, 87601, 87602, 87792, 87935, 88072, and 90205) all
promulgated on August 24, 1990, ruled that:

(Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No. 86394,
August 24, 1990).[4]

B.P. Blg. 337 explicitly required that before the President (or the
Secretary of the Department of Local Government) may appoint
members of the local legislative bodies to represent the Industrial
and Agricultural Labor Sectors, there must be a determination to
be made by the Sanggunian itself that the said sectors are of
sufficient number in the city or municipality to warrant
representation after consultation with associations and persons
belonging to the sector concerned.

Private respondents appealed the aforestated decision to the Court of

Appeals, docketed as CA-G.R. CV No. 36769, where the same is currently
pending resolution.

The Supreme Court further ruled For that matter, the Implementing Rules and Regulations of the
Local Government Code even prescribe the time and manner by
which such determination is to be conducted by the Sanggunian.
Consequently, in cases where the Sanggunian concerned has not
yet determined that the Industrial and Agricultural Labor Sectors in
their particular city or municipality are of sufficient number to
warrant representation, there will absolutely be no basis for the
designation/appointments.
In the process of such inquiry as to the sufficiency in number of the sector
concerned to warrant representation, the Sanggunian is enjoined by law
(B.P. Blg. 337) to consult with associations and persons belonging to the
sector concerned. Consultation with the sector concerned is made a prerequisite. This is so considering that those who belong to the said sector
are the ones primarily interested in being represented in the Sanggunian.
In the same aforecited case, the Supreme Court considers such prior
determination by the Sanggunian itself (not by any other person or body)
as a condition sine qua non to a valid appointment or designation.
Since in the present case, there was total absence of the required prior
determination by the Sangguniang Bayan of Jimalalud, this Court cannot
help but declare the designations of private defendants as sectoral
representatives null and void.

Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a

resolution denying the motion for suspension of proceedings filed by
petitioners. Said respondent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the Regional Trial
Court of Negros Oriental, it appears, nevertheless, that the private
complainants have been rendering services on the basis of their
respective appointments as sectoral members of the Sangguniang
Bayan of the Municipality of Jimalalud, Negros Oriental; and that
their said appointments enjoy the presumption of regularity.
Having rendered such services, the private complainants are
entitled to the salaries attached to their office. Even assuming
arguendo that the said Regional Trial Court shall later decide that
the said appointments of the private complainants are null and
void, still the private complainants are entitled to their salaries and
compensation for service they have actually rendered, for the
reason that before such judicial declaration of nullity, the private
complainants are considered at least de facto public officers acting
as such on the basis of apparently valid appointments issued by
competent authorities. In other words, regardless of the decision
that may be rendered in Civil Case No. 9955, the private
complainants are entitled to their withheld salaries for the services
they have actually rendered as sectoral representatives of the said
Sangguniang Bayan. Hence, the decision that may be rendered by
the Regional Trial Court in Civil Case No. 9955 would not be
determinative of the innocence or guilt of the accused.
WHEREFORE, the subject Petition for the Suspension of
Proceedings in Virtue of Prejudicial Question filed by the accused
through counsel, is hereby DENIED for lack of merit.
SO ORDERED.[5]

This verdict is not without precedence. In several similar cases, the

Supreme Court invariably nullified the designations where the
requirements of Sec. 146 (2), B.P. Blg. 337 were not complied with. Just to
cite one case, the Supreme Court ruled:
There is no certification from the Sangguniang Bayan of Valenzuela
that the sectors concerned are of sufficient number to warrant
representation and there was no consultation whatsoever with the
associations and persons belonging to the Industrial and
Agricultural Labor Sectors. Therefore, the appointment of private
respondents Romeo F. Bularan and Rafael Cortez are null and void

Petitioners filed a motion for reconsideration of the aforementioned

resolution in view of the decision promulgated by the trial court nullifying
the appointments of private respondents but it was, likewise, denied in an
order issued by respondent Sandiganbayan on 19 August 1992 on the
justification that the grounds stated in the said motion were a mere rehash
of petitioners' original motion to hold the case in abeyance. [6] The
dispositive portion of its order reads as follows:
WHEREFORE, in view of the foregoing, the arraignment of the
accused which was scheduled today is cancelled. Mayor Reynaldo
Tuanda, Hermenegildo Faburada, Nicanor P. Agosto, Erenieta K.

Mendoza, Hacubina V. Serillo and Iluminado Estrellanes are,

however, hereby ordered to show cause in writing within ten (10)
days from service hereof why they should not be cited for
contempt of court for their failure to appear in court today for
arraignment.
In case of an adverse resolution on the motion to quash which is to
be filed by the counsel for the defense, set this case for
arraignment, pre-trial and trial on January 4 & 5, 1993, on all dates
the trial to start at 8:30 o'clock in the morning.
SO ORDERED.[7]
On 19 February 1993, respondent Sandiganbayan issued an order holding
consideration of all incidents pending the issuance of an extended
resolution.[8]
No such resolution, however, was issued and in its assailed order dated 13
May 1992, respondent Sandiganbayan set the arraignment of petitioners
on 30 June 1993. The dispositive portion of the order reads:
WHEREFORE, considering the absence of the accused from the
scheduled hearing today which We deem to be excusable, reset
this case for arraignment on June 30, 1993 and for trial on the
merits on June 30 and July 1 and 2, 1993, on all dates the trial to
start at 8:30 o'clock in the morning.
Give proper notice to the accused and principal counsel, Atty.
Alfonso Briones. Considering that the accused come all the way
from Himalalud, Negros Oriental, no postponement will be allowed.
SO ORDERED.[9]
Hence, this special civil action for certiorari and prohibition where
petitioners attribute to respondent Sandiganbayan the following errors:
A. The Respondent Court committed grave abuse of discretion in
denying petitioners' motions for the suspension of the proceedings
in Criminal Case No. 16936 in spite of the pendency of a prejudicial
issue before the Court of Appeals in CA-G.R. CV No. 36769;
B. The Respondent Court acted without or in excess of jurisdiction
in refusing to suspend the proceedings that would entail a retrial
and rehearing by it of the basic issue involved, i.e., the validity of
the appointments of private respondents and their entitlement to
compensation which is already pending resolution by the Court of
Appeals in C.A. G.R. CV No. 36769; and
C. The Respondent Court committed grave abuse of discretion
and/or acted without or in excess of jurisdiction in effectively
allowing petitioners to be prosecuted under two alternative

theories that private respondents are de jure and/or de facto

officers in violation of petitioners' right to due process. [10]
In sum, the only issue in the case at bench is whether or not the legality or
validity of private respondents' designation as sectoral representatives
which is pending resolution in CA-G.R. No. 36769 is a prejudicial question
justifying suspension of the proceedings in the criminal case against
petitioners.
A prejudicial question is one that must be decided before any criminal
prosecution may be instituted or before it may proceed (see Art. 36, Civil
Code) because a decision on that point is vital to the eventual judgment in
the criminal case. Thus, the resolution of the prejudicial question is a
logical antecedent of the issues involved in said criminal case. [11]
A prejudicial question is defined as that which arises in a case the
resolution of which is a logical antecedent of the issue involved therein,
and the cognizance of which pertains to another tribunal. The prejudicial
question must be determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged in another court
or tribunal.[12] It is a question based on a fact distinct and separate from
"the crime but so intimately connected with it that it determines the guilt
or innocence of the accused, and for it to suspend the criminal action, it
must appear not only that said case involves facts intimately related to
those upon which the criminal prosecution would be based but also that in
the resolution of the issue or issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined. It comes into
play generally in a situation where a civil action and a criminal action are
both pending and there exists in the former an issue which must be
preemptively resolved before the criminal action may proceed, because
howsoever the issue raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence of the accused in
the criminal case."[13]
The rationale behind the principle of prejudicial question is to avoid two
conflicting decisions.[14] It has two essential elements:
(a) the civil action involves an issue similar or intimately related to
the issue raised in the criminal action; and
(b) the resolution of such issue determines whether or not the
criminal action may proceed.[15]
Applying the foregoing principles to the case at bench, we find that the
issue in the civil case, CA-G.R. CV No. 36769, constitutes a valid prejudicial
question to warrant suspension of the arraignment and further proceedings
in the criminal case against petitioners.
All the elements of a prejudicial question are clearly and unmistakably
present in this case. There is no doubt that the facts and issues involved in
the civil action (No. 36769) and the criminal case (No. 16936) are closely
related. The filing of the criminal case was premised on petitioners'

alleged partiality and evident bad faith in not paying private respondents'
salaries and per diems as sectoral representatives, while the civil action
was instituted precisely to resolve whether or not the designations of
private respondents as sectoral representatives were made in accordance
with law.
More importantly, the resolution of the civil case will certainly determine if
there will still be any reason to proceed with the criminal action.
Petitioners were criminally charged under the Anti-Graft & Corrupt
Practices Act [RA 3019, sec. 3(e)] due to their refusal, allegedly in bad faith
and with manifest partiality, to pay private respondents' salaries as
sectoral representatives. This refusal, however, was anchored on
petitioners' assertion that said designations were made in violation of the
Local Government Code (B.P. Blg. 337) and thus, were null and void.
Therefore, should the Court of Appeals uphold the trial court's decision
declaring null and void private respondents' designations as sectoral
representatives for failure to comply with the provisions of the Local
Government Code [B.P. Blg. 337, sec. 146(2)], the charges against
petitioners would no longer, so to speak, have a leg to stand on.
Petitioners cannot be accused of bad faith and partiality there being in the
first place no obligation on their part to pay private respondents' claims.
Private respondents do not have any legal right to demand salaries, per
diems and other benefits. In other words, the Court of Appeals' resolution
of the issues raised in the civil action will ultimately determine whether or
not there is basis to proceed with the criminal case.
Private respondents insist that even if their designations are nullified, they
are entitled to compensation for actual services rendered. [16] We disagree.
As found by the trial court and as borne out by the records, from the start,
private respondents' designations as sectoral representatives have been
challenged by petitioners. They began with a petition filed with the Office
of the President copies of which were received by private respondents on
26 February 1989, barely eight (8) days after they took their oath of office.
[17]
Hence, private respondents' claim that they have actually rendered
services as sectoral representatives has not been established.
Finally, we find unmeritorious respondent Sandiganbayan's thesis that
even in the event that private respondents' designations are finally
declared invalid, they may still be considered de facto public officers
entitled to compensation for services actually rendered.
The conditions and elements of de facto officership are the following:
1) There must be a de jure office;
2) There must be color of right or general acquiescence by the
public; and
3) There must be actual physical possession of the office in good
faith.[18]

One can qualify as a de facto officer only if all the aforestated elements
are present. There can be no de facto officer where there is no de jure
office, although there may be a de facto officer in a de jure office.[19]
WHEREFORE, the resolution dated 17 February 1992 and orders dated 19
August 1992 and 13 May 1993 of respondent Sandiganbayan in Criminal
Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is
enjoined from proceeding with the arraignment and trial of petitioners in
Criminal Case No. 16936 pending final resolution of CA-G.R. CV. No. 36769.
SO ORDERED.
Padilla, (Chairman), Davide, Jr., and Bellosillo, JJ., concur.
Hermosisima, Jr., J., no part.

G.R. No. 131012, April 21, 1999

HON. RICARDO T. GLORIA, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF EDUCATION, CULTURE, AND SPORTS, PETITIONER,
VS.
COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS,
ELIZABETH
A.
SOMEBANG
AND
NICANOR
MARGALLO,
RESPONDENTS.
DECISION
MENDOZA, J.:
This case arose out of the unfortunate strikes and walk-outs staged by
public school teachers on different dates in September and October 1990.
The illegality of the strikes was declared in our 1991 decision in Manila
Public School Teachers Association v. Laguio, Jr., [1] but many incidents of
those strikes are still to be resolved. At issue in this case is the right to
back salaries of teachers who were either dismissed or suspended because
they did not report for work but who were eventually ordered reinstated
because they had not been shown to have taken part in the strike,
although reprimanded for being absent without leave.
The facts are as follows:
Private respondents are public school teachers. On various dates in
September and October 1990, during the teachers' strikes, they did not
report for work. For this reason, they were administratively charged with
(1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil
Service Law Rules and Regulations and reasonable office regulations, (4)
refusal to perform official duty, (5) gross insubordination, (6) conduct
prejudicial to the best interest of the service, and (7) absence without
leave (AWOL), and placed under preventive suspension. The investigation
was concluded before the lapse of their 90-day suspension and private
respondents were found guilty as charged. Respondent Nicanor Margallo
was ordered dismissed from the service effective October 29, 1990, while
respondents Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang
were ordered suspended for six months effective December 4, 1990. [2]
Respondent Margallo appealed to the Merit Systems and Protection Board
(MSPB) which found him guilty of conduct prejudicial to the best interest of
the service and imposed on him a six-month suspension. [3] The other
respondents also appealed to the MSPB, but their appeal was dismissed
because of their failure to file their appeal memorandum on time. [4]
On appeal, the Civil Service Commission (CSC) affirmed the decision of the
MSPB with respect to Margallo, but found the other three (Abad, Bandigas,
and Somebang) guilty only of violation of reasonable office rules and
regulations by failing to file applications for leave of absence and,
therefore, reduced the penalty imposed on them to reprimand and ordered
them reinstated to their former positions.

Respondents filed a petition for certiorari under Rule 65 in this Court.

Pursuant to Revised Administrative Circular No. 1-95, the case was referred
to the Court of Appeals which, on September 3, 1996, rendered a decision
(1) affirming the decision of the CSC with respect to Amparo Abad, Virgilia
Bandigas, and Elizabeth Somebang but (2) reversing it insofar as the CSC
ordered the suspension of Nicanor Margallo. The appellate court found him
guilty of violation of reasonable office rules and regulations only and
imposed on him the penalty of reprimand.[5]
Private respondents moved for a reconsideration, contending that they
should be exonerated of all charges against them and that they be paid
salaries during their suspension. In its resolution, dated July 15, 1997, the
Court of Appeals, while maintaining its finding that private respondents
were guilty of violation of reasonable office rules and regulations for which
they should be reprimanded, ruled that private respondents were entitled
to the payment of salaries during their suspension "beyond ninety (90)
days." Accordingly, the appellate court amended the dispositive portion of
its decision to read as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby
DENIED. CSC Resolution Nos. 93-2302 dated June 24, 1993 and 933124 dated August 10, 1993 (In re: Amparo Abad), CSC Resolution
Nos. 93-2304 dated June 24, 1993 and 93-3227 dated August 17,
1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301
undated and 93-3125 dated August 10, 1993 (In re: Elizabeth
Somebang) are hereby AFFIRMED while CSC Resolution Nos. 932211 dated June 21, 1993 are hereby MODIFIED finding petitioner
Nicanor Margallo guilty of a lesser offense of violation of
reasonable office rules and regulations and meting upon him the
penalty of reprimand. Respondent DECS is ordered to pay
petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang
and Nicanor Margallo their salaries, allowances and other benefits
during the period of their suspension/dismissal beyond the ninety
(90) day preventive suspension. No pronouncement as to costs. [6]
Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and
Sports, moved for a reconsideration insofar as the resolution of the Court of
Appeals ordered the payment of private respondents' salaries during the
period of their appeal. [7] His motion was, however, denied by the appellate
court in its resolution of October 6, 1997.[8] Hence, this petition for review
on certiorari.
Petitioner contends that the administrative investigation of respondents
was concluded within the 90-day period of preventive suspension, implying
that the continued suspension of private respondents is due to their
appeal, hence, the government should not be held answerable for payment
of their salaries. Moreover, petitioner lays so much store by the fact that,
under the law, private respondents are considered under preventive
suspension during the period of their appeal and, for this reason, are not
entitled to the payment of their salaries during their suspension. [9]

Petitioner's contentions have no merit.

I. PREVENTIVE SUSPENSION AND THE RIGHT TO COMPENSATION IN
CASE OF EXONERATION
The present Civil Service Law is found in Book V, Title I, Subtitle A of the
Administrative Code of 1987 (E.O. 292). So far as pertinent to the questions
in this case, the law provides:
SEC. 47. Disciplinary Jurisdiction. ....
(2) The Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities shall have jurisdiction to
investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Their decisions
shall be final in case the penalty imposed is suspension for not
more than thirty days or fine in an amount not exceeding thirty
days' salary. In case the decision rendered by a bureau or office
head is appealable to the Commission, the same may be initially
appealed to the department and finally to the Commission and
pending appeal, the same shall be executory except when the
penalty is removal, in which case the same shall be executory only
after confirmation by the Secretary concerned.

There are thus two kinds of preventive suspension of civil service

employees who are charged with offenses punishable by removal or
suspension: (1) preventive suspension pending investigation (51) and (2)
preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the
respondent is exonerated (47(4)).
Preventive suspension pending investigation is not a penalty. [10] It is a
measure intended to enable the disciplining authority to investigate
charges against respondent by preventing the latter from intimidating or in
any way influencing witnesses against him. If the investigation is not
finished and a decision is not rendered within that period, the suspension
will be lifted and the respondent will automatically be reinstated. If after
investigation respondent is found innocent of the charges and is
exonerated, he should be reinstated.
A. No Right to Compensation for Preventive Suspension Pending
Investigation Even if Employee is Exonerated
Is he entitled to the payment of salaries during the period of suspension?
As already stated, the Court of Appeals ordered the DECS to pay private
respondents their salaries, allowances, and other benefits "beyond the
ninety (90) day preventive suspension." In other words, no compensation
was due for the period of the preventive suspension pending investigation
but only for the period of preventive suspension pending appeal in the
event the employee is exonerated.

....
(4) An appeal shall not stop the decision from being executory, and
in case the penalty is suspension or removal, the respondent shall
be considered as having been under preventive suspension during
the pendency of the appeal in the event he wins an appeal.
SEC. 51. Preventive Suspension. - The proper disciplining authority
may preventively suspend any subordinate officer or employee
under his authority pending an investigation, if the charge against
such officer or employee involves dishonesty, oppression or grave
misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which
would warrant his removal from the service.
SEC. 52. Lifting of Preventive Suspension. Pending Administrative
Investigation. - When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the
date of suspension of the respondent who is not a presidential
appointee, the respondent shall be automatically reinstated in the
service: Provided, That when the delay in the disposition of the
case is due to the fault, negligence or petition of the respondent,
the period of delay shall not be counted in computing the period of
suspension herein provided.

The separate opinion of Justice Panganiban argues that the employee

concerned should be paid his salaries after his suspension.
The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of
such salaries in case of exoneration. Sec. 35 read:
Sec. 35. Lifting of Preventive Suspension Pending Administrative
Investigation. - When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
Commissioner of Civil Service within the period of sixty (60) days
after the date of suspension of the respondent, the respondent
shall be reinstated in the service. If the respondent officer or
employee is exonerated, he shall be restored to his position with
full pay for the period of suspension.[11]
However, the law was revised in 1975 and the provision on the payment of
salaries during suspension was deleted. Sec. 42 of the Civil Service Decree
(P.D. No. 807) read:
Sec. 42. Lifting of Preventive Suspension Pending Administrative
Investigation. - When the administrative case against the officer or
employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the
date of suspension of the respondent who is not a presidential

appointee, the respondent shall be automatically reinstated in the

service; Provided, That when the delay in the disposition of the
case is due to the fault, negligence or petition of the respondent,
the period of delay shall not be counted in computing the period of
suspension herein provided.
This provision was reproduced in 52 of the present Civil Service Law. It is
noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770) categorically
provides that preventive suspension shall be "without pay." Sec. 24 reads:
Sec. 24. Preventive Suspension. - The Ombudsman or his Deputy
may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence
of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent's continued stay in
office may prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six
months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
suspension herein provided.
It is clear that the purpose of the amendment is to disallow the payment of
salaries for the period of suspension. This conclusion is in accord with the
rule of statutory construction that As a rule, the amendment by deletion of certain words or phrases
in a statute indicates that the legislature intended to change the
meaning of the statute, for the presumption is that the legislature
would not have made the deletion had the intention been not in
effect a change in its meaning. The amended statute should
accordingly be given a construction different from that previous to
its amendment.[12]
The separate opinion of Justice Panganiban pays no heed to the evident
legislative intent to deny payment of salaries for the preventive suspension
pending investigation.
First, it says that to deny compensation for the period of preventive
suspension would be to reverse the course of decisions ordering the
payment of salaries for such period. However, the cases [13] cited are based
either on the former rule which expressly provided that "if the respondent
officer or employee is exonerated, he shall be restored to his position with
full pay for the period of suspension" [14] or that "upon subsequent
reinstatement of the suspended person or upon his exoneration, if death
should render reinstatement impossible, any salary so withheld shall be
paid,"[15] or on cases which do not really support the proposition advanced.

Second, it is contended that the exoneration of employees who have been

preventively suspended is proof that there was no reason at all to suspend
them and thus makes their preventive suspension a penalty.
The principle governing entitlement to salary during suspension is cogently
stated in Floyd R. Mechem's A Treatise on the Law of Public Offices and
Officers as follows:
864. Officer not entitled to Salary during Suspension from
Office. - An officer who has been lawfully suspended from his office
is not entitled to compensation for the period during which he was
so suspended, even though it be subsequently determined that the
cause for which he was suspended was insufficient. The reason
given is "that salary and perquisites are the reward of express or
implied services, and therefore cannot belong to one who could not
lawfully perform such services."[16]
Thus, it is not enough that an employee is exonerated of the charges
against him. In addition, his suspension must be unjustified. The case of
Bangalisan v. Court of Appeals itself similarly states that "payment of
salaries corresponding to the period [1] when an employee is not allowed to
work may be decreed if he is found innocent of the charges which caused
his suspension and [2] when the suspension is unjustified."[17]
The preventive suspension of civil service employees charged with
dishonesty, oppression or grave misconduct, or neglect of duty is
authorized by the Civil Service Law. It cannot, therefore, be considered
"unjustified," even if later the charges are dismissed so as to justify the
payment of salaries to the employee concerned. It is one of those sacrifices
which holding a public office requires for the public good. For this reason, it
is limited to ninety (90) days unless the delay in the conclusion of the
investigation is due to the employee concerned. After that period, even if
the investigation is not finished, the law provides that the employee shall
be automatically reinstated.
Third, it is argued in the separate opinion that to deny employees salaries
on the "frivolous" ground that the law does not provide for their payment
would be to provide a "tool for the oppression of civil servants who, though
innocent, may be falsely charged of grave or less grave administrative
offenses." Indeed, the possibility of abuse is not an argument against the
recognition of the existence of power. As Justice Story aptly put it, "It is
always a doubtful course, to argue against the use or existence of a power,
from the possibility of its abuse. . . . [For] from the very nature of things,
the absolute right of decision, in the last resort, must rest somewhere wherever it may be vested it is susceptible of abuse." [18] It may be added
that if and when such abuse occurs, that would be the time for the courts
to exercise their nay-saying function. Until then, however, the public
interest in an upright civil service must be upheld.

Finally, it is argued that even in the private sector, the law provides that
employees who are unjustly dismissed are entitled to reinstatement with
full pay. But that is because R.A. No. 6715 expressly provides for the
payment to such employees of "full backwages, inclusive of allowances,
and . . . other benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the time of his actual
reinstatement."[19] In the case of the public sector, as has been noted, the
provision for payment of salaries during the preventive suspension pending
investigation has been deleted.
B. Right to Compensation for Preventive Suspension Pending
Appeal if Employee is Exonerated
But although we hold that employees who are preventively suspended
pending investigation are not entitled to the payment of their salaries even
if they are exonerated, we do not agree with the government that they are
not entitled to compensation for the period of their suspension pending
appeal if eventually they are found innocent.
Preventive suspension pending investigation, as already discussed, is not a
penalty but only a means of enabling the disciplining authority to conduct
an unhampered investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect subsequently
considered illegal if respondent is exonerated and the administrative
decision finding him guilty is reversed. Hence, he should be reinstated with
full pay for the period of the suspension. Thus, 47(4) states that
respondent "shall be considered as under preventive suspension during the
pendency of the appeal in the event he wins." On the other hand, if his
conviction is affirmed, i.e., if he is not exonerated, the period of his
suspension becomes part of the final penalty of suspension or dismissal.
It is precisely because respondent is penalized before his sentence is
confirmed that he should be paid his salaries in the event he is exonerated.
It would be unjust to deprive him of his pay as a result of the immediate
execution of the decision against him and continue to do so even after it is
shown that he is innocent of the charges for which he was suspended.
Indeed, to sustain the government's theory would be to make the
administrative decision not only executory but final and executory. The fact
is that 47(2) and (4) are similar to the execution of judgment pending
appeal under Rule 39, 2 of the Rules of Court. Rule 39, 5 provides that in
the event the executed judgment is reversed, there shall be restitution or
reparation of damages as equity and justice may require.
Sec. 47 of the present law providing that an administrative decision meting
out the penalty of suspension or dismissal shall be immediately executory
and that if the respondent appeals he shall be considered as being merely
under preventive suspension if eventually he prevails is taken from 37 of
the Civil Service Decree of 1975 (P.D. No. 807). There was no similar
provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it
the Commissioner of Civil Service could order the immediate execution of
an administrative decision in the interest of the public service. [20] Nor was
there provision for immediate execution of administrative decisions

ordering dismissal or suspension in 695 of the Administrative Code of

1917, as amended by C.A. No. 598, 1. [21] Nonetheless, under R.A. No. 2260
the payment of salaries was ordered in cases in which employees were
found to be innocent of the charges [22] or their suspension was held to be
unjustified, because the penalty of suspension or dismissal was executed
without a finding by the Civil Service Commissioner that it was necessary
"in the interest of the public service." [23] On the other hand, payment of
back salaries was denied where it was shown that the employee concerned
was guilty as charged and the immediate execution of the decision was
ordered by the Civil Service Commissioner "in the interest of the public
service."[24]
Nothing in what has thus far been said is inconsistent with the reason for
denying salaries for the period of preventive suspension. We have said that
an employee who is exonerated is not entitled to the payment of his
salaries because his suspension, being authorized by law, cannot be
unjustified. To be entitled to such compensation, the employee must not
only be found innocent of the charges but his suspension must likewise be
unjustified. But though an employee is considered under preventive
suspension during the pendency of his appeal in the event he wins, his
suspension is unjustified because what the law authorizes is preventive
suspension for a period not exceeding 90 days. Beyond that period the
suspension is illegal. Hence, the employee concerned is entitled to
reinstatement with full pay. Under existing jurisprudence, such award
should not exceed the equivalent of five years pay at the rate last received
before the suspension was imposed.[25]
II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES
ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE RULES AND
REGULATIONS AND REPRIMANDED
Private respondents were exonerated of all charges against them for acts
connected with the teachers' strike of September and October 1990.
Although they were absent from work, it was not because of the strike. For
being absent without leave, they were held liable for violation of
reasonable office rules and regulations for which the penalty is a
reprimand. Their case thus falls squarely within ruling in Bangalisan, which
likewise involved a teacher found guilty of having violated reasonable
office rules and regulations. Explaining the grant of salaries during their
suspension despite the fact that they were meted out reprimand, this Court
stated:
With respect to petitioner Rodolfo Mariano, payment of his
backwages is in order. A reading of the resolution of the Civil
Service Commission will show that he was exonerated of the
charges which formed the basis for his suspension. The Secretary
of the DECS charged him with and he was later found guilty of
grave misconduct, gross neglect of duty, gross violation of the Civil
Service Law, rules and regulations and reasonable office
regulations, refusal to perform official duty, gross insubordination,
conduct prejudicial to the best interest of the service, and absence

without official leave, for his participation in the mass actions on

September 18, 20 and 21, 1990. It was his alleged participation in
the mass actions that was the basis of his preventive suspension
and, later, his dismissal from the service.
However, the Civil Service Commission, in the questioned
resolution, made a finding that Mariano was not involved in the
"mass actions" but was absent because he was in Ilocos Sur to
attend the wake and interment of his grandmother. Although the
CSC imposed upon him the penalty of reprimand, the same was for
his violation of reasonable office rules and regulations because he
failed to inform the school of his intended absence and neither did
he file an application for leave covering such absences.
Under Section 23 of the Rules Implementing Book V of Executive
Order No. 292 and other pertinent civil service laws, in violations of
reasonable office rules and regulations, the first offense is
punishable by reprimand. To deny petitioner Mariano his back
wages during his suspension would be tantamount to punishing
him after his exoneration from the charges which caused his
dismissal from the service.[26]
In Jacinto v. Court of Appeals,[27] a public school teacher who was found
guilty of violation of reasonable office rules and regulations for having been
absent without leave and reprimanded was given back salaries after she
was exonerated of the charge of having taken part in the strikes.
Petitioner Secretary of Education contends, however, that respondents
Abad, Bandigas, and Somebang signed a letter in which they admitted
having taken part in the mass action. This question cannot be raised now.
The Civil Service Commission gave no weight to this letter in view of
individual letters written by the three citing reasons for their absences, to
wit: Abad, because she decided to stay home to correct student papers;
Bandigas, because she had to accompany her brother to the Commission
on Immigration, and Somebang because of "economic reasons." Petitioner
did not appeal from this ruling. Hence, he is bound by the factual findings
of the CSC and the appellate court.
WHEREFORE, the decision, dated September 3, 1996, as amended by the
resolutions, dated July 15, 1997 and October 6, 1997, of the Court of
Appeals, is hereby AFFIRMED with the MODIFICATION that the award of
salaries to private respondents shall be computed from the time of their
dismissal/suspension by the Department of Education, Culture, and Sports
until their actual reinstatement, for a period not exceeding five years.
SO ORDERED.
Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima, and GonzagaReyes, JJ., concur.
Davide, C.J., concurs in the result and subject to the modification
expressed in the separate opinion of Justice Panganiban.

Panganiban, J., please see separate opinion.

Puno, Pardo, Buena, and Ynares-Santiago, JJ., join Justice Panganiban's
separate opinion.
Melo, J., in the result.

SEPARATE OPINION

he was entitled to back wages for the period of his suspension not
exceeding five (5) years, consistent with existing jurisprudence. [3]

PANGANIBAN, J.:
I concur with the ponencia insofar as it denies the petition and affirms the
Court of Appeals Decision and Resolutions finding private respondents
guilty only of a violation of office rules and regulations, meting upon them
the penalty of reprimand and reinstating them in the civil service.
I beg to disagree, however, insofar as it deprives private respondents their
back salaries corresponding to the entire period of their preventive
suspension.
Private Respondents Liable
for Violation of Reasonable
Office Rules and Regulations
Like the majority, I do not find any reversible error or abuse of discretion in
the factual finding of the Court of Appeals that private respondents did not
actually participate in the September 1991 mass actions staged in violation
of law by various public schoolteachers. They were, however, found to
have absented themselves from their classes without filing an application
for leave of absence. For this lapse, they indeed deserve a reprimand,
pursuant to Section 23, Rule XIV (Discipline) of the Rules Implementing the
Civil Service Law, as well as existing Jurisprudence which I shall cite later.
Private Respondents Entitled
to Back Salaries Without
Qualification or Deduction
Mr. Justice Mendoza's ponencia defines two kinds of preventive suspension
for civil service employees charged with offenses punishable with removal
or suspension: "(1) preventive suspension pending investigation (51) and
(2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal but, after review, the
respondent is exonerated (47(4))."[1]
Accordingly, the esteemed justice makes a distinction in the grant of back
salaries. In the first instance, he says, the suspended employees (pending
investigation) are NOT entitled to back pay, regardless of whether they are
eventually exonerated from the charges for which they were investigated.
However, if and when they are exonerated after appeal, they may be
granted back salaries, but only those corresponding to the appeal or review
period until actual reinstatement, and not exceeding five years.
This stance being adopted by the majority reverses several unanimous en
banc decisions, in which this Court ordered payment of back salaries
without qualification or deduction. In Miranda v. Commission on Audit,[2] the
Court, noting that the applicable law mandated that preventive suspension
should not be longer than 90 days, deemed Miranda's suspension for
almost eight (8) years unreasonable and unjustified. It thus resolved that

In Bangalisan v. Court of Appeals,[4] the Court ordered that Petitioner

Mariano "be given back wages without deduction or qualification from the
time he was suspended until his actual reinstatement which, under
prevailing jurisprudence, should not exceed five years." The Court ruled:
"To deny petitioner Mariano his back wages during his suspension would be
tantamount to punishing him after his exoneration from the charges which
[had] caused his dismissal from the service." [5]
The same rationale was given in Jacinto v. Court of Appeals,[6] in which we
also granted Petitioner Jacinto "back wages, without deduction or
qualification, from the time she was suspended until her actual
reinstatement, the total of which, under prevailing jurisprudence, should
not exceed five years."
In fact, in Garcia v. Chairman, Commission on Audit, [7] where the petitioner,
several years after he had been summarily dismissed from the government
service purportedly for dishonesty, was granted executive clemency "not
because of lack of sufficient proof of his commission of the offense but xxx,
more importantly, he did not commit the offense charged," the Court found
it "fair and just to award petitioner full back wages from 1 April 1975 when
he was illegally dismissed, to 12 March 1984 when he was reinstated, xxx
without deduction or qualification." Emphatizing with petitioner, the Court
held:[8]
"xxx Verily, law, equity and justice dictate that petitioner be
afforded compassion for the embarrassment, humiliation and,
above all, injustice caused to him and his family by his unfounded
dismissal. This Court cannot help surmising the painful stigma that
must have caused petitioner, the incursion on his dignity and
reputation, for having been adjudged, albeit wrongfully, a
dishonest man xxx."
Indeed, where the suspension of civil servants has, from the very
beginning, no reason other than to ensure an unhampered investigation,
there is no justification for withholding their salaries, whether immediately
upon investigation or after appeal or petition for review, much less after
their exoneration. They need not even be found fully innocent of any
misdemeanor, as the public school-teachers concerned in Bangalisan and
Jacinto who were actually found to have violated reasonable office rules
and regulations. Such administrative offense, however, is punishable with
reprimand only, not suspension or dismissal. Hence, they were granted
their back salaries for the period of their suspension, because they had not
committed any grave act warranting their suspension.
The rationale for the grant of back salaries to suspended public servants is
their exoneration from the charges leveled against them that were
punishable with either dismissal or suspension. Needless to say, only when
the charges carry either of these extreme administrative penalties may

they be preventively suspended pending investigation. If, after

investigation, they are found to be innocent or culpable of lesser offenses
not punishable with suspension or dismissal, they must be immediately
reinstated AND granted full back salaries corresponding to the period of
their suspension. In the first place, if they have been found to be not guilty
of any offense warranting even just a suspension, there is no justifiable
reason to deprive them of work and of income therefor. In these cases,
their preventive suspension must be deemed unjustified.
The majority admits that preventive suspension pending investigation is
not a penalty, but is only a means of enabling the disciplining authority to
conduct an unhampered investigation.[9] Not being a penalty, there is
therefore NO reason to deny employees their salaries for such period,
especially after they are proven innocent of any offense punishable with
suspension or dismissal. I respectfully submit that to withhold an
exonerated employee's pay for such period would in fact transform the
nature of preventive suspension into a penalty -- a penalty which is
unauthorized by law, in contravention of the fundamental right of every
individual to due process, and therefore unconstitutional.
The "no-work-no-pay" principle should not be applied in these cases. We
must consider that, ordinarily, suspended employees are willing to work,
but they do not have a choice. Because of some serious charges leveled
against them, they are not allowed to report for work. Investigations may
take up to ninety (90) days or three (3) months. In the meantime, they do
not receive their salaries and other benefits. And yet, the charges against
them may have been baseless or aggravated without good reason, in
which case their suspensions are unjustified ab initio. In these instances, I
repeat, it is but right to grant them full back pays.
Admittedly, the purpose behind preventive suspensions pending
investigation is noble. It is intended to enable the disciplining authorities or
the investigating officials to probe the charges against respondents by
preventing the latter from intimidating or in any way influencing witnesses
against them.[10] But, I submit, it would be totally unfair to respondents who
are undeserving of the penalty of suspension or dismissal to be deprived of
their salaries for such period. To repeat, they cannot be faulted for not
rendering any work during the period of preventive suspension, because
that is merely what the law mandates.
Significantly, the Civil Service Law does not state that exonerated
employees are not entitled to back salaries corresponding to the
preventive suspension period. Such silence of the law should not ipso facto
be interpreted as a denial of the right, pursuant to rules on statutory
construction. In any event, the rules on the interpretation of laws are mere
tools used to ascertain legislative intent. [11] They are not necessarily
applicable at all times, particularly when the intention to change the
meaning of the previous law is not clear. In the case of the present Civil
Service Law, which is found in Executive Order No. 292 issued by then
President Corazon Aquino in the exercise of her legislative powers under
the Freedom Constitution, its legislative purpose cannot be clearly

established, because it has no recorded deliberations from which to verify

such intent. Consequently, we should not completely rely on the general
rule on amendment by deletion. [12] We should not hold the omission of
words in the later statute as necessarily altering the construction of the
earlier one, for we may do so only "where the intent of the legislature to
make such change is clear of construction."[13]
In any event, in the absence of an express prohibition on the payment of
back salaries, any doubt should be settled in favor of the employee. As our
fundamental law explicitly mandates, "The State shall afford full protection
to labor xxx."[14] This Court has invariably declared that it will not hesitate
to tilt the scales of Justice in favor of the working class, for the Constitution
dictates that "the State xxx shall protect the rights of workers and promote
their welfare."[15] There is no reason not to apply this principle in favor of
civil service employees as well, for they are very much part of the working
class. And the government as their employer should set the example in
upholding the constitutional mandate to safeguard their rights and
interests.
Needless to say, our Constitution stands above all laws; more so, above
any treatise including that of Mechem which the ponencia cites. The
interpretation of general laws on public officers in foreign jurisdictions has
no application in the present case, as our law has no explicit injunction
against the payment of back salaries for preventively suspended
employees. Moreover, the United States Constitution provides no express
mandate, similar to that found in our Constitution, to "afford full protection
to labor" and to "protect the rights of workers and promote their welfare."
The grant of back pay is a matter not merely of compassion and mercy for
employees temporarily suspended from work but, more important of
Justice and equity. The exoneration of the employees proves that there was
no reason at all to suspend them in the first place. To deny them their
incomes on the frivolous ground that the law does not expressly provide for
the grant thereof would provide a tool for the oppression of civil servants
who, though innocent, may be falsely charged of grave or less grave
administrative offenses. It plainly opens the door to harassment of public
officials and employees by unjustly depriving them of their meager
incomes and consequently subjecting them and their families to difficult
circumstances.
Even in the private sector, the law and the existing jurisprudence grant
employees who are unjustly dismissed from work not only reinstatement
without loss of seniority rights and other privileges, but also full back
wages, inclusive of allowances and other benefits or their monetary
equivalent, computed from the time their compensation was withheld from
them up to the time they were actually reinstated.[16]
Civil Service Law Different
from Ombudsman Act

In this regard, I believe the Civil Service Law should be distinguished from
the Ombudsman Act (RA 6770) which categorically and expressly provides
that the suspended employee who is exonerated after preventive
suspension is entitled to reinstatement, but not back salaries, viz.:
"SEC. 24. Preventive suspension. - The Ombudsman or his Deputy
may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence
of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent's continued stay in
office may prejudice the case filed against him.
"The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six
months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
suspension herein provided." (Emphasis supplied.)
Hence, in Callanta v. Ombudsman,[17] although some of the petitioners were
only reprimanded by the Court for violation of the Ethical Standards Law,
no back pay was awarded.
WHEREFORE, I vote to DENY the petition and to GRANT private
respondents full back salaries, without qualification or deduction, from the
time of suspension, including the period of preventive suspension, until
actual reinstatement.

G.R. No. 112371, October 07, 1998

AIDA DOMINGO, PETITIONER,
VS.
COMMISSION ON AUDIT, RESPONDENT.
DECISION
PURISIMA, J.:
This is an original petition for certiorari under Rule 65 of the Rules of Court
seeking to nullify Decision No. 93-3081 of respondent Commission on
Audit.
The antecedent facts that matter are, as follows:
On March 23, 1987, petitioner Aida Domingo was appointed by the
President as Regional Director, Region V of the Department of Social
Welfare and Development, and she assumed office as such.
Several government vehicles were thereafter endorsed to her office for the
use of the personnel of the entire Region V of DSWD, including a Toyota
Land Cruiser Jeep, a Kaiser Cargo Truck, a Trailer Jeep, a Willys Army
Rebuilt Jeep, and a Nissan Double Cab.
On November 14, 1989, Regional Auditor Manuel Caares sent a
communication to the petitioner informing her that post-audit reports on
the DSWD Regional Office disbursement accounts showed that officials
provided with government vehicles were still collecting transportation
allowances. The said Auditor then requested the petitioner, in her capacity
as Regional Director, to instruct all persons concerned to cease from
collecting the transportation allowances in question.

On August 8, 1992, the petitioner appealed the auditors action to the

Commission on Audit, which handed down its decision of August 25, 1993,
finding petitioners appeal devoid of merit.
Respondent Commission based its aforesaid decision on an earlier COA
decision No. 1745, dated February 26, 1991, wherein it was held that a
government official assigned a vehicle for his/her official use, is not entitled
to collect transportation allowance whether or not he/she actually used
such vehicle.
Undaunted, petitioner found her way to this court via the present petition,
posing the issue of whether or not a commutable transportation allowance
may still be claimed by a government official provided with a government
vehicle, for the days the official did not actually use the vehicle.
The provision of law in point is found in Section 28 of Republic Act 6688,
otherwise known as the General Appropriations Act of 1989, to wit:
Section 28. Representation and Transportation Allowances - x x x
"The transportation allowance herein authorized shall not be
granted to officials who are assigned a government vehicle or - use
government motor transportation, except as may be approved by
the President of the Philippines. Unless otherwise provided by law,
no amount appropriated in this Act shall be used to pay for
representation
and/or
transportation
allowances,
whether
commutable or reimbursable, which exceed the rates authorized
under this Section. Previous administrative authorization not
consistent with the rates and conditions herein specified shall no
longer be valid and payment shall not be allowed."
The General Appropriations Acts of 1988, 1990 and 1991 provide:

However, despite the assignment to her of a vehicle for her official use, the
petitioner asserted entitlement to a commutable transportation allowance
and collected a total amount of P48, 600.00 as transportation allowance for
the period from July 1, 1988 to December 31, 1990.

"The transportation allowance herein authorized shall not be

granted to officials who are assigned a government vehicle or use
a government motor transportation, except as may be approved by
the President of the Philippines." (GAA 1988)

Petitioner asked for reconsideration of the auditors directive; contending

that she should only be disallowed to claim transportation allowance on the
days she actually used a government vehicle. According to petitioner, she
already refunded P1,600.00 for the thirty two (32) days she actually
utilized a government vehicle.

"The transportation allowance herein authorized shall not be

granted to officials who are assigned a government vehicle or use
government transportation, except as may be approved by the
President of the Philippines." (GAA 1990)

But on May 18, 1990, the auditor denied petitioners motion for
reconsideration, and issued to petitioner CSB No. 92-003-101, dated July 8,
1992, with the following notation:

"The transportation allowance herein authorized shall not be

granted to officials who are assigned a government vehicle or use
government motor transportation." (GAA 1991)

"A special audit of your TA account was disallowed in accordance

with COA Decision No. 1745 dated February 26, 1991 by the
Commission proper less payment made under OR No. 7714009
dated December 6, 1990 - P1,600.00."

The aforesaid provision in the General Appropriations Law is based on

Presidential Decree 733 and Commission on Audit Circular No. 75-6 dated
November 7, 1975, regulating the use of government vehicles, aircrafts
and watercrafts. Portion of said circular, reads:

"VI. Prohibition Against Use of Government Vehicles by Officials

provided with transportation allowance - "No official who has been
furnished motor corporation allowance by any government
corporations or other office shall be allowed to use motor vehicle
transportation operated and maintained from funds appropriated in
the abovecited Decree. (Sec. 14, P.D. 733)."
In the case of Bustamante vs. Commissioner on Audit, 216 SCRA 134,
decided by this Court on November 27, 1992, COA also disallowed the
claim for transportation allowance of the legal counsel of National Power
Corporation because he was already issued a government vehicle.
Involving the circular aforementioned and almost the same facts as in this
case, it was therein held that COA Circular No. 75-6 is categorical in
prohibiting the use of government vehicles by officials receiving
transportation allowance and in stressing that the use of government
motor vehicle and claim for transportation allowance are mutually
exclusive and incompatible.
The issue need no longer be belabored for no less than this Court ruled in
the aforesaid case that a government official, to whom a motor vehicle has
been assigned, cannot, at the same time, claim transportation allowance.
Furthermore, it is an elementary rule that when the law speaks in clear and
categorical language, there is no need, in the absence of legislative intent
to the contrary, for any interpretation. Words and phrases used in a statute
should be given their plain, ordinary, and common usage meaning. [1]
In the case under consideration, it must be noted that the provisions of law
referred to in the General Appropriations Acts of 1988, 1989, 1990 and
1991, utilized the word "assigned" and not "used." Websters Dictionary
defines the word "assign" as "to transfer (property) to another in trust."
Had legislative intent been that government officials issued an official
vehicle could still collect transportation allowance if they do not actually
use subject vehicle, the word "use" instead of "assign" should have been
employed.
As correctly pointed out by the Solicitor General, there are two instances
when transportation allowance cannot be granted to a government official,
as when a government official is assigned a vehicle, and when a
government official uses government transportation facilities. It is
undeniable that several government vehicles were issued to the Regional
Office of DSWD in Region V. That the vehicles thereat were issued not to
petitioner herself, as Regional Director, but to the Regional Office itself, is
of no moment. What is important and decisive is that such vehicles were
intended primarily for the official use of subject office and its officials and
employees. As maintained by the Solicitor General, whether or not the
herein petitioner used the vehicle assigned to her office, is not an issue, as
it is undeniable that she could have used the said vehicle whenever she
wanted to since it was assigned to her office.

In the case of Ursua vs. Court of Appeals, 256 SCRA 147, it was held that
there is a valid presumption that undesirable consequences were never
intended by a legislative measure and a construction of which the statute
is fairly susceptible is favored which will avoid objectionable, mischievous,
indefensible, wrongful, evil, and injurious consequences. It is abundantly
clear that the evil sought to be remedied by the legislative prohibition is
the collection of additional transportation allowance despite the availability
of free transportation supplied by a government motor vehicle assigned to
the office.
WHEREFORE, the appealed decision of the Commission on Audit is hereby
AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Panganiban, Martinez and Quisumbing, JJ., concur.
Narvasa, C.J. and Mendoza, J., on official leave.

G.R. No. 129616, April 17, 2002

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) AND
RAMON ANINO, PETITIONERS,
VS.
JULIETA MONSERATE, RESPONDENT.
DECISION
SANDOVAL-GUTIERREZ, J.:
This petition for review on certiorari [1] seeks to set aside the Decision dated
June 20, 1997 of the Court of Appeals in CA-G.R. No. 39670, [2] declaring null
and void the Resolution No. 952043 dated March 21, 1995 and Resolution
No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC),
and ordering the reinstatement of Julieta G. Monserate as Division Manager
II of the Resources Management Division, Ports Management Office,
Philippine Ports Authority (PPA), Iloilo City.

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the

PPA, appointed[5] respondent to the position of Manager II (Resource
Management Division). On even date, respondent assumed office and
discharged the functions thereof. On July 8, 1988, the CSC, through
Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA)
approved her appointment.
Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second
to respondent per the Comparative Data Sheet earlier quoted, filed an
appeal/petition with the PPA Appeals Board, protesting against
respondents appointment. The PPA Appeals Board, in a Resolution [6]
dated August 11, 1988, sustained the protest and rendered ineffective
respondents appointment based on (1) CSC MC No. 5, s. 1988, Par. 3; [7]
(2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; [8] and (3) Civil Service
Eligibility. These grounds were not explained or discussed in the
Resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, this Board upholds the
appointment of Ramon A. Anino as Resources Management
Division Manager of the Port Management Office of Iloilo.

The facts are:

Julieta Monserate, respondent, started her government service in 1977 as
Bookkeeper II in the Port Management Office, PPA, Iloilo City. Barely a year
later, she was promoted to the position of Cashier II and then as Finance
Officer (SG-16) in 1980.[3]
In the early part of 1988, when the PPA underwent a reorganization,
respondent applied for the permanent position of Manager II (SG-19) of the
Resource Management Division, same office. The Comparative Data
Sheet[4] accomplished by the PPA Reorganization Task Force shows the
ranking of the six (6) aspirants to the said position, thus:
COMPARATIVE DATA SHEET
OFFICE:
DIVISION:
POSITION:
REQUIRED CS ELIG.:

PMO ILOILO
RES. MANAGEMENT DIVISION
DIVISION MANAGER
CS PROF / RA 1080

CANDIDATES

ELIGIBILITY xxx

TOTAL

1. MONSERATE, JULIETA
2. ANINO, RAMON
3. TEODOSIO, APRIL PD
4. MORTOLA, DARIO
5. ESPINOSA, AMALIK
6. PERFECTO, BASCOS

CS Prof.
1st grade
907 (CPA)
CS Prof.
Bar
RA 1080

79.5
70
67
67
63.5
59.5

xxx
xxx
xxx
xxx
xxx
xxx

On October 24, 1988, respondent was furnished a copy of PPA Special

Order No. 479-88[9] (entitled Creation of the PPA Managers Pool), dated
September 28, 1988, issued by the new PPA General Manager, Mr. Rogelio
A. Dayan. That Special Order excluded the name of respondent from the
pool-list and placed instead the name of petitioner as Manager II, Resource
Management Division. In effect, the Special Order implemented the
August 11, 1988 Resolution of the PPA Appeals Board.
Aggrieved, respondent filed with the PPA General Manager an
appeal/request for clarification dated November 2, 1988. [10] She questioned
her replacement under PPA Special Order No. 479-88, claiming that the
proceedings before the PPA Appeals Board were irregular because (1) she
was not notified of the hearing before it; (2) she was not furnished a copy
of the August 11, 1988 PPA Appeals Board Resolution or a copy of the
protest filed by petitioner Anino;[11] (3) she was not informed of the reasons
behind her replacement; and (4) their Port Manager (in Iloilo City), who was
then an official member of the Board, was not included in the said
proceedings.
On November 8, 1988, pending resolution of her appeal/request for
clarification, respondent received a copy of PPA Special Order No. 492-88 [12]
dated October 21, 1988, also issued by General Manager Dayan. This PPA
Order officially reassigned her to the position of Administrative Officer (SG15) which was petitioner Anino's former position and was lower than her
previous position as Finance Officer (SG 16) before she was appointed as
Division Manager.
Apparently at a loss with the turn of events, coupled by the inaction of PPA
General Manager Dayan on her earlier appeal/request for clarification,
respondent filed on November 25, 1988 a precautionary appeal [13] with

the CSC. She manifested that as of said date (November 25), she has not
yet been furnished a certified copy of the PPA Appeals Board Resolution.

THE FOREGOING CONSIDERED, judgment is hereby rendered

declaring as null and void Resolution Nos. 952043 and 95640
(should be 956640) dated March 21 and October 21, 1988 (should
be October 24, 1995), of the Civil service Commission; and
directing the reinstatement of the petitioner to the position of
Resource Management Division Manager II.

On January 2, 1989, respondent received a copy of her new appointment

as Administrative Officer dated October 1, 1988.[14] It was also during this
time when she learned that PPA General Manager Dayan had just issued
petitioners appointment dated October 21, 1988 as Manager II in the
Resource Management Division effective February 1, 1988.
On January 16, 1989, respondent filed with the CSC an appeal formally
protesting against petitioner Aninos appointment and at the same time
questioning the propriety of the August 11, 1988 Resolution of the PPA
Appeals Board. This appeal remained pending with the CSC for more than
six (6) years despite respondent's requests for early resolution. In the
meantime, she assumed the position of Administrative Officer.

SO ORDERED.
Thereupon, Ramon Anino and the PPA General Manager filed on August 14,
1997 the present petition. On November 30, 1997, petitioner Anino retired
from the government service.[17]
Petitioners ascribe to the Court of Appeals the following errors:
I.

THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT

RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES
MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER,
THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.

II.

THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF

WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATES
APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER,
ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL
THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER
FAVOR BY THE AGENCY OR THE CSC.

III.

THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF

JUDGMENT IN IGNORING THAT IN CASES OF PROTEST FILED OR
APPEALED TO THE CSC, THE MAIN QUESTION TO BE RESOLVED IS
WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION
STANDARD.[18]

Eventually, the CSC, in its Resolution No. 95-2043 [15] dated March 21, 1995,
dismissed respondents appeal, thus:
It is well-established rule that an appointment, although approved
by this Commission, does not become final until the protest filed
against it is decided by the agency or by the Commission.
Although Monserate had already assumed the position of RMD
Manager II, the appointing authority may still withdraw the same if
a protest is seasonably filed. This is covered by Section 19, Rule
VI of the Omnibus Rules implementing EO 292 x x x.
Monserates claim that she is more qualified than Anino is not
relevant to the issue before this Commission. In cases of protest
filed or appealed to the Commission, the main question to be
resolved is whether or not the appointee meets the qualification
standard. x x x. The Commission will not disturb the choice of the
appointing authority as long as the appointee meets the
qualification prescribed for the position in question.
Respondent filed a motion for reconsideration but the same was denied by
the CSC in its Resolution No. 95-6640 dated October 24, 1995.
In due time, respondent filed with the Court of Appeals a petition for review
impleading as respondents the PPA General Manager and petitioner Anino.
On June 20, 1997, the Court of Appeals rendered a Decision [16] nullifying the
twin Resolutions of the CSC. It ruled that the August 11, 1988 Resolution
of the PPA Appeals Board was not supported by evidence and that the
same was irregularly issued due to lack of proper notice to respondent with
respect to the Boards proceedings. It concluded that her reassignment
from the position of Manager II, Resource Management Division (SG-19), to
the position of Administrative Officer (SG-15) was a demotion violative of
her constitutional right to security of tenure and due process. The
dispositive portion of the Court of Appeals' Decision reads:

The pivotal issue in this case is whether or not there was due process when
respondent was replaced by petitioner Anino from her position as Manager
II, Resource Management Division, and demoted as Administrative Officer.
Petitioners vehemently aver that respondent was never demoted since
demotion, being in the nature of administrative penalty, presupposes a
conviction in an administrative case. Here, respondent was not charged of
any administrative case. Rather, she was displaced from her position as an
aftermath of the PPA reorganization, authorized by law, the
implementation of which having been carried out with utmost good faith.
Furthermore, the said displacement was just the necessary effect of the
August 11, 1988 Resolution of the PPA Appeals Board which sustained
petitioner Aninos timely protest against respondents appointment.
Petitioners theorize that the appointment of respondent as Resource
Management Division Manager did not become final until the protest filed
against her was favorably decided in her favor by the CSC. In support of
this contention, they cited Section 19, Rule VI of the Omnibus Rules

Implementing Book V of Executive Order No. 292 (otherwise known as the

Administrative Code of 1987), which provides inter alia:

2.

Appointment of respondent, dated October 1, 1988, to the

position of Administrative Officer;

SEC 19. An appointment, though contested, shall take effect

immediately upon its issuance if the appointee assumes the duties
of the position and the appointee is entitled to receive the salary
attached to the position. However, the appointment, together with
the decision of the department head, shall be submitted to the
Commission for appropriate action within 30 days from the date of
its issuance, otherwise the appointment becomes ineffective
thereafter.
Likewise, such appointment shall become
ineffective in case the protest is finally resolved against the
protestee, in which case, he shall be reverted to his former
position.

3.

PPA Special Order No. 492-88 dated October 21, 1988 which
officially
reassigned
respondent
to
the
position
of
Administrative Officer; and

4.

Appointment of petitioner Anino, dated October 21, 1988, to

the position of Manager II, Resource Management Division,
effective February 1, 1988.

Petitioners also contend that the head of an agency, being the appointing
authority, is the one most knowledgeable to decide who can best perform
the functions of the office. The appointing authority has a wide latitude of
choice subject only to the condition that the appointee should possess the
qualifications required by law. Consequently, the CSC acted rightly when
it did not interfere in the exercise of discretion by the PPA appointing
authority, there being no evidence of grave abuse of discretion thereof or
violation of the Civil Service Law and Rules.
The petition is unmeritorious.
In the first place, the PPA reorganization in 1988 has nothing to do with
respondents demotion from the contested position of Manager II,
Resource Management Office (SG-19), to the lower position of
Administrative Officer (SG-15). Antithetically, it was precisely because of
the said reorganization that respondent applied to the higher position of
Division Manager II. In fact, the Comparative Data Sheet accomplished by
the PPA Reorganization Task Force itself shows that respondent ranked No.
1, while petitioner Anino ranked No. 2, from among the six (6) contenders
to the said post. Respondent was eventually issued a permanent
appointment as such Division Manager on February 1, 1988 by then PPA
General Maximo Dumlao, Jr., during which time she actually assumed office
and discharged its functions. This appointment was later approved on July
8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of the
Civil Service Field Office-PPA.
Clearly, it was only after the reorganization and upon the issuance of the
August 11, 1988 Resolution of the PPA Appeals Board when respondent
was demoted to the lower position of Administrative Officer. This is further
shown by the following orders and appointments subsequently issued by
then PPA General Manager Rogelio Dayan:
1.

PPA Special Order No. 479-88 dated September 28, 1988 which
excluded respondent Monserate from the PPA Managers poollist;

Therefore, contrary to petitioners claim, respondent was demoted, not by

reason of the PPA reorganization in 1988, but due to the PPA Appeals Board
Resolution dated August 11, 1988 sustaining petitioner Aninos protest
against respondents appointment.
Unfortunately for petitioners, this Court cannot accord validity to the
August 11, 1988 Resolution of the PPA Appeals Board which upholds the
appointment of Ramon A. Anino as Resource Management Division
Manager. But how can it uphold his appointment when he was not yet
appointed then? It bears stressing that he was appointed on a much
later date - October 21, 1988, or more than two (2) months after
August 11, 1998 when the PPA Appeals Board Resolution was
issued. Stated differently, the PPA Appeals Board could not uphold an
appointment which was not yet existing.
Equally questionable are the grounds for respondents demotion stated in
the August 11, 1998 Resolution: (1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC
MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3) Civil Service Eligibility.
These grounds are incomprehensible for lack of discussion or explanation
by the Board to enable respondent to know the reason for her demotion.
We uphold the Court of Appeals finding that the August 11, 1998 PPA
Appeals Board Resolution was void for lack of evidence and proper notice
to respondent. As aptly held by the Appellate Court:
In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid.,
p. 46) upholding the appointment of the private respondent
(Ramon Anino) as Division Manager, the grounds against
petitioner's (Julieta Monserate) appointment were: a) the CSC MC
No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2
and Par. B; and c) Civil service eligibility.
"x x x
To us, the August 11, 1988 Resolution by the PPA Appeals Board
was not supported by evidence. Of the CSC MC No. 5, the
petitioner had no pending administrative or criminal case at the
time of her appointment as Manager. x x x.

With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the
processing, review, evaluation and recommendation of her
appointment as Manager II, passed several committees created by
the PPA. x x x. Moreover, she had a 1.9 average performance
rating compared to the private respondent who only got 2.03. x x
x.
On eligibility, she has a Career Service Professional eligibility while
the private respondent only has a First Grade Civil Service
Eligibility.
She added that she was not aware of any proceeding on her
demotion as a Division Manager. As a matter of fact, it was only
upon her iniative sometime during the latter part of November,
1988 that she was able to obtain a copy of the August 11, 1988
Resolution of the Appeals Board. The resolution sustained the
private respondents appointment as Division Manager even if on
August 11, 1988, he was not yet extended any appointment. As a
matter of fact, he was appointed only on October 1, 1988 (should
be October 21, 1988).

Concededly, the appointing authority has a wide latitude of discretion in

the selection and appointment of qualified persons to vacant positions in
the civil service.[21] However, the moment the discretionary power of
appointment is exercised and the appointee assumed the duties and
functions of the position, such appointment cannot anymore be revoked by
the appointing authority and appoint another in his stead, except for
cause. Here, no iota of evidence was ever established to justify the
revocation of respondent's appointment by demoting her. Respondents
security of tenure guaranteed under the 1987 Constitution [Article IX-B,
Section 2, par. (3)] should not be placed at the mercy of abusive exercise
of the appointing power.[22]
Parenthetically, when the Court of Appeals reinstated respondent to her
legitimate post as Manager II in the Resource Management Division, it
merely restored her appointment to the said position to which her right to
security of tenure had already attached. To be sure, her position as
Manager II never became vacant since her demotion was void. In
this jurisdiction, "an appointment to a non-vacant position in the civil
service is null and void ab initio."[23]
We now delve on the backwages in favor of respondent.

Furthermore, she said that the resolution of the PPA Appeals Board
appears irregular, if not null and void. She was never notified of
any proceeding; she was not furnished either a copy of the
resolution. What she received instead was a Special Order dated
September 29, 1988 already ordering her demotion. She was not
at all given the oppurtunity of defending herself before the Appeals
Board.
x x x.
In the case now before us, the petitioner did not receive or was
not given a copy of the August 11, 1988 Resolution of the Appeals
Board. She did not even know that she was demoted until after
she received a copy of the of the Special Order No. 479-88. [19]
From all indications, it is indubitable that substantial and procedural
irregularities attended respondents demotion from the position of Manager
II, Resource Management Division, to the lower position of Administrative
Officer.
Indeed, her demotion, tantamount to a revocation of her
appointment as Manager II, is a patent violation of her constitutional rights
to security of tenure and due process. In Aquino vs. Civil Service
Commission,[20] this Court emphasized that once an appointment is issued
and the moment the appointee assumes a position in the civil service
under a completed appointment, he acquires a legal, not merely equitable,
right (to the position) which is protected not only by statute, but also by
the constitution, and cannot be taken away from him either by revocation
of the appointment, or by removal, except for cause, and with previous
notice and hearing.

The challenged Court of Appeals Decision ordered the reinstatement of

respondent without awarding backwages.
This matter becomes
controversial because respondent assumed the lower position of
Administrative Officer during the pendency of her protest against petitioner
Aninos appointment to the contested position. Also, petitioner Anino
retired from the service on November 30, 1997.
In this respect, while petitioner Aninos appointment to the contested
position is void, as earlier discussed, he is nonetheless considered a de
facto officer during the period of his incumbency. [24] A de facto officer is one
who is in possession of an office and who openly exercises its functions
under color of an appointment or election, even though such appointment
or election may be irregular. [25] In Monroy vs. Court of Appeals, [26] this Court
ruled that a rightful incumbent of a public office may recover from a de
facto officer the salary received by the latter during the time of his
wrongful tenure, even though he (the de facto officer) occupied the office
in good faith and under color of title. A de facto officer, not having a good
title, takes the salaries at his risk and must, therefore, account to the de
jure officer for whatever salary he received during the period of his
wrongful tenure. In the later case of Civil Liberties Union vs. Executive
Secretary,[27] this Court allowed a de facto officer to receive emoluments for
actual services rendered but only when there is no de jure officer, thus:
x x x in cases where there is no de jure officer, a de facto
officer who, in good faith, has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in appropriate action recover
the salary, fees and other compensations attached to the office.

In fine, the rule is that where there is a de jure officer, a de facto officer,
during his wrongful incumbency, is not entitled to the emoluments
attached to the office, even if he occupied the office in good faith. This
rule, however, cannot be applied squarely on the present case in view of its
peculiar circumstances. Respondent had assumed under protest the
position of Administrative Officer sometime in the latter part of 1988,
which position she currently holds. Since then, she has been receiving the
emoluments, salary and other compensation attached to such office. While
her assumption to said lower position and her acceptance of the
corresponding emoluments cannot be considered as an abandonment of
her claim to her rightful office (Division Manager), she cannot recover full
backwages for the period when she was unlawfully deprived thereof. She
is entitled only to backpay differentials for the period starting from her
assumption as Administrative Officer up to the time of her actual
reinstatement to her rightful position as Division Manager. Such backpay
differentials pertain to the difference between the salary rates for the

positions of Manager II and Administrative Officer. The same must be paid

by petitioner Anino corresponding from the time he wrongfully assumed
the contested position up to the time of his retirement on November 30,
1997.
WHEREFORE, the petition is DENIED. The challenged Decision of the
Court of Appeals dated June 20, 1997 is AFFIRMED with MODIFICATION
in the sense that petitioner Ramon A. Anino is ordered to pay respondent
Julieta Monserate backpay differentials pertaining to the period from the
time he wrongfully assumed the contested position of Manager II up to his
retirement on November 30, 1997.
SO ORDERED.
Vitug (Acting Chairman), Panganiban, and Carpio, JJ., concur.
Melo, J. (Chairman), on official leave.