Blaquera vs Alcala 295 SCRA 411

DECISION

PURISIMA, J.:

These are cases for certiorari and prohibition, challenging the constitutionality and validity of Administrative
Order Nos. 29 and 268 on various grounds.

The facts in G.R. Nos. 109406, 110642, 111494, and 112056 are undisputed, to wit:

Petitioners are officials and employees of several government departments and agencies who were paid
incentive benefits for the year 1992, pursuant to Executive Order No. 292[1] (EO 292), otherwise known as the
Administrative Code of 1987, and the Omnibus Rules Implementing Book V [2]of EO 292. On January 19, 1993,
then President Fidel V. Ramos (President Ramos) issued Administrative Order No. 29 (AO 29)authorizing the
grant of productivity incentive benefits for the year 1992 in the maximum amount of P1,000.00[3] and reiterating the
prohibition[4] under Section 7[5]of Administrative Order No. 268 (AO 268), enjoining the grant of productivity
incentive benefits without prior approval of the President. Section 4 of AO 29 directed [a]ll departments, offices
and agencies which authorized payment of CY 1992 Productivity Incentive Bonus in excess of the amount
authorized under Section 1 hereof [are hereby directed] to immediately cause the return/refund of the excess
within a period of six months to commence fifteen (15) days after the issuance of this Order. In compliance
therewith, the heads of the departments or agencies of the government concerned, who are the herein respondents,
caused the deduction from petitioners salaries or allowances of the amounts needed to cover the alleged
overpayments. To prevent the respondents from making further deductions from their salaries or allowances, the
petitioners have come before this Court to seek relief.

In G.R. No. 119597, the facts are different but the petition poses a common issue with the other consolidated
cases. The petitioner, Association of Dedicated Employees of the Philippine Tourism Authority(ADEPT), is
an association of employees of the Philippine Tourism Authority (PTA) who were granted productivity incentive
bonus for calendar year 1992 pursuant to Republic Act No. 6971 (RA 6971),otherwise known as the
Productivity Incentives Act of 1990. Subject bonus was, however, disallowed by the Corporate Auditor on the
ground that it was prohibited under Administrative Order No. 29 dated January 19, 1993. [6] The disallowance of
the bonus in question was finally brought on appeal to the Commission on Audit (COA) which denied the appeal in
its Decision[7]of March 6, 1995, ratiocinating, thus:

xxx Firstly, the provisions of RA #6971 insofar as the coverage is concerned, refer to business enterprises including
government owned and/or controlled corporations performing proprietary functions.

Section 1a of the Supplemental Rules Implementing RA #6971 classified such coverage as:

All business enterprises, with or without existing duly certified labor organizations, including government owned
and/or controlled corporations performing proprietary functions which are established solely for business or
profit and accordingly excluding those created, maintained or acquired in pursuance of a policy of the State
enunciated in the Constitution, or by law and those whose officers and employees are covered by the Civil
Service. (underscoring supplied)
The PTrA is a GOCC created in pursuance of a policy of the State. Section 9 of Presidential Decree No. 189
states that To implement the policies and program of the Department (Dept. of Tourism), there is hereby created a
Philippine Tourism Authority, xxx. Likewise, Section 21 of the same decree provides that All officials and
employees of the Authority, xxx, shall be subject to Civil Service Law, rules and regulations, and the coverage of the
Wage and Position Classification Office.

Furthermore, although Supplemental Rules and Regulations implementing R.A. #6971 was issued only on
December 27, 1991, the law itself is clear that it pertains to private business enterprises whose employees are
covered by the Labor Code of the Philippines, as mentioned in the following provisions:

Section 5. Labor Management Committee. xxx that at the request of any party to the negotiation, the National
Wages and Productivity Commission of the Department of Labor and Employment shall provide the necessary
studies, xxx.

Section 8. Notification. - A business enterprise which adopts a productivity incentive program shall submit copies
of the same to the National Wages and Productivity Commission and to the Bureau of Internal Revenue for their
information and record.

Section 9. Disputes and Grievances. - Whenever disputes, grievances, or other matters arise from the interpretation
or implementation of the productivity incentive program, xxx may seek the assistance of the National Conciliation
and Mediation Board of the Department of Labor and Employment for such purpose. xxx

Therefore, considering the foregoing, the PTrA is within the exclusion provision of the Implementing Rules of RA
#6971 and so, it (PTrA) does not fall within its coverage as being entitled to the productivity incentive bonus under
RA #6971.

Secondly, Administrative Order No. 29 which is the basis for the grant of the productivity incentive bonus/benefits
for CY 1992 also expressly provides prohibiting payments of similar benefits in future years unless duly authorized
by the President.

Thirdly, the disallowance of the Auditor, PTrA has already been resolved when this Commission circularized thru
COA Memorandum #92-758 dated April 3, 1992 the Supplemental to Rules Implementing RA 6971 otherwise
known as the Productivity Incentives Act of 1990. xxx

Lastly, considering the title of RA #6971, i.e. An Act to encourage productivity and maintain industrial peace by
providing incentives to both labor and capital, and its implementing rules and regulations prepared by the
Department of Labor and Employment and the Department of Finance, this Office concludes that said
law/regulation pertains to agencies in the private sector whose employees are covered by the Labor Code.

With the denial of its appeal, petitioner found its way here via the petition in G.R. No. 119597, to seek relief from
the aforesaid decision of COA.

We will first resolve the issue on the applicability of RA 6971 to petitioner ADEPT in G.R. No. 119597 before
passing upon the constitutionality or validity of Administrative Orders 29 and 268.

Section 3 of RA 6971, reads:

SECTION 3. Coverage. This Act shall apply to all business enterprises with or without existing and duly
recognized or certified labor organizations, including government-owned and controlled corporations performing
proprietary functions. It shall cover all employees and workers including casual, regular, supervisory and
managerial employees. (underscoring ours)

Pursuant to Section 10[8] of RA 6971, the Secretary of Labor and Secretary of Finance issued Supplemental Rules to
Implement the said law, as follows:

Section 1. - Paragraph (a) Section 1, Rule II of the Rules Implementing RA 6971, shall be amended to read as
follows:

Coverage. These Rules shall apply to:

(a) All business enterprises with or without existing duly certified labor organizations, including government-owned
and controlled corporations performing proprietary functions which are established solely for business or profit or
gain and accordingly excluding those created, maintained or acquired in pursuance of a policy of the state,
enunciated in the Constitution or by law, and those whose officers and employees are covered by the Civil
Service. (underscoring ours)

x x x

Petitioner contends that the PTA is a government-owned and controlled corporation performing proprietary
function, and therefore the Secretary of Labor and Employment and Secretary of Finance exceeded their authority in
issuing the aforestated Supplemental Rules Implementing RA 6971.

Government-owned and controlled corporations may perform governmental or proprietary functions or both,
depending on the purpose for which they have been created. If the purpose is to obtain special corporate benefits or
earn pecuniary profit, the function is proprietary. If it is in the interest of health, safety and for the advancement of
public good and welfare, affecting the public in general, the function is governmental. [9] Powers classified as
proprietary are those intended for private advantage and benefit.[10]

The PTA was established by Presidential Decree No. 189, as amended by Presidential Decree No. 564 (PD
564).

Its general purposes [11] are:

1. To implement the policies and programs of the Department of Tourism (Department);

2. To develop tourist zones;

3. To assist private enterprises in undertaking tourism projects;

4. To operate and maintain tourist facilities;

5. To assure land availability for private investors in hotels and other tourist facilities;

6. To coordinate all tourism project plans and operations.

Its specific functions and powers[12] are:

1. Planning and development of tourism projects

a. To assist the Department make a comprehensive survey of the physical and natural tourism
resources of the Philippines; to establish the order of priority for development of said areas; to
recommend to the President the proclamation of a tourist zone; and to define and fix the boundaries of
the zone;

b. To formulate a development plan for each zone;

c. To submit to the President through the National Economic and Development Authority for
review and approval all development plans before the same are enforced or implemented;

d. To submit to the President an Annual Progress Report;

e. To assist the Department to determine the additional capacity requirements for various tourist
facilities and services; to prepare a ten-year Tourism Priorities Plan; to update annually the ten year
Tourism Priorities Plan.

f. To gather, collate and analyze statistical data and other pertinent information for the effective
implementation of PD 564.

2. Acquisition and disposition of lands and other assets for tourist zone purposes

a. To acquire possession and ownership of all lands transferred to it from other government
corporations and institutions and any land having tourism potential and earmarked in the Tourism
Priorities Plans for intensive development into a tourist zone or as a part thereof, subject to the
approval of the President.

b. To acquire by purchase, by negotiation or by condemnation proceedings any private land

within and without the tourist zones for any of the following reasons: (a) consolidation of lands for
tourist zone development purposes, (b) prevention of land speculation in areas declared as tourist
zones, (c) acquisition of right of way to the zones, (d) protection of water shed areas and natural assets
with tourism value, and (e) for any other purpose expressly authorized under PD 564.

c. For the purpose of providing land acquisition assistance to registered tourism enterprises, to
sell, subdivide, resell, lease, sublease, rent out, or otherwise, to said registered tourism enterprises
under sufficiently soft terms for use specifically in the development of hotels, recreational facilities,
and other tourist services.

d. To develop and/or subdivide any land in its name or undertake condominium projects thereon,
and sell subdivision lots or condominium units to private persons for investment purposes.

e. To take over or transfer to a registered tourism enterprise in accordance with law any lease on
foreshore areas within a tourist zone or adjacent thereto, in cases said areas are not being utilized in
accordance with the PTAs approved zone development plan and wherein the lessee concerned does
not agree to conform accordingly.
 f. To arrange for the reclamation of any land adjacent to or adjoining a tourist zone in
coordination with appropriate government agencies.

3. Infrastructure development for tourist zone purposes

a. To contract, supervise and pay for infrastructure works and civil works within a tourist zone
owned and operated by the PTA.

b. To coordinate with appropriate government agencies the development of infrastructure

requirements supporting a tourist zone.

c. To take water from any public stream, river, creek, lake, spring, or waterfall and to alter,
straighten, obstruct or increase the flow of water in streams.

4. Zone administration and control

a. To formulate and implement zoning regulations.

b. To determine and regulate the enterprises to be established within a tourist zone.

c. To ensure, through the proper authorities concerned, the ecological preservation, maintenance
and/or rehabilitation of the common and the public areas within a tourist zone and the environment
thereof.

d. To identify and recommend to the President the preservation and/or restoration of national
monuments or preserves; to arrange for the preservation and/or restoration of the same with
appropriate government agencies or with the private sector or with the owners themselves of said
tourist attractions; and to identify and recommend to the appropriate authorities concerned the
declaration of tourist areas and attractions as national monuments and preserves.

5. Project and investment promotions

a. To identify, develop, invest in, own, manage and operate such projects as it may deem to be
vital for recreation and rest but not sufficiently attractive economically for private investment.

b. To construct hotel buildings and other tourist facilities within a tourist zone and in turn lease
such facilities to registered tourism enterprises for operation, management and maintenance.

c. To organize, finance, invest in, manage and operate wholly-owned subsidiary corporations.

6. Direct assistance to registered enterprises

a. To administer the tax and other incentives granted to registered enterprises.

b. To evaluate, approve and register or reject any and all tourism projects or enterprises
established within the tourist zones.
 c. To grant medium and long-term loans and/or re-lend any funds borrowed for the purpose to
duly qualified registered tourism enterprises.

d. To guarantee local and foreign borrowings of registered enterprises.

e. To provide equity investments in the form of cash and/or land.

f. To extend technical, management and financial assistance to tourism projects.

g. To identify, contact and assist in negotiations of suitable partners for both local and foreign
investors interested in investment or participation in the tourism industry.

h. To assist registered enterprises and prospective investors to have their papers processed with
dispatch by government offices.

7. Other powers and functions

a. To engage or retain the services of financial, management, legal, technical, and/or project
consultants from the private or government sector.

b. To have the power to succeed by its corporate name.

c. To adopt, alter, and use a corporate seal.

d. To sue and be sued under its corporate name.

e. To enter into any contracts of any kind and description.

f. To own or possess personal and/or real property.

g. To make, adopt and enforce rules and regulations to execute its powers, duties and functions.

h. To purchase, hold, and alienate shares of stock or bonds of any corporation.

I. To collect fees or charges as may be imposed under PD 564.

j. To contract indebtedness and issue bonds.

k. To fix and collect rentals for the lease, use or occupancy of lands, buildings, or other property
owned or administered by PTA.

l. To do any and all acts and things necessary to carry out the purposes for which the PTA is
created.

Categorized in light of the foregoing provisions of law in point, PTAs governmental functions include the first,
third, fourth, and sixth of the aforesaid general purposes. The second[13] and fifth general purposes fall under its
proprietary functions.
 With respect to PTAs specific functions and powers, the first and fourth are governmental in nature
while the fifth specific functions and powers are proprietary in character. The second, third, sixth, and seventh
specific functions and powers can be considered partly-governmental and partly-proprietary, considering that 2(a),
2(b), 2(c), 2(d), 2(e), 3(a), 6(c), 6(d), 6(e), 7(h), 7(j), and 7(k) are proprietary functions while 2(f), 3(b), 3(c), 6(a),
6(b), 6(f), 6(g), 6(h), 7(a), 7(b), 7(c), 7(d), 7(f), 7(g), and 7(l) are governmental functions. The specific functions
and powers treated in 7(e) and 7(i) may be classified either as proprietary or governmental, depending on the
circumstances under which they are exercised or performed.

The aforecited powers and functions of PTA are predominantly governmental, principally geared towards the
development and promotion of tourism in the scenic Philippine archipelago. But it is irrefutable that PTA also
performs proprietary functions, as envisaged by its charter.

Reliance on the above analysis of the functions and powers of PTA does not suffice for the determination of
whether or not it is within the coverage of RA 6971. For us to resolve the issues raised here solely on the basis of
the classification of PTAs powers and functions may lead to the rendition of judgment repugnant to the legislative
intent and to established doctrines, as well, such as on the prohibition against government workers to strike. [14] Under
RA 6971, the workers have the right to strike.

To ascertain whether PTA is within the ambit of RA 6971, there is need to find out the legislative intent, and to
refer to other provisions of RA 6971 and other pertinent laws, that may aid the Court in ruling on the right of
officials and employees of PTA to receive bonuses under RA 6971.

Petitioner cites an entry in the journal of the House of Representatives to buttress its submission that PTA is
within the coverage of RA 6971, to wit:

Chairman Veloso: The intent of including government-owned and controlled corporations within the coverage of
the Act is the recognition of the principle that when government goes into business, it (divests) itself of its immunity
from suit and goes down to the level of ordinary private enterprises and subjects itself to the ordinary laws of the
land just like ordinary private enterprises. Now, when people work therefore in government-owned or controlled
corporations, it is as if they are also, just like in the private sector, entitled to all the benefits of all laws that apply to
workers in the private sector. In my view, even including the right to organize, bargain.... VELOSO (Bicameral
Conference Committee on Labor and Employment, pp. 15-16)

After a careful study, the Court is of the view, and so holds, that contrary to petitioners interpretation, the
government-owned and controlled corporations Mr. Chairman Veloso had in mind were government-owned and
controlled corporations incorporated under the general corporation law. This is so because only workers in private
corporations and government-owned and controlled corporations, incorporated under the general corporation law,
have the right to bargain (collectively). Those in government corporations with special charter, which are subject to
Civil Service Laws, have no right to bargain (collectively), except where the terms and conditions of employment
are not fixed by law.[15] Their rights and duties are not comparable with those in the private sector.

Since the terms and conditions of government employment are fixed by law, government workers cannot use the
same weapons employed by workers in the private sector to secure concessions from their employers. The principle
behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by
law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the
minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of
employment in the unionized private sector are settled through the process of collective bargaining. In government
employment, however, it is the legislature and, where properly given delegated power, the administrative heads of
government which fix the terms and conditions of employment. And this is effected through statutes or
administrative circulars, rules, and regulations, not through collective bargaining agreements. (Alliance of
Government Workers v. Minister of Labor and Employment, 124 SCRA 1) (italics ours)

Government corporations may be created by special charters or by incorporation under the general corporation
law. Those created by special charters are governed by the Civil Service Law while those incorporated under the
general corporation law are governed by the Labor Code.[16]

The legislative intent to place only government-owned and controlled corporations performing proprietary
functions under the coverage of RA 6971 is gleanable from the other provisions of the law. For instance, section
2[17] of said law envisions industrial peace and harmony and to provide corresponding incentives to both labor
and capital; section 4[18] refers to representatives of labor and management; section 5 [19]mentions of collective
bargaining agent(s) of the bargaining unit(s); section 6 [20] relates to existing collective bargaining agreements, and
labor and management; section 7[21] speaks of strike or lockout; and section 9[22] purports to seek the assistance
of the National Conciliation and Mediation Board of the Department of Labor and Employment and include the
name(s) of the voluntary arbitrators or panel of voluntary arbitrator. All the aforecited provisions of law apply only
to private corporations and government-owned and controlled corporations organized under the general corporation
law. Only they have collective bargaining agents, collective bargaining units, collective bargaining agreements, and
the right to strike or lockout.

To repeat, employees of government corporations created by special charters have neither the right to strike
nor the right to bargain collectively, as defined in the Labor Code. The case of Social Security System Employees
Association indicates the following remedy of government workers not allowed to strike or bargain collectively, to
wit:

Government employees may, therefore, through their unions or associations, either petition the Congress
for the betterment of the terms and conditions of employment which are within the ambit of legislation or
negotiate with the appropriate government agencies for the improvement of those which are not fixed by
law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-
Management Council for appropriate action. But employees in the civil service may not resort to strikes,
walkouts and other temporary work stoppages, like workers in the private sector, to pressure the
Government to accede to their demands. (supra, footnote 14, p. 698; italics ours)

It is a rule in statutory construction that every part of the statute must be interpreted with reference to the
context, i.e., that every part of the statute must be considered together with the other parts, and kept subservient to
the general intent of the whole enactment. [23] The provisions of RA 6971, taken together, reveal the legislative intent
to include only government-owned and controlled corporations performing proprietary functions within its coverage.

Every statute must be construed and harmonized with other statutes as to form a uniform system of
jurisprudence.[24] We note Section 1, Rule X of the Omnibus Rules Implementing Book V of EO 292, which reads:

SECTION 1. - Each department or agency of government, whether national or local, including

bureaus and agencies, state colleges and universities, and government owned and controlled
corporations with original charters, shall establish its own Department or Agency Employee
Suggestions and Incentives Award System in accordance with these Rules and shall submit the
same to the Commission for approval. (underscoring ours)
It is thus evident that PTA, being a government-owned and controlled corporation with original charter subject to
Civil Service Law, Rules and Regulations, [25] is already within the scope of an incentives award system under
Section 1, Rule X of the Omnibus Rules Implementing EO 292 issued by the Civil Service
Commission (Commission). Since government-owned and controlled corporations with original charters do have
an incentive award system, Congress enacted a law that would address the same concern of officials and employees
of government-owned and controlled corporations incorporated under the general corporation law.

All things studiedly considered in proper perspective, the Court finds no reversible error in the finding by
respondent Commission that PTA is not within the purview of RA 6971. As regards the promulgation of
implementing rules and regulations, it bears stressing that the power of administrative officials to
promulgate rules in the implementation of the statute is necessarily limited to what is provided for in the
legislative enactment.[26] In the case under scrutiny, the Supplementary Rules Implementing RA 6971 issued by the
Secretary of Labor and Employment and the Secretary of Finance accord with the intendment and provisions of RA
6971. Consequently, not being covered by RA 6971, AO 29 applies to the petitioner.

We now tackle the common issue posited by the consolidated petitions on the constitutionality of AO 29 and
AO 268.

Petitioners contend and argue, that:

I. AO 29 AND AO 268 ARE VIOLATIVE OF THE PROVISIONS OF EO 292 AND, HENCE, NULL
AND VOID.

II. AO 29 AND AO 268 UNLAWFULLY USURP THE CONSTITUTIONAL AUTHORITY GRANTED

SOLELY TO THE CIVIL SERVICE COMMISSION.

III. THE FORCED REFUND OF INCENTIVE PAY IS AN UNCONSTITUTIONAL IMPAIRMENT OF

A CONTRACTUAL OBLIGATION.

IV. ASSUMING, FOR THE SAKE OF ARGUMENT ONLY, THAT THE GRANT OF PRODUCTIVITY
INCENTIVE BENEFITS WAS INVALID, THE SAME SHOULD BE THE PERSONAL LIABILITY
OF OFFICIALS DIRECTLY RESPONSIBLE THEREFOR IN ACCORDANCE WITH SECTION 9
OF AO 268.

Issued by the then President Corazon Aquino (President Aquino) on July 25, 1987 in the exercise of her
legislative powers under the 1987 Constitution,[27] EO 292, or the Administrative Code of 1987, provided for the
following incentive award system:

Sec. 31. Career and Personnel Development Plans. - Each department or agency shall prepare a career
and personnel development plan which shall be integrated into a national plan by the Commission. Such
career and personnel development plans which shall include provisions on merit promotions, performance
evaluation, in-service training, including overseas and local scholarships and training grants, job
rotation, suggestions and incentive award systems, and such other provisions for employees health,
welfare, counseling, recreation and similar services.

Sec. 35. Employee Suggestions and Incentive Award System. - There shall be established a government-
wide employee suggestions and incentive awards system which shall be administered under such rules,
regulations, and standards as maybe promulgated by the Commission.
 In accordance with rules, regulations, and standards promulgated by the Commission, the President or
the head of each department or agency is authorized to incur whatever necessary expenses involved in
the honorary recognition of subordinate officers and employees of the government who by their
suggestions, inventions, superior accomplishment, and other personal efforts contribute to the efficiency,
economy, or other improvement of government operations, or who perform such other extraordinary acts
or services in the public interest in connection with, or in relation to, their official employment.

Sec. 36. Personnel Relations. - (1) It shall be the concern of the Commission to provide leadership and
assistance in developing employee relations programs in the department or agencies.

(2) Every Secretary or head of agency shall take all proper steps toward the creation of an atmosphere
conducive to good supervisor-employee relations and the improvement of employee morale.

Pursuant to the provision of Section 12(2), [28] Chapter 3, Book V of EO 292, the Commission adopted and prescribed
the Omnibus Rules Implementing Book V of EO 292 which, among others, provide:

Sec. 1. - Each department or agency of government, whether national or local, including bureaus and
agencies, state colleges and universities, and government owned and controlled corporations with
original charters, shall establish its own Department or Agency Employee Suggestions and Incentives
Award System in accordance with these Rules and shall submit the same to the Commission for
approval.

Sec. 2. - The System is designed to encourage creativity, innovativeness, efficiency, integrity and
productivity in the public service by recognizing and rewarding officials and employees, individually or
in groups, for their suggestions, inventions, superior accomplishments, and other personal efforts which
contribute to the efficiency, economy, or other improvement in government operations, or for other
extraordinary acts of services in the public interest.

x x x

Sec. 7. - The incentive awards shall consist of, though not limited to, the following:

x x x

(c) Productivity Incentive which shall be given to an employee or group of employees who has exceeded
their targets or has incurred incremental improvement over existing targets.

On February 21, 1992, President Aquino issued AO 268 which granted each official and employee of the
government the productivity incentive benefits in a maximum amount equivalent to thirty percent (30%) of his one
(1) month basic salary but in no case shall such amount be less than two thousand pesos ( P2,000.00),[29] for those
who have rendered at least one year of service as of December 31, 1991. [30] Said AO carried the prohibition,
provided in Section 7 thereof, which reads:

SECTION 7. The productivity incentive benefits herein authorized shall be granted only for Calendar
Year 1991. Accordingly, all heads of agencies, including the governing boards of government-owned or
-controlled corporations and financial institutions, are hereby strictly prohibited from
authorizing/granting productivity incentive benefits or other allowances of similar nature for Calendar
Year 1992 and future years pending the result of a comprehensive study being undertaken by the Office of
 the President in coordination with the Civil Service Commission and the Department of Budget and
Management on the matter.

The formulation of the necessary implementing guidelines for Executive Order No. 486 dated 8
November 1991 establishing a performance-based incentive system for government-owned or -controlled
corporations shall likewise be included in the comprehensive study referred to in the preceding
paragraph.

On January 19, 1993, President Ramos issued AO 29 which granted productivity incentive benefits to
government employees in the maximum amount of P1,000.00[31] for the calendar year 1992 but reiterated the
proscription under Section 7 of AO 268, thus:

SECTION 2. The prohibition prescribed under Section 7 of Administrative Order No. 268 is hereby
reiterated. Accordingly, all heads of government offices/agencies, including government-owned and/or
controlled corporations, as well as their respective governing boards are hereby enjoined and prohibited
from authorizing/granting Productivity Incentive Benefits or any and all similar forms of
allowances/benefits without prior approval and authorization via Administrative Order by the Office of
the President. Henceforth, anyone found violating any of the mandates in this Order, including all
officials/employees and the COA Auditor-in-Charge of such government office/agency found to have
taken part thereof, shall be accordingly and severely dealt with in accordance with the applicable
provisions of existing penal laws.

Consequently, all administrative authorizations to grant any form of allowances/benefits and all forms of
additional compensation usually paid outside of the prescribed basic salary under R.A. No. 6758, the
Salary Standardization Law, that are inconsistent with the legislated policy on the matter or are not
covered by any legislative action are hereby revoked.

The implementation of Executive Order No. 486 dated November 8, 1991, as amended by Executive
Order No. 518 dated May 29, 1992, is hereby deferred until a more comprehensive and equitable scheme
for the grant of the benefits that can be applied government-wide is formulated by the Department of
Budget and Management.

Petitioners theorize that AO 29 and AO 268 violate EO 292 and since the latter is a law, it prevails over
executive issuances. Petitioners likewise assert that AO 29 and AO 268 encroach upon the constitutional authority
of the Civil Service Commission to adopt measures to strengthen the merit and rewards system and to promulgate
rules, regulations and standards governing the incentive awards system of the civil service.

The Court is not impressed with petitioners submission. AO 29 and AO 268 were issued in the valid exercise
of presidential control over the executive departments.

In establishing a Civil Service Commission, the 1987 Constitution delineated its function, as follows:

The Civil Service Commission, as the central personnel agency of the Government, shall establish a
career service and adopt measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system,
integrate all human resources development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability. It shall submit to the President and the
Congress an annual report on its personnel programs. (Section 3, Article IX, B, 1987 Constitution)
The Commission handles personnel matters of the government. As the central personnel agency of the Government,
it is tasked to formulate and establish a system of incentives and rewards for officials and employees in the public
sector, alike.

The functions of the Commission have been decentralized to the different departments, offices, and agencies of
the government --

SEC. 1. Declaration of Policy. -- The State shall insure and promote the Constitutional mandate that
appointments in the Civil Service shall be made only according to merit and fitness; that the Civil
Service Commission, as the central personnel agency of the Government shall establish a career service,
adopt measures to promote morale, efficiency, integrity, responsiveness, and courtesy in the civil service,
strengthen the merit and rewards system, integrate all human resources development programs for all
levels and ranks, and institutionalize a management climate conducive to public accountability; that
public office is a public trust and public officers and employees must at all times be accountable to the
people; and that personnel functions shall be decentralized, delegating the corresponding authority to
the departments, offices and agencies where such functions can be effectively performed. (Section 1,
Chapter I, Subtitle A, Title I, EO 292) (underscoring ours)

Specifically, implementation of the Employee Suggestions and Incentive Award System has been decentralized to
the President or to the head of each department or agency --

Sec. 35. Employee Suggestions and Incentive Award System. - There shall be established a
government-wide employee suggestions and incentive awards system which shall be administered under
such rules, regulations, and standards as maybe promulgated by the Commission.

In accordance with rules, regulations, and standards promulgated by the Commission, the President or
the head of each department or agency is authorized to incur whatever necessary expenses involved in
the honorary recognition of subordinate officers and employees of the government who by their
suggestions, inventions, superior accomplishment, and other personal efforts contribute to the efficiency,
economy, or other improvement of government operations, or who perform such other extraordinary acts
or services in the public interest in connection with, or in relation to, their official employment. (EO
292) (underscoring ours)

The President is the head of the government. Governmental power and authority are exercised and
implemented through him. His power includes the control over executive departments --

The president shall have control of all the executive departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed. (Section 17, Article VII, 1987 Constitution)

Control means the power of an officer to alter or modify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the former for that of the latter. [32] It has been held
that [t]he President can, by virtue of his power of control, review, modify, alter or nullify any action, or decision, of
his subordinate in the executive departments, bureaus, or offices under him. He can exercise this power motu
proprio without need of any appeal from any party.[33]

When the President issued AO 29 limiting the amount of incentive benefits, enjoining heads of government
agencies from granting incentive benefits without prior approval from him, and directing the refund of the excess
over the prescribed amount, the President was just exercising his power of control over executive departments. This
is decisively clear from the WHEREAS CLAUSES of AO 268 and AO 29, to wit:

ADMINISTRATIVE ORDER NO. 268

x x x

WHEREAS, the productivity incentive benefits granted by the different agencies are of varying amounts, causing
dissension/demoralization on the part of those who had received less and those who have not yet received any such
benefit, thereby defeating the purpose for which the same should be granted; and

WHEREAS, there exists the need to regulate the grant of the productivity incentive benefits or other similar
allowances in conformity with the policy on standardization of compensation pursuant to Republic Act No. 6758;

x x x.

ADMINISTRATIVE ORDER NO. 29

x x x

WHEREAS, the faithful implementation of statutes, including the Administrative Code of 1987 and all laws
governing all forms of additional compensation and personnel benefits is a Constitutional prerogative vested in
the President of the Philippines under Section 17, Article VII of the 1987 Constitution;

WHEREAS, the Constitutional prerogative includes the determination of the rates, the timing and schedule of
payment, and final authority to commit limited resources of government for the payment of personnel incentives,
cash awards, productivity bonus, and other forms of additional compensation and fringe benefits;

WHEREAS, some government agencies have overlooked said Constitutional prerogative and have unilaterally
granted to their respective officials and employees incentive awards;

WHEREAS, the Office of the President issued Administrative Order No. 268, dated February 21, 1992, strictly
prohibiting the grant of Productivity Incentive Bonus or other allowances of similar nature for Calendar Year 1992
and future years pending the issuance of the requisite authorization by the President;

WHEREAS, notwithstanding said prohibition some government offices/agencies and government-owned and/or
controlled corporations and financial institutions have granted productivity incentive benefits in varying
nomenclature and amounts without the proper authorization/coordination with the Office of the President;

WHEREAS, the unilateral and uncoordinated grant of productivity incentive benefits gave rise to discontentment,
dissatisfaction and demoralization among government personnel who have received less or have not received at all
such benefits;

x x x.

The President issued subject Administrative Orders to regulate the grant of productivity incentive benefits and to
prevent discontentment, dissatisfaction and demoralization among government personnel by committing limited
resources of government for the equal payment of incentives and awards. The President was only exercising his
power of control by modifying the acts of the respondents who granted incentive benefits to their employees without
appropriate clearance from the Office of the President, thereby resulting in the uneven distribution of government
resources. In the view of the President, respondents did a mistake which had to be corrected. In so acting, the
President exercised a constitutionally-protected prerogative --

The Presidents duty to execute the law is of constitutional origin. So, too, is his control of all executive
departments. Thus it is, that department heads are men of his confidence. His is the power to appoint them; his,
too, is the privilege to dismiss them at pleasure. Naturally, he controls and directs their acts. Implicit then is his
authority to go over, confirm, modify or reverse the action taken by his department secretaries. In this context, it
may not be said that the President cannot rule on the correctness of a decision of a department secretary. (Lacson-
Magallanes Co., Inc. v. Pao, 21 SCRA 898)

Neither can it be said that the President encroached upon the authority of the Commission on Civil Service to
grant benefits to government personnel. AO 29 and AO 268 did not revoke the privilege of employees to receive
incentive benefits. The same merely regulated the grant and amount thereof.

Sound management and effective utilization of financial resources of government are basically executive
functions,[34] not the Commissions. Implicit is this recognition in EO 292, which states:

Sec. 35. Employee Suggestions and Incentive Award System. - There shall be established a government-wide
employee suggestions and incentive awards system which shall be administered under such rules, regulations, and
standards as maybe promulgated by the Commission.

In accordance with rules, regulations, and standards promulgated by the Commission, the President or the head of
each department or agency is authorized to incur whatever necessary expenses involved in the honorary
recognition of subordinate officers and employees of the government who by their suggestions, inventions, superior
accomplishment, and other personal efforts contribute to the efficiency, economy, or other improvement of
government operations, or who perform such other extraordinary acts or services in the public interest in
connection with, or in relation to, their official employment.(Chapter 5, Subtitle A, Book V) (underscoring ours)

Conformably, it is the President or the head of each department or agency who is authorized to incur the
necessary expenses involved in the honorary recognition of subordinate officers and employees of the
government. It is not the duty of the Commission to fix the amount of the incentives. Such function belongs to the
President or his duly empowered alter ego.

Anent petitioners contention that the forcible refund of incentive benefits is an unconstitutional impairment of
a contractual obligation, suffice it to state that [n]ot all contracts entered into by the government will operate as a
waiver of its non-suability; distinction must be made between its sovereign and proprietary acts (United States of
America v. Ruiz, 136 SCRA 487).[35] The acts involved in this case are governmental. Besides, the Court is in
agreement with the Solicitor General that the incentive pay or benefit is in the nature of a bonus which is not a
demandable or enforceable obligation.

It is understood that the Judiciary, Civil Service Commission, Commission on Audit, Commission on
Elections, and Office of the Ombudsman, which enjoy fiscal autonomy, are not covered by the amount fixed by the
President. As explained in Bengzon vs. Drilon (208 SCRA 133):

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the
Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of
full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It
recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such
sums as may be provided by law or prescribed by them in the course of the discharge of their functions.

Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but
DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the
autonomy given by the Constitution becomes an empty and illusory platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional
system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and the
Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this
grant of autonomy should cease to be a meaningless provision.

Untenable is petitioners contention that the herein respondents be held personally liable for the refund in
question. Absent a showing of bad faith or malice, public officers are not personally liable for damages resulting
from the performance of official duties.[36]

Every public official is entitled to the presumption of good faith in the discharge of official duties. [37] Absent
any showing of bad faith or malice, there is likewise a presumption of regularity in the performance of official
duties.[38]

In upholding the constitutionality of AO 268 and AO 29, the Court reiterates the well-entrenched doctrine that
in interpreting statutes, that which will avoid a finding of unconstitutionality is to be preferred. [39]

Considering, however, that all the parties here acted in good faith, we cannot countenance the refund of subject
incentive benefits for the year 1992, which amounts the petitioners have already received. Indeed, noindicia of bad
faith can be detected under the attendant facts and circumstances. The officials and chiefs of offices concerned
disbursed such incentive benefits in the honest belief that the amounts given were due to the recipients and the latter
accepted the same with gratitude, confident that they richly deserve such benefits.

WHEREFORE, the Petitions in G.R. Nos. 109406, 110642, 111494, and 112056 are hereby DISMISSED,
and as above ratiocinated, further deductions from the salaries and allowances of petitioners are hereby
ENJOINED.

In G.R. No. 119597, the assailed Decision of respondent Commission on Audit is AFFIRMED. No
pronouncement as to costs.

SO ORDERED.
G.R. No. 93237 November 6, 1992

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner,

vs.
NATIONAL TELECOMMUNICATIONS COMMISSION (NTC) and JUAN A. ALEGRE, respondents.

PADILLA, J.:

Private respondent Juan A. Alegre's wife, Dr. Jimena Alegre, sent two (2) RUSH telegrams through petitioner
RCPI's facilities in Taft Ave., Manila at 9:00 in the morning of 17 March 1989 to his sister and brother-in-law in
Valencia, Bohol and another sister-in-law in Espiritu, Ilocos Norte, with the following identical texts:

MANONG POLING DIED INTERMENT TUESDAY 1

Both telegrams did not reach their destinations on the expected dates. Private respondent filed a letter-complaint
against the RCPI with the National Telecommunications Commission (NTC) for poor service, with a request for the
imposition of the appropriate punitive sanction against the company.

Taking cognizance of the complaint, NTC directed RCPI to answer the complaint and set the initial hearing of the
case to 2 May 1989. After two (2) resettings, RCPI moved to dismiss the case on the following grounds:

1. Juan Alegre is not the real party in interest;

2. NTC has no jurisdiction over the case;

3. the continued hearing of the case violates its constitutional right to due process of law. 2

RCPI likewise moved for deferment of scheduled hearings until final determination of its motion to dismiss.

On 15 June 1989, NTC proceeded with the hearing and received evidence for private respondent Juan Alegre. On 3
October 1989, RCPI's motion to dismiss was denied, thus:

The herein complainant is the husband of the sender of the "rush" telegram that respondent
allegedly failed to deliver in a manner respondent bound itself to undertake, so his legal interest in
this administrative case cannot be seriously called in question. As regards the issue of jurisdiction,
the authority of the Commission to hear and decide this case stems from its power of control and
supervision over the operation of public communication utilities as conferred upon it by law.

Besides, the filing of a motion to dismiss is not allowed by the rules (Section 1, Rule 12, Rules of
Practice and Procedures). Following, however, the liberal construction of the rules, respondent
(sic) motion shall be treated as its answer or be passed upon after the conclusion of the hearing on
the merits. . . . 3
Hearings resumed in the absence of petitioner RCPI which was, however, duly notified thereof. On 27 November
1989, NTC disposed of the controversy in the following manner:

WHEREFORE, in view of all the foregoing, the Commission finds respondent administratively
liable for deficient and inadequate service defined under Section 19(a) of C.A. 146 and hereby
imposes the penalty of FINE payable within thirty (30) days from receipt hereof in the aggregate
amount of ONE THOUSAND PESOS (P1,000.00) for:

1. Rush Telegram sent to Valencia, Bohol on March 17, 1989 and received on March 21, 1989

3 days x P200.00 per day = P600.00

2. Rush Telegram sent to Espiritu, Ilocos Norte on March 17, 1989 and received on March 20,
1989

2 days x P200.00 per day = P400.00

Total = P1,000.00

ENTERED. November 27, 1989. 4

A motion for reconsideration by RCPI reiterating averments in its earlier motion to dismiss was denied for lack of
merit; 5 hence, this petition for review invoking C.A. 146 Sec. 19(a) which limits the jurisdiction of the Public
Service Commission (precursor of the NTC) to the fixing of rates. RCPI submits that its position finds support in
two (2) decided cases 6 identical with the present one. Then Justice (later Chief Justice) Fernando writing for the
Court stated:

. . . There can be no justification then for the Public Service Commission imposing the fines for
these two petitions. The law cannot be any clearer. The only power it possessed over radio
companies, as noted was the (sic ) fix rates. It could not take to task a radio company for
negligence or misfeasance. It was bereft of such competence. It was not vested within such
authority. . . .

The Public Service Commission having been abolished by virtue of a Presidential Decree, as set
forth at the outset, and a new Board of Communications having been created to take its place,
nothing said in its decision has reference to whatever powers are now lodged in the latter body. . . .
. . . (Footnotes omitted)

Two (2) later cases, 7 adhering to the above tenet ruled:

Even assuming that the respondent Board of Communications has the power of jurisdiction over
petitioner in the exercise of its supervision to insure adequate public service, petitioner cannot be
subjected to payment of fine under sec. 21 of the Public Service Act, because this provision of the
law subjects to a fine every public service that violates or falls (sic) to comply with the terms and
conditions of any certificate or any orders, decisions and regulations of the Commission. . . . .

The Office of the Solicitor General now claims that the cited cases are no longer applicable, that the power and
authority of the NTC to impose fines is incidental to its power to regulate public service utilities and to supervise
telecommunications facilities, which are now clearly defined in Section 15, Executive Order No. 546 dated 23 July
1979: thus:

Functions of the Commission. The Commission shall exercise the following functions:

xxx xxx xxx

b. Establish, prescribe and regulate the areas of operation of particular operators of the public
service communications;

xxx xxx xxx

h. Supervise and inspect the operation of radio stations and telecommunications facilities.

Regulatory administrative agencies necessarily impose sanctions, adds the Office of the Solicitor General. RCPI was
fined based on the finding of the NTC that it failed to undertake adequate service in delivering two (2) rush
telegrams. NTC takes the view that its power of supervision was broadened by E. O. No. 546, and that this
development superseded the ruling in RCPI vs. Francisco Santiago and companion cases.

The issues of due process and real parties in interest do not have to be discussed in this case. This decision will
dwell on the primary question of jurisdiction of the NTC to administratively impose fines on a telegraph company
which fails to render adequate service to a consumer.

E. O. 546, it will be observed, is couched in general terms. The NTC stepped "into the shoes" of the Board of
Communications which exercised powers pursuant to the Public Service Act. The power to impose fines should
therefore be read in the light of the Francisco Santiago case because subsequent legislation did not grant additional
powers to the Board of Communications. The Board in other words, did not possess the power to impose
administrative fines on public services rendering deficient service to customers, ergo its successor cannot arrogate
unto itself such power, in the absence of legislation. It is true that the decision in RCPI vs. Board of
Communications seems to have modified the Santiago ruling in that the later case held that the Board of
Communications can impose fines if the public service entity violates or fails to comply with the terms and
conditions of any certificate or any order, decision or regulation of the Commission. But can private respondent's
complaint be similarly treated when the complaint seeks redress of a grievance against the company? 8 NTC has no
jurisdiction to impose a fine. Globe Wireless Ltd. vs. Public Service Commission (G. R. No. L-27250, 21 January
1987, 147 SCRA 269) says so categorically.

Verily, Section 13 of Commonwealth Act No. 146, as amended, otherwise known as the Public
Service Act, vested in the Public Service Commission jurisdiction, supervision and control over all
public services and their franchises, equipment and other properties.

xxx xxx xxx

The act complained of consisted in petitioner having allegedly failed to deliver the telegraphic
message of private respondent to the addressee in Madrid, Spain. Obviously, such imputed
negligence has nothing whatsoever to do with the subject matter of the very limited jurisdiction of
the Commission over petitioner.
 Moreover, under Section 21 of C. A. 146, as amended, the Commission was empowered to impose
an administrative fine in cases of violation of or failure by a public service to comply with the
terms and conditions of any certificate or any orders, decisions or regulations of the Commission.
Petitioner operated under a legislative franchise, so there were no terms nor conditions of any
certificate issued by the Commission to violate. Neither was there any order, decision or regulation
from the Commission applicable to petitioner that the latter had allegedly violated, disobeyed,
defied or disregarded.

No substantial change has been brought about by Executive Order No. 546 invoked by the Solicitor General's Office
to bolster NTC's jurisdiction. The Executive Order is not an explicit grant of power to impose administrative fines
on public service utilities, including telegraphic agencies, which have failed to render adequate service to
consumers. Neither has it expanded the coverage of the supervisory and regulatory power of the agency. There
appears to be no alternative but to reiterate the settled doctrine in administrative law that:

Too basic in administrative law to need citation of jurisprudence is the rule that jurisdiction and
powers of administrative agencies, like respondent Commission, are limited to those expressly
granted or necessarily implied from those granted in the legislation creating such body; and any
order without or beyond such jurisdiction is void and ineffective . . . (Globe Wireless case, supra).

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE for lack of jurisdiction of the NTC to
render it. The temporary restraining order issued on 18 June 1990 is made PERMANENT without prejudice,
however, to the filing by the party aggrieved by the conduct of RCPI, of the proper action in the proper forum. No
costs.

SO ORDERED.

G.R. No. 106719 September 21, 1993

DRA. BRIGIDA S. BUENASEDA, Lt. Col. ISABELO BANEZ, JR., ENGR. CONRADO REY MATIAS, Ms.
CORA S. SOLIS and Ms. ENYA N. LOPEZ, petitioners,
vs.
SECRETARY JUAN FLAVIER, Ombudsman CONRADO M. VASQUEZ, and NCMH NURSES
ASSOCIATION, represented by RAOULITO GAYUTIN, respondents.

Renato J. Dilag and Benjamin C. Santos for petitioners.

Danilo C. Cunanan for respondent Ombudsman.

Crispin T. Reyes and Florencio T. Domingo for private respondent.

QUIASON, J.:
This is a Petition for Certiorari, Prohibition and Mandamus, with Prayer for Preliminary Injunction or Temporary
Restraining Order, under Rule 65 of the Revised Rules of Court.

Principally, the petition seeks to nullify the Order of the Ombudsman dated January 7, 1992, directing the preventive
suspension of petitioners,
Dr. Brigida S. Buenaseda, Chief of Hospital III; Isabelo C. Banez, Jr., Administrative Officer III; Conrado Rey
Matias, Technical Assistant to the Chief of Hospital; Cora C. Solis, Accountant III; and Enya N. Lopez, Supply
Officer III, all of the National Center for Mental Health. The petition also asks for an order directing the
Ombudsman to disqualify Director Raul Arnaw and Investigator Amy de Villa-Rosero, of the Office of the
Ombudsman, from participation in the preliminary investigation of the charges against petitioner (Rollo, pp. 2-17;
Annexes to Petition, Rollo, pp. 19-21).

The questioned order was issued in connection with the administrative complaint filed with the Ombudsman (OBM-
ADM-0-91-0151) by the private respondents against the petitioners for violation of the Anti-Graft and Corrupt
Practices Act.

According to the petition, the said order was issued upon the recommendation of Director Raul Arnaw and
Investigator Amy de Villa-Rosero, without affording petitioners the opportunity to controvert the charges filed
against them. Petitioners had sought to disqualify Director Arnaw and Investigator Villa-Rosero for manifest
partiality and bias (Rollo, pp. 4-15).

On September 10, 1992, this Court required respondents' Comment on the petition.

On September 14 and September 22, 1992, petitioners filed a "Supplemental Petition (Rollo, pp. 124-130); Annexes
to Supplemental Petition; Rollo pp. 140-163) and an "Urgent Supplemental Manifestation" (Rollo,
pp. 164-172; Annexes to Urgent Supplemental Manifestation; Rollo, pp. 173-176), respectively, averring
developments that transpired after the filing of the petition and stressing the urgency for the issuance of the writ of
preliminary injunction or temporary restraining order.

On September 22, 1992, this Court ". . . Resolved to REQUIRE the respondents to MAINTAIN in the meantime,
theSTATUS QUO pending filing of comments by said respondents on the original supplemental manifestation"
(Rollo, p. 177).

On September 29, 1992, petitioners filed a motion to direct respondent Secretary of Health to comply with the
Resolution dated September 22, 1992 (Rollo, pp. 182-192, Annexes, pp. 192-203). In a Resolution dated October 1,
1992, this Court required respondent Secretary of Health to comment on the said motion.

On September 29, 1992, in a pleading entitled "Omnibus Submission," respondent NCMH Nurses Association
submitted its Comment to the Petition, Supplemental Petition and Urgent Supplemental Manifestation. Included in
said pleadings were the motions to hold the lawyers of petitioners in contempt and to disbar them (Rollo, pp. 210-
267). Attached to the "Omnibus Submission" as annexes were the orders and pleadings filed in Administrative Case
No. OBM-ADM-0-91-1051 against petitioners (Rollo, pp. 268-480).

The Motion for Disbarment charges the lawyers of petitioners with:

(1) unlawfully advising or otherwise causing or inducing their clients petitioners Buenaseda, et al., to openly
defy, ignore, disregard, disobey or otherwise violate, maliciously evade their preventive suspension by Order of July
7, 1992 of the Ombudsman . . ."; (2) "unlawfully interfering with and obstructing the implementation of the said
order (Omnibus Submission, pp. 50-52; Rollo, pp. 259-260); and (3) violation of the Canons of the Code of
Professional Responsibility and of unprofessional and unethical conduct "by foisting blatant lies, malicious
falsehood and outrageous deception" and by committing subornation of perjury, falsification and fabrication in their
pleadings (Omnibus Submission, pp. 52-54; Rollo, pp. 261-263).

On November 11, 1992, petitioners filed a "Manifestation and Supplement to 'Motion to Direct Respondent
Secretary of Health to Comply with 22 September 1992 Resolution'" (Manifestation attached to Rollo without
pagination between pp. 613 and 614 thereof).

On November 13, 1992, the Solicitor General submitted its Comment dated November 10, 1992, alleging that: (a)
"despite the issuance of the September 22, 1992 Resolution directing respondents to maintain the status quo,
respondent Secretary refuses to hold in abeyance the implementation of petitioners' preventive suspension; (b) the
clear intent and spirit of the Resolution dated September 22, 1992 is to hold in abeyance the implementation of
petitioners' preventive suspension, the status quo obtaining the time of the filing of the instant petition; (c)
respondent Secretary's acts in refusing to hold in abeyance implementation of petitioners' preventive suspension and
in tolerating and approving the acts of Dr. Abueva, the OIC appointed to replace petitioner Buenaseda, are in
violation of the Resolution dated September 22, 1992; and
(d) therefore, respondent Secretary should be directed to comply with the Resolution dated September 22, 1992
immediately, by restoring the status quo ante contemplated by the aforesaid resolution" (Comment attached
toRollo without paginations between pp. 613-614 thereof).

In the Resolution dated November 25, 1992, this Court required respondent Secretary to comply with the
aforestated status quo order, stating inter alia, that:

It appearing that the status quo ante litem motam, or the last peaceable uncontested status which
preceded the present controversy was the situation obtaining at the time of the filing of the petition
at bar on September 7, 1992 wherein petitioners were then actually occupying their respective
positions, the Court hereby ORDERS that petitioners be allowed to perform the duties of their
respective positions and to receive such salaries and benefits as they may be lawfully entitled to,
and that respondents and/or any and all persons acting under their authority desist and refrain from
performing any act in violation of the aforementioned Resolution of September 22, 1992 until
further orders from the Court (Attached to Rollo after p. 615 thereof).

On December 9, 1992, the Solicitor General, commenting on the Petition, Supplemental Petition and Supplemental
Manifestation, stated that (a) "The authority of the Ombudsman is only to recommend suspension and he has no
direct power to suspend;" and (b) "Assuming the Ombudsman has the power to directly suspend a government
official or employee, there are conditions required by law for the exercise of such powers; [and] said conditions have
not been met in the instant case" (Attached to Rollo without pagination).

In the pleading filed on January 25, 1993, petitioners adopted the position of the Solicitor General that the
Ombudsman can only suspend government officials or employees connected with his office. Petitioners also refuted
private respondents' motion to disbar petitioners' counsel and to cite them for contempt (Attached to Rollowithout
pagination).

The crucial issue to resolve is whether the Ombudsman has the power to suspend government officials and
employees working in offices other than the Office of the Ombudsman, pending the investigation of the
administrative complaints filed against said officials and employees.
In upholding the power of the Ombudsman to preventively suspend petitioners, respondents (Urgent Motion to
LiftStatus Quo, etc, dated January 11, 1993, pp. 10-11), invoke Section 24 of R.A. No. 6770, which provides:

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 charge 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 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.

Respondents argue that the power of preventive suspension given the Ombudsman under Section 24 of R.A. No.
6770 was contemplated by Section 13 (8) of Article XI of the 1987 Constitution, which provides that the
Ombudsman shall exercise such other power or perform such functions or duties as may be provided by law."

On the other hand, the Solicitor General and the petitioners claim that under the 1987 Constitution, the Ombudsman
can only recommend to the heads of the departments and other agencies the preventive suspension of officials and
employees facing administrative investigation conducted by his office. Hence, he cannot order the preventive
suspension himself.

They invoke Section 13(3) of the 1987 Constitution which provides that the Office of the Ombudsman shall
haveinter alia the power, function, and duty to:

Direct the officer concerned to take appropriate action against a public official or employee at
fault, and recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure
compliance therewith.

The Solicitor General argues that under said provision of the Constitutions, the Ombudsman has three distinct
powers, namely: (1) direct the officer concerned to take appropriate action against public officials or employees at
fault; (2) recommend their removal, suspension, demotion fine, censure, or prosecution; and (3) compel compliance
with the recommendation (Comment dated December 3, 1992, pp. 9-10).

The line of argument of the Solicitor General is a siren call that can easily mislead, unless one bears in mind that
what the Ombudsman imposed on petitioners was not a punitive but only a preventive suspension.

When the constitution vested on the Ombudsman the power "to recommend the suspension" of a public official or
employees (Sec. 13 [3]), it referred to "suspension," as a punitive measure. All the words associated with the word
"suspension" in said provision referred to penalties in administrative cases, e.g. removal, demotion, fine, censure.
Under the rule of Noscitor a sociis, the word "suspension" should be given the same sense as the other words with
which it is associated. Where a particular word is equally susceptible of various meanings, its correct construction
may be made specific by considering the company of terms in which it is found or with which it is associated (Co
Kim Chan v. Valdez Tan Keh, 75 Phil. 371 [1945]; Caltex (Phils.) Inc. v. Palomar, 18 SCRA 247 [1966]).
Section 24 of R.A. No. 6770, which grants the Ombudsman the power to preventively suspend public officials and
employees facing administrative charges before him, is a procedural, not a penal statute. The preventive suspension
is imposed after compliance with the requisites therein set forth, as an aid in the investigation of the administrative
charges.

Under the Constitution, the Ombudsman is expressly authorized to recommend to the appropriate official the
discipline or prosecution of erring public officials or employees. In order to make an intelligent determination
whether to recommend such actions, the Ombudsman has to conduct an investigation. In turn, in order for him to
conduct such investigation in an expeditious and efficient manner, he may need to suspend the respondent.

The need for the preventive suspension may arise from several causes, among them, the danger of tampering or
destruction of evidence in the possession of respondent; the intimidation of witnesses, etc. The Ombudsman should
be given the discretion to decide when the persons facing administrative charges should be preventively suspended.

Penal statutes are strictly construed while procedural statutes are liberally construed (Crawford, Statutory
Construction, Interpretation of Laws, pp. 460-461; Lacson v. Romero, 92 Phil. 456 [1953]). The test in determining
if a statute is penal is whether a penalty is imposed for the punishment of a wrong to the public or for the redress of
an injury to an individual (59 Corpuz Juris, Sec. 658; Crawford, Statutory Construction, pp. 496-497). A Code
prescribing the procedure in criminal cases is not a penal statute and is to be interpreted liberally (People v. Adler,
140 N.Y. 331; 35 N.E. 644).

The purpose of R.A. No. 6770 is to give the Ombudsman such powers as he may need to perform efficiently the task
committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with
procedure, should be given such interpretation that will effectuate the purposes and objectives of the Constitution.
Any interpretation that will hamper the work of the Ombudsman should be avoided.

A statute granting powers to an agency created by the Constitution should be liberally construed for the
advancement of the purposes and objectives for which it was created (Cf. Department of Public Utilities v. Arkansas
Louisiana Gas. Co., 200 Ark. 983, 142 S.W. (2d) 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E., 438
[1934]).

In Nera v. Garcia, 106 Phil. 1031 [1960], this Court, holding that a preventive suspension is not a penalty, said:

Suspension is a preliminary step in an administrative investigation. If after such investigation, the

charges are established and the person investigated is found guilty of acts warranting his removal,
then he is removed or dismissed. This is the penalty.

To support his theory that the Ombudsman can only preventively suspend respondents in administrative cases who
are employed in his office, the Solicitor General leans heavily on the phrase "suspend any officer or employee under
his authority" in Section 24 of R.A. No. 6770.

The origin of the phrase can be traced to Section 694 of the Revised Administrative Code, which dealt with
preventive suspension and which authorized the chief of a bureau or office to "suspend any subordinate or employee
in his bureau or under his authority pending an investigation . . . ."

Section 34 of the Civil Service Act of 1959 (R.A. No. 2266), which superseded Section 694 of the Revised
Administrative Code also authorized the chief of a bureau or office to "suspend any subordinate officer or
employees, in his bureau or under his authority."
However, when the power to discipline government officials and employees was extended to the Civil Service
Commission by the Civil Service Law of 1975 (P.D. No. 805), concurrently with the President, the Department
Secretaries and the heads of bureaus and offices, the phrase "subordinate officer and employee in his bureau" was
deleted, appropriately leaving the phrase "under his authority." Therefore, Section 41 of said law only mentions that
the proper disciplining authority may preventively suspend "any subordinate officer or employee under his authority
pending an investigation . . ." (Sec. 41).

The Administrative Code of 1987 also empowered the proper disciplining authority to "preventively suspend any
subordinate officer or employee under his authority pending an investigation" (Sec. 51).

The Ombudsman Law advisedly deleted the words "subordinate" and "in his bureau," leaving the phrase to read
"suspend any officer or employee under his authority pending an investigation . . . ." The conclusion that can be
deduced from the deletion of the word "subordinate" before and the words "in his bureau" after "officer or
employee" is that the Congress intended to empower the Ombudsman to preventively suspend all officials and
employees under investigation by his office, irrespective of whether they are employed "in his office" or in other
offices of the government. The moment a criminal or administrative complaint is filed with the Ombudsman, the
respondent therein is deemed to be "in his authority" and he can proceed to determine whether said respondent
should be placed under preventive suspension.

In their petition, petitioners also claim that the Ombudsman committed grave abuse of discretion amounting to lack
of jurisdiction when he issued the suspension order without affording petitioners the opportunity to confront the
charges against them during the preliminary conference and even after petitioners had asked for the disqualification
of Director Arnaw and Atty. Villa-Rosero (Rollo, pp. 6-13). Joining petitioners, the Solicitor General contends that
assuming arguendo that the Ombudsman has the power to preventively suspend erring public officials and
employees who are working in other departments and offices, the questioned order remains null and void for his
failure to comply with the requisites in Section 24 of the Ombudsman Law (Comment dated December 3, 1992, pp.
11-19).

Being a mere order for preventive suspension, the questioned order of the Ombudsman was validly issued even
without a full-blown hearing and the formal presentation of evidence by the parties. In Nera, supra, petitioner
therein also claimed that the Secretary of Health could not preventively suspend him before he could file his answer
to the administrative complaint. The contention of petitioners herein can be dismissed perfunctorily by holding that
the suspension meted out was merely preventive and therefore, as held in Nera, there was "nothing improper in
suspending an officer pending his investigation and before tho charges against him are heard . . . (Nera v.
Garcia., supra).

There is no question that under Section 24 of R.A. No. 6770, the Ombudsman cannot order the preventive
suspension of a respondent unless the evidence of guilt is strong and (1) the charts against such officer or employee
involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (2) the charge would
warrant removal from the service; or (3) the respondent's continued stay in office may prejudice the case filed
against him.

The same conditions for the exercise of the power to preventively suspend officials or employees under
investigation were found in Section 34 of R.A. No. 2260.

The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence
of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of
guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. In the case at bench, the
Ombudsman issued the order of preventive suspension only after: (a) petitioners had filed their answer to the
administrative complaint and the "Motion for the Preventive Suspension" of petitioners, which incorporated the
charges in the criminal complaint against them (Annex 3, Omnibus Submission, Rollo, pp. 288-289; Annex
4, Rollo,
pp. 290-296); (b) private respondent had filed a reply to the answer of petitioners, specifying 23 cases of harassment
by petitioners of the members of the private respondent (Annex 6, Omnibus Submission, Rollo, pp. 309-333); and
(c) a preliminary conference wherein the complainant and the respondents in the administrative case agreed to
submit their list of witnesses and documentary evidence.

Petitioners herein submitted on November 7, 1991 their list of exhibits (Annex 8 of Omnibus Submission, Rollo, pp.
336-337) while private respondents submitted their list of exhibits (Annex 9 of Omnibus Submission, Rollo, pp.
338-348).

Under these circumstances, it can not be said that Director Raul Arnaw and Investigator Amy de Villa-Rosero acted
with manifest partiality and bias in recommending the suspension of petitioners. Neither can it be said that the
Ombudsman had acted with grave abuse of discretion in acting favorably on their recommendation.

The Motion for Contempt, which charges the lawyers of petitioners with unlawfully causing or otherwise inducing
their clients to openly defy and disobey the preventive suspension as ordered by the Ombudsman and the Secretary
of Health can not prosper (Rollo, pp. 259-261). The Motion should be filed, as in fact such a motion was filed, with
the Ombudsman. At any rate, we find that the acts alleged to constitute indirect contempt were legitimate measures
taken by said lawyers to question the validity and propriety of the preventive suspension of their clients.

On the other hand, we take cognizance of the intemperate language used by counsel for private respondents hurled
against petitioners and their counsel (Consolidated: (1) Comment on Private Respondent" "Urgent Motions, etc.;
(2) Adoption of OSG's Comment; and (3) Reply to Private Respondent's Comment and Supplemental Comment, pp.
4-5).

A lawyer should not be carried away in espousing his client's cause. The language of a lawyer, both oral or written,
must be respectful and restrained in keeping with the dignity of the legal profession and with his behavioral attitude
toward his brethren in the profession (Lubiano v. Gordolla, 115 SCRA 459 [1982]). The use of abusive language by
counsel against the opposing counsel constitutes at the same time a disrespect to the dignity of the court of justice.
Besides, the use of impassioned language in pleadings, more often than not, creates more heat than light.

The Motion for Disbarment (Rollo, p. 261) has no place in the instant special civil action, which is confined to
questions of jurisdiction or abuse of discretion for the purpose of relieving persons from the arbitrary acts of judges
and quasi-judicial officers. There is a set of procedure for the discipline of members of the bar separate and apart
from the present special civil action.

WHEREFORE, the petition is DISMISSED and the Status quo ordered to be maintained in the Resolution dated
September 22, 1992 is LIFTED and SET ASIDE.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo, Puno and Vitug,
JJ., concur.

Feliciano, J., is on leave.

 Separate Opinions

BELLOSILLO, J., concurring:

I agree that the Ombudsman has the authority, under Sec. 24 of R.A.
No. 6770, to preventively suspend any government official or employee administratively charged before him
pending the investigation of the complaint, the reason being that respondent's continued stay in office may prejudice
the prosecution of the case.

However, in the case before us, I am afraid that the facts thus far presented may not provide adequate basis to
reasonably place petitioners under preventive suspension. For, it is not enough to rule that the Ombudsman has
authority to suspend petitioners preventively while the case is in progress before him. Equally important is the
determination whether it is necessary to issue the preventive suspension under the circumstances. Regretfully, I
cannot see any sufficient basis to justify the preventive suspension. That is why, I go for granting oral argument to
the parties so that we can truthfully determine whether the preventive suspension of respondents are warranted by
the facts. We may be suspending key government officials and employees on the basis merely of speculations which
may not serve the ends of justice but which, on the other hand, deprive them of their right to due process. The
simultaneous preventive suspension of top officials and employees of the National Center for Mental Health may
just disrupt, the hospital's normal operations, much to the detriment of public service. We may safely assume that it
is not easy to replace them in their respective functions as those substituting them may be taking over for the first
time. The proper care of mental patients may thus be unduly jeopardized and their lives and limbs imperilled.

I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal bases to
justify the preventive suspension of petitioners.

# Separate Opinions

BELLOSILLO, J., concurring:

I agree that the Ombudsman has the authority, under Sec. 24 of R.A.
No. 6770, to preventively suspend any government official or employee administratively charged before him
pending the investigation of the complaint, the reason being that respondent's continued stay in office may prejudice
the prosecution of the case.

However, in the case before us, I am afraid that the facts thus far presented may not provide adequate basis to
reasonably place petitioners under preventive suspension. For, it is not enough to rule that the Ombudsman has
authority to suspend petitioners preventively while the case is in progress before him. Equally important is the
determination whether it is necessary to issue the preventive suspension under the circumstances. Regretfully, I
cannot see any sufficient basis to justify the preventive suspension. That is why, I go for granting oral argument to
the parties so that we can truthfully determine whether the preventive suspension of respondents are warranted by
the facts. We may be suspending key government officials and employees on the basis merely of speculations which
may not serve the ends of justice but which, on the other hand, deprive them of their right to due process. The
simultaneous preventive suspension of top officials and employees of the National Center for Mental Health may
just disrupt, the hospital's normal operations, much to the detriment of public service. We may safely assume that it
is not easy to replace them in their respective functions as those substituting them may be taking over for the first
time. The proper care of mental patients may thus be unduly jeopardized and their lives and limbs imperilled.

I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal bases to
justify the preventive suspension of petitioners.

G.R. No. 97203 May 26, 1993

HON. ISIDRO CARIO, substituted by HON. ARMANDO V. FABELLA, Secretary of Education, Culture
and Sports, and VENANCIO R. NAVA, Regional Director, DECS Region IX, Davao City, petitioners,
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of RTC-Makati, Br. 134 and AMA COMPUTER
COLLEGE, INC., Davao City and AMA COMPUTER COLLEGE, respondents.

The Solicitor General for plaintiff-appellee.

Mauricio C. Ulep for private respondents.

PADILLA, J.:

This is a petition for certiorari with a prayer for the issuance of a writ of preliminary injunction, to annul and set
aside the order of respondent Judge dated 15 November 1990 and the writ of preliminary injunction issued pursuant
to the said order, dated 16 November 1990, and to enjoin the respondent Judge from implementing the order of 15
November 1990 and from further conducting proceedings in Special Civil Case No. 90-2917 until further orders
from this Court.

As prayed for, this Court issued on 28 February 1991 a temporary restraining order, viz. "effective immediately and
continuing until further orders from this Court You, RESPONDENT JUDGE, your agents, representatives, or any
person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from implementing
your Order dated November 15, 1990 and from conducting further proceedings in Special Civil Case No. 90-2917
entitled "Ama Computer College, et al. vs. Hon. Isidro Carino, et al." 1

The antecedents are as follows:

By virtue of a "Contract of Lease with Option to Buy" entered into with Light Bringer School (LBS) on 14 May
1990, Ama Computer College (AMA) took possession of the premises of the former located at Marfori Heights,
Davao City. LBS is a duly recognized and licensed elementary school which transferred its operation elsewhere in
Davao City.

On 21 May 1990, Regional Director Venancio R. Nava, Region IX-DECS, received AMA's letter of intent to operate
as an educational institution in Davao City. 2 Responding to the said letter, Regional Director Venancio R. Nava
reminded AMA "of the provisions of the Rules and Regulations of Batas Pambansa Blg. 232, specifically Article E,
Section 7, Rule III that the filing of the application shall be at least one (1) year before the opening of classes" and
the "provisions of the Private School Law reiterated in the Educational Act of 1992 which prohibits the operation of
unauthorized schools or courses." 3

Nevertheless, AMA proceeded to announce its opening through news and print media, and thereupon, started to
enroll students in elementary, secondary and tertiary levels. Taking remedial action, the DECS Regional Director
directed AMA to stop enrollment and to desist from operating without prior authorization. 4

AMA, however, not only continued the enrollment but even started to hold regular classes, and thereafter, on 15
June 1990, filed a formal application to operate. Acknowledging receipt of the said operation, the Regional Director
reiterated the earlier directive for AMA to stop operation with a warning that further failure to comply "would
constrain the Office to invoke the Memorandum Agreement with the Defense Department to stop unlawful operation
of the school." 5 Again, AMA ignored the directive and continued to operate illegally.

On 22 June 1990, a DECS inspection team was sent to the premises of AMA to look into the case. In its report, 6the
inspection team confirmed AMA's defiance of the DECS directive. Hence, military assistance was requested by the
Regional Director to effect closure of AMA Computer College, Inc., Davao City. However, in a letter dated 25 June
1990, AMA's Officer-in-Charge requested that the closure be held in abeyance for fifteen (15) days, 7 which the
Regional Director denied on the same day. 8

On even date, i.e. on 25 June 1990, the Regional Director received a letter from AMA asking that the parties await
the decision of the Secretary of DECS on its application for permit to operate before the closure order is
effected.9 On 27 June, 1990, the Secretary of DECS denied AMA's
application. 10

On 6 July 1990, AMA filed with the RTC of Manila, Branch 18, a petition for
prohibition, certiorari and mandamusagainst the Hon. Isidro Carino, DEC's Secretary and Atty. Venancio R. Nava,
Regional Director, Department of Education, Culture and Sports, Region IX to annul and set aside the closure order
and to enjoin the respondents from closing or padlocking AMACC, Davao City. The case was docketed as Civil
Case No. 90-53615. 11 On 26 July 1990, the trial court dismissed the petition for lack of merit. Thereafter, AMA filed
with the Court of Appeals a petition for certiorari in CA-G.R. SP No. 22357 assailing the 26 July order of the
court a quo, but, again, the Court of Appeals peremptorily dismissed the petition 12 and also denied its motion for
reconsideration. 13

Under the cloak of an organization of parents of students styling themselves as AMACC-PARENTS Organization,
AMA filed another petition for prohibition and/or mandamus with preliminary injunction with the RTC of Davao
City, Branch 8, docketed therein as Civil Case No. 20-230-90, entitled "Freddie Retotal, Ricardo Fuentes, Calixta
Holazo, Ursula Reyes, in their own behalf and in behalf of the other members of AMACC Parents' Organization vs.
Venancio Nava, in his capacity as Regional Director, Department of Education, Culture and Sports." 14 On 7 August
1990, the court dismissed the petition. 15
AMA, however, in order to thwart the closure or padlocking of its school in Davao City, filed with the RTC of
Makati, Branch 134, presided over by respondent Judge, another petition for mandamus, with damages, preliminary
injunction and/or restraining order against Hon. Isidro Carino, Secretary and Director, Department of Education,
Culture and Sports, Region IX to compel the respondents to approve petitioners' application for permit to operate
retroactive to the commencement of school year 1990-1991, and to enjoin the closure and/or padlocking of AMA-
Davao school, docketed therein as SP Civil Case No. 90-2917. 16

Petitioners, through the Office of the Solicitor General, moved to dismiss AMA's petition on the ground that (1)
AMA is not entitled to the writ of mandamus as petitioners' authority to grant or deny the permit to operate is
discretionary and not ministerial; (2) AMA failed to comply with the provisions of the Education Act; (3) AMA is
blatantly engaging in forum shopping; (4) AMA failed to exhaust available administrative remedies before resorting
to court; and (5) lack of territorial jurisdiction over petitioner Regional Director and AMA-Davao. 17

On 15 November 1990, the respondent Judge issued an order 18 directing the issuance of a writ of preliminary
injunction, the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing reasons, let a writ of preliminary injunction be issued,
upon filing of petitioners of a bond in the amount of P500,000.00, duly approved by this Court,
enjoining and restraining the respondent Hon. Isidro Carino, his agents, representatives and any
person acting for and his behalf, from implementing the closing and/or padlocking AMA
Computer College, Inc. - Davao City Branch, until further orders from this Court. 19

and on the following day, i.e., on 16 November 1990, issued the writ of preliminary injunction. 20

Hence, the petitioners filed the present petition, claiming that respondent Judge acted with grave abuse of discretion
amounting to lack or excess of his jurisdiction in issuing the order dated 15 November 1990 and the writ of
preliminary injunction dated 16 November 1990, and that there is no appeal, nor any plain, speedy and adequate
remedy in the ordinary course of law except through the present petition. Acting upon the petition, the Court
required the private respondents to comment on the petition. 21

Instead of filing their comment, the private respondents filed a Manifestation and Motion for the Dismissal of the
Petition on the following grounds: (1) A compromise agreement has already been effected between AMA Computer
College and the Department of Education completely altering the factual situation in the case at bar; and (2) The
grounds relied upon for this petition for certiorari no longer exist. 22

As required by the Court, the petitioners filed their comment 23 on the aforesaid Manifestation and Motion, while the
private respondents filed by their reply 24 thereto. As further required by the Court, the petitioners filed a
rejoinder 25 to the private respondents' reply, and the private respondents their sur-rejoinder 26 to the petitioners'
rejoinder

On 5 November 1991, the Court denied the private respondents' Manifestation and Motion for the dismissal of the
petition, and directed them to file their comment on the main petition as required in the resolution of 14 February
1991. 27

In their comment 28 on the petition, the private respondents simply reiterated the allegations contained in their
Manifestation and Motion for the dismissal of the petition.
Thereafter, "the Court Resolved to (a) CONSIDER the comment as ANSWER to the petition; (b) GIVE DUE
COURSE to the petition; and (c) CALENDAR this case for deliberation." 29

After careful deliberation, the Court holds that the petition is meritorious; hence, the same should be granted.

The respondent Judge committed grave abuse of discretion amounting to lack or excess of his jurisdiction in issuing
the order of 15 November 1990 directing the issuance of a writ of preliminary injunction and in issuing the writ on
16 November 1990.

Under Batas Pambansa Blg. 232, otherwise known as the "Education Act of 1982", the establishment and operation
of schools are subject to the prior authorization of the government and shall be effected by recognition. And for the
implementation of the law, the Ministry (now Department) of Education, Culture and Sports (DECS) is empowered
to prescribe the rules and regulations governing recognition. 30

The Implementing Rules and Regulations of Batas Pambansa Blg. 232 provide, among others, as follows :

Section 1. Policy Pursuant to the Constitution, all educational institutions shall be under the
supervision or, and subject to regulation by the State.

Consequently, no school or educational institution shall be established, nor operate any

educational program, whether formal or non-formal, except by law or pursuant to law and in
accordance with these Rules.

xxx xxx xxx

Sec. 4. Establishment of School The establishment of new schools shall be the subject to the
following :

xxx xxx xxx

d. The establishment of a new private school, including that of a branch school or extension class,
shall be subject to the prior approval of the Ministry pursuant to Act. No. 2706, as amended, the
Educational Act of 1982, and other education related and applicable laws . . . .

Sec. 5. Recognition of Schools In view of the State Policy that education programs and/or
operations shall be of good quality, and therefore shall at least satisfy the minimum standards with
respect to curricula, teaching staff, physical plant and facilities, and of administrative and
management viability, no institution established as a school shall operate without prior
government authorization to conduct or undertake educational operations. . . . 31

The Implementing Rules and Regulations of Batas Pambansa Blg. 232, further provide :

Sec. 11. Effects of Non-Recognition. Contrariwise, the effects of non-recognition of a school or

any of its programs or courses of studies, or specifically the non-issuance by the Ministry
(Department) of the permit or certificate of government recognition therefore as provided in
Sections 8 and 9 under this Rule, shall be any or all of the following :
 a. At the option of the Ministry, either the total closure of the school or its program or courses of
studies for lack of authority to operate.

xxx xxx xxx

c. Disqualification of the school to confer any title or degree, or to award any certificate or
diploma to any pupil or student enrolled in the non-recognized program or course or studies. 32

As a rule, a writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant
to protect or preserve his rights or interest, and for no other purpose, during the pendency of the principal action.
Before a writ of preliminary injunction may be issued, there must be a clear showing by the complainant that there
exists a right to be protected and that the acts against which the writ is directed are violative of said right. 33

In the case at bar, the private respondents' application for a permit to operate AMACC-Davao City as an educational
institution was denied by the petitioners. Otherwise stated, the private respondents do not have a permit to operate or
a certificate of recognition from the government to undertake educational or school operations. In fine, the private
respondents do not have any existing right that needed to be protected during the pendency of their principal action
for mandamus. Hence, the "closing" and/or "padlocking" of AMACC-Davao City would not and did not violate any
right of the private respondents.

Moreover, it is not the function of the writ of preliminary injunction to restrain a public officer from performing a
duty imposed by law or to permit the doing of that which is declared unlawful. 34 Under Batas Pambansa Blg. 232
and its Implementing Rules and Regulations, the establishment and operation of schools are subject to the prior
authorization of the government. And, as sanctions for operating without permit, the DECS is authorized either to
impose the total closure of school and/or to disqualify the school from conferring title or degree in the non-
recognized program or course of studies. In ordering the total closure of AMACC-Davao City, the petitioners were
only performing their duties as public officers; hence, the respondent Judge should not have issued the writ of
preliminary injunction. In issuing the writ, he allowed the private respondents to continue the operation of AMACC-
Davao City as an educational institution without a permit or certificate of government recognition, thereby
sanctioning the act which is unlawful.

In directing the issuance of the writ of preliminary injunction, the respondent Judge reasoned out that the private
respondents "need full protection for by law against irreparable damage that they may sustain by virtue of the
closure order." In this connection, it would suffice to state that the mere "possibility of irreparable damage, without
proof of an actually existing right, is no ground for an injunction, being a mere damnum absque injuria." 35

Finally, the action filed by the private respondents in the court below is a petition for mandamus to compel the
petitioners to approve their application to operate AMACC-Davao City as an educational institution. As a
rule,mandamus will lie only to compel an officer to perform a ministerial duty but not a discretionary function. 36 A
ministerial duty is one which is so clear and specific as to leave no room for the exercise of discretion in its
performance. On the other hand, a discretionary duty is that which by nature requires the exercise of judgment. As
explained in the case of Symaco vs. Aquino, 37

A purely ministerial act or duty to a discretional act, is one which an officer or tribunal performs in
a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority,
without regard to or the exercise of his own judgment, upon the propriety of the act done. If the
law imposes a duty upon a public officer, and gives him the right to decide how or when the duty
 shall be performed, such duty is ministerial only when the discharge of the same requires neither
the exercise of official discretion nor judgment.

In the present case, the issuance of the permit in question is not a ministerial duty of the petitioners. It is a
discretionary duty or function on the part of the petitioners because it had to be exercised in accordance with and
not in violation of the law and its Implementing Rules and Regulations. Thus, as aptly observed by the Solicitor
General in his Motion to Dismiss the
petition

Establishment or recognition of private schools through government grant of permits is governed

by law, specifically Batas Pambansa Blg. 232. The authority to grant permit is vested upon the
judgment of the Department of Education, Culture and Sports, which prescribes the rules and
regulations governing the recognition on private schools (Section 27, Batas Pambansa Blg. 232).

Whether to grant or not a permit is not a ministerial duty of the Department of Education, Culture
and Sports. Rather it is a discretionary duty to be exercised in accordance with the rules and
regulations prescribed.

In the case at bar, petitioner has been operating a school without a permit in blatant violation of
law. Public respondent has no ministerial duty to issue to petitioner a permit to operate a school in
Davao City before petitioner has even filed an application or before his application has been first
processed in accordance with the rules and regulations on the matter. Certainly, public respondent
is not enjoined by any law to grant such permit or to allow such operation without a permit,
without first processing an application. To do so is violation of the Educational Act. 38

ACCORDINGLY, the petition is GRANTED and the order dated 15 November 1990 and the writ of preliminary
injunction dated 16 November 1990 are hereby ANNULLED and SET ASIDE. The petition for mandamus before
the respondent court is DISMISSED.

The Temporary Restraining Order heretofore issued by this Court is hereby made PERMANENT.

SO ORDERED.

G.R. No. 128392. April 29, 2005

CESAR MATEO, CANDIDO MATEO, DOMINGO A. SANTOS, DANILO RIVERA VIRGINIA JARDIN
GUPIT, ZENAIDA ARANDA, ET AL.,Petitioners, vs. COURT OF APPEALS AND CASIMIRO
DEVELOPMENT CORPORATION, Respondents.

DECISION

AZCUNA, J.:
This is a petition for review on certiorari assailing the Decision[1] dated January 25, 1996 of the Court of Appeals
in CAG.R. SP No. 34039, which reversed and set aside the decision of the Regional Trial Court which, in a petition
for certiorari and prohibition with preliminary injunction and restraining order, declared the decision of the
Metropolitan Trial Court null and void.

In contest in this case is a parcel of registered land situated at Pulang Lupa I, Las Pias, Metro . Private respondent
Casimiro Development Corporation (CDC) alleged that it was the owner of the land in question since it acquired the
same from the previous owner, China Banking Corporation. After the sale CDC advised the petitioners that it was
the new owner of the land and that they had failed to pay the rentals due to it and to its predecessor-in-interest. After
demands were made of the petitioners to settle their obligations and after they failed to pay, CDC gave them notice
to vacate the premises. The petitioners refused. This prompted CDC to file a complaint for Unlawful Detainer
against the petitioners before the Metropolitan Trial Court of Las Pias.

In an Answer with Counterclaim, petitioners denied the allegations in the complaint and maintained that the
Metropolitan Trial Court has no jurisdiction over the case since the land was classified as agricultural and that it is
the Department of Agrarian Reform Adjudication Board (DARAB) that had jurisdiction over the case. They further
claimed that they were in continuous and open possession of the land even before World War II and presumed
themselves entitled to a government grant. Petitioners also questioned the validity of the title held by CDC, arguing
that the land was registered before it was declared alienable.

The Metropolitan Trial Court of Las Pias decided in favor of CDC and reasoned out as follows:

The Court, after careful consideration of the facts and the laws applicable to this case[,] hereby resolves:

1. On the issue of jurisdiction.

The defendants alleged that the land in question is an agricultural land by presenting a Tax Declaration Certificate
classifying the land as 'FISHPOND. The classification of the land in a tax declaration certificate as a 'fishpond
merely refers to the use of the land in question for the purpose of real property taxation. This alone would not be
sufficient to bring the land in question under the operation of the Comprehensive Agrarian Reform Law.

2. On the issue of open and adverse possession by the defendants.

It should be noted that the subject land is covered by a Transfer Certificate of Title in the name of plaintiffs'
predecessor-in-interest China Banking Corporation. Certificates of Title under the Torrens System is indefeasible
and imprescriptible. As between two persons claiming possession, one having a [T]orrens title and the other has
none, the former has a better right.

3. On the issue of the nullity of the Certificate of Title.

The defense of the defendants that the subject property was a forest land when the same was originally registered in
1967 and hence, the registration is void[,] is not for this Court to decide[,] for lack of jurisdiction. The certificate of
title over the property must be respected by this Court until it has been nullified by a competent Court.

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff[,] ordering the defendants

1. [sic] and all persons claiming right[s] under it to vacate the subject premises located at Pulang Lupa I, Las Pias,
Metro and surrender the possession of the same to herein plaintiff;
2. to pay the plaintiff reasonable compensation for the use and occupation of the subject premises hereby fixed at
(P100.00) one hundred pesos a month starting November 22, 1990 (the time when the demand letter to vacate was
given) until defendants actually vacate the property;

No pronouncement as to costs and attorney's fees.

SO ORDERED.[2]

The petitioners raised the Metropolitan Trial Court's decision to the Regional Trial Court (RTC) through a petition
for certiorari and prohibition with a prayer for a restraining order/preliminary injunction. The petitioners contended
that: (1) The respondent judge had no jurisdiction to try and decide the case because the controversy is an agrarian
dispute; and (2) the controversy necessarily puts in issue the ownership of the property and is therefore beyond the
allowable scope of unlawful detainer.[3]

The RTC issued a Writ of Preliminary Injunction to maintain the status quo. Subsequently, the RTC rendered a
judgment in favor of the petitioners, reversing the Metropolitan Trial Court. The RTC reasoned thus:

Since the land is a fishpond, the same is agricultural as defined under Sec. 3 (b) and (c), RA 6657, otherwise known
as the Comprehensive Agrarian Reform Law of 1988. As an agricultural land, it is covered under Sec. 4 thereof
which provides:

Sec. 4. Scope. The Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of tenurial arrangement
and commodity produced, all public and private agricultural lands as provided in Proclamation No. 131 and
Executive Order No. 229, including other lands of the public domain suitable for agriculture.

Because the land is within the scope of RA 6657, it is within the exclusive jurisdiction of the Department of
Agrarian Reform (DAR) or the Department of Agrarian Reform Adjudication Board (DARAB) to determine
whether petitioners as the occupants-tillers of the said land are qualified as beneficiaries under the Comprehensive
Agrarian Reform Program. Under Sec. 17 of Executive Order No. 129-A which is a repetition of Sec. 50 of RA
6657, the DARAB is vested with quasi-judicial power to determine and adjudicate agrarian reform matters and shall
have exclusive original jurisdiction over matters including implementation of Agrarian Reform.

Petitioners further contended that they can not be ejected from the land pursuant to General Order No. 53 issued on
August 21, 1975 declaring [a] moratorium on the ejectment of tenants or lessees in agricultural and residential lands
converted or to be converted into subdivisions or commercial centers and establishments and to RA 7279, otherwise
known as the Urban Development and Housing Act of 1992, approved on March 24, 1992[,] which under Sec. 44
thereof provides for a moratorium on the eviction of all program beneficiaries and on the demolition of their houses
or dwelling units for a period of three years from the effectivity of the Act.

RA 7279 being the later law declaring a moratorium on eviction[, it] shall be deemed to have superseded General
Order No. 53[.] Sec. 44 of said Act provides:

Sec. 44. Moratorium on Eviction and Demolition. There shall be a moratorium on the eviction of all program
beneficiaries and on the demolition of their houses or dwelling units for a period of three (3) years from the
effectivity of this Act: Provided, That the moratorium shall not apply to those persons who have constructed their
structures after the effectivity of this Act and for cases enumerated in Section 28 hereof.

On the other hand, Sec. 28 thereof provides:

Sec. 28. Eviction and Demolition. ' Eviction or demolition as a practice shall be discouraged. Eviction or demolition,
however, may be allowed under the following situations:

(a) When persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places such as sidewalks roads, parks and playgrounds;

(b) When government infrastructure projects with available funding are about to be implemented; or

(c) When there is a court order for eviction and demolition.

Even assuming for the sake of argument that the land in question is not covered by RA 6657, this Court believes that
the lower court cannot order their eviction pursuant to the aforesaid provisions of RA 7279. As long time occupants
of the land, they appear to be qualified program beneficiaries under the law and do not fall under the exceptions
provided therein. The court order for the eviction and demolition mentioned in Sec. 28 (c) refers to an order issued
before the effectivity of the law and does not include the questioned judgment which was rendered on October 19,
1992.

In the light of all the foregoing considerations, the court finds that the respondent judge tried and decided Civil Case
No. 3259 for unlawful detainer without jurisdiction and with grave abuse of discretion.

WHEREFORE, judgment is hereby rendered declaring null and void the decision promulgated on October 19, 1992
in Civil Case No. 3259 by respondent judge.

SO ORDERED.[4]

Respondent CDC appealed the RTC judgment to the Court of Appeals and made two assignments of error, to wit:

I. THE REGIONAL TRIAL COURT ERRED IN HOLDING THAT THE METROPOLITAN TRIAL COURT HAS
NO JURISDICTION TO TRY THE UNLAWFUL DETAINER CASE;

II. THE REGIONAL TRIAL COURT ERRED IN THE APPLICATION OF R.A. 7279.[5]

The Court of Appeals found in favor of CDC and held:

On the first assigned error, appellant contends that jurisdiction is determined by the allegations in the complaint and
cannot be made to depend upon the pleas or defenses in the answer. Accordingly, it argues that its complaint is one
for unlawful detainer because it seeks to recover physical possession from the appellees and the action was filed
within one year from November 22, 1990 when the last demand was made under Section 1, Rule 70 of the Rules of
Court. Furthermore, it claims that there was no evidence presented that would prove that a tenancy relationship
exists between the parties.

After an assiduous study of the case, We find that the Metropolitan Trial Court of Las Pias had jurisdiction over the
unlawful detainer case and not the DARAB. The appellees presented tax declarations (Exhs. 'A and 'A-5', pp. 51-56,
Record; and photographs (D-4 to 'D-5', pp. 123-124, Record) of the property to show that the subject land is a
fishpond and hence an agricultural land within the jurisdiction of the DARAB. While We may concede that the
property was, in the past[,] a fishpond, it was not anymore a fishpond at the time the complaint for unlawful detainer
was filed. The tax declarations (Exhs. 'A to 'A-5') showing that the property is a fishpond [are] no longer true. It is
worthy to note that tax declarations are not conclusive proof of the nature of the property (Vide, Patalinghug vs.
Court of Appeals, 229 SCRA 554) and the photographs show that no form of fish life can survive in the alleged
fishpond since it is polluted (Exhs. '3 to '3-C', pp. 77-80). Significantly, the area where the subject property is
located was declared as a low density residential zone (R-1) per MMZO 81-01 dated March 1981 (Exh. '6', pp. 146-
148).

Even assuming that the subject land is a fishpond, and therefore an agricultural land, still, it is error for the court a
quo to declare void the decision of the Metropolitan Trial Court on this finding alone. In Isidro vs. Court of
Appeals, 228 SCRA 503, the Honorable Supreme Court declared that the mere fact that a land is an agricultural land
does not automatically make such case an agrarian dispute upon which the DARAB has jurisdiction. The
disquisition in the Isidro case is enlightening, thus:

The MTC dismissed the unlawful detainer complaint primarily on the ground that the subject land is agricultural and
therefore the question at issue is agrarian. In this connection, it is well to recall that Section 1, Rule II of the Revised
Rules of Procedure provides that the Agrarian Reform Adjudication Board shall have primary jurisdiction, both
original and appellate, to determine and adjudicate all agrarian disputes, cases, controversies, and matters or
incidents involving the implementation of the Comprehensive Agrarian Reform Program under Republic Act No.
6657, Executive Order Nos. 229, 228 and 129-A, Republic Act No. 3844 as amended by Republic Act No. 6389[,]
Presidential Decree No. 27 and other agrarian laws and their implementing rules and regulations.

An agrarian dispute refers to any controversy relating to tenurial arrangements, whether leasehold, tenancy,
stewardship or otherwise, over lands devoted to agriculture, including disputes concerning farmworkers associations
or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions
of such tenurial arrangements. It includes any controversy relating to compensation of lands acquired under
Republic Act No. 6657 and other terms and conditions of transfer of ownership from landowners to farmworkers,
tenants and other agrarian reform beneficiaries, whether the disputants stand in the proximate relation of farm
operator and beneficiary, landowner and tenant, or lessor and lessees.

...

But a case involving an agricultural land does not automatically make such case an agrarian dispute, upon which the
DARAB has jurisdiction. The mere fact that the land is agricultural does not ipso facto make the possessor an
agricultural lessee [or] tenant. 'The law provides for conditions or requisites before he can qualify as one and the
land being agricultural is only one of them. The law states that an agrarian dispute must be a controversy relating to
a tenurial arrangement over lands devoted to agriculture. And as previously mentioned, such arrangement may be
leasehold, tenancy or stewardship.

In the case before Us, the appellees have neither tenurial arrangement of any kind with the appeallant nor with
appellant's predecessor-in-interest. Verily, there being no agrarian dispute between the parties, the DARAB has no
jurisdiction over the case and the complaint for unlawful detainer was properly filed with the Metropolitan Trial
Court of Las Pias (see, De Luna vs. Court of Appeals, 221 SCRA 703).

On the second assigned error, appellant contends that it was error for the court a quo to nullify the decision of the
Metropolitan Trial Court because the proper thing to do under RA 7279 is to hold in abeyance or suspend the
execution of the decision as the law speaks of moratorium and the appellees are not program beneficiaries.
Moreover, it argues that Section 28 (c) is an exception to Section 44, RA 7279.
We are of the view that RA 7279 does not preclude this court from rendering a decision affirming the judgment of
the Metropolitan Trial Court of Las Pias. It is important to consider that Section 28 of RA 7279 merely discourages
eviction or demolition but allows eviction or demolition under the following situations:

(a) When persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places such as sidewalks, roads and parks, and playgrounds;

(b) When government infrastructure projects with available funding are about to be implemented; or

(c) When there is a court order for eviction or demolition.

Contrary to the court a quo's view, the aforecited provisions of Section 28 (c) which allows eviction or demolition
when there is a court order does not require the court order to have been issued before the law's effectivity.

WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and the
decision of the Metropolitan Trial Court of Las Pias in Civil Case No. 3259 is reinstated. No pronouncement as to
costs.

SO ORDERED.[6]

In a Resolution dated February 21, 1997, the Court of Appeals denied the motion for reconsideration filed by
petitioners, for lack of merit.[7]

The petitioners thus filed the present petition for review on certiorari to question the Decision and Resolution of the
Court of Appeals. The sole issue raised is whether or not jurisdiction over the subject matter lies with the DARAB or
with the Metropolitan Trial Court.

The jurisdiction of the DARAB is provided in Section 50 of Rep. Act No. 6657, which reads:

Sec. 50. Quasi Judicial Powers of the DAR. ' The DAR is hereby vested with the primary jurisdiction to determine
and adjudicate agrarian reform matters and shall have exclusive original jurisdiction over all matters involving the
implementation of agrarian reform except those falling under the exclusive jurisdiction of the Department of
Agriculture (DA) and the Department of Environment and Natural Resources (DENR).

It shall not be bound by technical rules of procedure and evidence but shall proceed to hear and decide all cases,
disputes or controversies in a most expeditious manner, employing all reasonable means to ascertain the facts of
every case in accordance with justice and equity and the merits of the case. Toward this end, it shall adopt a uniform
rule of procedure to achieve a just, expeditious and inexpensive determination for every action or proceeding before
it.

Furthermore, it is provided in Section 1, Rule II of the DARAB Rules of Procedure of 1994 that:

Sec. 1. Primary and Exclusive Original and Appellate Jurisdiction. The Board shall have primary exclusive
jurisdiction, both original and appellate, to determine and adjudicate all agrarian disputes involving the
implementation of the Comprehensive Agrarian Reform Program (CARP) under Republic Act No. 6657, Executive
Order Nos. 228, and 129-A, Republic Act No. 3844 as amended by Republic Act No. 6389, Presidential Decree No.
27 and other agrarian laws and their implementing rules and regulations. Specifically, such jurisdiction shall include
but not be limited to cases involving the following:
 a) The rights and obligations of persons, whether natural or juridical, engaged in the management, cultivation
and use of all agricultural lands covered by the CARP and other agrarian laws. . . .

The issue is not new. It was held in Duremdes v. Duremdes [8] that:

First. For the DARAB to have jurisdiction over the case, there must be a tenancy relationship between the parties. In
order for a tenancy agreement to take hold over a dispute, it is essential to establish all its indispensable elements, to
wit:

1) That the parties are the landowner and the tenant or agricultural lessee; 2) that the subject matter of the
relationship is an agricultural land; 3) that there is consent between the parties to the relationship; 4) that
the purpose of the relationship is to bring about agricultural production; 5) that there is personal
cultivation on the part of the tenant or agricultural lessee; and 6) that the harvest is shared between the
landowner and the tenant or agricultural lessee.

These requisites for the jurisdiction of DARAB have been reiterated by the Court in a number of cases.[9]

With regard to the first element, the petitioners have tried to prove that they are tenants or agricultural lessees of the
respondent corporation, CDC, by showing that the land was originally owned by their grandfather, Isaias Lara, who
gave them permission to work the land, and that CDC is merely a successor-in-interest of their grandfather. It must
be noted that the petitioners failed to adequately prove their grandfather's ownership of the land. They merely
showed six tax declarations. It has been held by this Court that, as against a transfer certificate of title, tax
declarations or receipts are not adequate proofs of ownership.[10] Granting arguendo that the land was really owned
by the petitioners' grandfather, petitioners did not even attempt to show how the land went from the patrimony of
their grandfather to that of CDC. Furthermore, petitioners did not prove, but relied on mere allegation, that they
indeed had an agreement with their grandfather to use the land.

As for the third element, there is apparently no consent between the parties. Petitioners were unable to show any
proof of consent from CDC to work the land. For the sake of argument, if petitioners were able to prove that their
grandfather owned the land, they nonetheless failed to show any proof of consent from their grandfather to work the
land. Since the third element was not proven, the fourth element cannot be present since there can be no purpose to a
relationship to which the parties have not consented.

For the sixth element, there was no proof adduced to show that the harvest was shared between the parties.

Regarding the classification of the land, covered by the second element, considering the absence of the first, third,
fourth and sixth elements, the same is not necessary in determining jurisdiction.

With regard to the fifth element, the petitioners alleged and labored to prove that they have been personally
cultivating the subject land. However, even if such personal cultivation occurred it is not relevant since there is no
showing of consent between the parties.

Since there is no proof of tenancy relationship, and in view of absence of the necessary elements enumerated
in Duremdes v. Duremdes,[11] the DARAB does not have jurisdiction over the present case. The MTC, therefore,
had jurisdiction over the subject matter and hence properly exercised jurisdiction over the case.

WHEREFORE, the petition is DENIED and the Court of Appeals' Decision and Resolution in CA- G.R. SP No.
34039, dated January 25, 1996 and February 21, 1997 respectively, are AFFIRMED. No costs.
SO ORDERED.

G.R. No. 92008 July 30, 1990

RAMON P. BINAMIRA, petitioner,

vs.
PETER D. GARRUCHO, JR., respondent.

Ledesma, Saludo & Associates for petitioner.

CRUZ, J.:

In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of General Manager of the
Philippine Tourism Authority from which he claims to have been removed without just cause in violation of his
security of tenure.

The petitioner bases his claim on the following communication addressed to him by the Minister of Tourism on
April 7, 1986:

MEMORANDUM TO: MR. RAMON P. BINAMIRA

You are hereby designated General Manager of the Philippine Tourism Authority, effective
immediately.

By virtue hereof, you may qualify and enter upon the performance of the duties of the office.

(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman, P.T.A. Board

Pursuant thereto, the petitioner assumed office on the same date.

On April 10, 1986, Minister Gonzales sought approval from President Aquino of the composition of the Board of
Directors of the PTA, which included Binamira as Vice-Chairman in his capacity as General Manager. This approval
was given by the President on the same date. 1

Binamira claims that since assuming office, he had discharged the duties of PTA General Manager and Vice-
Chairman of its Board of Directors and had been acknowledged as such by various government offices, including
the Office of the President.

He complains, though, that on January 2, 1990, his resignation was demanded by respondent Garrucho as the new
Secretary of Tourism. Binamira's demurrer led to an unpleasant exchange that led to his filing of a complaint against
the Secretary with the Commission on Human Rights. But that is another matter that does not concern us here.
What does is that on January 4, 1990, President Aquino sent respondent Garrucho the following
memorandum, 2copy furnished Binamira:

4 January 1990

MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism

It appearing from the records you have submitted to this Office that the present General Manager
of the Philippine Tourism Authority was designated not by the President, as required by P.D. No.
564, as amended, but only by the Secretary of Tourism, such designation is invalid. Accordingly,
you are hereby designated concurrently as General Manager, effective immediately, until I can
appoint a person to serve in the said office in a permanent capacity.

Please be guided accordingly.

(Sgd.) CORAZON C. AQUINO

cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila

Garrucho having taken over as General Manager of the PTA in accordance with this memorandum, the petitioner
filed this action against him to question his title. Subsequently, while his original petition was pending, Binamira
filed a supplemental petition alleging that on April 6, 1990, the President of the Philippines appointed Jose A.
Capistrano as General Manager of the Philippine Tourism Authority. Capistrano was impleaded as additional
respondent.

The issue presented in this case is starkly simple.

Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:

SECTION 23-A. General Manager-Appointment and Tenure. The General Manager shall be
appointed by the President of the Philippines and shall serve for a term of six (6) years unless
sooner removed for cause; Provided, That upon the expiration of his term, he shall serve as such
until his successor shall have been appointed and qualified. (As amended by P.D. 1400)

It is not disputed that the petitioner was not appointed by the President of the Philippines but only designated by the
Minister of Tourism. There is a clear distinction between appointment and designation that the petitioner has failed
to consider.

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to
exercise the functions of a given office. 3 When completed, usually with its confirmation, the appointment results in
security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office.
Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent
official, 4 as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors
of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are
designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. 5 It is
said that appointment is essentially executive while designation is legislative in nature.
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.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he
has been illegally removed. The reason is that the decree clearly provides that the appointment of the General
Manager of the Philippine Tourism Authority shall be made by the President of the Philippines, not by any other
officer. Appointment involves the exercise of discretion, which because of its nature cannot be delegated. Legally
speaking, it was not possible for Minister Gonzales to assume the exercise of that discretion as an alter ego of the
President. The appointment (or designation) of the petitioner was not a merely mechanical or ministerial act that
could be validly performed by a subordinate even if he happened as in this case to be a member of the Cabinet.

An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being
that he was chosen because he was deemed fit and competent to exercise that judgment and
discretion, and unless the power to substitute another in his place has been given to him, he cannot
delegate his duties to another. 6

In those cases in which the proper execution of the office requires, on the part of the officer, the
exercise of judgment or discretion, the presumption is that he was chosen because he was deemed
fit and competent to exercise that judgment and discretion, and, unless power to substitute another
in his place has been given to him, he cannot delegate his duties to another. 7

Indeed, even on the assumption that the power conferred on the President could be validly exercised by the
Secretary, we still cannot accept that the act of the latter, as an extension or "projection" of the personality of the
President, made irreversible the petitioner's title to the position in question. The petitioner's conclusion that Minister
Gonzales's act was in effect the act of President Aquino is based only on half the doctrine he vigorously invokes.
Justice Laurel stated that doctrine clearly in the landmark case of Villena v. Secretary of the Interior, 8where he
described the relationship of the President of the Philippines and the members of the Cabinet as follows:

... all executive and administrative organizations are adjuncts of the Executive Department, the
heads of the various executive departments are assistants and agents of the Chief Executive, and,
except in cases where the Chief Executive is required by the Constitution or the law to act in
person or the exigencies of the situation demand that he act personally, the multifarious executive
and administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the secretaries of such departments, performed and promulgated in
the regular course of business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive.

The doctrine presumes the acts of the Department Head to be the acts of the President of the Philippines when
"performed and promulgated in the regular course of business," which was true of the designation made by Minister
Gonzales in favor of the petitioner. But it also adds that such acts shall be considered valid only if not 'disapproved
or reprobated by the Chief Executive," as also happened in the case at bar.

The argument that the designation made by Minister Gonzales was approved by President Aquino through her
approval of the composition of the Board of Directors of the PTA is not persuasive. It must be remembered that
Binamira was included therein as Vice- Chairman only because of his designation as PTA General Manager by
Minister Gonzales. Such designation being merely provisional, it could be recalled at will, as in fact it was recalled
by the President herself, through the memorandum she addressed to Secretary Garrucho on January 4, 1990.

With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground. His designation being
an unlawful encroachment on a presidential prerogative, he did not acquire valid title thereunder to the position in
question. Even if it be assumed that it could be and was authorized, the designation signified merely a temporary or
acting appointment that could be legally withdrawn at pleasure, as in fact it was (albeit for a different reason).itc-
asl In either case, the petitioner's claim of security of tenure must be rejected.

The Court sympathizes with the petitioner, who apparently believed in good faith that he was being extended a
permanent appointment by the Minister of Tourism. After all, Minister Gonzales had the ostensible authority to do
so at the time the designation was made. This belief seemed strengthened when President Aquino later approved the
composition of the PTA Board of Directors where the petitioner was designated Vice-Chairman because of his
position as General Manager of the PTA. However, such circumstances fall short of the categorical appointment
required to be made by the President herself, and not the Minister of Tourism, under Sec. 23 of P.D. No. 564. We
must rule therefore that the petitioner never acquired valid title to the disputed position and so has no right to be
reinstated as General Manager of the Philippine Tourism Authority.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.