[G.R. No. 126183.

March 25, 1999]

LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ, ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO, and EMERITA
PIZARRO,petitioners vs., COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS, respondents.

[G.R. No. 129221. March 25, 1999]

ROLANDO ALURA, CLARA ALVAREZ, PORFIRIO AUSTRIA, VICENTE CARRANZA, ELMER DALIDA, ROSALINDA DALIDA, NELSON DULDULAO, LEA POCONG, ENRICO
REYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA BANUA, CAROLINA
BULACLAC, DANILO CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILLA CASTILLO, ANACLETA CORRALES, GLORIA CUEVAS, CONCORDIA DE
GUZMAN, ROWENA DEL ROSARIO, MATILDE DINGLE, ROSARIO DULDULAO, CONRADA ENDRINA, LUZVIMINDA ESPINO, VIRGILIO ESTRADA, DAMIAN
FETIZANAN, DEMOCRITO FLORES, ROSALIA GARCELINA, CORAZON GONZALES, VIOLETA GUANIZO, SURENA GUNDRAN, HILARIA HALAGO, NERISSA
IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESITA LAURENTE, CARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA
MAGALLANES, NEDA MAGSULIT, AMELITA MANGAHAS, GUIA MORRIS, HIPOLITA NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM, MAXIMA
NON, ESTELA PALILEO, ANA PALMA, GLICERIA PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA REAL, BERNARDITA RINO, CELIA RONQUILLO,
GLORIA SALVADOR, CATHERINE SAN AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS, BENJAMIN VALBUENA, DONATO
VALDEMORO, ROSEMARIE VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHINE
PARMISANO, FELIPE ALACAR, JOSE FETALVERO, JR., MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA CLEMENCIA, petitioners,
vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF EDUCATION CULTURE AND SPORTS, respondents.

DECISION
BELLOSILLO, J.:

These consolidated petitions[1] are among several petitions filed with this Court arising from the much-publicized public school teachers' mass actions of September/October
1990.
Petitioners are public school teachers from various schools in Metro Manila who were simultaneously charged, preventively suspended, and eventually dismissed in October
1990 by then Secretary Isidro D. Cariio of the Department of Education, Culture and Sports (DECS), in decisions issued by him which uniformly read -

This is a motu-propio administrative complaint separately filed by the Secretary of Education, Culture and Sports against the following public school teachers x x x x based on the
report submitted by their respective school principals wherein it was alleged that the above-named teachers participated in the mass action/illegal strike on Sept. 19-21, 1990 and
subsequently defied the return-to-work order dated September 17, 1990 issued by this Office, which acts constitute grave misconduct, gross neglect of duty, gross violation of Civil
Service Law, Rules and Regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service
and absence without official leave (AWOL), in violation of Presidential Decree 807, otherwise known as the Civil Service Decree of the Philippines.

Required to explain within a period of not less than 72 hours but not more than 5 days from receipt of the complaint, respondents failed to submit the required answer within the
given time up to the present, and despite the denial of their request for extension of 30 days within which to submit their answers dated September 25, 1990 filed by their counsel,
Atty. Gregorio Fabros, in a letter of this Office to him dated September 28, 1990, respondents failed to submit the same, which failure, is considered a waiver on their part of their
right to answer the charges and to controvert the same.

Wherefore, after a careful evaluation of the records, this Office finds the respondents guilty as charged.

In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on Guidelines in the Application of Penalty in Administrative Cases, the herein respondents
are dismissed from Office effective immediately.

The decisions dismissing petitioners were immediately implemented.

Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service Commission (CSC). In 1993 the CSC found petitioners guilty of conduct
prejudicial to the best interest of the service" for having participated in the mass actions and imposed upon them the reduced penalty of six (6) months' suspension. However, in
view of the length of time that petitioners had been out of the service by reason of the immediate implementation of the dismissal orders of Secretary Cario, the CSC likewise
ordered petitioners' automatic reinstatement in the service without back wages.
Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this Court, docketed as G.R. Nos. 111998,[2] 114435-5506,[3] and 116312-
19,[4] which were all referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95,[5] and there re-docketed as CA-G.R. SP No. 37620, CA-G.R. SP No.
37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively.
On 29 November 1995 the Special Third Division of the Court of Appeals [6] rendered a joint decision in CA-G.R. SP Nos. 37619-20 dismissing the petitions for lack of
merit.[7] The appellate court ruled that the questioned resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the best interest of the service
were based on reasonable and justifiable grounds; that petitioners' perceived grievances were no excuse for them not to conduct classes and defy the return-to-work order issued by
their superiors; that the immediate execution of the dismissal orders of Secretary Cario was sanctioned by Sec. 47, par. (2), of the Administrative Code of 1987 (E.O. No. 292) as
well as Sec. 37, par. (b), Art. IX of PD No. 807,[8] and Sec. 32, Rule XIV of the Omnibus Rules Implementing Book V of E.0. No. 292. Their motion for reconsideration having been
denied on 15 May 1997,[9] petitioners then appealed by certiorari to this Court on 26 June 1997, docketed as G.R. No. 129221.
Meanwhile, on 24 April 1998 the Tenth Division of the Court of Appeals [10] rendered a joint decision in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the
petitions for lack of merit.[11] The appellate court rejected petitioners' contention that they should not have been penalized for participating in the September/October 1990 mass
actions because they were merely exercising their constitutional right to free assembly. In so ruling the Court of Appeals cited Manila Public School Teachers Association v.
Laguio, Jr.[12] wherein this Court ruled that the public school teachers' mass actions of September/October 1990 were "to all intents and purposes a strike x x x constitut[ing] a
concealed andunauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons." Petitioners' contention
that Secretary Cario's decision to dismiss them was not supported by evidence was likewise rejected in view of petitioners' admissions and/or failure to refute the factual finding that
petitioners actually joined the mass actions based on the report of absences submitted by their respective school principals. Their motion for reconsideration having been denied in
the resolution of 20 August 1996,[13] petitioners then filed a petition for review on certiorari with this Court on 1 October 1996, docketed as G.R. No, 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos. 126183 and 129221 involving as they did common questions of fact and law.
Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding them guilty of conduct prejudicial to the best interest of the service when
their only "offense" was to exercise their constitutional right to peaceably assemble and petition the government for redress of their grievances. Moreover petitioners insist that the
mass actions of September/October 1990 were not "strikes" as there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in the alternative, award of
back wages for the period of three (3) years when they were not allowed to work while awaiting resolution of their appeals by the MSPB and CSC, deducting the period of six (6)
months' suspension eventually meted them.
The petitions must be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. It is a very desirable and necessary judicial practice
that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are
substantially the same.[14] Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled.[15]
 As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Association v. Laguio Jr.[16] and Alliance of Concerned
Teachers v. Hon. Isidro Cario[17] that the mass actions of September/October 1990 staged by Metro Manila public school teachers "amounted to a strike in every sense of the term,
constituting as they did, a concerted and unauthorized stoppage of or absence from work which it was said teachers' sworn duty to perform, carried out for essentially economic
reasons -- to protest and pressure the Government to correct what, among other grievances, the strikers perceived to be the unjust or prejudicial implementation of the
salarystandardization law insofar as they were concerned, the non-payment or delay in payment of various fringe benefits and allowances to which they were entitled, and the
imposition of additional teaching loads and longer teaching hours." InRolando Gan v. Civil Service Commission,[18] we denied the claim that the teachers were thereby denied their
rights to peaceably assemble and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any other liberty, must be exercised
within reasonable limits so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mass actions did not exercise their constitutional rights
within reasonable limits. On the contrary, they committed acts prejudicial to the best interest of the service by staging the mass protests on regular school days, abandoning their
classes and refusing to go back even after they had been ordered to do so. Had the teachers availed of their free time - recess, after classes, weekends or holidays - to dramatize
their grievances and to dialogue with the proper authorities within the bounds of law, no one - not the DECS, the CSC or even the Supreme Court - could have held them liable for
their participation in the mass actions.[19]
With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co., Inc.,[20] invoked by petitioners, we have likewise already ruled in the Rolando
Gan case[21] that the PBM ruling - that the rights of free expression and assembly could not be lightly disregarded as they occupy a preferred position in the hierarchy of civil liberties
- was not applicable to defend the validity of the 1990 mass actions because what were pitted therein against the rights of free expression and of assembly were inferior property
rights while the higher consideration involved in the case of the striking teachers was the education of the youth which must, at the very least, be equated with the freedom of
assembly and to petition the government for redress of grievances. [22]
We affirmed the foregoing rulings in Bagana v. Court of Appeals[23] by denying a similar petition filed by another group of teachers who participated in the 1990 mass actions
but who claimed to have been merely exercising their constitutional right to free assembly. We held in Bagana that the Court of Appeals committed no reversible error in affirming
the CSC resolutions finding the teachers guilty of conduct prejudicial to the best interest of the service and imposing penalties of six (6) months' suspension without
pay. In Bangalisan v. Court of Appeals[24] we added that the persistent refusal of the striking teachers to call the mass actions by the conventional term "strike" did not erase the true
nature of the mass actions as unauthorized stoppages of work the purpose of which was to obtain a favorable response to the teachers' economic grievances. We again stressed
that the teachers were penalized not because they exercised their right to peaceably assemble but because of the manner by which such right was exercised, i.e., going on
unauthorized and unilateral absences thus disrupting classes in various schools in Metro Manila which produced adverse effects upon the students for whose education the teachers
were responsible. But herein petitioners contend that classes were not actually disrupted because substitute teachers were immediately appointed by Secretary Cario. Besides
being a purely factual assertion which this Court cannot take cognizance of in a petition for review, the fact that the prompt remedial action taken by Secretary Cario might have
partially deflected the adverse effects of the mass protests did not erase the administrative liability of petitioners for the intended consequences thereof which were the very reason
why such prompt remedial action became necessary.
Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC resolutions finding petitioners guilty of conduct prejudicial to the best
interest of the service.
As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be awarded back wages for the period when they were not allowed to work by
reason of the supposed unjustified immediate implementation of the dismissal orders of Secretary Cario while awaiting resolution of their appeals by the MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders of Secretary Cario were commuted by the CSC to
six (6) months' suspension is already settled.
In Bangalisan v. Court of Appeals[25] we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably suspended, two (2)
circumstances necessary for the grant of back wages in administrative disciplinary cases. Like herein petitioners, those in Bangalisan were also teachers who participated in the
1990 mass actions for which they were dismissed by Secretary Cario but ordered merely suspended for six (6) months by the Civil Service Commission. On a plea that the
immediate implementation of the dismissal orders of Secretary Cario was unjustified, thus warranting an award of back wages the Court said -

As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47, paragraph (2), of Executive Order No. 292, thus: "The
Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action
against officers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not
exceeding thirty days' salary. In case the decision rendered by a bureau or office is appealable to the Commission, the same shall be executory except when the penalty is removal,
in which case the same shall be executory only after confirmation by the Secretary concerned.

And since it was already the final dismissal orders of Secretary Cario which were being carried out, immediate implementation even pending appeal was clearly sanctioned by the
aforequoted provision of the Administrative Code of 1987. [26]Hence, being legal, the immediate execution of the dismissal orders could not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v. City of Baguio[27] and Bautista v. Peralta[28] being cases which involved the
unjustified immediate execution of the dismissal orders of the then Civil Service Commissioner pending appeal to the Civil Service Board of Appeals are therefore not applicable to
justify petitioners' prayer. Neither could petitioners be considered to have been exonerated from the charges levelled against them by Secretary Cario from the mere fact that they
were found guilty only of conduct prejudicial to the best interest of the service by the CSC. It must be remembered that Secretary Cario charged petitioners with grave misconduct,
gross neglect of duty, gross violation of civil service law, rules and regulations, etc., for having participated in the 1990 illegal mass actions. On appeal the CSC while affirming the
factual finding that petitioners indeed participated in the mass actions found them liable only for conduct prejudicial to the best interest of the service. Clearly the CSC decision did
not proceed from a finding that petitioners did not commit the acts complained of. Having been found to have actually participated in the illegal mass actions although found
answerable for a lesser offense, petitioners could not be considered as fully innocent of the charges against them. [29] Being found liable for a lesser offense is not equivalent to
exoneration.[30]
Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have actually participated in the 1990 mass actions but granted the claim of one
Rodolfo Mariano who was absent only because he attended the wake and interment of his grandmother. In Jacinto v. Court of Appeals[31] we again denied the claim for back wages
of teachers found to have given cause for their suspension, i.e., their unjustified abandonment of classes to the prejudice of their students but granted the claim of Merlinda Jacinto
who was absent because of illness.
Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus having given cause for their supension, their prayer for back wages must be
denied conformably with settled rulings of this Court.
WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29 November 1995 and 24 April 1996 are AFFIRMED. No costs.
SO ORDERED.
 G.R. No. 181559 October 2, 2009

LEAH M. NAZARENO, CARLO M. CUAL, ROGELIO B. CLAMONTE, FLORECITA M. LLOSA, ROGELIO S. VILLARUBIA, RICARDO M. GONZALES, JR., ROSSEL MARIE G.
GUTIERREZ, NICANOR F. VILLAROSA, JR., MARIE SUE F. CUAL, MIRAMICHI MAJELLA B. MARIOT, ALMA F. RAMIREZ, ANTOLIN D. ZAMAR, JR., MARIO S. ALILING,
TEODULO SALVORO, JR., PHILIP JANSON ALTAMARINO, ANTONIETTA PADURA, ADOLFO R. CORNELIA, IAN RYAN PATULA, WILLIAM TANOY, VICTOR ARBAS,
JEANITH CUAL, BRAULIO SAYSON, DAWN M. VILLAROSA, AGUSTIN A. RENDOQUE, ENRIQUETA TUMONGHA, LIONEL P. BANOGON, ROSALITO VERGANTINOS,
MARIO T. CUAL, JR., ELAINE MAY TUMONGHA, NORMAN F. VILLAROSA, RICARDO C. PATULA, RACHEL BANAGUA, RODOLFO A. CALUGCUGAN, PERGENTINO
CUAL, BERNARD J. OZOA, ROGER JOHN AROMIN, CHERYL E. NOCETE, MARIVIC SANCHEZ, CRISPIN DURAN, REBECO LINGCONG, ANNA LEE ESTRABELA,
MELCHOR B. MAQUILING, RAUL MOLAS, OSCAR KINIKITO, DARWIN B. CONEJOS, ROMEL CUAL, ROQUETA AMOR, DISODADO LAJATO, PAUL PINO, LITO PINERO,
RODULFO ZOSA, JR. and JORGE ARBOLADO, Petitioners,
vs.
CITY OF DUMAGUETE, represented by CITY MAYOR AGUSTIN PERDICES, DOMINADOR DUMALAG, JR., ERLINDA TUMONGHA, JOSEPHINE MAE FLORES AND
ARACELI CAMPOS, Respondents.

DECISION

DEL CASTILLO, J.:

The integrity and reliability of our civil service is, perhaps, never more sorely tested than in the impassioned demagoguery of elections. Amidst the struggle of personalities,
ideologies, and platforms, the vigor and resilience of a professional civil service can only be preserved where our laws ensure that partisanship plays no part in the appointing
process. Consequently, we affirm the validity of a regulation issued by the Civil Service Commission (CSC or the Commission) intended to ensure that appointments and promotions
in the civil service are made solely on the basis of qualifications, instead of political loyalties or patronage.

This Petition for Review on Certiorari filed under Rule 45 of the Rules of Court seeks to reverse the Decision1 of the Court of Appeals dated August 28, 2007 and its
Resolution2 dated January 11, 2008 in CA-G.R. CEB-SP No. 00665. The case stemmed from CSC Field Offices invalidation of petitioners appointments as employees of the City of
Dumaguete, which was affirmed by the CSC Regional Office, by the Commission en banc and by the Court of Appeals.

Legal and Factual Backgrounds

Accreditation of Dumaguete City by the Civil Service Commission

On October 25, 1999, pursuant to the Commissions Accreditation Program, the CSC issued Resolution No. 992411, 3 which granted the City Government of Dumaguete the
authority to take final action on all its appointments, subject to, inter alia, the following conditions:

1. That the exercise of said authority shall be subject to Civil Service Law, rules and regulations and within the limits and restrictions of the implementing guidelines of the CSC
Accreditation Program as amended (MC No. 27, s. 1994);

xxxx

5. That appointments issued under this authority shall be subject to monthly monitoring by the [Civil Service Field Office] CSFO concerned;

xxxx
9. That appointments found in the course of monthly monitoring to have been issued and acted upon in violation of pertinent rules, standards, and regulations shall immediately be
invalidated by the Civil Service Regional Office (CSRO), upon recommendation by the CSFO.

Appointments made by outgoing Mayor Remollo

Then Dumaguete City Mayor Felipe Antonio B. Remollo sought re-election in the May 14, 2001 elections, but lost to respondent Mayor Agustin R. Perdices. Thereafter, on June 5, 7,
and 11, 2001, outgoing Mayor Remollo promoted 15 city hall employees, and regularized another 74 city hall employees, including the herein 52 petitioners.

On July 2, 2001, Mayor Perdices publicly announced at the flag raising ceremony at the Dumaguete City Hall grounds that he would not honor the appointments made by former
Mayor Remollo. On the same day, he instructed the City Administrator, respondent Dominador Dumalag, Jr., to direct respondent City Assistant Treasurer Erlinda C. Tumongha
(now deceased), to refrain from making any cash disbursements for payments of petitioners' salary differentials based on their new positions.

The Petition for Mandamus before the Regional Trial Court of Dumaguete City

Thus, on August 1, 2001, petitioners filed a Petition for Mandamus with Injunction and Damages with Prayer for a Temporary Restraining Order against the City of Dumaguete,
represented by respondent city mayor Perdices and city officers Dumalag, Tumongha, Josephine Mae Flores, and Araceli Campos. The petition was docketed as Civil Case No.
13013, and raffled to Branch 41 of the Regional Trial Court of Dumaguete City. Petitioners sought the issuance of a writ of preliminary injunction to enjoin respondents from taking
any action or issuing any orders nullifying their appointments.

In a Decision4 dated March 27, 2007, the Regional Trial Court dismissed the petition; petitioners Motion for Reconsideration was also denied in an Order 5 dated April 26, 2007. The
issues involved in Civil Case No. 13013 have twice been elevated to and eventually resolved by the Court in G.R. Nos. 177795 6 and 168484.7

Revocation of Appointments by the Civil Service Commission Field Office

Relative to this main case, on August 1, 2001, the CSC Field Office in Dumaguete City, through Director II Fabio R. Abucejo, revoked and invalidated the appointments of the
petitioners (the August 1, 2001 Order) based of the following findings:

1. There were a total of 15 promotional appointments and 74 original appointments issued as reflected in the submitted [Report of Personnel Actions] ROPA for the month
of June 2001.

2. There was only one (1) en banc meeting of the City Personnel Selection Board (PSB) held on 5 June 2001 to consider the number of appointments thus issued and there
was no other call for a PSB meeting certified to by the City [Human Resource Management Officer] HRMO.

3. There were no minutes available to show the deliberations of the PSB of the 89 appointments listed in the ROPA as certified by the City HRMO.

4. There were no PSB statements certifying that there was actual screening and evaluation done on all candidates for each position.

5. The appointing officer of the 89 appointments was an outgoing local official who lost during the 14 May 2001 elections for City Mayor of Dumaguete City.

6. The 89 appointments were all issued after the elections and when the new city mayor was about to assume office. 8
Director Abucejo invalidated the appointments as the same were done in violation of CSC Resolution No. 010988 dated June 4, 2001, the pertinent portions of which provide:

WHEREAS, the May 14, 2001 national and local elections have just concluded and the Commission anticipates controversies that would arise involving appointments issued by
outgoing local chief executives immediately before or after the elections;

WHEREAS, the Commission observed the tendency of some outgoing local chief executives to issue appointments even after the elections, especially when their successors have
already been proclaimed.

WHEREAS, the practice of some outgoing local chief executives causes animosities between the outgoing and incoming officials and the people who are immediately affected and
are made to suffer the consequences thereof are the ordinary civil servants, and eventually, to a large extent, their constituents themselves;

WHEREAS, one of the reasons behind the prohibition in issuing appointments or hiring new employees during the prohibited period as provided for in CSC Memorandum Circular
No. 7, series of 2001, is to prevent the occurrence of the foregoing, among others;9

WHEREAS, local elective officials whose terms of office are about to expire, are deemed as "caretaker" administrators who are duty bound to prepare for the smooth and orderly
transfer of power and authority to the incoming local chief executives;

WHEREAS, under Section 15, Article VII of the Constitution, the President or Acting President is prohibited from making appointments two (2) months immediately before the next
presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety;

WHEREAS, while there is no equivalent provision in the Local Government Code of 1991 (Republic Act 7160) or in the Civil Service Law (Book V of Executive Order No. 292) of the
abovestated prohibition, the rationale against the prohibition on the issuance of "midnight appointments" by the President is applicable to appointments extended by outgoing local
chief executives immediately before and/or after the elections;

xxxx

NOW THEREFORE, the Commission, pursuant to its constitutional mandate as the control personnel agency of the government, hereby issues and adopts the following guidelines:

xxxx

3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, except in cases of renewal and reinstatement, regardless of status,
which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, including its Regional or Field Offices, of said
appointments or the Report of Personnel Actions (ROPA) as the case may be, shall be disapproved unless the following requisites concur relative to their issuance:

a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the issuance of appointments
as shown by the PSB report or minutes of its meeting;

b) That the appointee is qualified;

c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger public safety;
 d) That the appointment is not one of those mass appointments issued after the elections.

4. The term "mass appointments" refers to those issued in bulk or in large number after the elections by an outgoing local chief executive and there is no apparent need for
their immediate issuance.

On September 4, 2001, petitioners filed a Motion for Reconsideration of the August 1, 2001 Order before the CSC Region VII Office in Cebu. The motion was, however, denied on
the ground that it should have been filed before the office of Director Abucejo in Dumaguete City. Thereafter, on October 31, 2001, petitioners asked the CSC Region VII Office in
Cebu to treat their previous Motion for Reconsideration as their appeal.1avvphi1

On February 14, 2002, the CSC Region VII Office affirmed the August 1, 2001 Order. Subsequently, an Appeal to the Commission en banc was filed through registered mail by 52 of
the original 89 appointees, the petitioners herein, namely:

Name Former Position New Position Date of

Appointment
1. Leah M. Nazareno Legal Researcher Asst. Dept. Head I 7-Jun-01
2. Carlo M. Cual Legislative Staff Legislative Staff 5-Jun-01
Officer I Officer III
3. Rogelio B. Clamonte Public Services Supply Officer IV 5-Jun-01
4. Florecita Llosa Supply Officer I Records Officer II 11-Jun-01
5. Rogelio S. Villarubia Agriculturist II Agriculturist III 5-Jun-01
6. Rossel Marie G. Gutierrez Casual/Plantilla Supervising 5-Jun-01
Environmental
Management
Specialist
7. Nicanor F. Villarosa, Jr. Casual/Plantilla Dentist II 5-Jun-01
8. Marie Sue Cual Casual/Plantilla Social Welfare 7-Jun-01
Officer I
9. Miramichi Majella B. Mariot Casual/Plantilla Records Officer II 7-Jun-01
10. Alma F. Ramirez Casual/Plantilla Clerk IV 7-Jun-01
11. Antolin D. Zamar, Jr. Casual/Plantilla Metro Aide II 11-Jun-01
12. Mario S. Aliling Casual/Plantilla Driver II 5-Jun-01
13. Teodulo Salvoro, Jr. Casual/Plantilla Metro Aide II 5-Jun-01
14. Philip Janson Altamarino Casual/Plantilla Clerk I 5-Jun-01
15. Antonieta Padura Casual/Plantilla Metro Aide II 11-Jun-01
16. Adolfo Cornelia Casual/Plantilla Metro Aide II 11-Jun-01
17. Ian Ryan Patula Casual/Plantilla Metro Aide II 7-Jun-01
18. William Tanoy Casual/Plantilla Metro Aide II 5-Jun-01
19. Victor Arbas Casual/Plantilla Public Services 7-Jun-01
Foreman
20. Jeanith Cual Casual/Plantilla Utility Worker II 5-Jun-01
21. Braulio Sayson Casual/Plantilla Mechanical Plant 7-Jun-01
Supervisor
22. Dawn Villarosa Casual/Plantilla Clerk I 7-Jun-01
23. Agustin Rendoque Casual/Plantilla Utility Worker I 7-Jun-01
24. Enriqueta Tumongha Casual/Plantilla Utility Worker II 5-Jun-01
25. Lionel Banogon Casual/Plantilla Clerk II 5-Jun-01
26. Rosalito Vergantinos Casual/Plantilla Pest Control 5-Jun-01
Worker II
27. Mario Cual, Jr. Casual/Plantilla Utility Foreman 7-Jun-01
28. Elaine Tumongha Casual/Plantilla Registration Officer 11-Jun-01
I
29. Norman Villarosa Casual/Plantilla Utility Worker I 5-Jun-01
30. Ricardo C. Patula Casual/Plantilla Revenue 5-Jun-01
Collection Clerk I
31. Rachel Banagua Casual/Plantilla Utility Worker I 5-Jun-01
32. Rodolfo Calugcugan Job Order Driver I 7-Jun-01
33. Pergentino Cual Job Order Metro Aide II 11-Jun-01
34. Bernard Ozoa Job Order Utility Worker I 7-Jun-01
35. Roger J. Aromin Job Order Utility Worker I 7-Jun-01
36. Cheryl Nocete Job Order Utility Worker I 11-Jun-01
37. Marivic Sanchez Job Order Utility Worker I 11-Jun-01
38. Crispin Duran Job Order Metro Aide II 11-Jun-01
39. Rebeco Lingcong Job Order Metro Aide II 5-Jun-01
40. Anna Lee Estrabela Job Order Cash Clerk III 5-Jun-01
41. Melchor Maquiling Job Order Engineer I 7-Jun-01
42. Raul Molas Job Order Construction and 7-Jun-01
 Maintenance
Foreman
43. Oscar Kinikito Job Order Electrician II 7-Jun-01
44. Darwin Conejos Job Order Engineering Aide 7-Jun-01
45. Romel Cual Job Order Metro Aide II 11-Jun-01
46. Roqueta Amor Job Order Dental Aide 5-Jun-01
47. Diosdado Lajato Job Order Pest Control 5-Jun-01
Worker II
48. Paul Pino Job Order Utility Worker II 5-Jun-01
49. Lito Piero Job Order Metro Aide II 11-Jun-01
50. Rodulfo Zosa, Jr. Job Order Metro Aide II 11-Jun-01
51. Jorge Arbolado Job Order Traffic Aide I 5-Jun-01
52. Ricardo M. Gonzales, Jr. OIC-General Asst. Dept. Head I 5-Jun-01
Services Officer

Ruling of the CSC en banc and the Court of Appeals

On August 23, 2004, the CSC en banc issued Resolution No. 040932 denying petitioners' appeal, and affirming the invalidation of their appointments on the ground that these were
mass appointments made by an outgoing local chief executive. 10 The Commission explained:

The rationale behind the prohibition in CSC Resolution No. 01-0988 is not hard to comprehend. The prohibition is designed to discourage losing candidates from extending
appointments to their protgs or from giving their constituents "promised" positions (CSC Resolution No. 97-0317 dated January 17, 1997, Re: Roldan B. Casinillo). Moreover, the
same is intended to prevent the outgoing local chief executive from hurriedly issuing appointments which would subvert the policies of the incoming leadership. Thus, any means
that would directly or indirectly circumvent the purposes for which said Resolution was promulgated should not be allowed, particularly when the appointments were issued by the
appointing authority who lost in said election.

Petitioners filed a Motion for Reconsideration which was denied by the Commission on April 11, 2005, through CSC Resolution No. 050473.

Petitioners then filed a petition for review before the Court of Appeals, which was docketed as CA-G.R. CEB-SP No. 00665. On August 28, 2007, the Court of Appeals denied the
appeal and affirmed CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, ratiocinating that:

The spirit behind CSC Resolution No. 010988 is evident from its preamble. It was issued to thwart the nefarious practice by outgoing local chief executives in making appointments
before, during, and/or after the regular local elections for ulterior partisan motives. Said practice being analogous to "midnight appointments" by the President or Acting President,
the CSC then promulgated Resolution No. 010988, to suppress the mischief and evils attributed to "mass appointments" made by local chief executives.

Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated January 11, 2008.
The Parties Arguments

Before us, petitioners maintain that CSC Resolution No. 010988 is invalid because the Commission is without authority to issue regulations prohibiting mass appointments at the
local government level. Petitioners cite De Rama v. Court of Appeals 11 which held that Section 15, Article VII of the Constitution is only applicable to the President or Acting
President. They claim that outgoing or defeated local appointing authorities are authorized to make appointments of qualified individuals until their last day in office, and that not all
mass appointments are invalid. Finally, petitioners claim that because Dumaguete City had been granted authority to take "final action" on all appointments, the Commission did not
have any authority to disapprove the appointments made by outgoing mayor Remollo.

In their Comment dated May 15, 2008,12 respondents argue that petitioners appointments violated civil service rules and regulations other than CSC Resolution No. 010988.
Respondents also assert that the Commission is authorized to invalidate the petitioners appointments, because the CSC accreditation program carried with it the caveat that "said
exercise of authority shall be subject to Civil Service law, rules and regulations." Finally, respondents claim that petitioners were guilty of forum shopping because the issues in this
case and in G.R. No. 177795 are the same.

Our Ruling

We find that the Civil Service Commission has the authority to issue CSC Resolution No. 010988 and that the invalidation of petitioners appointments was warranted. Consequently,
we affirm the Decision of the Court of Appeals dated August 28, 2007 and its Resolution dated January 11, 2008 in CA-G.R. CEB-SP No. 00665.

The CSC has the authority to establish rules to promote efficiency in the civil service

The Commission, as the central personnel agency of the government, 13 has statutory authority to establish rules and regulations to promote efficiency and professionalism in the civil
service. Presidential Decree No. 807,14 or the Civil Service Decree of the Philippines, provides for the powers of the Commission, including the power to issue rules and regulations
and to review appointments:

Section 9: Powers and functions of the Commission The Commission shall administer the Civil Service and shall have the following powers and functions:

xxxx

(b) Prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of this Decree x x x

(c) Promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient, and effective personnel
administration in the government;

xxxx

(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the armed forces of the
Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications; (Emphasis
supplied)

Executive Order No. 292, or the Administrative Code of 1987, also provides:
Section 12: Powers and Functions The Commission shall have the following powers and functions:

xxxx

(2) prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws;

(3) promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs topromote economical, efficient, and effective personnel
administration in the government;

(4) take appropriate action on all appointments and other personnel matters in the Civil Service including extension of Service beyond retirement age;

(5) inspect and audit the personnel actions and programs of the departments, agencies, bureaus, offices, local government units, and other instrumentalities of the
government, including government owned and controlled corporations. (emphasis supplied)

Clearly, the above-cited statutory provisions authorize the Commission to "prescribe, amend, and enforce" rules to cover the civil service. The legislative standards to be observed
and respected in the exercise of such delegated authority are set out in the statutes, to wit: to promote "economical, efficient, and effective personnel administration."

The Reasons behind CSC Resolution No. 010988

We also find that there was substantial reason behind the issuance of CSC Resolution No. 010988. It is true that there is no constitutional prohibition against the issuance of "mass
appointments" by defeated local government officials prior to the expiration of their terms. Clearly, this is not the same as a "midnight appointment," proscribed by the Constitution,
which refers to those appointments made within two months immediately prior to the next presidential election.15 As we ruled in De Rama v. Court of Appeals:16

The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to
justify his action was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the
said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his
or her tenure.

However, even while affirming De Rama, we explained in Quirog v. Aumentado, 17 that:

We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind the prohibition against midnight appointments may not be applied to those
made by chief executives of local government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude, losing candidates from issuing
appointments merely for partisan purposes thereby depriving the incoming administration of the opportunity to make the corresponding appointments in line with its new
policies. (Emphasis supplied)

Quirog also involved the disapproval of an appointment for non-compliance with CSC Resolution No. 010988. However, we found that Quirogs appointment was made on June 1,
2001, or three days prior to the issuance of CSC Resolution No. 010988. As such, we ruled that the retroactive application of the law was not warranted.

In Sales v. Carreon, Jr.,18 we had occasion to discuss the reasons behind the prohibition by the Commission of mass appointments after the elections. Sales involved the issuance
of 83 appointments made by then Dapitan City Mayor Joseph Cedrick O. Ruiz in his last month of office (on June 1, 18, and 27, 2001), which the newly elected Mayor, Rodolfo H.
Carreon, subsequently revoked, on the ground that these violated CSC Resolution No. 010988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on
issuing appointments in the civil service during the election period. In Sales, we declared:
This case is a typical example of the practice of outgoing local chief executives to issue "midnight" appointments, especially after their successors have been proclaimed. It does not
only cause animosities between the outgoing and the incoming officials, but also affects efficiency in local governance. Those appointed tend to devote their time and energy in
defending their appointments instead of attending to their functions. 19

It is not difficult to see the reasons behind the prohibition on appointments before and after the elections. Appointments are banned prior to the elections to ensure that partisan
loyalties will not be a factor in the appointment process, and to prevent incumbents from gaining any undue advantage during the elections. To this end, appointments within a
certain period of time are proscribed by the Omnibus Election Code and related issuances. 20 After the elections, appointments by defeated candidates are prohibited, except under
the circumstances mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and incoming officials, to allow the incoming administration a free hand in
implementing its policies, and to ensure that appointments and promotions are not used as a tool for political patronage or as a reward for services rendered to the outgoing local
officials.

Not all Mass Appointments are Prohibited

Indeed, not all appointments issued after the elections by defeated officials are invalid. CSC Resolution No. 010988 does not purport to nullify all "mass appointments." However, it
must be shown that the appointments have undergone the regular screening process, that the appointee is qualified, that there is a need to fill up the vacancy immediately, and that
the appointments are not in bulk. In Nazareno v. Dumaguete,21 we explained:

CSC Resolution No. 010988 does not totally proscribe the local chief executive from making any appointments immediately before and after elections. The same Resolution
provides that the validity of an appointment issued immediately before and after elections by an outgoing local chief executive is to be determined on the basis of the nature,
character, and merit of the individual appointment and the particular circumstances surrounding the same.

Corollarily, we held in Sales,22 that:

x x x [e]ach appointment must be judged on the basis of the nature, character, and merits of the individual appointment and the circumstances surrounding the same. It is only when
the appointments were made en masse by the outgoing administration and shown to have been made through hurried maneuvers and under circumstances departing from good
faith, morality, and propriety that this Court has struck down "midnight" appointments.

In the instant case, Mayor Remollo issued the 89 original and promotional appointments on three separate dates, but within a ten-day period, in the same month that he left
office.23 Further, the Commissions audit found violations of CSC rules and regulations that justified the disapproval of the appointments. In this regard, CSC Memorandum Circular
No. 40, otherwise known as the Revised Rules on Appointments and Other Personnel Actions, provides:

Section 1 Appointments submitted to the CSC office concerned should meet the requirements listed hereunder. Non-compliance with such requirements shall be grounds for
disapproval of said appointments:

xxxx

(h) Personnel Selection Board (PSB) Evaluation/Screening. Appointees should be screened and evaluated by the PSB, if applicable. As proof thereof, a certification signed by the
Chairman of the Board at the back of the appointment or alternatively, a copy of the proceedings/ minutes of the Boards deliberation shall be submitted together with the
appointment. The issuance of the appointment shall not be earlier than the date of the final screening/deliberation of the PSB.

Here, there was only one en banc meeting of the city PSB to consider the appointments, without any evidence that there were any deliberations on the qualifications of the
petitioners, or any indication that there was an urgent need for the immediate issuance of such appointments. The absence of evidence showing careful consideration of the merits
of each appointment, and the timing and the number of appointments, militate against petitioners cause. On the contrary, the prevailing circumstances in this case indicate that the
appointments were hurriedly issued by the outgoing administration.

The Accreditation of Dumaguete City did not remove the CSCs authority to review appointments

We find that the authority granted by CSC Resolution No. 992411 to the City Government of Dumaguete to "take final action" on all its appointments did not deprive the Commission
of its authority and duty to review appointments. Indeed, Resolution No. 992411 states that such exercise of authority shall be "subject to civil service law, rules and regulations" and
that appointments in violation of pertinent rules "shall immediately be invalidated."

Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides that notwithstanding the initial approval of an appointment, the same
may be recalled for "[v]iolation of other existing Civil Service laws, rules and regulations." The CSC is empowered to take appropriate action on all appointments and other personnel
actions and that such power "includes the authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations."24

Petitioners have not engaged in forum shopping

The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment.25 Forum-shopping has been defined as the act of a party against whom an adverse judgment has been rendered in one forum, seeking and possibly
getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would make a favorable disposition. 26

Although the factual antecedents of the cases brought before this Court are the same, they involve different issues. The petition for Mandamus with Injunction and Damages,
docketed as Civil Case No. 13013, and raised before this Court as G.R. No. 177795, challenged respondents refusal to recognize petitioners appointments and to pay petitioners
salaries, salary adjustments, and other emoluments. The petition only entailed the applications for the issuance of a writ of mandamus and for the award of damages. The present
case docketed as G.R. No. 181559, on the other hand, involves the merits of petitioners appeal from the invalidation and revocation of their appointments by the CSC-Field Office,
which was affirmed by the CSC-Regional Office, CSC en banc, and the Court of Appeals.

In any event, this issue had already been settled in our Decision of June 19, 2009 in G.R. No. 177795, which found petitioners not guilty of forum shopping, to wit:

True, that the [Petition in G.R. No. 177795] and the one in G.R. No. 181559 are interrelated, but they are not necessarily the same for this Court to adjudge that the filing of both by
petitioners constitutes forum shopping. In G.R. No. 181559, the Court will resolve whether or not the petitioners appointments are valid. [In G.R. No. 177795], petitioners are
claiming a right to the salaries, salary adjustments and other emoluments during the pendency of the administrative cases, regardless of how the CSC decided the validity of their
appointments.

WHEREFORE, the petition is DENIED for lack of merit. The Court of Appeals Decision in CA-G.R. CEB-SP No. 00665 dated August 28, 2007 affirming CSC Resolution No. 040932
dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, and its Resolution dated January 11, 2008 denying the Motion for Reconsideration are AFFIRMED.

SO ORDERED.
 PEOPLE VS. SANDIGANBAYAN

DECISION

QUISUMBING, J.:

This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special Prosecutor assails the May 20, 2004 Decision[1] of the Sandiganbayan,
Fourth Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapandos Demurrer to Evidence [2] and acquitting him of the crime of unlawful appointment
under Article 244[3] of the Revised Penal Code.

The facts culled from the records are as follows:

During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape (now deceased), a relative of Villapandos wife, ran for
Municipal Mayor of Kitcharao, Agusan del Norte. Villapando won while Tiape lost. Thereafter, on July 1, 1998, Villapando designated Tiape as Municipal Administrator of
the Municipality of San Vicente, Palawan.[4] A Contract of Consultancy[5] dated February 8, 1999 was executed between the Municipality of San Vicente, Palawan and Tiape
whereby the former employed the services of Tiape as Municipal Administrative and Development Planning Consultant in the Office of the Municipal Mayor for a period of six months
from January 1, 1999 to June 30, 1999 for a monthly salary of P26,953.80.

On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for violation of Article 244 of the Revised Penal Code before the Office
of the Deputy Ombudsman for Luzon.[6] The complaint was resolved against Villapando and Tiape and the following Information [7] dated March 19, 2002 charging the two with
violation of Article 244 of the Revised Penal Code was filed with the Sandiganbayan:

xxxx

That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public officer, being then the Municipal Mayor of San
Vicente, Palawan, committing the crime herein charged, in relation to and taking advantage of his official functions, conspiring and confederating
with accused Orlando M. Tiape, did then and there wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator
of San Vicente, Palawan, accused Alejandro A. Villapando knowing fully well that Orlando Tiape lacks the qualification as he is a losing
mayoralty candidate in the Municipality of Kitcharao, Agusan del Norte during the May 1998 elections, hence is ineligible for appointment to a
public office within one year (1) from the date of the elections, to the damage and prejudice of the government and of public interest.

CONTRARY TO LAW.[8]

The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the Sandiganbayan.
 Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against Tiape was dismissed after the prosecution proved his death which
occurred on July 26, 2000.[9]

After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The Sandiganbayan, Fourth Division denied his motion but gave him five
days within which to inform the court in writing whether he will nonetheless submit his Demurrer to Evidence for resolution without leave of court.[10] Villapando then filed a
Manifestation of Intent to File Demurrer to Evidence,[11]and was given 15 days from receipt to file his Demurrer to Evidence. He filed his Demurrer to Evidence[12] on October 28,
2003.

In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapandos Demurrer to Evidence meritorious, as follows:

The Court found the Demurrer to Evidence impressed with merit.

Article 244 of the Revised Penal Code provides:

Article 244. Unlawful appointments.Any public officer who shall knowingly nominate or appoint to any public office any person lacking
the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos. (underscoring supplied)

A dissection of the above-cited provision [yields] the following elements, to wit:

1. the offender was a public officer;

2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;] and,
4. the offender knew that his nominee or appointee did not have the legal qualifications at the time he made the nomination or appointment.

Afore-cited elements are hereunder discussed.

1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime was committed.

2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.

3. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the time of [his] designation as Municipal
Administrator, was lacking in legal qualification. Stated differently, does legal qualification contemplate the one (1) year prohibition on appointment as provided
for in Sec. 6, Art. IX-B of the Constitution and Sec. 94 (b) of the Local Government Code, mandating that a candidate who lost in any election shall not, within one
year after such election, be appointed to any office in the Government?

The Court answers in the negative.

In ascertaining the legal qualifications of a particular appointee to a public office, there must be a law providing for the qualifications of a person to be
nominated or appointed therein. To illuminate further, Justice Rodolfo Palattao succinctly discussed in his book that the qualification of a public officer to hold a
particular position in the government is provided for by law, which may refer to educational attainment, civil service eligibility or experience:
 As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public office. The person
nominated or appointed is not qualified and his lack of qualification is known to the party making the nomination or appointment. The
qualification of a public officer to hold a particular position in the government is provided by law. The purpose of the law is to ensure that the
person appointed is competent to perform the duties of the office, thereby promoting efficiency in rendering public service.

The qualification to hold public office may refer to educational attainment, civil service eligibility or experience. For instance, for one to
be appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates a person for appointment as judge knowing him to be
not a member of the Philippine Bar, such act constitutes a violation of the law under consideration.

In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law that provides for the legal qualification for
the position of municipal administrator is Section 480, Article X of the Local Government Code, to wit:

Section 480. Qualifications, Terms, Powers and Duties.(a) No person shall be appointed administrator unless he is a citizen of the
Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in public
administration, law, or any other related course from a recognized college or university, and a first grade civil service eligible or its
equivalent. He must have acquired experience in management and administration work for at least five (5) years in the case of the provincial or
city administrator, and three (3) years in the case of the municipal administrator.

xxx xxx xxx.

It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapandos appointee, Orlando Tiape, lacked any of the
qualifications imposed by law on the position of Municipal Administrator. Prosecutions argument rested on the assertion that since Tiape lost in the May 11,
1998 election, he necessarily lacked the required legal qualifications.

It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A person who possessed the required legal
qualifications for a position may be temporarily disqualified for appointment to a public position by reason of the one year prohibition imposed on losing candidates.
Upon the other hand, one may not be temporarily disqualified for appointment, but could not be appointed as he lacked any or all of the required legal
qualifications imposed by law.

4. Anent the last element, this Court deems it unnecessary to discuss the same.

WHEREFORE, finding the Demurrer to Evidence filed by Mayor Villapando with merit, the same is hereby GRANTED. Mayor Villapando is
hereby ACQUITTED of the crime charged.

SO ORDERED.[13]

Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor, representing the People of the Philippines.

Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he failed to do so and in a Resolution [14] dated June 7, 2006,
this Court informed him that he is deemed to have waived the filing of his comment and the case shall be resolved on the basis of the pleadings submitted by the petitioner.
 Petitioner raises the following issues:

I.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN
INTERPRETING THAT THE LEGAL DISQUALIFICATION IN ARTICLE 244 OF THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE YEAR
PROHIBITION IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE CONSTITUTION AND THE LOCAL GOVERNMENT CODE.

II.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION IN
GIVING DUE COURSE TO, AND EVENTUALLY GRANTING, THE DEMURRER TO EVIDENCE.[15]

Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion amounting to lack or excess of jurisdiction.

Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to lack or excess of jurisdiction because its interpretation of
Article 244 of the Revised Penal Code does not complement the provision on the one-year prohibition found in the 1987 Constitution and the Local Government Code, particularly
Section 6, Article IX of the 1987 Constitution which states no candidate who has lost in any election shall, within one year after such election, be appointed to any office in the
government or any government-owned or controlled corporation or in any of their subsidiaries. Section 94(b) of the Local Government Code of 1991, for its part, states that except
for losing candidates in barangay elections, no candidate who lost in any election shall, within one year after such election, be appointed to any office in the government or any
government-owned or controlled corporation or in any of their subsidiaries. Petitioner argues that the court erred when it ruled that temporary prohibition is not synonymous with the
absence of lack of legal qualification.

The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may well be that one who possesses the required legal
qualification for a position may be temporarily disqualified for appointment to a public position by reason of the one-year prohibition imposed on losing candidates. However, there is
no violation of Article 244 of the Revised Penal Code should a person suffering from temporary disqualification be appointed so long as the appointee possesses all the qualifications
stated in the law.

There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of the Revised Penal Code simply means disqualification
under the law. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year after such
election to be appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries.

Article 244 of the Revised Penal Code states:

Art. 244. Unlawful appointments. Any public officer who shall knowingly nominate or appoint to any public office any person lacking the legal
qualifications therefore, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos.
 Section 94 of the Local Government Code provides:

SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No elective or appointive local official shall
be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official shall hold any other office or
employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to
any office in the government or any government-owned or controlled corporations or in any of their subsidiaries.

Section 6, Article IX-B of the 1987 Constitution states:

Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any
Government-owned or controlled corporations or in any of their subsidiaries.

Villapandos contention and the Sandiganbayan, Fourth Divisions interpretation of the term legal disqualification lack cogency. Article 244 of the Revised Penal Code
cannot be circumscribed lexically. Legal disqualification cannot be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under Section 6,
Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.

Although this Court held in the case of People v. Sandiganbayan[16] that once a court grants the demurrer to evidence, such order amounts to an acquittal and any further
prosecution of the accused would violate the constitutional proscription on double jeopardy, this Court held in the same case that such ruling on the matter shall not be disturbed in
the absence of a grave abuse of discretion.

Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.[17]

In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with grave abuse of discretion. Its interpretation of the term
legal disqualification in Article 244 of the Revised Penal Code defies legal cogency. Legal disqualification cannot be read as excluding temporary disqualification in order to
exempt therefrom the legal prohibitions under the 1987 Constitution and the Local Government Code of 1991. We reiterate the legal
maxim ubi lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory construction that where the law does not distinguish, the courts should not distinguish. There
should be no distinction in the application of a law where none is indicated.

Further, the Sandiganbayan, Fourth Division denied Villapandos Motion for Leave to File Demurrer to Evidence yet accommodated Villapando by giving him five days within which
to inform it in writing whether he will submit his demurrer to evidence for resolution without leave of court.
 Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal contemplation and, thus, cannot be the source of an
acquittal.[18]

The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules of statutory construction resulting in its decision
granting Villapandos Demurrer to Evidence and acquitting the latter, we can do no less but declare its decision null and void.

WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private
respondent Alejandro A.Villapandos Demurrer to Evidence and acquitting him of the crime of unlawful appointment under Article 244 of the Revised Penal Code is hereby
declared NULL and VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for further proceedings.

SO ORDERED.
G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J.
Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other operational
expenses attached to the office . . . ." 2 Paragraph (d) reads

(d) Chairman administrator The President shall appoint a professional manager as administrator of the Subic Authority with a compensation to be determined by
the Board subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief executive officer of
the Subic Authority: Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed
as the chairman and chief executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the Filipino Civilian Employees Association in U.S.
Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following constitutional and statutory provisions: (a) Sec. 7,
first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position during his
tenure," 3 because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he
President shall . . . . appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint", 4 since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus
Election Code, which says:

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position, promotion, or
giving salary increases. During the period of forty-five days before a regular election and thirty days before a special election, (1) any head, official or appointing
officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires
any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The
Commission shall not grant the authority sought unless it is satisfied that the position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence the election. As an exception to the foregoing provisions, a new employee may
be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the
appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any government official who promotes, or gives any increase of
salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior
to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however,That for the first year of its operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment
or designation of elective officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus
be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the head of an executive department
described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R.
No. 83815, 6 ". . . . should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official will work for his appointment in an executive
position in government, and thus neglect his constituents . . . ." 7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board
and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that
the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body
politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if so allowed by law or by the primary functions of
his office. 8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over
the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not
rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the
wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position,
the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except
as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; 9 the Vice-President, who may be appointed Member of the
Cabinet; 10 and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the
Constitution as shown in their deliberation, thus

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials,
because in the case of appointive officials, there may be a law that will allow them to hold other positions.
 MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be certain situations where the law should allow them to
hold some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive
Secretary, 13 where we stated that the prohibition against the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies
or assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the
officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or automatically attached to the Office of the
Mayor of Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct
to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and,
instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to
have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex
officio.

Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor
shall be the Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator took a view that the constitutional proscription against appointment of elective
officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without
passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the constitutionality of the challenged proviso since it is
not put in issue in the present case. In the same vein, the argument that if no elective official may be appointed or designated to another post then Sec. 8, Art. IX-B, of the
Constitution allowing him to receive double compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any case,
the Vice-President for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if
specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the Chairman
of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he
selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. 18 In his
treatise,Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a
given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, J., 20 "the choice of a person to fill an office
constitutes the essence of his appointment," 21 and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving the exercise of
discretion."22 In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court 23 we held:
 The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding
for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment
papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once
the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications
of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the
qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an
irregular restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the
President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and
goes against the very nature itself of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is
manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the
President is a perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first from his elective post to cast off
the constitutionally-attached disqualification before he may be considered fit for appointment. The deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the service, but if he is prohibited from being appointed within
the term for which he was elected, we may be depriving the government of the needed expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically
forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his
appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution
where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The
difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another
government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not
being appointed to the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is expressly provided by
law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office (State
ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex
rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or statutes
declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to
incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala
445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment
thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not
necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid
so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void
because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same
is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have been received by respondent Gordon pursuant to his
appointment may be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the questioned proviso as well as the appointment of said respondent
made pursuant thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he
articulated

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this Authority that we are creating; (much) as I, myself, would
like to because I know the capacity, integrity, industry and dedication of Mayor Gordon; (much) as we would like to give him this terrific, burdensome and heavy
responsibility, we cannot do it because of the constitutional prohibition which is very clear. It says: "No elective official shall be appointed or designated to another
position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst the raging of the waves." 30 One of the
characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary
passions or occasional infatuations of the people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency, personal
ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its operations from the effectivity of this Act, the Mayor of
the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is declared unconstitutional; consequently, the appointment pursuant
thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief Executive Officer may be retained by him, and all
acts otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD.

SO ORDERED.
 [G.R. No. 139792. November 22, 2000]

ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS, METROPOLITAN AUTHORITY, now known as METROPOLITAN MANILA DEVELOPMENT
AUTHORITY, and THE CIVIL SERVICE COMMISSION, respondents.

DECISION
DAVIDE, JR., C.J.:

In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of Appeals [1] in CA-G.R. SP No. 48301, which held that petitioners
separation pay under Section 11 of R.A. No. 7924 should be limited to the number of years of his service in the Metropolitan Manila Authority (MMA) only, excluding his years of
service as judge of the Metropolitan Trial Court (MeTC) of Quezon City for which he has already been given retirement gratuity and pension.
The undisputed facts are as follows:
On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office. After the military-backed EDSA revolt, petitioner was
reappointed to the same position.
On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910,[2] as amended, and received his retirement gratuity under the law for his entire years in the
government service; and five years thereafter he has been regularly receiving a monthly pension.
On 2 December 1993, petitioner re-entered the government service. He was appointed Director III of the Traffic Operation Center of the MMA. His appointment was approved
by the Civil Service Commission (CSC).
On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan Manila Development Authority (MMDA). Section 11 thereof
reads:

Section 11. Transitory Provisions. To prevent disruption in the delivery of basic urban services pending the full implementation of the MMDAs organizational structure and staffing
pattern, all officials and employees of the interim MMA shall continue to exercise their duties and functions and receive their salaries and allowances until they shall have been given
notice of change of duties and functions, and of being transferred to another office or position.

...

The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall be strictly enforced. The national government shall provide such
amounts as may be necessary to pay the benefits accruing to displaced employees at the rate of one and one-fourth (1) months salary for every year of service: Provided, That, if
qualified for retirement under existing retirement laws, said employees may opt to receive the benefits thereunder.

On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and Regulations Implementing R.A. No. 7924. Pursuant thereto,
the MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of separation benefits to the officials and employees of the former MMA who would be
separated as a result of the implementation of R.A. No. 7924.
On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view of his voluntary option to be separated from the service his services would
automatically cease effective at the close of office hours on 15 September 1996, and that he would be entitled to separation benefits equivalent to one and one-fourth (1) monthly
salary for every year of service as provided under Section 11 of the MMDA Law.
 In view of some doubt or confusion as to the extent of his separation benefits, petitioner submitted a Position Paper wherein he asserted that since the retirement gratuity he
received under R.A. No. 910, as amended, is not an additional or double compensation, all the years of his government service, including those years in the Judiciary, should be
credited in the computation of his separation benefits under R.A. No. 7924. The Assistant Manager for Finance of the MMDA referred the Position Paper to the Regional Office of
the CSC-NCR.
On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that the payment of petitioners separation pay must be in accordance with Civil
Service Resolution No. 92-063, pertinent portions of which read:

[T]he payment of separation/[retirement] benefits cannot be subject to the prohibition against the [sic] double compensation in cases when officers and employees who were
previously granted said benefits are rehired or reemployed in another government Agency or Office. Thus, there is no need for separated employees to refund the
separation/retirement benefits they received when subsequently reemployed in another government agency or office.

This being so, while an employee who was paid separation/retirement benefits is not required to refund the same once reemployed in the government service, as aforestated, for
reasons of equity however, it would be proper and logical that said separation/retirement benefits should nevertheless be deducted from the retirement/[separation] pay to be
received by the employee concerned. Moreover, in this instance, the employee concerned has the option either to refund his separation/retirement benefits and claim his gross
retirement/separation pay without any deduction corresponding to his separation pay received, or not [to] refund his separation/retirement pay but suffer a deduction of his
retirement/separation gratuity for the total amount representing his previous separation/retirement pay received.

His motion for reconsideration having been denied, petitioner elevated the opinion of Director Acebedo to the CSC.
On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of Director Acebedo and dismissing petitioners appeal. Citing Chaves v. Mathay,[3] it
held that petitioner cannot be paid retirement benefits twice one under R.A. No. 910, as amended, and another under R.A. No. 7924 for the same services he rendered as MeTC
Judge. He can only exercise one of two options in the computation of his separation pay under R.A. 7924. These options are (1) to refund the gratuity he received under R.A. No.
910, as amended, after he retired from the MeTC and get the full separation pay for his entire years in the government, that is 9 years and 2 months with the MeTC plus two (2)
years and eight (8) months for his services as Director III in the defunct MMA, at the rate of one and one-fourth salary for every year of service pursuant to MMDA Memorandum
dated 30 August 1996; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from
the former MMA for his entire government service.
On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioners motion for reconsideration. Accordingly, petitioner filed with the Court of Appeals a petition
to set aside these Resolutions.
On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this case. It held that the CSC was correct in dismissing petitioners appeal from the
opinion of Director Acebedo. It ratiocinated as follows:

There is no specific rule of law which applies to petitioners case. Nevertheless, the Court finds it equitable to deny his claim for payment of separation pay at the rate of one and
one-fourth (1) months salary for every year of his service in government, that is, inclusive of the number of years he served as Judge of the Metropolitan Trial Court of Manila [sic].

Petitioner already received and is continually receiving gratuity for his years of service as a Metropolitan Trial Court Judge. Equity dictates that he should no longer be allowed to
receive further gratuity for said years of service in the guise of separation pay.

Suffice it to state that upon his retirement from his office as a Judge, petitioner has already closed a chapter of his government service. The State has already shown its gratitude for
his services when he was paid retirement benefits under Republic Act No. 901 [sic]. For that is what retirement benefits are for. Rewards [are] given to an employee who has given
up the best years of his life to the service of his country (Govt. Service Insurance System v. Civil Service Commission, 245 SCRA 179, 188).
Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services as a director of the Metro Manila Authority (MMA), another chapter of
petitioners government service which has come to a close by the reorganization of the MMA into the Metropolitan Manila Development Authority.

The Court, in limiting the computation of petitioners separation pay to the number of years of his service at the MMA, merely is implementing the ruling in Chavez, Sr. vs. Mathay
(37 SCRA 776), which ruling, if not actually in point, is nevertheless applicable owing to its common-sense consideration. Said ruling reads:

The common-sense consideration stated by Mr. Justice J.B.L. Reyes for the Court in Espejo, that if a retiree is being credited with his years of service under his first retirement in
computing his gratuity under his secondretirement, it is but just that the retirement gratuity received by him under his first retirement should also be charged to his account,
manifestly govern the case at bar. It is but in accordance with the rule consistently enunciated by the Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double
retirement or pension such as petitioners, would run roughshod over the well-settled rule that in the absence of an express legal exception, pension and gratuity laws should be so
construed as to preclude any person from receiving double pension. (p. 780, underscoring supplied)

The case at bench is not, strictly speaking, about double pension. It is, however, about the interpretation of a gratuity law, viz., Section 11 of Republic Act No. 7924 which awards
separation pay to those government employees who were displaced by the reorganization of the MMA into the MMDA, which should be construed to preclude a government
employee from receiving double gratuity for the same years of service.

We affirm the assailed judgment. We agree with the Court of Appeals and the Civil Service Commission that for the purpose of computing or determining petitioners
separation pay under Section 11 of R.A. No. 7924, his years of service in the Judiciary should be excluded and that his separation pay should be solely confined to his services in
the MMA.
In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of one and one-fourth (1) months of salary for every year of
service cannot by any stretch of logic or imagination be interpreted to refer to the total length of service of an MMA employee in the government, i.e., to include such service in the
government outside the MMA. Since it allows the grant of separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of
service in the MMA. The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner. The rule is settled that Congress
may abolish public offices. Such a power is a consequent prerogative of its power to create public offices. [4] However, the power to abolish is subject to the condition that it be
exercised in good faith.[5] The separation partook of the nature of a disturbance of compensation; hence, the separation pay must relate only to the employment thus affected.
Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous government service. If he were convinced that it does he could have
instead applied for retirement benefits, since by adding his years of service in the MMA to his previous years of service in the Government he could have retired under the third
paragraph of Section 11, which pertinently reads:

Provided, That, if qualified for retirement under existing retirement laws, said employee may opt to receive the benefits thereunder.

Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement gratuity under R.A. No. 910, as amended; and five years thereafter
he has been receiving a monthly pension.
The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides:

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which
another compensation is attached.[6]
 Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not consti tute double compensation. He could
continue receiving the same even if after his retirement he had been receiving salary from the defunct MMA as Director III thereof. This is but just because said retirement benefits
are rewards for his services as MeTC Judge, while his salary was his compensation for his services as Director III of the MMA.
However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the fact that he had received or has been
receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance double compensation for exactly the same services, i.e., his services as MeTC
Judge. Such would run counter to the policy of this Court against double compensation for exactly the same services. [7] More important, it would be in violation of the first paragraph
of Section 8 of Article IX-B of the Constitution, which proscribes additional, double, or indirect compensation. Said provision reads:

No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law .

Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of the MMA.
WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for want of merit, and the decision of 19 August 1999 of the Court
of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
 G.R. No. 169637 June 8, 2007

BENGUET STATE UNIVERSITY represented by its President ROGELIO D. COLTING, petitioner,

vs.
COMMISSION ON AUDIT, respondent.

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari filed by petitioner Benguet State University (BSU) seeking to nullify Commission on Audit (COA) Decision No. 2003-1121 and
Decision No. 2005-0192 dated March 17, 2005. COA Decision No. 2003-112 affirmed COA-CAR Decision No. 2000-3, disallowing the rice subsidy and health care allowance to the
employees of BSU, while COA Decision 2005-019 denied BSU's motion for reconsideration.

On July 6, 1997, Congress passed Republic Act No. 8292 entitled An Act Providing for the Uniform Composition and Powers of the Governing Boards, the Manner of Appointment
and Term of Office of the President of Chartered State Universities and Colleges, and for Other Purposes, commonly known as the Higher Education Modernization Act of 1997.
Pursuant to Section 4 (d) of the said law, the Board of Regents of BSU passed and approved Board Resolution No. 794 on October 31, 1997, granting rice subsidy and health care
allowance to BSUs employees. The sums were taken from the income derived from the operations of BSU and were given to the employees at different periods in 1998.

On October 20, 1999, the grant of this rice subsidy and health care allowance in the total amount of P4,350,000.00 was disallowed in audit under Notice of Disallowance No. 99-001-
STF (98), stating that R.A. No. 8292 does not provide for the grant of said allowance to employees and officials of the university.3

BSU requested the lifting of the disallowance with the COA Regional Office but it was denied in COA-CAR Decision No. 2000-3 dated January 26, 2000.4 Citing Section 55 (2) of
R.A. No. 8522 or the General Appropriation Act of 1998, it held that a non-existent item, project, activity, purpose, or object of expenditure cannot be funded by augmentation from
savings or by the use of appropriations. It further held that the grant of said allowances lacked statutory basis, transgressed the constitutional proscription on additional, double, or
indirect compensation and ran counter to the provisions of the Salary Standardization Law.

BSU thereafter filed a petition for review of Decision No. 2000-3 with the COA, which petition was denied in Decision No. 2003-1125 dated July 17, 2003. The Commission
ratiocinated:

Concededly, the provision in Section 8, Article IX-B, 1987 Constitution that, "No elective or appointive public officers or employee shall receive additional, double or indirect
compensation, unless specifically authorized by law" allows the payment of additional compensation when specifically authorized by law. In the instant case, BSU alleges
that the grant of Rice Subsidy and Health Care allowance to its employees in 1998 is authorized by law, specifically Section 4 of R.A. No. 8292, otherwise known as the
Higher Education Modernization Act of 1997. However, a closer perusal of the specific legal provision which reads thus:

"Sec. 4. Powers and Duties of Governing Boards

xxx

"d) x x x
 Any provision of existing laws, rules and regulations to the contrary notwithstanding, any income generated by the university or college, from tuition fee and other
charges, as well as from the operation of auxiliary services and land grants, shall be retained by the university or college, and may be disbursed by the Board of
Regents/Trustees for instruction, research, extension or other programs/projects of the university or college x x x"

clearly negate such claim of authority. It is noted that the term "other programs/projects" refers to such programs which the university may specifically undertake in
pursuance of its primary objective which is to attain quality higher education. The law could not have intended that the term "program/projects" embrace all programs of
BSU, for these benefits, though part of the overall operations, are not directly related to BSU's academic program. Under the maxim of ejusdem generis, the mention of a
general term after the enumeration of specific matters should be held to mean that the general term should be of the same genus as the specific matters enumerated and,
therefore, the "other programs and projects" should be held to be of the same nature as instruction, research and extension. The inclusion of an incentive such as Rice
Subsidy and Health Care Allowance to its teachers and non-teaching personnel is a patent or blatant disregard of the statutory limitation on the powers of the governing
Board of SUCs, as these benefits are indubitably not one of instruction, research or extension.

Furthermore, employment in government service guarantees salaries and other compensation packages and benefits pursuant to pertinent provisions of the Civil Service
Law. Allowing other benefits to be granted in excess of those authorized by law is illegal. As such, BSU's attempt to grant benefits over and above those granted by the
Civil Service Law cannot be countenanced.6

A motion for reconsideration was filed but was denied in the assailed Decision No. 2005-019 dated March 17, 2005.7

Hence, this petition with BSU positing these issues:

A. Whether or not Petitioner is authorized to grant Health Care Allowance and Rice Subsidy to its employees; and

B. Whether or not the recipients should reimburse the amounts received by them. 8

Before addressing the issues raised in the present petition, it bears noting that what was filed before this Court is a petition captioned as a Petition for Review on Certiorari. We point
out that a petition for review on certiorari is not the proper mode by which the COAs decisions are reviewed by this Court. Under Rule 64, Section 2 of the 1997 Rules of Civil
Procedure, a judgment or final order of the COA may be brought by an aggrieved party to this Court oncertiorari under Rule 65.9 Thus, it is only through a petition for certiorari under
Rule 65 that the COA's decisions may be reviewed and nullified by us on the ground of grave abuse of discretion or lack or excess of jurisdiction. 10

However, though captioned as a Petition for Review on Certiorari, we treat this petition as a petition for certiorariunder Rule 65 for it alleges "grave abuse of discretion" and
"reversible legal error." The averments in the complaint, not the nomenclature given by the parties, determine the nature of the action.11 Likewise, in previous rulings, We have
treated differently labeled actions as special civil actions for certiorari under Rule 65 for reasons such as justice, equity, and fair play.12

BSU ascribes legal error and grave abuse of discretion to the COA in affirming the disallowance of the rice subsidy and health care benefits. Relying on R.A. No. 8292, BSU
maintains that it can grant said benefits to its employees. It argues that the said law vests state universities and colleges with fiscal autonomy, and grants them ample leeway in the
appropriation and disbursement of their funds. BSU adds that the grant did not contravene the constitutional prohibition on additional compensation because the allowances are
granted as an incentive in appreciation of services rendered and in recognition of the economic plight of the employees. Also, the amounts used were taken from income generated
by its operation and retained by the university which, under R.A. No. 8292, may be disbursed by its Governing Board in a manner it may determine to carry out its programs. Finally,
it argues that the Salary Standardization Law does not expressly prohibit the benefits, because the said allowances are in the nature of a financial assistance and not an additional
income.

We affirm the assailed Decisions.

BSUs contention that it is authorized to grant allowances to its employees is based on Section 4 (d) of R.A. No. 8292. The provision reads:

SECTION 4. Powers and Duties of Governing Boards. The governing board shall have the following specific powers and duties in addition to its general powers of
administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the
Corporation Code of the Philippines:

xxx xxx xxx

d) to fix the tuition fees and other necessary school charges, such as but not limited to matriculation fees, graduation fees and laboratory fees, as their respective boards
may deem proper to impose after due consultations with the involved sectors.

Such fees and charges, including government subsidies and other income generated by the university or college, shall constitute special trust funds and shall be deposited
in any authorized government depository bank, and all interests shall accrue therefrom shall part of the same fund for the use of the university or college: Provided, That
income derived from university hospitals shall be exclusively earmarked for the operating expenses of the hospitals.

Any provision of existing laws, rules and regulations to the contrary notwithstanding, any income generated by the university or college from tuition fees and other charges,
as well as from the operation of auxiliary services and land grants, shall be retained by the university or college, and may be disbursed by the Board of Regents/Trustees
for instruction, research, extension, or other programs/projects of the university or college: Provided, That all fiduciary fees shall be disbursed for the specific purposes for
which they are collected.

If, for reasons beyond its control, the university or college, shall not be able to pursue any project for which funds have been appropriated and, allocated under its approved
program of expenditures, the Board of Regents/Trustees may authorize the use of said funds for any reasonable purpose which, in its discretion, may be necessary and
urgent for the attainment of the objectives and goals of the universities or college;

xxx xxx xxx

Similarly, Commission on Higher Education (CHED) Memorandum No. 03-01, the Revised Implementing Rules and Regulations (IRR) for R.A. No. 8292, provides:

RULE V

Powers and Duties of the Governing Boards

SECTION 18. Powers and Duties of Governing Boards (GBs). The GBs of chartered SUCs shall have the following powers and duties, in addition to its general powers
of administration and the exercise of all the powers granted to a Board of Directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the
"Corporation Code of the Philippines," thus:

xxx xxx xxx

(d) to fix the tuition fees and other necessary charges, such as, but not limited, to matriculation fees, graduation fees and laboratory fees, as they may deem proper to
impose, after due consultations with the involved sectors.
 Such fees and charges, including government subsidies and other income generated by the university or college, shall constitute special trust funds and shall be deposited
in any authorized government depository bank, and all interest that shall accrue therefrom shall be part of the same fund for the use of the university or college: Provided,
that income derived from university or college hospitals shall be exclusively earmarked for the operations of the hospitals.

Any income generated by the university or college from tuition fees and other charges, as well as from the operation of auxiliary services and land grants, shall be retained
by the university or college, and may be disbursed by its GB for instruction, research, extension, or other programs/projects of the university or college: Provided, That all
fiduciary fees shall be disbursed for the specific purposes for which they are collected.

If, for reasons beyond its control, the university or college shall not be able to pursue any project for which funds have been appropriated and allocated under its approved
program of expenditures, its GB may authorize the use of said funds for any reasonable purpose which, in its discretion, may be necessary and urgent for the attainment of
the objectives and goals of the university or college;

xxx xxx xxx

What is clear from Section 4 (d) of R.A. No. 8292 cited by BSU as legal basis of its claim as well as from its implementing rules is that income generated by the university may be
disbursed by its Governing Board for "instruction, research, extension, or other programs/projects of the university or colleges."

BSU theorizes that the phrase "other programs/projects of the university or college" in Section 4 (d) covers all projects and programs of the university, including those designed to
uplift the economic plight of the employees. It is not limited to those programs which the university may specifically undertake in pursuance of its primary objective to achieve quality
education, contrary to the interpretation of the COA.

We disagree.

Under the principle of ejusdem generis, where a statute describes things of a particular class or kind accompanied by words of a generic character, the generic word will usually be
limited to things of a similar nature with those particularly enumerated, unless there be something in the context of the statute which would repel such inference. 13The COA correctly
ruled that the "other programs/projects" under R.A. No. 8292 and its Implementing Rules should be of the same nature as instruction, research, and extension. In BSU's case, the
disbursements were for rice subsidy and health care allowances which are, in no way, intended for academic programs similar to instruction, research, or extension. Section 4 (d)
cannot, therefore, be relied upon by BSU as the legal basis for the grant of the allowances.

Furthermore, a reading of the entire provision supports the COAs interpretation that the authority given to the Governing Board of state universities and colleges is not plenary and
absolute. It is clear in Section 4 that the powers of the Governing Board are subject to limitations. This belies BSU's claim of plenary and absolute authority.

Neither can BSU find solace in the academic freedom clause of the Constitution. Academic freedom as adverted to in the Constitution and in

R.A. No. 8292 only encompasses the freedom of the institution of higher learning to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be
taught, and who may be admitted to study.14 The guaranteed academic freedom does not grant an institution of higher learning unbridled authority to disburse its funds and grant
additional benefits sans statutory basis. Unfortunately for BSU, it failed to present any sound legal basis that would justify the grant of these additional benefits to its employees.

Section 8, Article IX-B of the 1987 Constitution, is clear that:

No elective or appointive public officer or employee shall receive additional, double or indirect compensation, unless specifically authorized by law, nor accept without the
consent of Congress, any present, emolument, office or title of any kind from any foreign government.
 Pensions or gratuities shall not be considered as additional, double or indirect compensation.

Besides, Section 12 of R.A. No. 6758 or the Salary Standardization Law already provides for consolidation of allowances in the standardized salary rates, thus:

SEC. 12. Consolidation of All Allowances and Compensation. All allowances, except for representation and transportation allowances; clothing and laundry allowances;
subsistence allowance of marine officers and crew on board government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed
abroad; and such other additional compensation not otherwise specified herein as may be determined by the DBM, shall be deemed included in the standardized salary
rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the
standardized salary rates shall continue to be authorized.

The benefits excluded from the standardized salary rates are the "allowances" which are usually granted to officials and employees of the government to defray or reimburse the
expenses incurred in the performance of their official functions.15 Clearly, the rice subsidy and health care allowance granted by BSU were not among the allowances listed in
Section 12 which State workers can continue to receive under R.A. No. 6758 over and above their standardized salary rates. Hence, no abuse of discretion was committed by the
COA in disallowing the disbursement of funds.

As regards the refund of the disallowed benefits, this Court holds that the employees need not refund the benefits they received based on our ruling in Philippine Ports Authority v.
Commission on Audit.16 In that case, the COA disallowed the payment of hazard duty pay and birthday cash gifts to its employees. This Court sustained the disallowance because
the grant was without legal basis. However, this Court ruled against the refund holding that:

x x x Petitioners received the hazard duty pay and birthday cash gift in good faith since the benefits were authorized by PPA Special Order No. 407-97 issued pursuant to
PPA Memorandum Circular No. 34-95 implementing DBM National Compensation Circular No. 76, series of 1995, and PPA Memorandum Circular No. 22-97, respectively.
Petitioners at the time had no knowledge that the payment of said benefits lacked legal basis. Being in good faith, petitioners need not refund the benefits they received.17

The ruling in Philippine Ports Authority applies to this case. The BSU employees received the rice subsidy and health care allowances in good faith since the benefits were
authorized by Board Resolution No. 794, series of 1997. They had no knowledge that the grant of said benefits lacked statutory basis. Therefore, a refund is unnecessary.

WHEREFORE, the instant petition is DENIED. Commission on Audit Decisions No. 2003-112 and No. 2005-019 areAFFIRMED but with MODIFICATION that BSU employees need
not refund the rice subsidy and health care allowance received per Board Resolution No. 794, series of 1997.

No pronouncement as to costs.

SO ORDERED.
FREN M. HERRERA and ESTHER C. G.R. No. 166570
GALVEZ, for and on their behalf and
on behalf of OTHER SEPARATED,
UNREHIRED and RETIRED
EMPLOYEES OF THE NATIONAL Present:
POWER CORPORATION,
Petitioners, CARPIO,* J., Chairperson,
LEONARDO-DE CASTRO,*
- versus - BRION,
DEL CASTILLO, and
NATIONAL POWER CORPORATION, ABAD, JJ.
THE DEPARTMENT OF BUDGET
AND MANAGEMENT and THE
OFFICE OF THE SOLICITOR
GENERAL, Promulgated
Respondents. December 18, 2009
x-------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

The question at the heart of this case is whether petitioners, former employees of the National Power Corporation (NPC) who were separated from service due to the governments initiative of
restructuring the electric power industry, are entitled to their retirement benefits in addition to the separation pay granted by law.

Absent explicit statutory authority, we cannot provide our imprimatur to the grant of separation pay and retirement benefits from one single act of involuntary separation from the service, lest
there be duplication of purpose and depletion of government resources. Within the context of government reorganization, separation pay and retirement benefits arising from the same cause, are in
consideration of the same services and granted for the same purpose. Whether denominated as separation pay or retirement benefits, these financial benefits reward government service and provide
monetary assistance to employees involuntarily separated due to bona fidereorganization.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court on a pure question of law against the Decision[1] dated December 23, 2004 rendered by the Regional Trial Court
(RTC), Branch 101, Quezon City in SCA No. Q-03-50681 (for Declaratory Relief) entitled National Power Corporation v. Napocor Employees and Workers Union (NEWU), NAPOCOR Employees
Consolidated Union (NECU), NPC Executive Officers Association, Inc. (NPC-EXA), Esther Galvez and Efren Herrera, for and on their behalf and in behalf of other separated, unrehired, and retired
employees of the National Power Corporation, the Department of Budget and Management (DBM), the Office of the Solicitor General (OSG), the Civil Service Commission (CSC) and the Commission
on Audit (COA). Said Decision ruled that the petitioners are not entitled to receive retirement benefits under Commonwealth Act No. 186 (CA No. 186),[2] as amended, over and above the separation
benefits they received under Republic Act (RA) No. 9136,[3] otherwise known as the Electric Power Industry Reform Act of 2001 (EPIRA).
Legal and factual background

RA No. 9136 was enacted on June 8, 2001 to provide a framework for the restructuring of the electric power industry, including the privatization of NPCs assets and liabilities.[4] One necessary
consequence of the reorganization was the displacement of employees from the Department of Energy, the Energy Regulatory Board, the National Electrification Administration and the NPC. To soften
the blow from the severance of employment, Congress provided in Section 63 of the EPIRA, for a separation package superior than those provided under existing laws, as follows:

SEC. 63. Separation Benefits of Officials and Employees of Affected Agencies. National government employees displaced or separated from the service as a result of
the restructuring of the [electric power] industry and privatization of NPC assets pursuant to this Act, shall be entitled to either a separation pay and other benefits in
accordance with existing laws, rules or regulations or be entitled to avail of the privileges provided under a separation plan which shall be one and one-half month
salary for every year of service in the government: Provided, however, That those who avail of such privilege shall start their government service anew if absorbed by any
government-owned successor company. In no case shall there be any diminution of benefits under the separation plan until the full implementation of the restructuring and
privatization. x x x (Emphasis supplied)

The implementing rules of the EPIRA, approved by the Joint Congressional Power Commission on February 27, 2002,[5] further expounded on the separation benefits, viz:

RULE 33. Separation Benefits

Section 1. General Statement on Coverage.

This Rule shall apply to all employees in the National Government service as of June 26, 2001 regardless of position, designation or status, who are displaced or separated
from the service as a result of the restructuring of the electric [power] industry and privatization of NPC assets: Provided, however, That the coverage for casual or contractual
employees shall be limited to those whose appointments were approved or attested [to] by the Civil Service Commission (CSC).

Section 2. Scope of Application.

This Rule shall apply to affected personnel of DOE, ERB, NEA and NPC.

Section 3. Separation and Other Benefits.

(a) The separation benefit shall consist of either a separation pay and other benefits granted in accordance with existing laws, rules and regulations or a
separation plan equivalent to one and one half (1-12) months salary for every year of service in the government, whichever is higher; Provided, That the separated or
displaced employee has rendered at least one (1) year of service at the time of effectivity of the Act.

xxxx

(e) For this purpose, Salary, as a rule, refers to the basic pay including the thirteenth (13th) month pay received by an employee pursuant to his appointment,
excluding per diems, bonuses, overtime pay, honoraria, allowances and any other emoluments received in addition to the basic pay under existing laws.

(f) Likewise, Separation or Displacement refers to the severance of employment of any official or employee, who is neither qualified under existing
laws, rules and regulations nor has opted to retire under existing laws,as a result of the Restructuring of the electric power industry or Privatization of NPC assets pursuant to
the Act. (Emphasis supplied)
 On February 28, 2003, all NPC employees, including the petitioners, were separated from the service. As a result, all the employees who held permanent positions at the NPC as of June 26,
2001 opted for and were paid the corresponding separation pay equivalent to one and a half months salary per year of service. Nonetheless, in addition to the separation package mandated by the
EPIRA, a number of NPC employees also claimed retirement benefits under CA No. 186,[6] as amended by RA No. 660[7] and RA No. 1616.[8] Under these laws, government employees who have
rendered at least 20 years of service are entitled to a gratuity equivalent to one months salary for every year of service for the first 20 years, one and a half months salary for every year of service over
20 but below 30 years, and two months salary for every year of service in excess of 30 years.[9]
The NPC, on the other hand, took the position that the grant of retirement benefits to displaced employees in addition to separation pay was inconsistent with the constitutional proscription on the
grant of a double gratuity. Unable to amicably resolve this matter with its former employees, the NPC filed on September 18, 2003, a Petition for Declaratory Relief[10] against several parties,[11] including
the petitioners, before the RTC of Quezon City, to obtain confirmation that RA No. 9136 did not specifically authorize NPC to grant retirement benefits in addition to separation pay.[12] The case was
docketed as SCA No. Q-03-50681 and raffled to Branch 101 of said court.

After submission of the respondents respective Answers and Comments,[13] the parties agreed that the court a quo would resolve the case based on the arguments raised in their
memoranda[14] since only a question of law was involved.[15] In due course, the court a quo rendered the assailed Decision, finding that employees who received the separation benefit under RA No.
9136 are no longer entitled to retirement benefits:

The aforementioned law speaks of two (2) options for the employee to choose from, that is: (1) to receive separation pay and other benefits in accordance with existing
laws, rules, and regulations or (2) to avail of the privileges provided under a separation plan (under R.A. 9136), which shall be one and one half months salary for every year of
service in the government.

Under Section 3(f) of Rule 33 of the Implementing Rules and Regulations of R.A. 9136, separation or displacement refers to the severance of employment of any official or
employee, who is neither qualified under existing laws, rules, and regulations nor has opted to retire under existing laws as a result of the Restructuring of the electric power industry
or Privatization of NPC assets pursuant to the act. Thus, it is clear that the receipt of benefits under the EPIRA law, by employees who opted to retire under such law bars the
receipt of retirement benefits under R.A. 1616.

Moreover, Section 8 of Article IX-B of the 1987 Constitution prohibits the grant of both separation pay and retirement benefits. x x x

xxxx

In said constitutional provision, it is x x x clear that additional or indirect compensation is barred by law and only [allowed] when so specifically authorized by law.
Furthermore, on the Private Respondents' contention that the second paragraph should be applied in their [case], the same will not hold water. This is so because retirement
benefits [are] not synonymous to pension or gratuities as contemplated by law.

R.A. 9136 did not clearly and unequivocally authorize the payment of additional benefits to Private Respondents as the benefits referred to in such law should not be
interpreted to include retirement benefits in addition to their separation pay. Separation from service due to [the] restructuring of the [electric] power industry should not be interpreted
to mean retirement as both are different in every respect. The law specifically defines the meaning of separation by virtue of the restructuring. x x x

xxxx

Thus, the Respondent-Employees are not entitled to receive retirement benefits under Republic Act No. 1616 over and above the separation benefits they received under
Republic Act No. 9136.[16]
 Petitioners sought recourse from the assailed Decision directly before this court on a pure question of law. The Department of Budget and Management (DBM) submitted its Comment on June
30, 2005,[17] while the NPC, through the Office of the Solicitor General, filed its Comment on August 23, 2005.[18] Petitioners then filed their Consolidated Reply by registered mail on November 18,
2005.[19] After the parties filed their respective memoranda,[20] the case was
submitted for decision.

Petitioners arguments

Before us, petitioners argue that:

1) The EPIRA does not bar the application of CA No. 186, as amended. Petitioners are therefore entitled to their retirement pay in addition to separation pay.

2) Petitioners have vested rights over their retirement benefits.

3) The payment of both retirement pay and separation pay does not constitute double compensation, as the Constitution provides that pensions or gratuities shall not be considered as
additional, double or indirect compensation.

Respondents arguments

Respondents NPC and the DBM, on the other hand, maintain that:

1) Section 63 of RA No. 9136 and Section 3, Rule 33 of its Implementing Rules and Regulations do not authorize the grant of retirement benefits in addition to the separation pay already
received. Rather, Section 63 requires separated employees to choose between a separation plan under existing laws or the separation package under the EPIRA.

2) The grant of both separation pay and retirement benefit amounts to double gratuity in direct contravention of the Constitution.

3) No law authorizes the payment of both separation pay and retirement benefits to petitioners.

Issue
 The sole issue in this case is whether or not NPC employees who were separated from the service because of the reorganization of the electric power industry and who received their
separation pay under RA No. 9136 are still entitled to receive retirement benefits under CA No. 186, as amended.

Our Ruling

We deny the petition and affirm the court a quos Decision dated December 23, 2004 in SCA No. Q-03-50681.

Absent clear and unequivocal statutory authority, the grant of both separation pay and retirement benefits violates the
constitutional proscription on additional compensation.

Section 8 of Article IX(B) of the Constitution provides that [n]o elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically
authorized by law. In prior decisions, we have ruled that there must be a clear and unequivocal statutory provision to justify the grant of both separation pay and retirement benefits to an
employee.[21] Here, absent an express provision of law, the grant of both separation and retirement benefits would amount to double compensation from one single act of separation from employment.

Petitioners claim that Section 9 of RA No. 6656[22] amounts to sufficient statutory basis for the grant of both retirement benefits and separation pay. Section 9 provides:

x x x Unless also separated for cause, all officers and employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate
separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of the effectivity of their separation or from the date of the receipt of the
resolution of their appeals as the case may be. Provided, That application for clearance has been filed and no action thereon has been made by the corresponding department or
agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (1) month salary for every year of service. Such separation
pay and retirement benefits shall have priority of payment out of the savings of the department or agency concerned. (Emphasis supplied)

Unfortunately for the petitioners, their interpretation has little legal precedent. The CSC has previously ruled that employees similarly situated to petitioners herein were not entitled to both
separation pay and retirement benefits; instead, the concerned employee must either avail of the separation benefit or opt to retire if qualified under existing laws. In CSC Resolution No. 021112,[23] the
CSC interpreted the phrase separation pay and retirement in RA No. 6656 as follows:

x x x While the aforequoted provision of law used the conjunctive "and" between the words "separation pay" and "retirement", this does not mean that both benefits shall be
given to an affected employee. This interpretation is supported by the phrase "if entitled thereto" found before the phrase "be paid the appropriate separation pay and retirement and
other benefits under existing laws". Thus, payment of both separation and retirement benefits is not absolute.

Also, in CSC Resolution No. 00-1957,[24] the CSC declared:

The aforequoted provision of law says: separation pay and retirement and other benefits under existing laws. Be it noted that the conjunctive and is used between
separation pay and retirement, which in its elementary sense would mean that they are to be taken jointly. (Ruperto G. Martin, Statutory Construction, sixth edition, p. 88) Obviously,
therefore, separation pay and retirement refer to only one benefit, of which an employee affected by the reorganization, if entitled thereto, must be paid plus other benefits under
existing laws, i.e. terminal leave pay, etc.
 Further, in Cajiuat v. Mathay,[25] we found that in the absence of express provisions to the contrary, gratuity laws should be construed against the grant of double
compensation. Cajiuat involved employees of the Rice and Corn Administration who exercised their option to retire under CA No. 186 and received the appropriate retirement benefits. Subsequently,
the Rice and Corn Administration was abolished by Presidential Decree No. 4.[26] Said Decree also provided for the payment of a gratuity in Section 26, paragraph 3:

Permanent officials and employees of the Rice and Corn Administration who cannot be absorbed by the Administration, or who cannot transfer or to be transferred to other
agencies, or who prefer to retire, if qualified for retirement, or to be laid off, shall be given gratuity equivalent to one month salary for every year of service but in no case more than
twenty-four months salary, in addition to all other benefits to which they are entitled under existing laws and regulations. x x x

On the basis of this provision, the retired employees of the Rice and Corn Administration claimed that they were entitled to the separation gratuity, over and above the retirement benefits
already received. We disagreed and held that:

x x x [t]here must be a provision, clear and unequivocal, to justify a double pension. The general language employed in paragraph 3, Section 26 of Presidential Decree No. 4 fails to
meet that test. All that it states is that permanent employees of the Rice and Corn Administration who are retirable are entitled to gratuity equivalent to one month salary for every
year of service but in no case more than twenty four months salary in addition to other benefits to which they are entitled under existing laws and regulations. To grant double gratuity
is unwarranted. No reliance can be placed [on] the use of the term other benefits found in the paragraph relied upon. As clearly stated in the memorandum of the Solicitor General,
they refer to those receivable by a retiree under the general retirement laws, like the refund of contributions to the retirement fund and the money value of the accumulated vacation
and sick leaves of said official employee. The clause in addition to all other benefits to which they are entitled under existing laws and regulations was inserted to insure the
payment to the retiree of the refund of the contributions to the retirement fund and the money value of the accumulated vacation and sick leaves of said official or employee.[27]

Nothing in the EPIRA justifies the grant of both the separation package and retirement benefits.

The EPIRA, a legislative enactment dealing specifically with the privatization of the electric power industry, provides:

SEC. 63. Separation Benefits of Officials and Employees of Affected Agencies. National government employees displaced or separated from the service as a result of
the restructuring of the [electric power] industry and privatization of NPC assets pursuant to this Act, shall be entitled to either a separation pay and other benefits in
accordance with existing laws, rules or regulations or be entitled to avail of the privileges provided under a separation plan which shall be one and one-half month[s]
salary for every year of service in the government: Provided, however, That those who avail of such privilege shall start their government service anew if absorbed by any
government-owned successor company. In no case shall there be any diminution of benefits under the separation plan until the full implementation of the restructuring and
privatization. x x x (Emphasis supplied)

A careful reading of Section 63 of the EPIRA affirms that said law did not authorize the grant of both separation pay and retirement benefits. Indeed, the option granted was either to a
separation pay and other benefits in accordance with existing laws, rules and regulations or to a separation plan which shall be one and one-half months salary for every year of service in the
government. The options were alternative, not cumulative. Having chosen the separation plan, they cannot now claim additional retirement benefits under CA No. 186.
 This position finds further support in Section 3(f), Rule 33 of RA No. 9136s Implementing Rules and Regulations, which provides:

(f) likewise, separation or displacement refers to the severance of employment of any official or employee, who is neither qualified under existing laws, rules and
regulations nor has opted to retire under existing laws, as a result of the restructuring of the electric power industry or privatization of NPC assets pursuant to the act.

As worded, Rule 33, Section 3(f) of the Implementing Rules and Regulations of RA No. 9136 precludes the receipt of both separation and retirement benefits. A separated or displaced
employee, as defined by the implementing rules, does not include one who is qualified or has opted to retire under existing laws. Consequently, a separated employee must choose between
retirement under applicable laws or separation pay under the EPIRA.

Within the context of reorganization, petitioners cannot claim a vested right over their retirement benefits.

Petitioners claim that having religiously paid their premiums, they have vested rights to their retirement gratuities which may not be revoked or impaired. However, petitioners fail to consider
that under the retirement laws that they themselves invoke, separation from the service, whether voluntary or involuntary, is a distinct compensable event from retirement.[28] Nothing in said laws permits
an employee to claim both separation pay and retirement benefits in the event of separation from the service due to reorganization.

Thus, absent an express provision of law to the contrary, separation due to reorganization gives rise to two possible scenarios: first, when the separated employee is not yet entitled to retirement
benefits, second, when the employee is qualified to retire. In the first case, the employees separation pay shall be computed based on the period of service rendered in the government prior to the
reorganization. In the second case, where an employee is qualified to retire, he or she may opt to claim separation or retirement benefits.

Contradistinction with Larao v. Commission on Audit

We are, of course, aware that in Larao v. Commission on Audit[29] we held that employees, who were separated from the service because of the reorganization of the Metropolitan
Waterworks and Sewerage System (MWSS) and Local Waterworks and Utilities Administration (LWUA) pursuant to RA No. 8041, were entitled to both a separation package and retirement
benefits.[30]

In Larao, however, the Early Retirement Incentive Plan submitted to and approved by then President Fidel V. Ramos explicitly provided for a separation package that would be given over
and above the existing retirement benefits. Therein lies the fundamental difference. Hence, unlike in this case, there was specific authority for the grant of both separation pay and retirement
benefits.
 WHEREFORE, the petition is DENIED. The Decision dated December 23, 2004 of the Regional Trial Court of Quezon City, Branch 101 in SCA No. Q-03-50681 holding that petitioners are
not entitled to receive retirement benefits under Commonwealth Act No. 186, as amended is AFFIRMED with MODIFICATION that petitioners are entitled to a refund of their contributions to the
retirement fund, and the monetary value of any accumulated vacation and sick leaves.

SO ORDERED.
 PERALTA VS. MATHAY

SYLLABUS

1. POLITICAL LAW; ACCOUNTABILITY OF PUBLIC OFFICERS; PROHIBITION AGAINST DOUBLE COMPENSATION. It is expressly provided in the Constitution: "No officer
or employee of the government shall receive additional or double compensation unless specifically authorized by law." This is to manifest a commitment to the fundamental principle
that a public office is a public trust. It is expected of a government official or employee that he keeps uppermost in mind the demands of public welfare. He is there to render public
service. He is of course entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the overriding consideration. The intrusion of the thought
of private gain should be unwelcome. The temptation to further personal ends, public employment as a means for the acquisition of wealth, is to be resisted. That at least is the ideal.
There is then to be an awareness on the part of an officer or employee of the government that he is to receive only such compensation as may be fixed by law. With such a
realization, he is expected not to avail himself of devious or circuitous means to increase the remuneration attached to his position. It is an entirely different matter if the legislative
body would itself determine for reasons satisfactory to it that he should receive something more. If it were to be thus though, there must be a law to that effect. So the Constitution
decrees.

2. ID.; ID.; ID.; APPLICATION; GSIS OFFICERS. As is expressly declared in the Constitution, the Civil Service is to embrace "all branches and subdivisions of the Government * *
*." Conformably to the above, the Philippine Civil Service, by law, includes all branches, subdivisions and instrumentalities of the Government, including government-owned or
controlled corporations . . . ." Petitioner has not disputed, nor can he dispute that as a trustee, he was an officer of the government, the GSIS having been established in order "to
promote the efficiency and welfare of the employees of the Government of the Philippines and to replace the [then] pension systems established in [previous acts]. As such officer,
petitioner cannot receive additional or double compensation unless specifically authorized by law.

3. ID.; ID.; ID.; PER DIEM; INCLUDED. Under the GSIS Act. petitioner is entitled as trustee "to a per diem of P25.00 for each day of actual attendance in session." As in the case
of government controlled corporations, the term per diems" was used in the sense the compensation or remuneration attached to the office of Trustee. Such is not the meaning
usually attached to it. So it was noted in Lexal Laboratories v. National Chemical Industries Workers Union, (L-24632, October 26, 1968, 25 SCRA 668). A "per diem" is commonly
identified with the daily allowance "for each day he (an officer or employee) was away from his home base." Its usual signification is thus that a reimbursement for expenses incurred
in the performance of ones duties. If employ in a statute, as in this case, in the concept of remuneration, however, there must be, to justify an additional compensation, a specific law
that so provides. Otherwise, fidelity to the constitutional command is lacking.

4. ID.; ID.; ID.; COST OF LIVING ALLOWANCE, INCLUDED. A similar approach is called for in determining the nature of a cost of living allowance. If it could rightfully be
considered as in the nature of a reimbursement rather than additional emoluments or perquisites, then the ruling of respondent Auditor General cannot find support in the
Constitution. What was said in an American State decision has relevance. It was therein categorically stated "that it is universally held that an allowance for expenses incident to the
discharge of the duties of office is not an increase of salary, a perquisite, nor an emolument of office." To the same effect is this excerpt appearing later in the opinion: "A careful and,
we believe, exhaustive examination of the decisions fails to disclose a single case in which it has ever been held that a legislative act, providing for an allowance, for expenses
incurred in the discharge of official duties, to a public officer, whose salary or compensation was fixed at a stated sum, was in violation of provisions such as are found in many state
Constitutions, forbidding an increase of salary during official terms, or forbidding the granting of fees, perquisites, or emoluments to such officer. Legislative acts which directly in
terms, or as construed, attempted to increase such salaries, have been held invalid. But no decision has been found or, as we believe, can be found, which holds a legislative act to
be unconstitutional which merely relieves an officer, who received a fixed salary or compensation, from expending such salary for expenses incident to the performance of his official
duties." It is worth noting that there are specific provisions in the applicable statutes allowing trustees or directors, traveling expenses which may be collected by the board of
directors of the Philippines Virginia Tobacco Administration; traveling and subsistence expenses by the members and board of directors of the Central Luzon-Cagayan Valley
Authority; and traveling and other necessary expenses by the members of the Philippine Medical Care Commission. Such provisions are prompted by what may appear to be an
excess of caution, for the accepted doctrine is that an allowance to take care of expenses incurred by an official to enable him to fulfill his task cannot be looked upon as an
additional compensation. Such a principle does not come to the aid of petitioner though. He was unable to show that the cost of living allowance received by him was in the nature of
a reimbursement. It did amount then to an additional compensation.

5. ID.; ID.; ID.; BONUS, INCLUDED. It is quite obvious that by its very nature, a bonus partakes of an additional remuneration or compensation. The very characterization of what
was received by petitioner as bonuses being intended by way of an incentive to spur him possibly to more diligent efforts and to add to the feeling of well-being traditionally
associated with the Christmas season would remove any doubt that the Auditor General had no choice except to deduct from petitioners gratuity such items.

DECISION

FERNANDO, J.:

There is need in this appeal from a decision of respondent Auditor General Ismael Mathay for an inquiry into the meaning and significance of the constitutional inhibition against an
officer or employee of the government receiving additional or double compensation unless specifically authorized by law, 1 the decisive legal question being whether or not the cost
of living allowance as well as incentive and Christmas bonuses paid to petitioner Pedro G. Peralta, a Trustee of the Government Service Insurance System, hereinafter called the
GSIS, did fall within such a ban. The answer given by respondent Auditor General was in the affirmative. After a careful study of the matter, this Court arrives at a similar conclusion.
Hence this appeal cannot prosper.

The facts are undisputed. As set forth in the brief of petitioner, the GSIS, on May 17, 1966, in a resolution duly passed, granted him an optional retirement gratuity of P40,336.07. Of
that amount, he was not able to collect the sum of P7,032.26, covering P3,982.26 as cost of living allowance, P1,275.00 as incentive bonus, and P1,775.00 as Christmas bonus.
Such items were not passed in audit. the view of respondent Auditor General being that they should be deducted from his gratuity, although during petitioners incumbency as
Trustee, no question was raised when he was paid such allowance and bonuses. Respondent Auditor General justified his action on the ground that they "partake of the nature of
additional compensation," a trustees remuneration being fixed by law in the form of a per diem of P25.00 for every board meeting of the GSIS attended. Respondent so ruled on
June 28, 1966, and maintained such a stand on September 1, 1966 when he denied a motion for reconsideration. Hence this appeal for review filed on September 29, 1966.

The ruling of respondent Auditor General, being in accordance with what the Constitution requires, must be upheld.

1. It is expressly provided in the Constitution: "No officer or employee of the government shall receive additional or double compensation unless specifically authorized by law." 2
This is to manifest a commitment to the fundamental principle that a public office is a public trust. It is expected of a government official or employee that he keeps uppermost in
mind the demands of public welfare. He is there to render public service. He is of course entitled to be rewarded for the performance of the functions entrusted to him, but that
should not be the overriding consideration. The intrusion of the thought of private gain should be unwelcome. The temptation to further personal ends, public employment as a
means for the acquisition of wealth, is to be resisted. That at least is the ideal. There is then to be an awareness on the part of an officer or employee of the government that he is to
receive only such compensation as may be fixed by law. With such a realization, he is expected not to avail himself of devious or circuitous means to increase the remuneration
attached to his position. It is an entirely different matter if the legislative body would itself determine for reasons satisfactory to it that he should receive something more. If it were to
be thus though, there must be a law to that effect. So the Constitution decrees.

As is expressly declared in the Constitution, the Civil Service is to embrace "all branches and subdivisions of the Government . . .." 3 Conformably to the above, the Philippine Civil
Service, by law, includes "all branches, subdivisions and instrumentalities of the Government, including government-owned or controlled corporations . . .." 4 Petitioner has not
disputed, nor can he dispute that as a trustee, he was an officer of the government, the GSIS having been established in order "to promote the efficiency and welfare of the
employees of the Government of the Philippines and to replace the [then] pension systems established in [previous acts.]" 5 As such officer, petitioner cannot receive additional or
double compensation unless specifically authorized by law. Under the GSIS Act, he is entitled as trustee "to a per diem of P25.00 for each day of actual attendance in session." 6 As
in the case of government-controlled corporations, the term "per diems" was used in the sense of the compensation or remuneration attached to the office of Trustee 7 Such is not
the meaning usually attached to it. So it was noted in Lexal Laboratories v. National Chemical Industries Workers Union. 8 A "per diem" is commonly identified with the daily
allowance "for each day he (an officer or employee) was away from his home base." Its usual signification is thus that of a reimbursement for expenses incurred in the performance
of ones duties. If employed in a statute, as in this case, in the concept of remuneration, however, there must be, to justify an additional compensation, a specific law that so
provides. Otherwise, fidelity to the constitutional command is lacking.

A similar approach is called for in determining the nature of a cost of living allowance. If it could rightfully be considered as in the nature of a reimbursement rather than additional
emoluments or perquisites, then the ruling of respondent Auditor General cannot find support in the Constitution. What was said in an American State decision 9 has relevance. It
was therein categorically stated "that it is universally held that an allowance for expenses incident to the discharge of the duties of office is not an increase of salary, a perquisite, nor
an emolument of office." 10 To the same effect is this excerpt appearing later in the opinion: "A careful and, we believe, exhaustive examination of the decisions fails to disclose a
single case in which it has ever been held that a legislative act, providing for an allowance, for expenses incurred in the discharge of official duties, to a public officer, whose salary
or compensation was fixed at a stated sum, was in violation of provisions such as are found in many state Constitutions, forbidding an increase of salary official terms, or forbidding
the granting of `fees, `perquisites, or `emoluments to such officer. Legislative acts which directly in terms, or as construed, attempted to increase such salaries, have been held
invalid. But no decision has been found or, as we believe, can be found, which holds a legislative act to be unconstitutional which merely relieves an officer, who received a fixed
salary or compensation, from expending such salary for expenses incident to the performance of his official duties." 11 It is worth noting that there are specific provisions in the
applicable statutes allowing trustees or directors, traveling expenses which may be collected by the board of directors of the Philippine Virginia Tobacco Administration; 12 traveling
and subsistence expenses by the members and board of directors of the Central Luzon-Cagayan Valley Authority; 13 and traveling and other necessary expenses by the members
of the Philippine Medical Care Commission. 14 Such provisions are prompted by what may appear to be an excess of caution, for the accepted doctrine is that an allowance to take
care of expenses incurred by an official to enable him to fulfill his task cannot be looked upon as an additional compensation. Such a principle does not come to the aid of petitioner
though. He was unable to show that the cost of living allowance received by him was in the nature of a reimbursement. It did amount then to an additional compensation.

So it is in the case of the bonuses received by him. It is quite obvious that by its very nature, a bonus partakes of an additional remuneration or compensation. 15 The very
characterization of what was received by petitioner as bonuses being intended by way of an incentive to spur him possibly to more diligent efforts and to add to the feeling of well-
being traditionally associated with the Christmas season would remove any doubt that the Auditor General had no choice except to deduct from petitioners gratuity such items.

2. It is apparent that respondent Auditor General accorded respect and deference to a constitutional command. To impute legal error to his actuation is to be oblivious of the
fundamental postulate that the Constitution is supreme. Obedience is mandatory. It cannot be disregarded. Every public official is sworn to uphold it. There can be no justification for
any other course of action. To condone whether by intent or inadvertence any deviation from what it prescribes is to display less than full fealty to the cardinal precept of our polity. A
mistaken sympathy for the situation in which the petitioner did find himself cannot suffice to confer authority on respondent to grant what is asked of him in view of the constitutional
ban. Both petitioner, who was himself once a public official, and respondent Auditor General must be cognizant of the paramount character of the Constitution. Thus everyone in the
public service is only the more strongly bound to submit to such supremacy and abide by the limitations which it imposes upon every aspect of the authority thus conferred. 16

WHEREFORE, the decision of the Auditor General of June 28, 1966, as reiterated in its order denying the motion for reconsideration of September 1, 1966, is affirmed. Without
pronouncement as to costs.
 EN BANC
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent.

DECISION

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on Elections, in
place of Chairman Hilario B. Davide, who had been named chairman of the fact-finding commission to investigate the December 1989 coup d' etat attempt.
The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the President of the Philippines to make the challenged
designation in view of the status of the Commission on Elections as an independent constitutional body and the specific provision of Article IX-C, Section 1(2) of the Constitution that
"(I)n no case shall any Member (of the Commission on Elections) be appointed or designated in a temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino designated the Solicitor General as acting member of the Commission
on Elections and the Court revoked the designation as contrary to the Constitution. It is also alleged that the respondent is not even the senior member of the Commission on
Elections, being outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw
The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter that should be resolved by the members themselves and that the
intrusion of the President of the Philippines violates their independence. He cites the practice in this Court, where the senior Associate Justice serves as Acting Chief Justice in the
absence of the Chief Justice. No designation from the President of the Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court because the temporary succession cited is provided for in
Section 12 of the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court of Appeals. There is no such arrangement, however, in the case of the
Commission on Elections. The designation made by the President of the Philippines should therefore be sustained for reasons of "administrative expediency," to prevent disruption
of the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the Commission on Elections would have been disturbed or stalemated if the
President of the Philippines had not stepped in and designated an Acting Chairman. There did not seem to be any such problem. In any event, even assuming that difficulty, we do
not agree that "only the President (could) act to fill the hiatus," as the Solicitor General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent." Although essentially executive in nature, they are not under the
control of the President of the Philippines in the discharge of their respective functions. Each of these Commissions conducts its own proceedings under the applicable laws and its
own rules and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in Article IX-
A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised for it, even with its consent, by the
President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its
validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever
reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent position as Associate Commissioner. It is no less true, however, that
she can be replaced as Acting Chairman, with or without cause, and thus deprived of the powers and perquisites of that temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending the temporary designation in favor of the
respondent. This is still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation could
have been handled by the members of the Commission on Elections themselves without the participation of the President, however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by the seniority rule as they themselves would have
appreciated it. In any event, that choice and the basis thereof were for them and not the President to make.
The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she issued the challenged designation. But while conceding
her goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, even as this Court revoked the designation in the Bautista case, so too must it annul the
designation in the case at bar.
The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its members. That guaranty
is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of the Commission on Elections is declared
UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as such. This is without prejudice to the incumbent Associate Commissioners of the
Commission on Elections restoring her to the same position if they so desire, or choosing another member in her place, pending the appointment of a permanent Chairman by the
President of the Philippines with the consent of the Commission on Appointments.: rd
SO ORDERED.
 G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound
effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time
of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately
preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law
for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age and holders of a college degree. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who
have been engaged in the practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not
limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions
and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to
clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to
be-an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation,
and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in
the practice of law when he:

... for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission
constituted by law or authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their
rights under the law, or while so engaged performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex.
rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general,
all advice to clients, and all action taken for them in matters connected with the law incorporation services, assessment and condemnation services contemplating
an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting
proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis
supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court.
It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive
field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to
become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation
to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the
courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves
appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust
obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citingIn re Opinion of the
Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as
advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law and is of a kind usual for
attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment such as this he is a practicing attorney at law
within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is
to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in
any degree of legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law."
 MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on the
Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" I am quoting from the provision "who have been engaged in the practice of
law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit, we would like to
make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA
We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work
within COA, then they are qualified to be considered for appointment as members or commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this
interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at
least ten years is taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the
Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve legal work; it will involve legal work.
And, therefore, lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on
qualifications under our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified
public accountants with not less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis
supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many lawyers do not engage in private practice, it
is still a fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization engaged in the business of delivering legal
services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is usually a partnership and members of the firm are
the partners. Some firms may be organized as professional corporations and the members called shareholders. In either case, the members of the firm are the experienced
attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as the performance of any acts . . . in or out of court, commonly
understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn.
325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to
be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers
spend little time in courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the
litigating lawyer's role colors much of both the public image and the self perception of the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once
articulated on the importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed laymen whose concept of an attorney is one who principally
tries cases before the courts. The members of the bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more
legal work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find
themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been described as the planner, the
diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective."
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal
institutions, clients, and other interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their
specialty. And even within a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as
representing a client before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in this work to the exclusion of much else.
Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And
increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically, so as to remove from it some of the salient
features of adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client
and by the way in which the lawyer is organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal
service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure from the traditional concept of practice of
law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and other professional groups, in particular
those members participating in various legal-policy decisional contexts, are finding that understanding the major emerging trends in corporation law is
indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research
function accompanied by an accelerating rate of information accumulation. The recognition of the need for such improved corporate legal policy formulation,
particularly "model-making" and "contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given courses of action, and the need for fast decision and response in situations of acute danger have prompted the
use of sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic computing equipment. Understandably,
an improved decisional structure must stress the predictive component of the policy-making process, wherein a "model", of the decisional context or a segment
thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary approach to
legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable
decisional context and the various approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree in business
administration or management, functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of
other professions which are currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that
arise from each and every necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" lawyer, earning big money and
with a clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one, the number of attorneys
employed by a single corporation will vary with the size and type of the corporation. Many smaller and some large corporations farm out all their legal problems to
private law firms. Many others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas of concern or jurisdiction may include, inter
alia: corporate legal research, tax laws research, acting out as corporate secretary (in board meetings), appearances in both courts and other adjudicatory
agencies (including the Securities and Exchange Commission), and in other capacities which require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. These include such
matters as determining policy and becoming involved in management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how one's work actually fits into the work of the
orgarnization. This can be frustrating to someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune
to be more closely involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some large MNCs provide one of the few opportunities
available to corporate lawyers to enter the international law field. After all, international law is practiced in a relatively small number of companies and law firms.
Because working in a foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the overseas jobs
go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p.
4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad
lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of the traditional law teaching method of confining
the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a
devotion to the organization and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise known as "intersecting managerial jurisprudence,"
it forms a unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate lawyer reviews the globalization process, including
the resulting strategic repositioning that the firms he provides counsel for are required to make, and the need to think about a corporation's; strategy at multiple
levels. The salience of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental
units. Firms increasingly collaborate not only with public entities but with each other often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The modem corporate lawyer has gained a new role as
a stakeholder in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles.
Often these new patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are complicated as corporations organize
for global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. New collaborative arrangements
for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older, more adversarial relationships and
traditional forms of seeking to influence governmental policies. And there are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of
organizations. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the group-context
interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements within the
organization. In general, such external activities are better predictors of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. Current research is
seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. (Emphasis
supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing
immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of systematic problems
physical, economic, managerial, social, and psychological. New programming techniques now make the system dynamics principles more accessible to
managers including corporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis
supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all lands of negotiations. All integrated set
of such tools provide coherent and effective negotiation support, including hands-on on instruction in these techniques. A simulation case of an international joint
venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when
transactional or similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. It needs to be directly
supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global, interdependent environment. The practice
and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the most vibrant subsets of the
legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, including structuring its global operations, managing
improved relationships with an increasingly diversified body of employees, managing expanded liability exposure, creating new and varied interactions with public
decision-makers, coping internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of
how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he
must, at the very least, also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the
modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. Yet, many
would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and
risk opprobrium?; or will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged
in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same
day, he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari
and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the
Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During his stint in the World Bank Group (1963-
1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with the laws of member-countries negotiating
loans and coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer
of an investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal and economic consultant or chief
executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in election law. He appeared for
NAMFREL in its accreditation hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's
Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmative
action for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of the Davide Commission, a quast judicial body,
which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public Officers, for
which he was cited by the President of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and
public accountability and the party-list system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants;
and (5) events of default. (Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the tasks of legislative drafting and legal advising,
they score national development policies as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled "Wanted:
Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for International Development,
during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace Through Law Center on
August 26-31, 1973). ( Emphasis supplied)
 Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in the law of contracts, in legislation and
agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist or an economist in the formulation of a
model loan agreement. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only
with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to
perform one or more elements of the contract. A good agreement must not only define the responsibilities of both parties, but must also state the recourse open to
either party when the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis
is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver
Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius
and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4, Third
and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking into consideration the liberal construction
intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator
of contracts, and a lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at
least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being
that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. (emphasis
supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to
attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke an appointment on the ground that another person
is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the
discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance
of a commission (in the Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4)
acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-
Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years,
 without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice, as
distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a week and would
outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law practice which really means nothing because the
definition says that law practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only by way of sarcasm as evident from my statement that
the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in advising others on what the law means, are
actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for
over ten years. This is different from the acts of persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he lacks one or more qualifications. This matter, I
greatly doubt. For one thing, how can an action or petition be brought against the President? And even assuming that he is indeed disqualified, how can the action be entertained
since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he possessed the necessary qualifications as
required by law. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a
grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it would be incredible that the U.S.
Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on
condition that

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. This blinded
the man. Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury, accused the procurator of reneging on his word.
The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged
determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated
qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this
Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.
 EN BANC

[G.R. No. 149036. April 2, 2002]

MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C.
DE GUZMAN in his capacity as Officer-In-Charge, Finance Services Department of the Commission on Elections, respondents.

DECISION
CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 65 of the 1997 Rules
of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag (Petitioner for brevity) questions the constitutionality of the appointment and the right to hold office of the following: (1)
Alfredo L. Benipayo (Benipayo for brevity) as Chairman of the Commission on Elections (COMELEC for brevity); and (2) Resurreccion Z. Borra (Borra for brevity) and Florentino
A. Tuason, Jr. (Tuason for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco [1] (Cinco for brevity) as Director IV
of the COMELECs Education and Information Department (EID for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as Acting Director IV of the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed
the appointment of petitioner as Director IV of EID in a Temporary capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment of petitioner
to the same position in a Temporary capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,[3] and Borra[4] and Tuason[5] as COMELEC Commissioners,
each for a term of seven years and all expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC Chairman. Borra and Tuason likewise
took their oaths of office and assumed their positions as COMELEC Commissioners. The Office of the President submitted to the Commission on Appointments on May 22, 2001
the ad interim appointments of Benipayo, Borra and Tuason for confirmation. [6] However, the Commission on Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions and for the same term of seven years, expiring
on February 2, 2008.[7] They took their oaths of office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the Commission on
Appointments for confirmation.[8]
 Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again the ad
interim appointments of Benipayo, Borra and Tuason to the same positions. [9] The Office of the President submitted their appointments for confirmation to the Commission on
Appointments.[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001 [11] addressed to petitioner as Director IV of the EID and to Cinco as Director III
also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain
objected to petitioners reassignment in a Memorandum dated April 14, 2001 [12] addressed to the COMELEC en banc.Specifically, Commissioner Sadain questioned Benipayos
failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law Department. [13] Petitioner cited Civil Service
Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that transfer and detail of employees are prohibited during the election
period beginning January 2 until June 13, 2001. Benipayo denied her request for reconsideration on April 18, 2001,[14]citing COMELEC Resolution No. 3300 dated November 6,
2000, which states in part:

NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel,
when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field personnel within the
thirty-day period before election day shall be effected after due notice and hearing.

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23, 2001.[15] Petitioner also filed an administrative and
criminal complaint[16] with the Law Department[17] against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution
No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the appointment and the right to remain in office of Benipayo,
Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and Tuason violate the
constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and
members. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance Services Department Officer-
in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim appointments of Benipayo as COMELEC Chairman and Borra and
Tuason as Commissioners, respectively, for a term of seven years expiring on February 2, 2008. [18] They all took their oaths of office anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary
appointment prohibited by Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad
interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution;
 4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Department is illegal and without authority,
having been done without the approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to make disbursements in favor of Benipayo, Borra, Tuason and
Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in constitutional cases. Out of respect for
the acts of the Executive department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments
issued by the President to Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a
personal and substantial interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the constitutional
issue is the lis mota of the case.[19]
Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain that petitioner does not have a personal and substantial interest
in the case because she has not sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents
point out that petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by
the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity. Petitioner filed the petition only on
August 3, 2001 despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed after the
third time that these three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to the Law Department. Consequently, the constitutionality of the ad
interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was placed on detail service.[20] Respondents claim that the
reassignment was pursuant to x x x Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief Executive Officer.[21] Evidently,
respondents anchor the legality of petitioners reassignment on Benipayos authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the
lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman,
an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution, then petitioners reassignment is legal and
she has no cause to complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the resolution of the
constitutionality of Benipayos assumption of office. Petitioners personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the
requisite locus standi to raise the constitutional issue in this petition.
Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant
petition only on August 3, 2001, when the first ad interimappointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that determines
whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court
that can resolve the same, such that, if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on
appeal.[22]Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest
opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional
issue may be passed upon.[23] There is no doubt petitioner raised the constitutional issue on time.
 Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad interim appointment and assumption of office. Unless the constitutionality of
Benipayos ad interim appointment and assumption of office is resolved, the legality of petitioners reassignment from the EID to the Law Department cannot be determined. Clearly,
the lis mota of this case is the very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the COMELEC in the conduct of the
May 14, 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Courts duty to determine whether other
agencies of government have remained within the limits of the Constitution and have not abused the discretion given them, this Court may even brush aside technicalities of
procedure and resolve any constitutional issue raised. [24] Here the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution, which
provides as follows:

The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary
or acting capacity. (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be disapproved or simply by-passed by the
Commission on Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of
Section 1 (2), Article IX-C of the Constitution.
Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions, namely the Civil Service Commission
and the Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of the Civil
Service Commission and the Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot
assume office until his appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer temporary in character.
The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the independence of the COMELEC. A
confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or disapproved. Prior
to his confirmation, the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for any cause. In the words of
petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified
into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad
interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second
paragraph of Section 16, Article VII of the Constitution provides as follows:

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the Congress. (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear
that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers vs. Ozaeta,[25] decided on October 25, 1948,
we held that:

x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the President shall have the power to
make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments
does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of
course distinguishable from an acting appointment which is merely temporary, good until another permanent appointment is issued. (Emphasis supplied)

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at
once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments, [26] this Court elaborated
on the nature of an ad interim appointment as follows:

A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when
it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with
reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such
office is complete. In the language of the Constitution, the appointment is effective until disapproval by the Commission on Appointments or until the next adjournment of the
Congress.

Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in the meantime or for the time being. Hence, petitioner argues that an ad
interim appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court,[27] where we explained that:

x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several ad interim
appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word ad interim which creates such
belief. The term is defined by Black to mean in the meantime or for the time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the
office during the absence or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended
in the context of Philippine law. In referring to Dr. Estebans appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote
the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally
vested by the University Charter with the power of appointment, is unable to act. x x x. (Emphasis supplied)

Thus, the term ad interim appointment, as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime
that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution,
has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case
of Marohombsar vs. Court of Appeals,[28] where the Court stated:

We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or
in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President
Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondents appointment as Executive Assistant II was recognized and attested
to by the Civil Service Commission Regional Office No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a temporary
appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board
disapproves them. (Emphasis supplied)

An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the
constitutional protection that [n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law. [29] Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interimappointment is possible only if it
is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.[30] Once an appointee has
qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing,
consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission
on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory
conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad
interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or
revoked at the pleasure of the appointing power. [31] A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that
the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,[32] this Court struck
down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court
ruled that:

A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its
revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the
Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its
withdrawal.

xxx

The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its
members. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines.

Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935 Constitution, which did not have a provision prohibiting temporary or acting appointments to the
COMELEC, this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the designation of
an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. We declared then: It would be more in keeping with the intent,
purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily. (Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to confirmation by the Commission on
Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or
acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac[34] and Solicitor General Felix Bautista inNacionalista Party vs. Bautista.[35] The ad interim appointments of
Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appointments that take effect
immediately.
While the Constitution mandates that the COMELEC shall be independent [36], this provision should be harmonized with the Presidents power to extend ad
interim appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can
assume office will negate the Presidents power to make ad interim appointments. This is contrary to the rule on statutory construction to give meaning and effect to every provision
of the law. It will also run counter to the clear intent of the framers of the Constitution.
 The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by the Commission on Appointments - did not provide for ad
interim appointments. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session
throughout the year except for a brief 30-day compulsory recess. However, because of the need to avoid disruptions in essential government services, the framers of the
Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. The following discussion during the deliberations of the Constitutional
Commission elucidates this:

FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary to provide for ad interim appointments? Perhaps there should be a
little discussion on that.

xxx

MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms of anticipating interruption of government business, considering
that we are not certain of the length of involuntary recess or adjournment of the Congress. We are certain, however, of the involuntary adjournment of the Congress which is 30
days, but we cannot leave to conjecture the matter of involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula x x x.

xxx

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring with the Committee, Commissioner Aquino and I propose the
following amendment as the last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE
APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY
UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.

This is otherwise called the ad interim appointments.

xxx

THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence)
The Chair hears none; the amendment is approved.[37](Emphasis supplied)

Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government
services that otherwise would result from prolonged vacancies in government offices, including the three constitutional commissions. In his concurring opinion in Guevara vs.
Inocentes,[38] decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interimappointments in this manner:

Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress, the evil sought to be avoided interruption in the
discharge of essential functions may take place. Because the same evil would result if the appointments ceased to be effective during the session of Congress and before its
adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of other ad interim appointments or
reappointments. (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the interruption of essential government services in the May 2001
national elections. Following the decision of this Court inGaminde vs. Commission on Appointments,[39] promulgated on December 13, 2000, the terms of office of constitutional
officers first appointed under the Constitution would have to be counted starting February 2, 1987, the date of ratification of the Constitution, regardless of the date of their a ctual
appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001.[40]
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her appointment papers, until February 15, 2002,[41] the
original expiry date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner Teresita Dy-
Liacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001. [42] The original expiry dates of the terms of office of Chairperson
Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling,
there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half months away. To their credit, Chairperson Demetriou and
Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court the applicability of the Gaminde ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou stated that she was vacating her office on February 2, 2001,
as she believed any delay in choosing her successor might create a constitutional crisis in view of the proximity of the May 2001 national elections. Commissioner Desamito
chose to file a petition for intervention[44] in the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and
the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001. [45] Concededly, there was no more time for Benipayo, Borra and
Tuason, who were originally extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only have been one division functioning
in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires that all x x x election cases shall be heard and decided in division, [46] the
remaining one division would have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration shall be decided by the Commission en
banc, the mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners are expected to
travel around the country before, during and after the elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the
three vacancies in the COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in
safeguarding and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be
avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the President to be exercised by her in her
sound judgment. Under the second paragraph of Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing officials who are subject to
confirmation by the Commission on Appointments. First, while Congress is in session, the President may nominate the prospective appointee, and pending consent of the
Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad interim appointment which
allows the appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within the prerogative of the President because the
Constitution grants her that power. This Court cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power, absent grave abuse of
discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg.[47] Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A.
Reyes-Claravall and Manolo F. Gorospe.[48] Former President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda
Tancangco, Mehol K. Sadain and Ralph C. Lantion.[49]
The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers. This situation,
however, is only for a short period - from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent. The Constitution
itself sanctions this situation, as a trade-off against the evil of disruptions in vital government services. This is also part of the check-and-balance under the separation of powers, as
a trade-off against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the Presidents appointing power to the checking
power of the legislature.
 This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COMELEC are precisely staggered to insure
that the majority of its members hold confirmed appointments, and not one President will appoint all the COMELEC members.[50] In the instant case, the Commission on
Appointments had long confirmed four[51] of the incumbent COMELEC members, comprising a majority, who could now be removed from office only by impeachment. The special
constitutional safeguards that insure the independence of the COMELEC remain in place.[52] The COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and
promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners, respectively, do not
constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are constitutional, the renewal of the
their ad interim appointments and their subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution, which provides as follows:

The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last members for three years, without
reappointment. X x x. (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad interim appointment can no longer be renewed because this will
violate Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent appointees who have assumed
office, which is the situation of Benipayo, Borra and Tuason if their ad interim appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final
decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a
refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from
such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not
because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is
one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on
Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a
by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows:

Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the President of the Philippines which are not finally
acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by
the Commission. (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his
concurring opinion in Guevara vs. Inocentes[53] why by-passedad interim appointees could be extended new appointments, thus:
In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection
of the Commission. It ceases, also, upon the next adjournment of the Congress, simply because the President may then issue new appointments - not because of implied
disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments
only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer
appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason for said termination of the ad
interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the Congress,
the President is free to make ad interim appointments or reappointments. (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution on ad interim appointments was
lifted verbatim.[54] The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution. The
established practice under the present Constitution is that the President can renew the appointments of by-passed ad interimappointees. This is a continuation of the well-
recognized practice under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing
power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad
interim appointment cannot be revived by another ad interimappointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a
reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because
there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without
reappointment. (Emphasis supplied) There are four situations where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after
confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman,
because he will then be actually serving more than seven years. The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before
his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment will
result in the appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned,
and the appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment
will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in
his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the
second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years,
but are barred from ever being reappointed under any situation. Not one of these four situations applies to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member whether for a full term of
seven years, a truncated term of five or three years, or even for an unexpired term of any length of time can no longer be reappointed to the COMELEC. Commissioner Foz
succinctly explained this intent in this manner:

MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on
reappointment applies only when the term or tenure is for seven years. But in cases where the appointee serves only for less than seven years, he would be entitled to
reappointment. Unless we put the qualifying words without reappointment in the case of those appointed, then it is possible that an interpretation could be
made later on their case, they can still be reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed under the Constitution, no reappointment can be
made.[55] (Emphasis supplied)
In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera[57] that a [r]eappointment is not prohibited when a Commissioner has
held office only for, say, three or six years, provided his term will not exceed nine years in all. This was the interpretation despite the express provision in the 1935 Constitution that
a COMELEC member shall hold office for a term of nine years and may not be reappointed.
To foreclose this interpretation, the phrase without reappointment appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or
three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the
intention is to prohibit any reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad
interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start
and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of
the Commission on Appointments.
The phrase without reappointment applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such
person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can
apply. To hold otherwise will lead to absurdities and negate the Presidents power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad
interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved
by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid
disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons. The
first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The second is to insure that the
members of the three constitutional commissions do not serve beyond the fixed term of seven years. As reported in theJournal of the Constitutional Commission, Commissioner
Vicente B. Foz, who sponsored[58]the proposed articles on the three constitutional commissions, outlined the four important features of the proposed articles, to wit:

Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions, and which are: 1) fiscal
autonomy which provides (that) appropriations shall be automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary;
2) fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity of the President to appoint all the
members during his incumbency; 3) prohibition to decrease salaries of the members of the Commissions during their term of office; and 4) appointments of members
would not require confirmation.[59](Emphasis supplied)

There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as discussed earlier, the framers of the Constitution
decided to require confirmation by the Commission on Appointments of all appointments to the constitutional commissions. Second, the framers decided to strengthen further the
prohibition on serving beyond the fixed seven-year term, in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven
years. The following exchange in the deliberations of the Constitutional Commission is instructive:

MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention, first of all, to Section 2 (2) on the Civil Service Commission
wherein it is stated: In no case shall any Member be appointed in a temporary or acting capacity. I detect in the Committees proposed resolutions a constitutional
hangover, if I may use the term, from the past administration. Am I correct in concluding that the reason the Committee introduced this particular provision is to avoid an
incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from
1975 until 1980, and then in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion, he occupied
that position for about 12 years in violation of the Constitution?
 MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any of the commissions does not serve
beyond 7 years.[60] (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any kind and, therefore as a whole there is no way
that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does not happen by including in the appointment
both temporary and acting capacities."[61] (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting
appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointees total term of office exceeding seven years. The evils
sought to be avoided by the twin prohibitions are very specific - reappointment of any kind and exceeding ones term in office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those who might wish to extend their terms of
office. Thus, the word designated was inserted to plug any loophole that might be exploited by violators of the Constitution, as shown in the following discussion in the
Constitutional Commission:

MR. DE LOS REYES: On line 32, between the words appointed and in, I propose to insert the words OR DESIGNATED so that the whole sentence will read: In no case shall
any Member be appointed OR DESIGNATED in a temporary or acting capacity.

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: In no case shall any Member be appointed in a temporary or acting capacity.

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction between an appointment and a designation. The Gentleman will
recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he was only
designated during the time that he acted as Commissioner on Audit. So, in order to erase that distinction between appointment and designation, we should specifically place the
word so that there will be no more ambiguity. In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity.

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is approved.[62]

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were
no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad
interim appointments and renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of appointments of Benipayo,
Borra and Tuason are for a fixed term expiring on February 2, 2008.[63] Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there
is no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in
the Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of office expire on February 2, 2008, does not violate
the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.
 Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the
COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office
without due process and therefore illegal.
Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is
the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. Under
Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested with the following power:

Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer of the Commission, shall:

xxx

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service Law. (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil
Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes X, Y and Z to her Petition, indisputably show
that she held her Director IV position in the EID only in an actingor temporary capacity.[64] Petitioner is not a Career Executive Service (CES) officer, and neither does she hold
Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by
the Civil Service Commission.[65] Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,[66] this
Court held that:

As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no
security of tenure in respect of that position. As held inAchacoso v. Macaraig:

It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate
eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing
authority and at a moments notice, conformably to established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated x x x.

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal
basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting appointment can be
withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code, which provides as
follows:
 Section 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil
service including public school teachers, within the election period except upon prior approval of the Commission.

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election
period.[67] Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period.
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000,[68] exempting the COMELEC from Section 261 (h)
of the Omnibus Election Code. The resolution states in part:

WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows:

xxx

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any officer or employee in the
civil service including public school teachers, within the election period except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the prohibited period in order that it can carry out its
constitutional duty to conduct free, orderly, honest, peaceful and credible elections;

NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel,
when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due notice and hearing. (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only
to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code, [69] the COMELEC Chairman is the sole officer specifically
vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel
pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an
act the COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial
body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel
transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of
personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is
Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus,
Benipayos order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order
designating Cinco Officer-in-Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services Department of the Commission on Elections, did not act in
excess of jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
SO ORDERED.
 G.R. No. 95346 January 18, 1991

PERFECTO V. GALIDO, petitioner,

vs.
COMMISSION ON ELECTIONS and SATURNINO R. GALEON, respondents.

Paulino G. Clarin and Giselo Galido for petitioner.

De Castro & Cagampang Law Offices for private respondent.

RESOLUTION

PADILLA, J.:p

This is a special civil action for certiorari and preliminary injunction with prayer for a temporary restraining order, to prohibit respondent Commission on Elections from implementing
its questioned decision dated 14 December 1989 and resolution dated 20 September 1990, and private respondent Saturnino R. Galeon from assuming office as Mayor of Garcia-
Hernandez, Province of Bohol.

Petitioner and private respondent were candidates during the 18 January 1988 local elections for the position of mayor in the Municipality of Garcia-Hernandez, Province of Bohol.
Petitioner was proclaimed duly-elected Mayor of Garcia-Hernandez, by the Municipal Board of Canvassers.

On 25 January 1988, private respondent Saturnino R. Galeon filed an election protest before the Regional Trial Court of Bohol, 7th Judicial Region, Branch I, Tagbilaran City. After
hearing, the said court upheld the proclamation of petitioner as the duly-elected Mayor of Garcia-Hernandez, by a majority of eleven (11) votes.

Private respondent appealed the RTC decision to the Commission on Elections (COMELEC). Through its First Division, the COMELEC reversed the trial court's decision and
declared private respondent the duly-elected mayor by a plurality of five (5) votes. Petitioner's motion for reconsideration was denied by the COMELEC in its en bancresolution of 20
September 1990 which affirmed the decision of its First Division. The COMELEC held that the fifteen (15) ballots in the same precinct containing the initial "C" after the name
"Galido" were marked ballots and, therefore, invalid. The COMELEC said:

On the argument relied upon by the appellee that the case of Inguito vs. Court of Appeals is not the case in point but the cases of Bisnar vs. Lapasa and Katigbak
vs. Mendoza, supra should be the applicable jurisprudence, the settled rule and which is controlling is where a word or a letter recurs in a pattern or system to
mark and identify ballots, the ballots containing the same should be rejected as marked ballots (Silverio vs. Castro, supra; Inguito vs. Court of Appeals, 21 SCRA
1015), and the introduction of evidence aliunde is not necessary when the repetition of a word or letter in several ballots in the same precinct constitutes a clear
and convincing proof of a design to indentify the voters. (P. 38, Rollo of G.R. No. 95346)

On 25 September 1990, petitioner filed before this Court a petition for certiorari and injunction, which was docketed as G.R. No. 95135.

On 27 September 1990, we resolved to dismiss the said petition for failure of petitioner to comply with paragraph 4 of the Court's Circular No. 1-88 which requires that a petition shall
contain a verified statement of the date when notice of the questioned judgment, order or resolution was received and the date of receipt of the denial of the motion for
reconsideration, if any was filed. Petitioner filed a motion for reconsideration which we denied with finality in the resolution of 4 October 1990.
Undaunted, petitioner filed on 6 October 1990 the present petition for certiorari and injunction with prayer for a restraining order (G.R. No. 95346) which contains the same
allegations and legal issues contained in G.R. No. 95135.

On 11 October 1990, we issued the temporary restraining order prayed for by petitioner and required respondents to file comment on the petition.

In his Comment, private respondent Saturnino R. Galeon moves for the dismissal of the present petition, for the following three (3) main reasons:

1. Final decisions, orders or rulings of the Commission on Elections (COMELEC) in election contests involving elective municipal offices are final and executory, and not appealable.
Private respondent cites Article IX (C), Section 2(2), paragraph 2 of the 1987 Constitution, which reads as follows:

Decisions, final orders, or ruling of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not
appealable.

The above constitutional provision is implemented in the Rules of Procedure promulgated by the COMELEC, particularly Part VII Rule 39, Section 2 thereof, which reads:

Sec. 2. Non-reviewable decisions. Decisions in appeals from courts of general or limited jurisdiction in election cases relating to the elections, returns, and
qualifications of municipal and barangay official are not appealable.

According to private respondent, since appeals of COMELEC decisions in election contests involving municipal and barangay officials are not allowed by the Constitution, it follows
that the COMELEC decision in the case at bar should be executed or implemented.

2. The petition involves pure questions of fact as they relate to appreciation of evidence (ballots) which is beyond the power of review of this Court. The COMELEC found that the
writing of the letter "C" after the word "Galido" in the fifteen (15) ballots of Precinct 14 is a clear and convincing proof of a pattern or design to identify the ballots and/or voters. This
finding should be conclusive on the Court.

3. Exactly the same petition involving identical allegations, grounds and legal issues was dismissed with finality by this Court in G.R. No. 95135. The inadvertent issuance of a
temporary restraining order by the Court in this case has wreaked havoc and chaos in the municipality of Garcia-Hernandez where private respondent has already assumed his
position as the duly-elected mayor.

In his Reply to the Comment, petitioner avers

1 Article IX (A), Section 7 of the 1987 Constitution provides:

Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission
for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the
rules of the Commission or by the Commission itself Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

Since under the same Constitution (Article VIII, Section 1), judicial power is vested in one Supreme Court, the present petition can still be brought to the Supreme Court by certiorari.
Petitioner contends that this petition is not an ordinary appeal contemplated by the Rules of Court or by provision of the Constitution.
2. The petition involves pure questions of law. The correct interpretation of Section 211. No. 10 of Batas Pambansa Blg. 881 is definitely a question of law. It states:

10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the erroneous initial of the surname accompanying the correct
first name of the candidate, or the erroneous middle initial of the candidate shall not annul the vote in favor of the latter.

In several cases decided by this Court, according to petitioner, it was held that in the appreciation of ballots where there is no evidence aliunde of a purpose to identify the ballots,
the same should not be invalidated as marked ballots. The COMELEC thus committed grave abuse of discretion when it disregarded the cited decisions of this Court and declared
that the suffix "C" after the name Galido was in reality a countersign and not a mere erroneous initial.

3. The dismissal with finality of G.R. No. 95135 (the first petition) did not refer to the merits of the petition. The said dismissal was due to the failure of petitioner to submit requisite
papers duly certified. That is why upon petitioner's submission of the requirements in his second (the present) petition, this Court granted the request for the issuance of a temporary
restraining order.

The Court finds the petition to be without sufficient merit.

The Commission on Elections (COMELEC) has exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial,
and city officials and has appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective barangay
officials decided by trial courts of limited jurisdiction. (Article IX (C), Section 2 (2), paragraph 1 of the 1987 Constitution).

In the present case, after a review of the trial court's decision, the respondent COMELEC found that fifteen (15) ballots in the same precinct containing the letter "C" after the name
Galido are clearly marked ballots. May this COMELEC decision be brought to this court by a petition for certiorari by the aggrieved party (the herein petitioner)?

Under Article IX (A) Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated: "(U)nless otherwise provided by this Constitution or by law, any
decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy
thereof."

On the other hand, private respondent relies on Article IX, (C), Section 2(2), paragraph 2 of the Constitution which provides that decisions, final orders, or rulings of the Commission
on Elections in contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (Emphasis supplied)

We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay
offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The proceedings in the Constitutional
Commission on this matter are enlightening. Thus

MR. FOZ. So, the amendment is to delete the word "inappealable."

MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because decisions are always final, as distinguished from interlocutory orders.
So, it should read: "However, decisions, final orders or rulings," to distinguish them from intercolutory orders, ". . . of the Commission on Elections on municipal
and barangay officials shall be final and IMMEDIATELY executory."

That would be my proposed amendment.

MR. FOZ. Accepted, Mr. Presiding Officer.

 MR. REGALADO. It is understood, however, that while these decisions with respect to barangay and municipal officials are final and immediately executory and,
therefore, not appealable, that does not rule out the possibility of an original special civil action for certiorari, prohibition, or mandamus, as the case may be, under
Rule 65 of the Rules of Court.

MR. FOZ. That is understood, Mr. Presiding Officer.

MR. REGALADO. At least it is on record.

Thank you, Mr. Presiding Officer. 1

We do not, however, believe that the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering the questioned decision. It
is settled that the function of a writ of certiorari is to keep an inferior court or tribunal within the bounds of its jurisdiction or to prevent it from committing a grave abuse of discretion
amounting to lack or excess of jurisdiction.

As correctly argued by public respondent COMELEC, it has the inherent power to decide an election contest on physical evidence, equity, law and justice, and apply established
jurisprudence in support of its findings and conclusions; and that the extent to which such precedents apply rests on its discretion, the exercise of which should not be controlled
unless such discretion has been abused to the prejudice of either party. (Rollo, p. 107)

Finally, the records disclose that private respondent had already assumed the position of Mayor of Garcia-Hernandez as the duly-elected mayor of the municipality by virtue of the
COMELEC decision. The main purpose of prohibition is to suspend all action and prevent the further performance of the act complained of. In this light, the petition at bar has
become moot and academic. (G.R. No. 81383. Atty. Felimon et al. vs. Atty. Belena et al. Apr. 5, 1988 resolution.)

ACCORDINGLY, the petition is DISMISSSED. The temporary restraining order earlier issued by the Court is LIFTED.

SO ORDERED.
 G.R. Nos. 93419-32 September 18, 1990

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. GUALBERTO P. DELGADO, PRESIDING JUDGE, RTC, Br. 29, Toledo City, ELSIE RAGO LUMANGTAD, VIVENCIA ABARIDO, AVELINA BUTASLAC, ROSELLANO
BUTASLAC, HAYDELISA LUMANGTAD, SILVESTRE LUMANGTAD, MAXIMO RACAZA, NENA RACAZA, VICTORIANO/ VICTOR RAGO, EDNA TEJAS, MERCEDITA
TEJAS, TEOFISTO TEJAS, BERNABE TOQUERO, JR., and PEDRO RAFAELA, respondents.

Jose P. Balbuena for petitioner.

Fred B. Casas for respondents.

GANCAYCO, J.:

The authority of the Regional Trial Court (RTC) to review the actions of the Commission on Elections (COMELEC) in the investigation and prosecution of election
offenses filed in said court is the center of controversy of this petition.

On January 14, 1988 the COMELEC received a report-complaint from Atty. Lauron E. Quilatan, Election Registrar of Toledo City, against private respondents for alleged
violation of the Omnibus Election Code. The COMELEC directed Atty. Manuel Oyson, Jr., Provincial Election Supervisor of Cebu, to conduct the preliminary
investigation of the case.

After conducting such preliminary investigation, Oyson submitted a report on April 26, 1989 finding a prima facie case and recommending the filing of an information
against each of the private respondents for violation of Section 261 (y) (2) and (5) of the Omnibus Election Code. The COMELEC en banc in minute resolution No. 89-
1291 dated October 2, 1989 as amended by resolution No. 89-1574 dated November 2, 1989 resolved to file the information against the private respondents as
recommended.

On February 6, 1990, fifteen (15) informations were filed against each of private respondents in the RTC of Toledo City docketed as Criminal Cases Nos. TCS-1220 to
TCS-1234. In three separate manifestations the Regional Election Director of Region VII was designated by the COMELEC to handle the prosecution with the authority to
assign another COMELEC prosecutor.

Private respondents, through counsels, then filed motions for reconsiderations and the suspension of the warrant of arrest with the respondent court on the ground
that no preliminary investigation was conducted. On February 22, 1990 an order was issued by respondent court directing the COMELEC through the Regional Election
Director of Region VII to conduct a reinvestigation of said cases and to submit his report within ten (10) days after termination thereof. The Toledo City INP was directed
to hold in abeyance the service of the warrants of arrest until the submission of the reinvestigation report. 1

On March 16,1990 the COMELEC Prosecutor filed a motion for reconsideration and opposition to the motion for reinvestigation alleging therein that it is only the
Supreme Court that may review the decisions, orders, rulings and resolutions of the COMELEC. This was denied in an order dated April 5, 1990 whereby the respondent
trial court upheld its jurisdiction over the subject matter. 2

Hence, the herein petition for certiorari, mandamus and prohibition wherein the following issues are raised:
 (a) Whether or not the respondent Court has the power or authority to order the Commission on Elections through its Regional Election Director of
Region VII or its Law Department to conduct a reinvestigation of Criminal Cases Nos. TCS-1220 to TCS-1234;

(b) Whether or not the respondent court in issuing its disputed order dated April 5,1990 gravely usurped the functions of the Honorable Supreme
Court, the sole authority that has the power to review on certiorari, decisions, orders, resolutions or instructions of the Commission on Elections; and

(c) Whether or not the respondent Court has the power or authority to order the Comelec Law Department to furnish said respondent the records of
preliminary investigation of the above criminal cases for purposes of determining a probable cause. 3

The main thrust of the petition is that inasmuch as the COMELEC is an independent constitutional body, its actions on election matters may be reviewed only on
certiorari by the Supreme Court. 4

On the other hand, the respondents contend that since the cases were filed in court by the COMELEC as a public prosecutor, and not in the exercise of its power to
decide election contests, the trial court has authority to order a reinvestigation.

Section 2, Article IX-C of the Constitution provides:

SEC. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and
city officials and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving
elective baranggay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the commission on election contests involving elective municipal and barangay offices shall be final, executory,
and not appealable

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling
places, appointment of election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of
the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their
platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which
are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections
constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the
Commission in addition to other penalties that may be prescribed by law.
 (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusions or exclusion of voters; investigate and, where appropriate,
prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation
or disregard of, or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.
(Emphasis supplied.)

Section 52, Article VII of the Omnibus Election Code (Batas Pambansa Blg. 881) provides among the powers and functions of the COMELEC as follows-

Sec. 52. Power and functions of the Commission on Elections.-In addition to the powers and functions conferred upon it by the Constitution, the
Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of
securing free, orderly and honest elections .... (Emphasis supplied.)

Section 7, Article IX-A of the Constitution reads thus

SEC, 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law any
decision, order, of ruling or each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt
of a copy thereof. (Emphasis supplied.)

From the aforementioned provisions of Section 2, Article IX-C of the Constitution the powers and functions of the COMELEC may be classified in this manner

(1) Enforcement of election laws; 5

(2) Decision of election contests; 6

(3) Decision of administrative questions; 7

(4) Deputizing of law enforcement agencies; 8

(5) Registration of political parties; 9 and

(6) Improvement of elections. 10

As provided in Section 7, Article IX of the Constitution, unless otherwise provided by law, any decision, order or ruling of the COMELEC may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

In Filipinas Engineering and Machine Shop vs. Ferrer, 11 this Court held that "what is contemplated by the term final orders, rulings and decisions' of the COMELEC
reviewable on certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by said
body in the exercise of its adjudicatory or quasi-judicial powers." Thus, the decisions of the COMELEC on election contests or administrative questions brought before
it are subject to judicial review only by this Court.

However, under Section 2(6), of Article IX-C of the Constitution, the COMELEC may "investigate and, where appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses and malpractices." Under Section 265 of the Omnibus Election Code, the COMELEC, through its duly
authorized legal officers, "have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the
same."

Section 268 of the same Code provides that: "The regional trial courts shall have exclusive original jurisdiction to try and decide any criminal action or proceedings for
violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal
trial courts. From the decision of the courts, appeal will lie as in other criminal cases."

From the foregoing provisions of the Constitution and the Omnibus Election Code, it is clear that aside from the adjudicatory or quasi-judicial power of the COMELEC
to decide election contests and administrative questions, it is also vested the power of a public prosecutor with the exclusive authority to conduct the preliminary
investigation and the prosecution of election offenses punishable under the Code before the competent court. Thus, when the COMELEC, through its duly authorized
law officer, conducts the preliminary investigation of an election offense and upon a prima facie finding of a probable cause, files the information in the proper court,
said court thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must be subject to the approval of the court. 12 The
COMELEC cannot conduct a reinvestigation of the case without the authority of the court or unless so ordered by the court. 13

The records of the preliminary investigation required to be produced by the court must be submitted by the COMELEC. The trial court may rely on the resolution of the
COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the
issuance of the warrant of arrest. Nevertheless the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is
probable cause which will warrant the issuance of a warrant of arrest. 14

The refusal of the COMELEC or its agents to comply with the order of the trial court requiring them to conduct a reinvestigation in this case and to submit to the court
the record of the preliminary investigation on the ground that only this Court may review its actions is certainly untenable.

One last word. The petition is brought in the name of the People of the Philippines. Only the Solicitor General can represent the People of the Philippines in this
proceeding. 15 In the least, the consent of the Office of the Solicitor General should have been secured by the COMELEC before the filing of this petition. On this
account alone, the petition should be dismissed.

WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.
 G.R. No. 88919 July 25, 1990

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO,
JR., respondents.

GUTIERREZ, JR., J.:

Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Fiscal now Provincial
Prosecutor, before the Regional Trial Court may take cognizance of the investigation and determine whether or not probable cause exists?

On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros Oriental with the Commission on Elections (COMELEC),
for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permission or
clearance from COMELEC as required by law.

Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to
prepare and file the necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or
dismissal as the case may be. The directive to conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in
turn, is based on the constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws relative to the conduct of elections for the purpose of
ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the Omnibus Election Code which implements the constitutional provision. The
Resolution provides, among others:

xxx xxx xxx

Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduct preliminary investigations of election offenses committed
in their respective jurisdictions, file the corresponding complaints and/or informations in court whenever warranted, and to prosecute the same pursuant to Section
265 of the Omnibus Election Code. (Rollo, p. 15)

After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 26, 1988, he filed with the respondent trial court a criminal case
for violation of section 261, Par. (h), Omnibus Election Code against the OIC-Mayor.

In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as
recommended by the Provincial Election Supervisor.

However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside its September 30, 1988 order on the ground that Atty. Lituanas is not
authorized to determine probable cause pursuant to Section 2, Article III of the 1987 Constitution. The court stated that it "will give due course to the information filed in this case if
the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphasis
supplied)
In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information charging the same offense with the written approval
of the Provincial Fiscal.

Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the information. A motion for reconsideration was denied.

Hence, this petition.

The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks jurisdiction to determine the existence of probable
cause in an election offense which it seeks to prosecute in court because:

While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized legal officers of the Commission on Elections have the
exclusive power to conduct preliminary investigation of all election offenses and to prosecute the same, it is doubtful whether said authority under the auspices of
the 1973 Constitution, still subsists under the 1987 Constitution which has deleted in its Section 2, Article III, the phrase "and such other responsible officer as may
be authorized by law" in the equivalent section and article of the 1973 Constitution. (Rollo, p. 24)

The petition is impressed with merit.

We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge ... " (Article III, Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and
the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to
follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes
(if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding,
there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper-whether
or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial is the function of the Prosecutor.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time
reposed in them under Sections 13, 14 and 16 Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil.
443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on
January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta
v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a
judicial function ... (but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary
 investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessarily
mean that it should be indiscriminately exercised."

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of
Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or
courts having authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power to make apreliminary examination for the purpose of determining
whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power
has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people
against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must, therefore, be
made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal
complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance
of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to
judges the authority to order arrest, recognize that function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is
an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the
prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. It is in this
context that we address the issue raised in the instant petition so as to give meaning to the constitutional power vested in the COMELEC regarding election offenses.

Article IX C Section 2 of the Constitution provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of votes, investigate and, where appropriate, prosecute cases
of violation of election laws, including acts or omission constituting election frauds, offenses, and practices. (Emphasis supplied)

In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is
empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in
court. This power is exclusive with COMELEC.

The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomittant authority to
investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to
insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony
of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public
officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.
 From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived neither explicit nor implicit grant to it and its prosecuting
arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office as
contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections
182 and 184, respectively, of the Election Code of 1978.

An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to
investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance,
irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the
offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing
power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281 [1987])

Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an information charging an election offense or
prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et al., G.R.
Nos. 83938-40, November 6, 1989).itc-asl In the instant case, there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of
COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation.

It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issued Executive Order No. 134 which was the ENABLING ACT FOR
ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides:

Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses
punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint
within two (2) months from filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigation and
prosecution, if warranted.

The Commission may avail of the assistance of other prosecuting arms of the government.

It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so,
because, when the application for a warrant of arrest is made and the information is filed with the court, the judge will then determine whether or not a probable cause exists for the
issuance of a warrant of arrest.

Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional provision when it quashed the information filed by the Provincial
Election Supervisor. As indicated above what the respondent trial court should have done was to enforce its September 30, 1988 order, to wit:

Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and considering that after a personal examination of the evidence
submitted by the investigating Provincial Election Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable ground for this Court to rely on the
certification of said Provincial Election Supervisor III in the information that a probable cause exists, let a warrant issue for the arrest of the accused filing the bail at
FIVE THOUSAND (P5,000.00) PESOS as recommended by the Provincial Election Supervisor III.

The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.

WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The
respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed until its termination.
SO ORDERED.