Case digest Finals
order his replacement by the latter.
RENATO M. LAPINID, petitioner,
vs.
CIVIL SERVICE COMMISSION, PHILIPPINE PORTS
AUTHORITY and JUANITO JUNSAY, respondents.
G.R. No. 96298, May 14, 1991
Facts:
On October 1, 1988, the petitioner, Renato M. Lapinid was
appointed by the Philippine Ports Authority (PPA) to the position of
Terminal Supervisor at the Manila International Container Terminal. This
appointment was protested on December 15, 1988, by private
respondent Juanito Junsay, who reiterated his earlier representations
with the Appeals Board of the PPA on May 9, 1988, for a review of the
decision of the Placement Committee dated May 3, 1988. He contended
that he should be designated terminal supervisor, or to any other
comparable position, in view of his preferential right thereto. On June 26,
1989, complaining that the PPA had not acted on his protest, Junsay
went to the Civil Service Commission and challenged Lapinid's
appointment on the same grounds he had earlier raised before the PPA.
The Commission then released a resolution stating that after a careful
review of the records of the case, it finds that the protestants Junsay and
Villegas have an edge over that of protestees Lapinid and Dulfo. It is also
stated in the resolution that the former will be appointed as Terminal
Supervisor (SG 18) vice the latter respectively who may be considered
for appointment to any position commensurate and suitable to their
qualifications.
Upon learning of the resolution, Lapinid, who claimed he had not
been informed of the appeal and had not been heard thereon, filed a
motion for reconsideration which later was then denied. The PPA also
filed its own motion for reconsideration but was then also denied. A
second motion for reconsideration was filed, based on the re-appreciation
of Lapinid's rating from 75% to 84%, was also then denied.
Issue/s:
Whether or not the Civil Service Commission is authorized to
disapprove a permanent appointment on the ground that another person
is better qualified than the appointee and, on the basis of this finding,
Ruling:
No, the Civil Service Commission has no power of appointment
except over its own personnel. Neither does it have the authority to
review the appointments made by other offices except only to ascertain if
the appointee possesses the required qualifications. The determination of
who among aspirants with the minimum statutory qualifications should be
preferred belongs to the appointing authority and not the Civil Service
Commission. It cannot disallow an appointment because it believes
another person is better qualified and much less can it direct the
appointment of its own choice.
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.
ABILA v. CIVIL SERVICE COMMISSION
FACTS:
Petitioner was appointed after Admin Officer retired. Privaterespon
dentfiled a protest with the MSPB. The same was dismissed.
Uponappeal, MSPB reversed. It found that both petitioner Abila and
privaterespondent Eleria met the minimum eligibility and education
requirements forAdministrative Officer IV, but ruled that
respondent Eleria had the edge interms of rank and experience as
an Administrative Officer. The Board alsoheld that respondent Eleria
was holding a position next in rank to that of thevacancy, which
circumstance, according to the Board, under Section 4 of
theCivil Service Commission Resolution No. 83-
343, gave her "promotionalpriority" over petitioner.
ISSUE/S:
Whether the respondent Commission has authority to substitute
itsown judgment for that of the official authorized by law to make a
nappointment to the government service, in the matter of weighing
an appointee's qualifications and fitness for a position, after it has
been shownthat the appointee possesses the minimum
qualifications prescribed for theposition.
HELD:
No. CSC has no such authority, the power of appointment, which
isessentially discretionary, being vested by law in the head of the off
iceconcerned. The head of the office is the person on the spot. He
occupies theideal vantage point from which to identify and
designate the individual whocan best fill the post and discharge its
functions in the government agency
heheads. The choice of an appointee from among those who posses
s therequired qualifications is a political and administrative decision
calling forconsiderations of wisdom, convenience, utility and the
interests of servicewhich can best be made by the head of the office
concerned, the
personmost familiar with the organizational structure and environm
entalcircumstances within which the appointee must function. The
Court notes that a vacant position in the Civil Service may be filled
bypromotion, transfer of present employees, reinstatement and re-
employmentor appointment of outsiders who have the necessary
eligibility. The next-in-
rank rule invoked by respondent Commission to justify its choice of r
espondent Eleria over petitioner Abila, applies only where a vacancy
is
filledby promotion, a process which denotes a scalar ascent of an off
icer toanother position higher either in rank or salary. A promotion i
nvolves asituation quite different from the situation in the
case at bar where theappointment of petitioner Abila was effected
through lateral transfer from aposition in one department of the
city government to a position of greaterresponsibility in another
department of the same government. The Court further notes that
even if the vacancy here had been filled bypromotion rather than by
lateral transfer, the concept of "next in rank" doesnot import any
mandatory or peremptory requirement that the person next inrank
must be appointed to the vacancy. What Section 19 (3) of P.D. No.
807,the Civil Service Law, provides is that if a vacancy is filled by a
promotion, theperson holding the position next in rank thereto
"shall be considered for promotion."
#55 MERAM v. EDRALIN – REYES
TOPIC: CIVIL SERVICE COMMISSION
DOCTRINE: Appointments under the civil service law should be based on
merit and fitness and should never depend on how intimate a friend or how
closely related an appointee is to the powers that be.
FACTS:
1. Respondent Filipina Edralin, training officer of the Bureau of Forest
development [BFD], was proposed for appointment to the position
of Administrative Officer V, R-73 in the Administrative Division of
BFD.
2. Herein Petitioner, administrative officer III R-70, and Mr. Agravio
Supply Officer V, R-70 filed their protests against the proposal.
3. Director of BFD sent a memorandum to the respondent minister
stating that there are 4 BFD personnel in the central office who are
considered “next-in-rank” to the vacant position [including
petitioner and Agravio]. It was also found out that Edralin’s current
position was not next-in-rank.
4. CSC forwarded to the respondent minister the protests.
Subsequently [2 days after] respondent Minister forwarded the
permanent appointment of Edralin as administrative Officer V to the
Commission for appropriate action.
 5. Appointment approved by the Commission subject to the outcome
of the protests of the petitioner and Mr. Agravio. Respondent
minister dismissed the protests.
6. Petitioner and Agravio appealed to the Merit Systems Board. MSB
decided in favor of Agravio. However, MSB modified its decision
revoking Agravio’s appointment on the ground that he had been
ineffective in the said position. Petitioner was appointed in the
vacant position.
7. Respondent appealed to the CSC. Denied. Respondent filed a letter-
petition with the Office of the President invoking Section 19(6) of
P.D. No. 807. She averred that the MSB and CSC had no jurisdiction
on petitioner’s appeal.
a. Jurisdiction in promotional contests is lodged with the
Ministry head and appeal by the aggrieved party from
decisions of said Ministry head should be taken to the Office
of the President.
8. President sent a letter to Justice Lazaro [Presidential Assistant for
Legal Affairs] to tell Director of BFD to suspend everything pending
study by the OP.
9. Director of BFD issued a memorandum informing Lazaro that the
implementation oh his compliance had become legally untenable,
nonetheless, Lazaro rendered a decision dismissing the protest of
the petitioner and Agravio and their appeals are dismissed.
ISSUE/S: WON the Office of the President acted correctly in taking
cognizance of respondent's letter-petition, and passing upon the same, and
thereafter, setting aside the decisions of the Merit Systems Board and the
Civil Service Commission.
RATIO:
1. There is nothing PD 807 Sec. 19[6], which connotes exclusivity of
jurisdiction in the Office of the President to take cognizance of the
case. Furthermore, even if it were so, with the promulgation of P.D.
No.1409, this power of review by the Office of the President was
not only divested of its exclusivity but was, in fact, repealed
altogether.
a. Petitioner, correctly filed her protest with the MSB in
accordance with P.D. No. 1409.
b. Moreover, Edralin is now estopped from questioning the
orders of the MSB and the Commission since she submitted
to the jurisdiction of these two bodies by filing for
reconsideration with the MSB and upon denial of the same,
by appealing to the Commission.
2. Civil service laws are not enacted to penalize anyone.
a. Designed to eradicate the system of appointment to public
office based on political considerations and to eliminate as
far as practicable the element of partisanship and personal
favoritism in making appointments.
b. These laws intend to establish a merit system of fitness and
efficiency as the basis of appointment; to secure more
competent employees, and thereby promote better
government.
3. BFD personnel who are considered next-in-rank to the vacated
position were Identified. Respondent Edralin was not one of them.
[9 or 10 salary rang below the next-in-rank]
4. The foremost consideration why respondent's appointment was
ordered by the Office of the President notwithstanding the fact that
petitioner was more qualified and that she was next-in-rank was
because of her petition to the President in the form of a letter
rather than an appeal.
a. Clear intent of her letter-petition was not to appeal in
accordance with P.D. No. 807 but to elicit some kind of
favorable response from the President based on
considerations of blood ties, influence, or ethnic and
regional affiliations.
5. Appointments under the civil service law should be based on merit
and fitness and should never depend on how intimate a friend or
how closely related an appointee is to the powers that be.
6. Granting that the respondent possesses the qualifications required
for the contested position, it cannot be denied that the petitioner
equally possesses the same qualifications, if not in greater degree,
and more important, she is next-in-rank to the vacated position.
Therefore, she deserves to be appointed to the disputed item.
DISPOSITIVE: Petition Granted
ANGEL ABAD VS. HERMINIO DELA CRUZ invalidation of Dela Cruz's permanent appointment as City Government
Department Head III. Mayor San Pedro's approval to this recommendation was then
G.R. No. 207422, March 18, 2015 LEONEN referred to the CSC-NCR. CSC-NCR invalidated Dela Cruz's permanent appointment
as City Government Department Head III. CSC reversed this decision on dela Cruz’s
appeal. CSC ruled that Dela Cruz's appointment was an exception to the three-
SUMMARY salary-grade rule. Dela Cruz underwent a deep selection process rendering his
appointment "very meritorious[.]" CA dismissed petition for review and affirmed
This resolves the Petition for Review on Certiorari filed by Angel Abad assailing the the appointment. CA held that the three-salary-grade rule "only gives preference to
Court of Appeals Decision. The Court of Appeals affirmed the Civil Service the person occupying the position next in rank to a vacancy, but does not by any
Commission Resolution. This Resolution affirmed the permanent appointment of means give [the employee next in rank] [the] exclusive right to be appointed to the
Herminio Dela Cruz as City Government Department Head III. Mayor Jaime R. said vacancy." As long as the employee appointed to the position possesses the
Fresnedi appointed (Dela Cruz) as City Assessor of the City Government of minimum qualifications for the position, the appointment is valid. SC found that the
Muntinlupa in a permanent capacity on December 28, 2006.The City Assessor is present petition must be denied.
given the item of City Government Department Head III. In Resolution No. 06-
361, majority of the members of the Sangguniang Panlungsod of the City
Government of Muntinlupa concurred in the appointment of Dela Cruz as City
DOCTRINE: Appointments in the civil service are made fundamentally on the basis
Government Department Head III. Pursuant to Civil Service Commission Resolution
of merit. Both the Constitution and law ensure that those appointed are fit for the
No. 02-1235 granting the City Government of Muntinlupa the power to take final
position. While those who are next in rank to a vacant position may be given some
action on its appointments, the appointment of Dela Cruz was considered attested
preference, no one has a vested right to a government position. Seniority and salary
to by the Civil Service Commission. (Abad), Local Assessment Operations Officer V in
grades should be given their due weight but should not trump the public interest.
the Office of the City Assessor, wrote the Civil Service Commission and expressed
The Civil Service Commission-National Capital Region and the Civil Service
the disapproval of Dela Cruz's appointmen alleging that the position of City
Commission agree that respondent possesses the minimum qualifications under the
Government Department Head III corresponded to Salary Grade 27, nine (9) salary
law for the position of City Government Department Head III. Moreover, the
grades higher than Dela Cruz's former position as Local Assessment Operations
appointment of Dela Cruz was confirmed by the Sangguniang Panlungsod ng
Officer III with Salary Grade 18. According to Abad, Dela Cruz's appointment
Muntinlupa in Resolution No. 06-361. The next-in-rank rule is a rule of
violated Item 15 of Civil Service Commission Memorandum Circular No. 3, Series of
preference on who to consider for promotion. The rule does not give employees
2001, which prohibits the promotion of an employee to a position more than three
next in rank a vested right to the position next higher to theirs should that position
(3) salary grades above his or her former position. Abad added that being a qualified
become vacant. Appointment is a discretionary power of the appointing authority.
next-in-rank, he applied for the position of City Government Department Head III.
So long as the appointee possesses the qualifications required by law, the
However, he and three (3) other qualified applicants were allegedly excluded from
appointment is valid. Petitioner failed to discharge his burden of proving that he
the selection process, in violation of Item 10 of Civil Service Commission
was a qualified next-in-rank. Re 3-salary-grade rule, case falls under one of the
Memorandum Circular No. 3, series of 2001. According to Abad, the appointment of
exceptions (deep selection process).
Dela Cruz caused "demoralization within [their] ranks." Due to a fire, the City
Government of Muntinlupa, therefore, failed to act on Abad's Letter. Abad filed
DENNIS A.B. FUNA v. ACTING SECRETARY OF JUSTICE
with the Mayor's Office the letter-complaint reiterating his request for disapproval
ALBERTO C. AGRA, GR No. 191644, 2013-02-19
of Dela Cruz's permanent appointment as City Government Department Head III.
Mayor San Pedro referred Abad's letter-complaint to the City Government of
Facts:
Muntinlupa's Personnel Department The Grievance Committee recommended the
The petitioner alleges that on March 1, 2010, President Gloria M.
Macapagal-Arroyo appointed Agra as the Acting Secretary of Justice
following the resignation of Secretary Agnes VST Devanadera in
order to vie for a congressional seat in Quezon Province; that on
March 5, 2010,... President Arroyo designated Agra as the Acting
Solicitor General in a concurrent capacity;[1] that on April 7, 2010, the
petitioner, in his capacity as a taxpayer, a concerned citizen and a
lawyer, commenced this suit to challenge the constitutionality of
Agra's concurrent appointments or designations, claiming it to be
prohibited under Section 13, Article VII of the 1987 Constitution; that
during the pendency of the suit, President Benigno S. Aquino III
appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General; and
that
Cadiz assumed as the Solicitor General and commenced his duties as
such on August 5, 2010.
Agra renders a different version of the antecedents. He represents that
on January 12, 2010, he was then the Government Corporate Counsel
when President Arroyo designated him as the Acting Solicitor General
in place of Solicitor General Devanadera who had been appointed as
the
Secretary of Justice;[3] that on March 5, 2010, President Arroyo
designated him also as the Acting Secretary of Justice vice Secretary
Devanadera who had meanwhile tendered her resignation in order to
run for Congress representing a district in Quezon
Province in the May 2010 elections; that he then relinquished his
position as the Government Corporate Counsel; and that pending the
appointment of his successor, Agra continued to perform his duties as
the Acting Solicitor General
Notwithstanding the conflict in the versions of the parties, the fact that
Agra has admitted to holding the two offices concurrently in acting
capacities is settled, which is sufficient for purposes of resolving the
constitutional question that petitioner raises herein.
What may differentiate this challenge from those in the others is that
the appointments being hereby challenged were in acting or temporary
capacities.
Still, the petitioner submits that the prohibition under Section 13,
Article VII of the 1987 Constitution does not distinguish... between an
appointment or designation of a Member of the Cabinet in an acting or
temporary capacity, on the one hand, and one in a permanent capacity,
on the other hand; and that Acting Secretaries, being nonetheless
Members of the Cabinet, are not exempt from the constitutional... ban.
He emphasizes that the position of the Solicitor General is not an ex
officio position in relation to the position of the Secretary of Justice,
considering that the Office of the Solicitor General (OSG) is an
independent and autonomous office attached to the
Department of Justice (DOJ).[8] He insists that the fact that Agra was
extended an appointment as the Acting Solicitor General shows that he
did not occupy that office in an ex officio capacity because an ex
officio position does not require... any further warrant or appointment.
Respondents contend, in contrast, that Agra's concurrent designations
as the Acting Secretary of Justice and Acting Solicitor General were
only in a temporary capacity, the only effect of which was to confer
additional duties to him. Thus, as the Acting Solicitor General and
Acting Secretary of Justice, Agra was not "holding" both offices in the
strict constitutional sense.[9] They argue that an appointment, to be
covered by the constitutional prohibition, must be regular and
permanent, instead of a mere designation.
Respondents further contend that, even on the assumption that Agra's
concurrent designation constituted "holding of multiple offices," his
continued service as the Acting Solicitor General was akin to a hold-
over; that upon Agra's designation as the Acting Secretary of Justice,...
his term as the Acting Solicitor General expired in view of the
constitutional prohibition against holding of multiple offices by the
Members of the Cabinet; that under the principle of hold-over, Agra
continued his service as the Acting Solicitor General "until his
successor is... elected and qualified"[10] to "prevent a hiatus in the
government pending the time when a successor may be chosen and
inducted into office;"[11] and that during his continued service as the
Acting Solicitor General, he did not receive... any salaries and
emoluments from the OSG after becoming the Acting Secretary of
Justice on March 5, 2010
Issues:
Did the designation of Agra as the Acting Secretary of Justice,
concurrently with his position of Acting Solicitor General, violate the
constitutional prohibition against dual or multiple offices for the
Members of the Cabinet and their deputies and assistants?
Ruling:
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently
with his position of Acting Solicitor General was unconstitutional and
void for being in violation of the constitutional prohibition under
Section 13, Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue... the Court has time and...
again acted liberally on the locus standi requirements and has accorded
certain individuals, not otherwise directly injured, or with material
interest affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake.
This case before Us is of transcendental importance, since it obviously
has "far-reaching implications," and there is a need to promulgate rules
that will guide the bench, bar, and the public in future analogous cases.
In Funa v. Ermita,[21] the Court recognized the locus standi of the
petitioner as a taxpayer, a concerned citizen and a lawyer because the
issue raised therein involved a subject of transcendental importance
whose resolution was necessary to... promulgate rules to guide the
Bench, Bar, and the public in similar cases.
It is the same here. The constitutionality of the concurrent holding by
Agra of the two positions in the Cabinet, albeit in acting capacities,
was an issue that comes under all the recognized exceptions. The issue
involves a probable violation of the Constitution, and relates to... a
situation of exceptional character and of paramount public interest by
reason of its transcendental importance to the people.
2.
Unconstitutionality of Agra's concurrent designation as Acting
Secretary of Justice and Acting Solicitor General
Section 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure, directly or...
indirectly practice any other profession, participate in any business, or
be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-owned or...
controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.
A relevant and complementing provision is Section 7, paragraph (2),
Article IX-B of the 1987 Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their... subsidiaries.
Being designated as the Acting Secretary of Justice concurrently with
his position of Acting Solicitor General, therefore, Agra was
undoubtedly covered by Section 13, Article VII, supra, whose text and
spirit were too clear to be differently read. Hence, Agra could not...
validly hold any other office or employment during his tenure as the
Acting Solicitor General, because the Constitution has not otherwise
so provided.
The text of Section 13, supra, plainly indicates that the intent of the
Framers of the Constitution was to impose a stricter prohibition on the
President and the Members of his Cabinet in... so far as holding other
offices or employments in the Government or in government-owned or
government controlled-corporations was concerned.[
In this regard, to hold an office means to possess or to occupy the
office, or to be in possession and... administration of the office, which
implies nothing less than the actual discharge of the functions and
duties of the office.
ndeed, in the language of Section 13 itself, supra, the Constitution
makes no reference to the nature of the... appointment or designation.
The prohibition against dual or multiple offices being held by one
official must be construed as to apply to all appointments or
designations, whether permanent or temporary, for it is without
question that the avowed objective of Section 13,... supra, is to prevent
the concentration of powers in the Executive Department officials,
specifically the President, the Vice-President, the Members of the
Cabinet and their deputies and assistants.
It is equally remarkable, therefore, that Agra's designation as the
Acting Secretary of Justice was not in an ex officio capacity, by which
he would have been validly authorized to concurrently hold the two
positions due to the holding of one office being the consequence... of
holding the other
Being included in the stricter prohibition embodied in Section 13,
supra, Agra cannot liberally apply in his favor the broad exceptions
provided in Section 7, paragraph 2, Article IX-B of the Constitution
("Unless otherwise allowed by law or the... primary functions of his
position") to justify his designation as Acting Secretary of Justice
concurrently with his designation as Acting Solicitor General, or vice
versa. Thus, the Court has said
To underscore the obvious, it is not sufficient for Agra to show that his
holding of the other office was "allowed by law or the primary
functions of his position." To claim the exemption of his concurrent
designations from the coverage of the stricter prohibition under
Section
13, supra, he needed to establish herein that his concurrent designation
was expressly allowed by the Constitution. But, alas, he did not do so.
The foregoing provisions of the applicable laws show that one position
was not derived from the other. Indeed, the powers and functions of
the OSG are neither required by the primary functions nor included by
the powers of the DOJ, and vice versa. The OSG, while attached to the
DOJ,[40] is not a constituent unit of the latter,[41] as, in fact, the
Administrative Code of 1987 decrees that the OSG is independent and
autonomous.
With the enactment of Republic Act No.
9417,[43] the Solicitor General is now vested with a cabinet rank, and
has the same qualifications for appointment, rank, prerogatives,
salaries, allowances, benefits and privileges as those of the Presiding
Justice of the Court of Appeals.[
Moreover, the magnitude of the scope of work of the Solicitor
General, if added to the equally demanding tasks of the Secretary of
Justice, is obviously too much for any one official to bear. Apart from
the sure peril of political pressure, the concurrent holding of the two...
positions, even if they are not entirely incompatible, may affect sound
government operations and the proper performance of duties.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting
Solicitor General, was not covered by the stricter prohibition under
Section 13, supra, due to such position being merely vested with a
cabinet rank under Section 3, Republic Act No. 9417, he... nonetheless
remained covered by the general prohibition under Section 7, supra.
Hence, his concurrent designations were still subject to the conditions
under the latter constitutional provision
While Section 7, Article IX-B of the 1987 Constitution applies in
general to all elective and appointive officials, Section 13, Article VII,
thereof applies in particular to Cabinet secretaries, undersecretaries
and assistant secretaries.
Clearly, the primary functions of the Office of the Solicitor General
are not related or necessary to the primary functions of the Department
of Justice. Considering that the nature and duties of the two offices are
such as to render it improper, from considerations of public... policy,
for one person to retain both,[48] an incompatibility between the
offices exists, further warranting the declaration of Agra's designation
as the Acting Secretary of Justice, concurrently with his designation as
the Acting Solicitor General, to be... void for being in violation of the
express provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agra's concurrent
appointment;... the de facto officer doctrine
In view of the application of the stricter prohibition under Section 13,
supra, Agra did not validly hold the position of Acting Secretary of
Justice concurrently with his holding of the position of Acting
Solicitor General. Accordingly, he was not to be considered as a... de
jure officer for the entire period of his tenure as the Acting Secretary
of Justice. A de jure officer is one who is deemed, in all respects,
legally appointed and qualified and whose term of office has not
expired
That notwithstanding, Agra was a de facto officer during his tenure as
Acting Secretary of Justice.
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for
actual services rendered. It has been held that "in cases where there is
no de jure, officer, a de facto... officer, who, in good faith has had
possession of the office and has discharged the duties pertaining
thereto, is legally entitled to the emoluments of the office, and may in
an appropriate action recover the salary, fees and other compensations
attached to the office. This... doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit
by the services of an officer de facto and then be freed from all
liability to pay any one for such services. Any per diem, allowances or
other emoluments... received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained
by them.
A de facto officer is one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face.
Consequently, the acts of the de facto officer are just as... valid for all
purposes as those of a de jure officer, in so far as the public or third
persons who are interested therein are concerned
In order to be clear, therefore, the Court holds that all official actions
of Agra as a de facto Acting Secretary of Justice, assuming that was
his later designation, were presumed valid, binding and effective as if
he was the officer legally appointed and qualified for... the office.
Agra's official actions covered by this clarification... extend to but are
not limited to the promulgation of resolutions on petitions for review
filed in the Department of Justice, and the issuance of department
orders, memoranda and circulars relative to the prosecution of criminal
cases.
WHEREFORE, the Court GRANTS the petition for certiorari and
prohibition; ANNULS AND VOIDS the designation of Hon. Alberto
C. Agra as the Acting Secretary of Justice in a concurrent capacity
with his position as the Acting Solicitor General for being...
unconstitutional and violative of Section 13, Article VII of the 1987
Constitution; and DECLARES that Hon. Alberto C. Agra was a de
facto officer during his tenure as Acting Secretary of Justice.
Principles:
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions
of their positions, members of the Cabinet, their deputies and...
assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to
lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant
to be... the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
On its face, the language of Section 13, Article VII is prohibitory so
that it must be understood as intended to be a positive and unequivocal
negation of the privilege of holding multiple government... offices or
employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and
unequivocal negation. The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to... refer only to
those particular instances cited in the Constitution itself,... the only
exceptions acceptable under the law for holding two
offices... the Vice-President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as President in
those instances provided under Section 7, pars. (2) and (3),... Article
VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII. (Bold
emphasis supplied.)
According to Public Interest Center, Inc. v. Elma,[32] the only two
exceptions against the holding of multiple offices are: (1) those
provided for under the Constitution, such as Section 3, Article VII,
authorizing the Vice President to become a... member of the Cabinet;
and (2) posts occupied by Executive officials specified in Section 13,
Article VII without additional compensation in ex officio capacities as
provided by law and as required by the primary functions of the
officials' offices
The term ex officio means "from office; by virtue of office." It refers
to an "authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the
official position." Ex officio... likewise denotes an "act done in an
official character, or as a consequence of office, and without any other
appointment or authority other than that conferred by the office."
An ex officio member of a board is one who is a member by virtue of
his title to a certain... office, and without further warrant or
appointment.
Case Digest: Jalosjos v. COMELEC
G.R. No. 193314 : February 26, 2013
SVETLANA P. JALOSJOS, Petitioner, v. COMMISSION ON
ELECTIONS, EDWIN ELIM TUMPAG and RODOLFO Y.
ESTRELLADA, Respondents.
SERENO, J.:
FACTS:
On 20 November 2009, petitioner filed her Certificate of Candidacy
(CoC) for mayor of Baliangao, MisamisOccidental for the 10 May
2010 elections. She indicated therein her place of birth and residence
as BarangayTugas, Municipality of Baliangao, Misamis Occidental
(Brgy. Tugas).
Asserting otherwise, private respondents filed against petitioner a
Petition to Deny Due Course to or Cancel the Certificate of Candidacy,
in which they argued t hat she had falsely represented her place of
birth and residence, because she was in fact born in San Juan, Metro
Manila, and had not totally abandoned her previous domicile, Dapitan
City.

On the other hand, petitioner averred that she had established her
residence in the said barangay since December 2008 when she
purchased two parcels of land there, and that she had been staying in
the house of a certain Mrs. Lourdes Yap (Yap) while the former was
overseeing the construction of her house. Furthermore, petitioner
asserted that the error in her place of birth was committed by her
secretary. Nevertheless, in aCoC, an error in the declaration of the
place of birth is not a material misrepresentation that would lead to
disqualification, because it is not one of the qualifications provided by
law.
The Petition to Deny Due Course to or Cancel the Certificate of
Candidacy remained pending as of the day of the elections, in which
petitioner garnered the highest number of votes. On 10 May 2010, the
Municipal Board of Canvassers of Baliangao, Misamis Occidental,
proclaimed her as the duly elected municipal mayor.
On 04 June 2010, the COMELEC Second Division ruled that
respondent was DISQUALIFIED for the position of mayor.
The COMELEC En Banc promulgated a Resolution on 19 August
2010 denying the Motion for Reconsideration of petitioner for lack of
merit and affirming the Resolution of the Second Division denying due
course to or cancelling her CoC.
ISSUE: Whether COMELEC committed grave abuse of discretion in
holding that petitioner had failed to prove compliance with the one-
year residency requirement for local elective officials.
HELD: Petitioner failed to comply with theone-year residency
requirement forlocal elective officials.
Petitioner uncontroverted domicile of origin is Dapitan City. The
question is whether she was able to establish, through clear and
positive proof, that she had acquired a domicile of choice in
Baliangao, Misamis Occidental, prior to the May 2010 elections.
When it comes to the qualifications for running for public office,
residence is synonymous with domicile. Accordingly, Nuval v.
Gurayheld as follows:
The term esidenceas so used, is synonymous with omicilewhich
imports not only intention to reside in a fixed place, but also personal
presence in that place, coupled with conduct indicative of such
intention.
There are three requisites for a person to acquire a new domicile by
choice. First, residence or bodily presence in the new locality. Second,
an intention to remain there. Third, an intention to abandon the old
domicile.
These circumstances must be established by clear and positive proof,
as held in Romualdez-Marcos v. COMELECand subsequently in
Dumpit- Michelena v. Boado:
In the absence of clear and positive proof based on these criteria, the
residence of origin should be deemed to continue. Only with evidence
showing concurrence of all three requirements can the presumption of
continuity or residence be rebutted, for a change of residence requires
an actual and deliberate abandonment, and one cannot have two legal
residences at the same time.
Moreover, even if these requisites are established by clear and positive
proof, the date of acquisition of the domicile of choice, or the critical
date, must also be established to be within at least one year prior to the
elections using the same standard of evidence.
In the instant case, we find that petitioner failed to establish by clear
and positive proof that she had resided in Baliangao, Misamis
Occidental, one year prior to the 10 May 2010 elections.
There were inconsistencies in the Affidavits of Acas-Yap, Yap III,
Villanueva, Duhaylungsod, Estrellada,Jumawan, Medija, Bagundol,
Colaljo, Tenorio, Analasan, Bation, Maghilum and Javier.
First, they stated that they personally knew petitioner to be an actual
and physical resident of Brgy. Tugassince 2008. However, they
declared in the same Affidavits that she stayed in Brgy. Punta Miray
while her house was being constructed in Brgy. Tugas.
Second, construction workers Yap III, Villanueva, Duhaylungsod and
Estrellada asserted that in December 2009, construction was still
ongoing. By their assertion, they were implying that six months before
the 10 May 2010 elections, petitioner had not yet moved into her
house at Brgy. Tugas.
Third, the same construction workers admitted that petitioner only
visited Baliangao occasionally when they stated that "at times when
she (petitioner) was in Baliangao, she used to stay at the house of
Lourdes Yap while her residential house was being constructed."
These discrepancies bolster the statement of the Brgy. Tugas officials
that petitioner was not and never had been a resident of their barangay.
At most, the Affidavits of all the witnesses only show that petitioner
was building and developing a beach resort and a house in Brgy.
Tugas, and that she only stayed in Brgy. PuntaMiray whenever she
wanted to oversee the construction of the resort and the house.
Assuming that the claim of property ownership of petitioner is true,
Fernandez v. COMELEChas established that the ownership of a house
or some other property does not establish domicile. This principle is
especially true in this case as petitioner has failed to establish her
bodily presence in the locality and her intent to stay there at least a
year before the elections.
Finally, the approval of the application for registration of petitioner as
a voter only shows, at most, that she had met the minimum residency
requirement as a voter. This minimum requirement is different from
that for acquiring a new domicile of choice for the purpose of running
for public office.
The Petition is DENIED.
Jalosjos v. COMELEC Case DIgest [G.R. No. 192474]
FACTS:
While serving as Mayor of Tampilasan Zamboanga del Norte,
Petitioner, Romeo Jalosjos sought the transfer of his voter's
registration record to Precint 0051F of Barangay Veterans Village,
Zamboanga Sibugay.
Dan Erasmo filed a petition with the MCTC which rendered
judgement excluding Jalosjos from the list of voters in question on the
ground that he did not abandon his domicile in Tampilasan and is still
the incumbent mayor.
Jalosjos appealed the decision to the RTC but the MCTC ruling was
affirmed.
Through a petition for certiorari with an application for the issuance of
a writ of preliminary injunction, Jalosjos elevated the case to the CA.
His application was granted and his name was reinstated in the voter's
list pending resolution of the petition.
Jalosjos filed his Certificate of Candidacy for the position of
Representative of the Second District of Zamboanga Sibugay for the
May 2010 national elections. This prompted Erasmo to file a petition
with the COMELEC to deny or cancel said COC. His petition was
denied by the COMELEC for insufficiency in form and substance.
Pending Erasmo's motion for reconsideration before the COMELEC
en banc, Jalosjos won the elections and was proclaimed representative.
Meanwhile, CA rendered in his favor judgement on the pending
petition. Erasmo filed a petition for review of the CA's decision before
the Supreme Court.
Thereafter, COMELEC en banc granted Erasmo's motion anf declared
Jalosjos ineligible to seek election as representative for not satisfying
the residency requirement because of his incumbency as mayor of
Tampilisan.
Thus, the instant petition.

ISSUE:
Whether or not the Supreme Court has jurisdiction to pass upon the
question of Jalosjos’ residency qualification considering that he has
been proclaimed winner in the election and has assumed the discharge
of that office.
RULING:
While the Constitution vests in the COMELEC the power to decide all
questions affecting elections, such power is not without limitation. It
does not extend to contests relating to the election, returns, and
qualifications of members of the House of Representatives and the
Senate. The Constitution vests the resolution of these contests solely
upon the appropriate Electoral Tribunal of the Senate or the House of
Representatives.
The proclamation of a congressional candidate following the election
divests COMELEC of jurisdiction over disputes relating to the
election, returns, and qualifications of the proclaimed Representative
in favor of the HRET.
After Jalosjos' proclamation, the COMELEC acted without jurisdiction
when it still passed upon the issue of his qualification and declared
him ineligible for the office of Representative of the Second District of
Zamboanga Sibugay.
On election day of 2010 the COMELEC En Banc had as yet to resolve
Erasmo’s appeal from the Second Division’s dismissal of the
disqualification case against Jalosjos. Thus, there then existed no final
judgment deleting Jalosjos’ name from the list of candidates for the
congressional seat he sought. The last standing official action in his
case before election day was the ruling of the COMELEC’s Second
Division that allowed his name to stay on that list. Meantime, the
COMELEC En Banc did not issue any order suspending his
proclamation pending its final resolution of his case. With the fact of
his proclamation and assumption of office, any issue regarding his
qualification for the same, like his alleged lack of the required
residence, was solely for the HRET to consider and decide.
Consequently, the Court holds in G.R. 192474 that the COMELEC En
Banc exceeded its jurisdiction in declaring Jalosjos ineligible for the
position of representative for the Second District of Zamboanga
Sibugay, which he won in the elections, since it had ceased to have
jurisdiction over his case. Necessarily, Erasmo’s petitions (G.R.
192704 and G.R. 193566) questioning the validity of the registration
of Jalosjos as a voter and the COMELEC’s failure to annul his
proclamation also fail. The Court cannot usurp the power vested by
the Constitution solely on the HRET.
Court GRANTED the petition, REVERSES and SETS ASIDE the
respondent COMELEC En Banc’s order, and REINSTATES the
Commission’s Second Division resolution
Laud vs. People, G.R. No. 199032, November 19, 2014
ISSUE: Having been divested as Vice Executive Judge pursuant to Section 5,
Chapter III of A.M. No. 03-8-02-SC, was the issuance of Search Warrant No.
09-14407 by Judge Peralta an issuance by a de facto officer?
**Petitioner’s contention:
Citing Section 5, Chapter III of A.M. No. 03-8-02-SC which provides
that “[t]he imposition upon an Executive Judge or Vice-Executive Judge of an
administrative penalty of at least a reprimand shall automatically operate to
divest him of his position as such,” Laud claims that Judge Peralta had no
authority to act as Vice-Executive Judge and accordingly issue Search Warrant
No. 09-14407 in view of the Court’s Resolution in Dee C. Chuan & Sons, Inc. v.
Judge Peralta wherein he was administratively penalized with fines of
P15,000.00 and P5,000.00.
RULING: YES. Imposition of administrative penalties did operate to divest
Judge Peralta’s authority to act as Vice-Executive Judge, it must be qualified
that the abstraction of such authority would not, by and of itself, result in
the invalidity of Search Warrant No. 09-14407 considering that Judge
Peralta may be considered to have made the issuance as a de facto officer
whose acts would, nonetheless, remain valid.
The treatment of a de facto officer’s acts is premised on the reality that
third persons cannot always investigate the right of one assuming to hold an
important office and, as such, have a right to assume that officials
apparently qualified and in office are legally such. Public interest demands
that acts of persons holding, under color of title, an office created by a valid
statute be, likewise, deemed valid insofar as the public – as distinguished
from the officer in question – is concerned. Indeed, it is far more cogently
acknowledged that the de facto doctrine has been formulated, not for the
protection of the de facto officer principally, but rather for the protection of
the public and individuals who get involved in the official acts of persons
discharging the duties of an office without being lawful officers.