de los santos v - poli

7/23/2019 De Los Santos v - Poli

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DE LOS SANTOS V. MALLARI (1950)

This is an original action of quo warranto questioning the legality of theappointment of respondent Gil R. Mallare to the oce of city engineer forthe City of Baguio which the petitioner occupied and claims to be stilloccupying. The real issue howeer is the legality of the petitioner!s remoalfrom the same oce which would be the e"ect of Mallare!s appointment if the same be allowed to stand. #t is the petitioner!s contention that underthe Constitution he can not be remoed against his will and without cause.

The complaint against the other respondents has to do merely with theirrecognition of Mallare as the lawful holder of the disputed oce and isentirely dependent upon the result of the basic action against the last$

mentioned respondent %Mallare&.

'tripped of details unessential to the solution of the case( the facts are that)duardo de los 'antos( the petitioner( was appointed City )ngineer of Baguio on *uly 1+( 1,-+( by the resident( appointment which wascon/rmed by the Commission on 0ppointments on 0ugust +( and on the2rd of that month( he quali/ed for and began to e3ercise the duties andfunctions of the position. 4n *une 1( 1,56( Gil R. Mallare was e3tended anad interim appointment by the resident to the same position( after which(on *une 2( the 7ndersecretary of the 8epartment of ublic 9or:s andCommunications directed 'antos to report to the Bureau of ublic 9or:s foranother assignment. 'antos refused to acate the oce( and when the CityMayor and the other ocials named as Mallare!s co$defendants ignored himand paid Mallare the salary corresponding to the position( he commencedthese proceedings.

The petitioner rests his case on 0rticle ;## of the Constitution( section - of which reads< =>o ocer or employee in the Ciil 'erice shall be remoedor suspended e3cept for cause as proided by law.=

#t is admitted in respondents! answer that the City )ngineer of Baguio=belongs to the unclassi/ed serice.= 0nd this Court( in an e3haustieopinion by Mr. *ustice Montemayor in the case of ?acson s. Romero( -@ 4".GaA.( 1@@( inoling the oce of proincial /scal( ruled that ocers oremployees in the unclassi/ed as well as those in the classi/ed serice areprotected by the aboe$cited proision of the organic law. But there is thisdi"erence between the ?acson case and the case at bar< 'ection 5-5 of the Reised 0dministratie Code( which falls under Chapter +1 entitled=City of Baguio(= authoriAes the Goernor General %now the resident& toremoe at pleasure any of the ocers enumerated therein( one of whom is

the city engineer. The /rst question that presents itself is( is this proisionstill in force

'ection of 0rticle ;D# of the Constitution declares that =0ll laws of thehilippine #slands shall continue in force until the inauguration of theCommonwealth of the hilippinesE thereafter( such laws shall remainoperatie( unless inconsistent with this Constitution( until amended(altered( modi/ed( or repealed by the Congress of the hilippines( . . . .=

#t seems plain beyond doubt that the proision of section 5-5 of theReised 0dministratie Code( he %Goernor$General now resident& mayremoe at pleasure any of the said appointie ocers(= is incompatible withthe constitutional inhibition that =>o ocer or employee in the Ciil 'ericeshall be remoed or suspended e3cept for cause as proided by law.= The

two proisions are mutually repugnant and absolutely irreconcilable. 4ne ine3press terms permits what the other in similar terms prohibits.

The Constitution leaes it to the Congress to proide for the cause of remoal( and it is suggested that the resident!s pleasure is itself a cause.

The phrase =for cause= in connection with the remoals of public ocershas acquired a well$de/ned concept. =#t means for reasons which the lawand sound public policy recogniAed as sucient warrant for remoal( thatis( legal cause( and not merely causes which the appointing power in thee3ercise of discretion may deem sucient. #t is implied that ocers maynot be remoed at the mere will of those ested with the power of remoal(or without any cause. Moreoer( the cause must relate to and a"ect the

administration of the oce( and must be restricted to something of asubstantial nature directly a"ecting the rights and interests of thepublic.=%-2 0m. *ur.( -@( -.&

Reconsideration of the decision in ?acson s. Romero as far as ocers inthe unclassi/ed serice are concerned is urged. #t is contended that onlyocers and employees in the classi/ed serice should be brought withinthe puriew of 0rticle ;## of the Constitution.

'ection 1 of this article ordains< =0 Ciil 'erice embracing all branches andsubdiisions of the Goernment shall be proided by law. 0ppointments inthe Ciil 'erice( e3cept as those which are policy$determining( primarilycon/dential or highly technical in nature( shall be made only according tomerit and /tness( to be determined as far as practicable by competitiee3amination.= The /rst clause is a de/nition of the scope of Ciil 'erice(

the men and women which section - protects. #t seems obious from thatde/nition that the entire Ciil 'erice is contemplated( e3cept positions=which are policy$determining( primarily con/dential or highly technical innature.= This theory is con/rmed by the enactment of Commonwealth 0ct>o. 1@@ on >oember 26( 1,2+ to implement 0rticle ;## of the Constitution.Commonwealth 0ct >o. 1@@ e3plains Ciil 'erice almost in the identicalwords of that article of the organic law. 0s a contemporaneousconstruction( this 0ct a"ords an inde3 to the meaning of Ciil 'erice asconceied by the framers of the Constitution. =The principle of contemporaneous construction may be applied to the construction gien bythe legislature to the constitutional proisions dealing with legislatiepowers and procedure. Though not conclusie( such interpretation isgenerally conceded as being entitled to great weight.= %7.'. s. 'prague( 7.'.( @1+E @5 ?. ed. +-6E 51 '. Ct.( 6E @1 0.?.R.( 121E 8en e3 dem.Murray s. Fobo:en ?and and #mpro. Co.( 1 Fow. 7.'.H( @E 15 ?. ed.(

2@E Clar: s. Boyce( 6 0riA.( 5--E 15 .( 12+( citing R.C.?.E 11 0m. *ur.+,,.& The principle of e3press mention and implied e3clusion may be madeuse of also to drie home this point.

9e are led to the same conclusion by the e3isting proisions at the time of the adoption of the Constitution. Ciil 'erice as embracing both classes of ocers and employees possessed de/nite legal and statutory meaningwhen the Constitution was approed. 'ection +@6 of the Reised0dministratie Code already proided that =ersons in the hilippine ciilserice pertain either to the classi/ed serice(= and went on to say that=The classi/ed serice embraces all not e3pressly declared to be in theunclassi/ed serice.= Then section +@1 described persons in theunclassi/ed serice as =ocers( other than the proincial treasurers andassistant directors of bureaus or oces( appointed by the resident of thehilippines( with the consent of the Commission on 0ppointments of the



>ational 0ssembly( and all other ocers of the goernment whoseappointments are by law ested in the resident of the hilippines alone.=

The rules of the construction inform us that the words use in theconstitution are to be gien the sense they hae in common use.%4:anogan #ndians s. 7nited 'tates( @,( 7.'.( ++5E +- 0.?.R.( 1-2-E @2?aw ed.( ,-.& #t has been said that we must loo: to the history of thetimes( e3amine the state of things e3isting when the Constitution wasframed and adopted( %Rhode #slands s. Massachusetts( 1 et.( +5@E , ?awed.( 122&( and interpret it in the light of the law then in operation. %Matto3s. 7nited 'tates( 15+( 7.'.( 2@E 2, ?aw ed.( -6,.&

0ttention is drawn to supposed inconeniences of tying the hands of theappointing power in changing and shifting ocers in the unclassi/edserice. =#f I it is argued I all important ocers and employees of thegoernment falling within the unclassi/ed serice as enumerated in section+@1 of the Reised 0dministratie Code as amended by Commonwealth 0ct>o. 1@@( may not be remoed by the resident e3cept for cause as proidedby law( . . . the resident would be seriously crippled in the discharge of thegrae duty and responsibility laid upon him by the Constitution to ta:e carethat the laws faithfully e3ecuted.=

Juestions of e3pediency are( of course( beyond the proince of the court tota:e into account in the interpretation of laws or of the Constitution wherethe language is otherwise clear. But the argument is( we thin:( unsoundeen if the case be approached from this angle. #t contains its ownrefutation. The Constitution and the law implementing it a"ord adequate

safeguards against such consequences as hae been painted.

The argument proceeds( contrary to its conte3t( on the assumption thatremoes of ciil serice ocers and employees are absolutely prohibited(which is not the case. The Constitution authoriAes remoals and onlyrequires that they be for cause. 0nd the occasions for remoal would begreatly diminished if the inKunction of section 1 of 0rticle ;## of theConstitution I that appointments in the ciil serice shall be made onlyaccording to merit and /tness( to be determined as far as practicable bycompetitie e3amination I would be adhered of meticulously in the /rstplace.

By far greater mischiefs would be fomented by an unbridled authority toremoe. 'uch license would thwart the ery aims of the Constitution whichare e3pounded by 8ean 0ruego( himself a member of the Constitutional

Conention( in the following remar:s copied with approal in ?acson s.Romero( supra<

The adoption of the =merit system= in goernment serice has securedeciency and social Kustice. #t eliminates the political factor in the selectionof ciil employees which is the /rst essential to an ecient personnelsystem. #t insures equality of opportunity to all desering applicantsdesirous of a career in the public serice. #t adocates a new concept of thepublic oce as a career open to all and not the e3clusie patrimony of anyparty or faction to be doled out as a reward for party serice.

The =merit system= was adopted only after the nations of the world too:cogniAance of its merits. olitical patronage in the goernment serice wassanctioned in 1@, by the Constitutional right of resident of the 7nited'tates to act alone in the matter of remoals. Lrom the time of 0ndrew

*ac:son the principle of the =To the ictor belongs the spoils! dominated theLederal Goernment. The system undermined moral alues and destroyedadministratie eciency.

'ince the establishment of the 0merican Regime in the hilippines we haeenKoyed the bene/ts of the =merit system.= The 'churmann Commissionadocated in its reports that =the greatest care should be ta:en in theselection of the ocials for administration. They should be men of thehighest character and /tness( and partisan politics should be entirelyseparated from the goernment.= The /fth act passed by the hilippineCommission created a Board of Ciil 'erice. #t instituted a system herethat was far more radical and thorough than that in the 7nited 'tates. The

Goernor$General after 9illiam Taft adopted the policy of appointingLilipinos in the goernment regardless of their party aliation. 0s the resultof these the personnel of the Ciil 'erice had gradually come to be one of which the people of the 7nited 'tates could feel Kustly proud.

>ecessity for Constitutional proision. I The inclusion in the constitution of proisions regarding the =merit system= is a necessity of modern times. 0sits establishment secures good goernment the citiAens hae a right toaccept its guarantee as a permanent institution.

'eparation( suspension( demotions and transfers. I The =merit system= willbe ine"ectie if no safeguards are placed around the separation andremoal of public employees. The Committee!s report requires thatremoals shall be made only for =causes and in the manner proided bylaw. This means that there should be bona /de reasons and action maybe

ta:en only after the employee shall hae been gien a fair hearing. Thisa"ords the public employees reasonable security of tenure. %## 0ruego!sLraming of the Constitution( +( @( ,6.&

0s has been seen( three speci/ed classes of positions I policy$determining(primarily con/dential and highly technical I are e3cluded from the meritsystem and dismissal at pleasure of ocers and employees appointedtherein is allowed by the Constitution. These positions inoled the highestdegree of con/dence( or are closely bound out with and dependent onother positions to which they are subordinate( or are temporary in nature. #tmay truly be said that the good of the serice itself demands thatappointments coming under this category determinable at the will of theocer that ma:es them.

The oce of city engineer is neither primarily con/dential( policy$

determining( nor highly technical.

)ery appointment implies con/dence( but much more than ordinarycon/dence is reposed in the occupant of a position that is primarilycon/dential. The latter phrase denotes not only con/dence in the aptitudeof the appointee for the duties of the oce but primarily close intimacywhich insures freedom of intercourse without embarrassment or freedomfrom misgiings of betrayals of personal trust or con/dential matters of state. >or is the position of city engineer policy$determining. 0 cityengineer does not formulate a method of action for the goernment or anyits subdiisions. Fis Kob is to e3ecute policy( not to ma:e it. 9ith speci/creference to the City )ngineer of Baguio( his powers and duties arecarefully laid down for him be section 55@ of the Reised 0dministratieCode and are essentially ministerial in character. Linally( the position of ci tyengineer is technical but not highly so. 0 city engineer is not required nor is



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he supposed to possess a technical s:ill or training in the supreme orsuperior degree( which is the sense in which =highly technical= is( webeliee( employed in the Constitution. There are hundreds of technical menin the classi/ed ciil serice whose technical competence is not lower thanthat of a city engineer. 0s a matter of fact( the duties of a city engineer areeminently administratie in character and could ery well be discharged bynon$technical men possessing e3ecutie ability.

'ection 16 of 0rticle D### of the Constitution requires that =0ll casesinoling the constitutionality of a treaty or law shall be heard and decidedby the 'upreme Court in banc(= and warns that =no treaty or law may bedeclared unconstitutional without the concurrence of two$thirds of all the

members of the Court.= The question arises as to whether this Kudgmentoperates as inalidation of section 5-5 of the Reised 0dministratie Codeor a part of it so as to need at least eight otes to ma:e e"ectie. Theanswer should be in negatie.

9e are not declaring any part of section 5-5 of the Reised 0dministratieCode unconstitutional. 9hat we declare is that the particular proisionthereof which gae the Chief )3ecutie power to remoe ocers atpleasure has been repealed by the Constitution and ceased to be operatiefrom the time that instrument went into e"ect. 7nconstitutionally( as weunderstand it( denotes life and igor( and unconstitutional legislationpresupposes posteriority in point of time to the Constitution. #t is a statutethat =attempts to alidate and legaliAe a course of conduct the e"ect of which the Constitution speci/cally forbids %'tate e3$rel. Mac: s.Guc:enberger( 12, 4hio 't.( @2E 2, >). dH( -6.& 0 law that has been

repealed is as good as if it had neer been enacted( and can not( in thenature of things( contraene or pretend to contraene constitutionalinhibition. 'o( unli:e legislation that is passed in de/ance of theConstitution( assertie and menacing( the questioned part of section 5-5of the Reised 0dministratie Code does not need a positie declaration of nullity by the court to put it out of the way. To all intents and purposes( it isnon$e3istent( outlawed and eliminated from the statute boo: by theConstitution itself by e3press mandate before this petitioner was appointed.

#ncidentally( the last discussion answers and disposes of the propositionthat in accepting appointment under section 5-5 of the Reised0dministratie Code( the petitioner must be deemed to hae accepted theconditions and limitations attached to the appointment. #f the clause of section 5-5 which authoriAed the resident to remoe ocers of the Cityof Baguio at pleasure had been abrogated when petitioner!s appointment

was issued( the appointee can not presumed to hae abided by thiscondition.

9e therefore hold that the petitioner is entitled to remain in oce as City)ngineer of Baguio with all the emoluments( rights and priilegesappurtenant thereto( until he resigns or is remoed for cause( and thatrespondent Mallare!s appointment is ine"ectie in so far as it mayadersely a"ect those emoluments( rights and priileges. 9ithout costs.



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CSC V. SALAS (1997)

The present petition for reiew on certiorari see:s to nullify the decision of the Court of 0ppeals( dated 'eptember 1-( 1,,5( in C0$G.R. ' >o. 221,which set aside Resolution >o. ,$12 of the Ciil 'erice Commission%C'C& and ordered the reinstatement of herein priate respondent Rafael M.'alas with full bac: wages for haing been illegally dismissed by thehilippine 0musement and Gaming Corporation %0GC4R&( but withoutpreKudice to the /ling of administratie charges against him if warranted. 1

The records disclose that on 4ctober @( 1,,( respondent 'alas wasappointed by the 0GC4R Chairman as #nternal 'ecurity 'ta" %#''& member

and assigned to the casino at the Manila ailion Fotel. Foweer( hisemployment was terminated by the Board of 8irectors of 0GC4R on8ecember 2( 1,,1( allegedly for loss of con/dence( after a coertinestigation conducted by the #ntelligence 8iision of 0GC4R. Thesummary of intelligence information claimed that respondent was allegedlyengaged in pro3y betting as detailed in the adaits purportedly e3ecutedby two customers of 0GC4R who claimed that they were used as gunnerson di"erent occasions by respondent. The two polygraph tests ta:en by thelatter also yielded corroboratie and unfaorable results.

4n 8ecember 2( 1,,1( respondent 'alas submitted a letter of appeal tothe Chairman and the Board of 8irectors of 0GC4R( requestingreinestigation of the case since he was not gien an opportunity to beheard( but the same was denied. 4n Lebruary 1@( 1,,( he appealed to theMerit 'ystems rotection Board %M'B& which denied the appeal on the

ground that( as a con/dential employee( respondent was not dismissedfrom the serice but his term of oce merely e3pired. 4n appeal( the C'Cissued Resolution >o. ,$12 which armed the decision of the M'B.

Respondent 'alas initially went to this Court on a petition for certiorariassailing the propriety of the questioned C'C resolution. Foweer( in aresolution dated 0ugust 15( 1,,5( 2 the case was referred to the Court of 0ppeals pursuant to Reised 0dministratie Circular >o. 1$,5 which too:e"ect on *une 1( 1,,5.

4n 'eptember 1-( 1,,5( the Court of 0ppeals rendered its questioneddecision with the /nding that herein respondent 'alas is not a con/dentialemployee( hence he may not be dismissed on the ground of loss of con/dence. #n so ruling( the appellate court applied the =pro3imity rule=enunciated in the case of Grio( et al. s. Ciil 'erice Commission( et al. -

#t li:ewise held that 'ection 1+ of residential 8ecree >o. 1+, has beensuperseded and repealed by 'ection %1&( 0rticle #;$B of the 1,@Constitution.

Fence this appeal( which is premised on and calls for the resolution of thesole determinatie issue of whether or not respondent 'alas is acon/dential employee.

etitioners aer that respondent 'alas( as a member of the #nternal'ecurity 'ta" of 0GC4R( is a con/dential employee for seeral reasons(iA.<

%1& residential 8ecree >o. 1+, which created the hilippine 0musementand Gaming Corporation e3pressly proides under 'ection 1+ thereof that

all employees of the casinos and related serices shall be classi/ed ascon/dential appointeesE

%& #n the case of hilippine 0musement and Gaming Corporation s. Courtof 0ppeals( et al.( 5 the 'upreme Court has classi/ed 0GC4R employeesas con/dential appointeesE

%2& C'C Resolution >o. ,1$26( dated *uly 11( 1,,1( has declaredemployees in casinos and related serices as con/dential appointees byoperation of lawE and

%-& Based on his functions as a member of the #''( priate respondent

occupies a con/dential position.

9hence( according to petitioners( respondent 'alas was not dismissed fromthe serice but( instead( his term of oce had e3pired. They additionallycontend that the Court of 0ppeals erred in applying the =pro3imity rule=because een if 'alas occupied one of the lowest rungs in theorganiAational ladder of 0GC4R( he performed the functions of one of themost sensitie positions in the corporation.

4n the other hand( respondent 'alas argues that it is the actual nature of an employee!s functions( and not his designation or title( which determineswhether or not a position is primarily con/dential( and that whileresidential 8ecree >o. 1+, may hae declared all 0GC4R employees tobe con/dential appointees( such e3ecutie pronouncement may beconsidered as a mere initial determination of the classi/cation of positions

which is not conclusie in case of conNict( in light of the ruling enunciatedin Tria s. 'to. Tomas( et al. +

9e /nd no merit in the petition and consequently hold that the sameshould be( as it is hereby( denied.

'ection ( Rule ;; of the Reised Ciil 'erice Rules( promulgated pursuantto the proisions of 'ection 1+%e& of Republic 0ct >o. +6 %Ciil 'erice 0ctof 1,5,&( which was then in force when residential 8ecree >o 1+,creating the hilippine 0musement and Gaming Corporation was passed(proided that =upon recommendation of the Commissioner( the residentmay declare a position as policy$determining( primarily con/dential( orhighly technical in nature.= #t appears that 'ection 1+ of residential 8ecree>o. 1+, was predicated t thereon( with the te3t thereof proiding asfollows<

0ll positions in the corporation( whether technical( administratie(professional or managerial are e3empt from the proisions of the Ciil'erice ?aw( rules and regulations( and shall be goerned only by thepersonnel management policies set by the Board of 8irectors. 0llemployees of the casinos and related serices shall be classi/ed as=con/dential= appointees.

4n the strength of this statutory declaration( petitioner 0GC4R terminatedthe serices of respondent 'alas for lac: of con/dence after it supposedlyfound that the latter was engaged in pro3y betting. #n upholding thedismissal of respondent 'alas( the C'C ruled that he is considered acon/dential employee by operation of law( hence there is no act of dismissal to spea: of but a mere e3piration of a con/dential employee!s



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term of oce( such that a complaint for illegal dismissal will not prosper inthis case for lac: of legal basis.

#n reersing the decision of the C'C( the Court of 0ppeals opined that theproisions of 'ection 1+ of residential 8ecree >o. 1+, may no longer beapplied in the case at bar because the same is deemed to hae beenrepealed in its entirety by 'ection %1&( 0rticle #;$B of the 1,@ Constitution.@ This is not completely correct. 4n this point( we approe the more logicalinterpretation adanced by the C'C to the e"ect that ='ection 1+ of 81+, insofar as it e3empts 0GC4R positions from the proisions of Ciil'erice ?aw and Rules has been amended( modi/ed or deemed repealed bythe 1,@ Constitution and )3ecutie 4rder >o. , %0dministratie Code of

1,@&.=

Foweer( the same cannot be said with respect to the last portion of 'ection 1+ which proides that =all employees of the casino and relatedserices shall be classi/ed as !con/dential! appointees.= 9hile suche3ecutie declaration emanated merely from the proisions of 'ection (Rule ;; of the implementing rules of the Ciil 'erice 0ct of 1,5,( thepower to declare a position as policy$determining( primarily con/dential orhighly technical as de/ned therein has subsequently been codi/ed andincorporated in 'ection 1%,&( Boo: D of )3ecutie 4rder >o. , or theadministratie Code of 1,@. This later enactment only seres to bolster the alidity of thecategoriAation made under 'ection 1+ of residential 8ecree >o. 1+,. Bethat as it may( such classi/cation is not absolute and all$encompassing.

rior to the passage of the aforestated Ciil 'erice 0ct of 1,5,( there weretwo recogniAed instances when a position may be considered primarilycon/dential< Lirstly( when the resident( upon recommendation of theCommissioner of Ciil 'erice( has declared the position to be primarilycon/dentialE and( secondly( in the absence of such declaration( when by thenature of the functions of the oce there e3ists =close intimacy= betweenthe appointee and appointing power which insures freedom of intercoursewithout embarrassment or freedom from misgiings of betrayals of personal trust or con/dential matters of state. ,

0t /rst glance( it would seem that the instant case falls under the /rstcategory by irtue of the e3press mandate under 'ection 1+ of residential8ecree >o. 1+,. 0n in$depth analysis( howeer( of the second categoryeinces otherwise.

9hen Republic 0ct >o. +6 was enacted on *une 1,( 1,5,( 'ection 5thereof proided that =the non$competitie or unclassi/ed serice shall becomposed of positions e3pressly declared by law to be in the non$competitie or unclassi/ed serice or those which are policy$determining(primarily con/dential( or highly technical in nature.= #n the case of iero(et al. s. Fechanoa( et al.( 16 the Court obliged with a short discoursethere on how the phrase =in nature= came to /nd its way into the law( thus<

The change from the original wording of the bill %e3pressly declared by law .. . to be policy$determining( etc.& to that /nally approed and enacted %=orwhich are policy$determining( etc. in nature=& came about because of theobserations of 'enator Taada( that as originally worded the proposed billgae Congress power to declare by /at of law a certain position as primarilycon/dential or policy$determining( which should not be the case. The'enator urged that since$the Constitution spea:s of positions which are

=primarily con/dential( policy$determining or highly technical in nature(= itis not within the power of Congress to declare what positions are primarilycon/dential or policy$determining. =#t is the nature alone of the positionthat determines whether it is policy$determining or primarily con/dential.=Fence( the 'enator further obsered( the matter should be left to the=proper implementation of the laws( depending upon the nature of theposition to be /lled=( and if the position is =highly con/dential= then theresident and the Ciil 'erice Commissioner must implement the law.

To a question of 'enator Tolentino( =But in positions that inoled bothcon/dential matters and matters which are routine( . . . who is going todetermine whether it is primarily con/dential= 'enator Taada replied<

')>0T4R T0O080< 9ell( at the /rst instance( it is the appointing power thatdetermines that< the nature of the position. #n case of conNict then it is theCourt that determines whether the position is primarily con/dential or not%)mphasis in the original te3t&.

Fence the dictum that( at least since the enactment of the Ciil 'erice 0ctof 1,5,( it is the nature of the position which /nally determines whether aposition is primarily con/dential( policy$determining or highly technical. 0ndthe Court in the aforecited case e3plicity decreed that e3ecutiepronouncements( such as residential 8ecree >o. 1+,( can be no morethan initial determinations that are not conclusie in case of conNict. #tmust be so( or else it would then lie within the discretion of the Chief )3ecutie to deny to any ocer( by e3ecutie /at( the protection of 'ection-( 0rticle ;## %now 'ection 2H( 0rticle #;$B& of the Constitution. 11 #n other

words( 'ection 1+ of residential 8ecree >o. 1+, cannot be gien aliterally stringent application without compromising the constitutionallyprotected right of an employee to security of tenure.

The doctrinal ruling enunciated in iero /nds support in the 1,25Constitution and was rearmed in the 1,@2 Constitution( as well as in theimplementing rules of residential 8ecree >o. 6@( or the Ciil 'erice8ecree of the hilippines. 1 #t may well be obsered that both the 1,25and 1,@2 Constitutions contain the proision( in 'ection ( 0rticle ;##$Bthereof( that =appointments in the Ciil 'erice( e3cept as to those whichare policy$determining( primarily con/dential( or highly technical in nature(shall be made only according to merit and /tness( to be determined as faras practicable by competitie e3amination.= Corollarily( 'ection 5 of Republic 0ct >o. +6 states that =the non$competitie or unclassi/edserice shall be composed of positions e3pressly declared by law to be in

the non$competitie or unclassi/ed serice or those which are policy$determining( primarily con/dential( or highly technical in nature.= ?i:ewise('ection 1 of the General Rules in the implementing rules of residential8ecree >o. 6@ states that =appointments in the Ciil 'erice( e3cept as tothose which are policy$determining( primarily con/dential( or highlytechnical in nature( shall be made only according to merit and /tness to bedetermined as far as practicable by competitie e3amination.= ?et it herebe emphasiAed( as we hae accordingly italiciAed them( that thesefundamental laws and legislatie or e3ecutie enactments all utiliAed thephrase =in nature= to describe the character of the positions beingclassi/ed.

The question that may now be as:ed is whether the iero doctrine I tothe e"ect that notwithstanding any statutory classi/cation to the contrary(it is still the nature of the position( as may be ascertained by the court in



+

case of conNict( which /nally determines whether a position is primarilycon/dential( policy$determining or highly technical I is still controlling withthe adent of the 1,@ Constitution and the 0dministratie Code of 1,@(12 Boo: D of which deals speci/cally with the Ciil 'erice Commission(considering that from these later enactments( in de/ning positions whichare policy$determining( primarily con/dential or highly technical( the phrase=in nature= was deleted. 1-

9e rule in the armatie. The matter was clari/ed and e3tensielydiscussed during the deliberations in the plenary session of the 1,+Constitutional Commission on the Ciil 'erice proisions( to wit<

MR. L4P. 9hich department of goernment has the power or authority todetermine whether a position is policy$determining or primarily con/dentialor highly technical

LR. B)R>0'< The initial decision is made by the legislatie body or by thee3ecutie department( but the /nal decision is done by the court. The'upreme Court has constantly held that whether or not a position is policy$determining( primarily con/dential or highly technical( it is determined notby the title but by the nature of the tas: that is entrusted to it. Lor instance(we might hae a case where a position is created requiring that the holderof that position should be a member of the Bar and the law classi/es thisposition as highly technical. Foweer( the 'upreme Court has said beforethat a position which requires mere membership in the Bar is not a highlytechnical position. 'ince the term =highly technical= means somethingbeyond the ordinary requirements of the profession( it is always a question

of fact.

MR. L4P. 8oes not Commissioner Bernas agree that the general rule shouldbe that the merit system or the competitie system should be upheld

LR. B)R>0'. # agree that that should be the general ruleE that is why we areputting this as an e3ception.

MR. L4P. The declaration that certain positions are policy$determining(primarily con/dential or highly technical has been the source of practiceswhich amount to the spoils system.

LR. B)R>0'. The 'upreme Court has always said that( but if the law of theadministratie agency says that a position is primarily con/dential when infact it is not( we can always challenge that in court. #t is not enough that

the law calls it primarily con/dential to ma:e it suchE it is the nature of theduties which ma:es a position primarily con/dential.

MR. L4P. The e"ect of a declaration that a position is policy$determining(primarily con/dential or highly technical I as an e3ception I is to ta:e itaway from the usual rules and proisions of the Ciil 'erice ?aw and toplace it in a class by itself so that it can aail itself of certain priileges notaailable to the ordinary run of goernment employees and ocers.

LR. B)R>0'. 0s # hae already said( this classi/cation does not do awaywith the requirement of merit and /tness. 0ll it says is that there arecertain positions which should not be determined by competitiee3amination.

Lor instance( # hae Kust mentioned a position in the 0tomic )nergyCommission. 'hall we require a physicist to undergo a competitiee3amination before appointment 4r a con/dential secretary or anyposition in policy$determining administratie bodies( for that matter Thereare other ways of determining merit and /tness than competitiee3amination. This is not a denial of the requirement of merit and /tness%)mphasis supplied&. 15

#t is thus clearly deducible( if not altogether apparent( that the primarypurpose of the framers of the 1,@ Constitution in proiding for thedeclaration of a position as policy$determining( primarily con/dential orhighly technical is to e3empt these categories from competitie

e3amination as a means for determining merit and /tness. #t must bestressed further that these positions are coered by security of tenure(although they are considered non$competitie only in the sense thatappointees thereto do not hae to undergo competitie e3aminations forpurposes of determining merit and /tness.

#n fact( the C'C itself ascribes to this iew as may be gleaned from itsquestioned resolution wherein it stated that =the declaration of a positionas primarily con/dential if at all( merely e3empts the position from the ciilserice eligibility requirement.= 0ccording( the iero doctrine continues tobe applicable up to the present and is hereby maintained. 'uch being thecase( the submission that 0GC4R employees hae been declaredcon/dential appointees by operation of law under the bare authority of C'CResolution >o. ,1$26 must be reKected.

9e li:ewise /nd that in holding that herein priate respondent is not acon/dential employee( respondent Court of 0ppeals correctly applied the=pro3imity rule= enunciated in the early but still authoritatie case of 8e los'antos s. Mallare( et al.( 1+ which held that<

)ery appointment implies con/dence( but much more than ordinarycon/dence is reposed in the occupant of a position that is primarilycon/dential. The latter phrase denotes not only con/dence in the aptitudeof the appointee for the duties of the oce but primarily close intimacywhich insures freedom of intercourse without embarrassment or freedomfrom misgiings of betrayals of personal trust or con/dential matters of state. . . . %)mphasis supplied&.

This was reiterated in iero( et al. s. Fechanoa( et al.( supra( the facts of which are substantially similar to the case at bar( inoling as it did

employees occupying positions in arious capacities in the ort atrol8iision of the Bureau of Customs. The Court there held that the mere factthat the members of the ort atrol 8iision are part of the Customs policeforce is not in itself a sucient indication that their positions are primarilycon/dential. 0fter quoting the foregoing passage from 8e los 'antos( ittrenchantly declared<

0s preiously pointed out( there are no proen facts to show that there isany such close intimacy and trust between the appointing power and theappellees as would support a /nding that con/dence was the primaryreason for the e3istence of the positions held by them or for theirappointment thereto. Certainly( it is e3tremely improbable that the sericedemands any such close trust and intimate relation between the appointingocial and( not one or two members alone but the entire Customs patrol



@

%Farbor olice& force( so that eery member thereof can be said to hold=primarily con/dential= posts. %)mphasis supplied&.

#t can thus be safely determined therefrom that the occupant of a particularposition could be considered a con/dential employee if the predominantreason why he was chosen by the appointing authority was( to repeat( thelatter!s belief that he can share a close intimate relationship with theoccupant which ensures freedom of discussion( without fear of embarrassment or misgiings of possible betrayal of personal trust orcon/dential matters of state. 9ithal( where the position occupied is remotefrom that of the appointing authority( the element of trust between them isno longer predominant. 1@

'eeral factors lead to the conclusion that priate respondent does notenKoy such =close intimacy= with the appointing authority of 0GC4R whichwould otherwise place him in the category of a con/dential employee( towit<

1. 0s an #nternal 'ecurity 'ta" member( priate respondentroutinely I

a. performs duty assignments at the gaming andQor non$gaming areas topreent irregularities( misbehaior( illegal transactions and otheranomalous actiities among the employees and customersE

b. reports unusual incidents and related obserationsQinformation inaccordance with established procedures for infractionsQmista:es committed

on the table and in other areasE

c. coordinates with CCTD andQor e3ternal security as necessary for thepreention( documentation or suppression of any unwanted incidents at thegaming and non$gaming areasE

d. acts as witnessQrepresentatie of 'ecurity 8epartment during chipsinentory( re/lls( yields( card shuing and /nal shuingE

e. performs escort functions during the deliery of table capital bo3es(re/lls and shoe bo3es to the respectie tables( or during transfer of yieldsto Treasury. 1

Based on the nature of such functions of herein priate respondent and asfound by respondent Court of 0ppeals( while it may be said that honesty

and integrity are primary considerations in his appointment as a member of the #''( his position does not inole =such close intimacy= between himand the appointing authority( that is( the Chairman of 0GC4R( as wouldinsure =freedom from misgiings of betrayals of personal trust.= 1,

. 0lthough appointed by the Chairman( #'' members do not directly reportto the 4ce of the Chairman in the performance of their ocial duties. 0n#'' member is subKect to the control and superision of an 0rea 'uperisorwho( in turn( only implements the directies of the Branch Chief 'ecurity4cer. The latter is himself answerable to the Chairman and the Board of 8irectors. 4biously( as the lowest in the chain of command( priaterespondent does not enKoy that =primarily close intimacy= whichcharacteriAes a con/dential employee.

2. The position of an #'' member belongs to the bottom leel of the salaryscale of the corporation( being in ay Class leel only( whereas thehighest leel is ay Class 1.

Ta:ing into consideration the nature of his functions( his organiAationalran:ing and his compensation leel( it is obiously beyond debate thatpriate respondent cannot be considered a con/dential employee. 0s setout in the Kob description of his position( one is struc: by the ordinary(routinary and quotidian character of his duties and functions. Moreoer( themodest ran: and fungible nature of the position occupied by priaterespondent is underscored by the fact that the salary attached to it is ameager (66.66 a month. There thus appears nothing to suggest that

priate respondent!s position was =highly= or( much less( =primarily=con/dential in nature. The fact that( sometimes( priate respondent mayhandle ordinarily =con/dential matters= or papers which are somewhatcon/dential in nature does not suce to characteriAe his position asprimarily con/dential. 6

#n addition( the allegation of petitioners that 0GC4R employees hae beendeclared to be con/dential appointees in the case of hilippine 0musementand Gaming Corporation s. Court of 0ppeals( et al.( ante( is misleading.9hat was there stated is as follows<

The record shows that the separation of the priate respondent was done inaccordance with 8 1+,( which proides that the employees of the0GC4R hold con/dential positions. Montoya is not assailing the alidity of that law. The act that he is questioning is what he calls the arbitrary

manner of his dismissal thereunder that he aers entitled him to damagesunder the Ciil Code. %)mphasis ours&.

Thus( the aforecited case was decided on the uncontested assumption thatthe priate respondent therein was a con/dential employee( for the simplereason that the propriety of 'ection 1+ of residential 8ecree >o. 1+, wasneer controerted nor raised as an issue therein. That decree wasmentioned merely in connection with its proision that 0GC4R employeeshold con/dential positions. )idently( therefore( it cannot be considered ascontrolling in the case at bar. )en the fact that a statute has beenaccepted as alid in cases where its alidity was not challenged does notpreclude the court from later passing upon its constitutionality in anappropriate cause where that question is squarely and properly raised.'uch circumstances merely reinforce the presumption of constitutionality of the law. 1

9F)R)L4R)( the impugned Kudgment of respondent Court of 0ppeals ishereby 0LL#RM)8 in toto.



CSC V. JAVIER (2008)

Before the Court is a etition for Reiew on Certiorari under Rule -5 of theRules of Court( see:ing to reerse the 8ecision1 of the Court of 0ppeals%C0& dated 'eptember ,( 665( as well as its Resolution of *une 5( 66+( inC0$G.R. ' >o. 5+( which set aside the resolutions and orders of theCiil 'erice Commission %C'C& inalidating the appointment of respondentas Corporate 'ecretary of the Board of Trustees of the Goernment 'ericeand #nsurance 'ystem %G'#'&.

The facts are undisputed.

0ccording to her serice record( respondent was /rst employed as riate'ecretary in the G'#'( a goernment owned and controlled corporation%G4CC&( on Lebruary 2( 1,+6( on a =con/dential= status. 4n *uly 1( 1,+(respondent was promoted to Tabulating )quipment 4perator with=permanent= status. The =permanent= status stayed with respondentthroughout her career. 'he spent her entire career with G'#'( earningseeral more promotions( until on 8ecember 1+( 1,+( she was appointedCorporate 'ecretary of the Board of Trustees of the corporation.

4n *uly 1+( 661( a month shy of her +-th birthday(2 respondent opted forearly retirement and receied the corresponding monetary bene/ts.-

4n 0pril 2( 66( G'#' resident 9inston L. Garcia( with the approal of theBoard of Trustees( reappointed respondent as Corporate 'ecretary( thesame position she left and retired from barely a year earlier. Respondent

was +- years old at the time of her reappointment.5 #n its Resolution( theBoard of Trustees classi/ed her appointment as =con/dential in nature andthe tenure of oce is at the pleasure of the Board.=+

etitioner alleges that respondent!s reappointment on con/dential statuswas meant to illegally e3tend her serice and circument the laws oncompulsory retirement.@ This is because under Republic 0ct %R.0.& >o.,1( or the Goernment 'erice #nsurance 'ystem 0ct of 1,,@( thecompulsory retirement age for goernment employees is +5 years( thus<

'ec. 12. 3 3 3

%b& 7nless the serice is e3tended by appropriate authorities( retirementshall be compulsory for an employee at si3ty$/e %+5& years of age with atleast /fteen %15& years of serice< roided( That if he has less than /fteen

%15& years of serice( he may be allowed to continue in the serice inaccordance with e3isting ciil serice rules and regulations.

7nder the ciil serice regulations( those who are in primarily con/dentialpositions may sere een beyond the age of +5 years. Rule ;### of theReised 4mnibus Rules on 0ppointments and 4ther ersonnel 0ctions( asamended( proides that<

'ec. 1. %a& >o person who has reached the compulsory retirement age of +5 years can be appointed to any position in the goernment( subKect onlyto the e3ception proided under sub$section %b& hereof.

3 3 3 3

b. 0 person who has already reached the compulsory retirement age of +5can still be appointed to a coterminousQprimarily con/dential position in thegoernment.

0 person appointed to a coterminousQprimarily con/dential position whoreaches the age of +5 is considered automatically e3tended in the sericeuntil the e3piry date of hisQher appointment or until hisQher serices areearlier terminated.

#t is for these obious reasons that respondent!s appointment wascharacteriAed as =con/dential= by the G'#'.

4n 4ctober 16( 66( petitioner issued Resolution >o. 6121-( inalidatingthe reappointment of respondent as Corporate 'ecretary( on the groundthat the

position is a permanent( career position and not primarily con/dential.,

4n >oember ( 66( the C'C( in a letter of een date( through itsChairperson Sarina Constantino$8aid( informed G'#' of C'C!s inalidationof respondent!s appointment( stating( thus<

Records show that Ms. *aier was formerly appointed as Corporate'ecretary in a =ermanent= capacity until her retirement in *uly 1+( 661.

The lantilla of ositions shows that said position is a career position.Foweer( she was re$employed as Corporate 'ecretary( a position nowdeclared as con/dential by the Board of Trustees pursuant to Board

Resolution >o. ,- dated 0pril 2( 66.

'ince the position was not declared primarily con/dential by the Ciil'erice Commission or by any law( the appointment of Ms. *aier asCorporate 'ecretary is hereby inalidated.16

Respondent and G'#' sought to reconsider the ruling of petitioner. C'Creplied that the position of Corporate 'ecretary is a permanent %career&position( and not primarily con/dential %non$career&E thus( it was wrong toappoint respondent to this position since she no longer complies witheligibility requirements for a permanent career status. More importantly( asrespondent by then has reached compulsory retirement at age +5(respondent was no longer quali/ed for a permanent career position.11 9iththe denial of respondent!s plea for reconsideration( she /led a etition forReiew with the Court of 0ppeals.

4n 'eptember ,( 665( the C0 rendered a 8ecision setting aside theresolution of petitioner inalidating respondent!s appointment.1 The C0ruled that in determining whether a position is primarily con/dential orotherwise( the nature of its functions( duties and responsibilities must beloo:ed into( and not Kust its formal classi/cation.12 )3amining thefunctions( duties and responsibilities of the G'#' Corporate 'ecretary( theC0 concluded that indeed( such a position is primarily con/dential innature.

etitioner /led a motion for reconsideration( which was denied by the C0 on *une 5( 66+.

Fence( herein petition.



,

The petition assails the C0 8ecision( contending that the position of Corporate 'ecretary is a career position and not primarily con/dential innature.1- Lurther( it adds that the power to declare whether any position ingoernment is primarily con/dential( highly technical or policy determiningrests solely in petitioner by irtue of its constitutional power as the centralpersonnel agency of the goernment.15

Respondent aers otherwise( maintaining that the position of Corporate'ecretary is con/dential in nature and that it is within the powers of theG'#' Board of Trustees to declare it so.1+ 'he argues that in determiningthe proper classi/cation of a position( one should be guided by the natureof the oce or position( and not by its formal designation.1@

Thus( the Court is confronted with the following issues< whether the courtsmay determine the proper classi/cation of a position in goernmentE andwhether the position of corporate secretary in a G4CC is primarilycon/dential in nature.

The Court!s Ruling

The courts may determine the properclassi/cation of a position in goernment.

7nder )3ecutie 4rder >o. ,( or the 0dministratie Code of 1,@( ciilserice positions are currently classi/ed into either 1& career serice and &non$career serice positions.1

Career positions are characteriAed by< %1& entrance based on merit and/tness to be determined as far as practicable by competitie e3aminations(or based on highly technical quali/cationsE %& opportunity for adancementto higher career positionsE and %2& security of tenure.1,

#n addition( the 0dministratie Code( under its Boo: D( sub$classi/es careerpositions according to =appointment status(= diided into< 1& permanent $which is issued to a person who meets all the requirements for thepositions to which he is being appointed( including the appropriateeligibility prescribed( in accordance with the proisions of law( rules andstandards promulgated in pursuance thereofE and & temporary $ which isissued( in the absence of appropriate eligibles and when it becomesnecessary in the public interest to /ll a acancy( to a person who meets allthe requirements for the position to which he is being appointed e3cept theappropriate ciil serice eligibilityE proided( that such temporary

appointment shall not e3ceed twele months( and the appointee may bereplaced sooner if a quali/ed ciil serice eligible becomes aailable.6

ositions that do not fall under the career serice are considered non$careerpositions( which are characteriAed by< %1& entrance on bases other thanthose of the usual tests of merit and /tness utiliAed for the career sericeEand %& tenure which is limited to a period speci/ed by law( or which is co$terminous with that of the appointing authority or subKect to his pleasure( orwhich is limited to the duration of a particular proKect for which purposeemployment was made.1

)3amples of positions in the non$career serice enumerated in the0dministratie Code are<

'ec. ,. >on$Career 'erice. $ 3 3 3

The >on$Career 'erice shall include<

%1& )lectie ocials and their personal or con/dential sta"E

%& 'ecretaries and other ocials of Cabinet ran: who hold their positionsat the pleasure of the resident and their personal or con/dential sta"%s&E

%2& Chairman and members of commissions and boards with /3ed terms of oce and their personal or con/dential sta"E

%-& Contractual personnel or those whose employment in the goernment is

in accordance with a special contract to underta:e a speci/c wor: or Kob(requiring special or technical s:ills not aailable in the employing agency(to be accomplished within a speci/c period( which in no case shall e3ceedone year( and performs or accomplishes the speci/c wor: or Kob( under hisown responsibility with a minimum of direction and superision from thehiring agencyE and

%5& )mergency and seasonal personnel. %)mphasis supplied&

0 strict reading of the law reeals that primarily con/dential positions fallunder the non$career serice. #t is also clear that( unli:e career positions(primarily con/dential and other non$career positions do not hae securityof tenure. The tenure of a con/dential employee is co$terminous with thatof the appointing authority( or is at the latter!s pleasure. Foweer( thecon/dential employee may be appointed or remain in the position een

beyond the compulsory retirement age of +5 years.

'tated di"erently( the instant petition raises the question of whether theposition of corporate secretary in a G4CC( currently classi/ed by the C'C asbelonging to the permanent( career serice( should be classi/ed asprimarily con/dential( i.e.( belonging to the non$career serice. The currentG'#' Board holds the armatie iew( which is ardently opposed bypetitioner. etitioner maintains that it alone can classify goernmentpositions( and that the determination it made earlier( classifying theposition of G4CC corporate secretary as a permanent( career position(should be maintained.

0t present( there is no law enacted by the legislature that de/nes or setsde/nite criteria for determining primarily con/dential positions in the ciilserice. >either is there a law that gies an enumeration of positions

classi/ed as primarily con/dential.

9hat is aailable is only petitioner!s own classi/cation of ciil sericepositions( as well as Kurisprudence which describe or gie e3amples of con/dential positions in goernment.

Thus( the corollary issue arises< should the Court be bound by aclassi/cation of a position as con/dential already made by an agency orbranch of goernment

*urisprudence establishes that the Court is not bound by the classi/cationof positions in the ciil serice made by the legislatie or e3ecutiebranches( or een by a constitutional body li:e the petitioner.2 The Courtis e3pected to ma:e its own determination as to the nature of a particularposition( such as whether it is a primarily con/dential position or not(



16

without being bound by prior classi/cations made by other bodies.- The/ndings of the other branches of goernment are merely considered initialand not conclusie to the Court.5 Moreoer( it is well$established that incase the /ndings of arious agencies of goernment( such as the petitionerand the C0 in the instant case( are in conNict( the Court must e3ercise itsconstitutional role as /nal arbiter of all Kusticiable controersies anddisputes.+

iero . Fechanoa(@ interpreting R.0. >o. +6( or the Ciil 'erice 0ctof 1,5,( emphasiAed how the legislature refrained from declaring whichpositions in the bureaucracy are primarily con/dential( policy determiningor highly technical in nature( and declared that such a determination is

better left to the Kudgment of the courts. The Court( with the ponencia of *ustice *.B.?. Reyes( e3pounded( thus<

The change from the original wording of the bill %e3pressly declared by law3 3 3 to be policy determining( etc.& to that /nally approed and enacted%=or which are policy determining( etc. in nature=& came about because of the obserations of 'enator Taada( that as originally worded the proposedbill gae Congress power to declare by /at of law a certain position asprimarily con/dential or policy determining( which should not be the case.

The 'enator urged that since the Constitution spea:s of positions which are=primarily con/dential( policy determining or highly technical in nature(= itis not within the power of Congress to declare what positions are primarilycon/dential or policy determining. =#t is the nature alone of the positionthat determines whether it is policy determining or primarily con/dential.=Fence( the 'enator further obsered( the matter should be left to the

=proper implementation of the laws( depending upon the nature of theposition to be /lled=( and if the position is =highly con/dential= then theresident and the Ciil 'erice Commissioner must implement the law.

To a question of 'enator Tolentino( =But in positions that inoled bothcon/dential matters and matters which are routine( 3 3 3 who is going todetermine whether it is primarily con/dential= 'enator Taada replied<

=')>0T4R T0O080< 9ell. at the /rst instance( it is the appointing powerthat determines that< the nature of the position. #n case of conNict then it isthe Court that determines whether the position is primarily con/dential ornot.

=# remember a case that has been decided by the 'upreme Court inolingthe position of a district engineer in Baguio( and there. precisely( the nature

of the position was in issue. #t was the 'upreme Court that passed upon thenature of the position( and held that the resident could not transfer thedistrict engineer in Baguio against his consent.=

'enator Taada( therefore( proposed an amendment to section 5 of the bill(deleting the words =to be= and inserting in lieu thereof the words =ositionswhich are by their nature= policy determining( etc.( and deleting the lastwords =in nature=. 'ubsequently( 'enator adilla presented an amendmentto the Taada amendment by adopting the ery words of the Constitution(i.e.( =those which are policy determining( primarily con/dential and highlytechnical in nature=. The adilla amendment was adopted( and it was thislast wording with which section 5 was passed and was enacted %'enate

*ournal( May 16( 1,5,( Dol. 11( >o. 2( pp. +@,$+1&.

#t is plain that( at least since the enactment of the 1,5, Ciil 'erice 0ct %R.0. +6&( it is the nature of the position which /nally determines whether aposition is primarily con/dential( policy determining or highly technical.)3ecutie pronouncements can be no more than initial determinations thatare not conclusie in case of conNict. 0nd it must be so( or else it wouldthen lie within the discretion of title Chief )3ecutie to deny to any ocer(by e3ecutie /at( the protection of section -( 0rticle ;##( of theConstitution. %)mphasis and underscoring supplied&

This doctrine in iero was reiterated in seeral succeeding cases.,

resently( it is still the rule that e3ecutie and legislatie identi/cation or

classi/cation of primarily con/dential( policy$determining or highlytechnical positions in goernment is no more than mere declarations( anddoes not foreclose Kudicial reiew( especially in the eent of conNict. Larfrom what is merely declared by e3ecutie or legislatie /at( it is the natureof the position which /nally determines whether it is primarily con/dential(policy determining or highly technical( and no department in goernment isbetter quali/ed to ma:e such an ultimate /nding than the Kudicial branch.

*udicial reiew was also e3tended to determinations made by petitioner. #nGrio . Ciil 'erice Commission(26 the Court held<

The fact that the position of respondent 0randela as proincial attorney hasalready been classi/ed as one under the career serice and certi/ed aspermanent by the Ciil 'erice Commission cannot conceal or alter itshighly con/dential nature. 0s in Cadiente where the position of the city

legal ocer was duly attested as permanent by the Ciil 'ericeCommission before this Court declared that the same was primarilycon/dential( this Court holds that the position of respondent 0randela asthe proincial attorney of #loilo is also a primarily con/dential position. Torule otherwise would be tantamount to classifying two positions with thesame nature and functions in two incompatible categories.21

The framers of the 1,@ Constitution were of the same disposition. 'ection %& 0rticle #; %B& of the Constitution proides that<

0ppointments in the ciil serice shall be made only according to merit and/tness to be determined( as far as practicable( and( e3cept to positionswhich are policy$determining( primarily con/dential( or highly technical( bycompetitie e3amination.

The phrase =in nature= after the phrase =policy$determining( primarilycon/dential( or highly technical= was deleted from the 1,@ Constitution.2Foweer( the intent to lay in the courts the power to determine the natureof a position is eident in the following deliberation<

MR. L4P. 9hich department of goernment has the power or authority todetermine whether a position is policy$determining or primarily con/dentialor highly technical

LR. B)R>0'< The initial decision is made by the legislatie body or by thee3ecutie department( but the /nal decision is done by the court. The'upreme Court has constantly held that whether or not a position is policy$determining( primarily con/dential or highly technical( it is determined notby the title but by the nature of the tas: that is entrusted to it. Lor instance(we might hae a case where a position is created requiring that the holder



11

of that position should be a member of the Bar and the law classi/es thisposition as highly technical. Foweer( the 'upreme Court has said beforethat a position which requires mere membership in the Bar is not a highlytechnical position. 'ince the term !highly technical! means somethingbeyond the ordinary requirements of the profession( it is always a questionof fact.

MR. L4P. 8oes not Commissioner Bernas agree that the general rule shouldbe that the merit system or the competitie system should be upheld

LR. B)R>0'. # agree that that it should be the general ruleE that is why weare putting this as an e3ception.

MR. L4P. The declaration that certain positions are policy$determining(primarily con/dential or highly technical has been the source of practiceswhich amount to the spoils system.

LR. B)R>0'. The 'upreme Court has always said that( but if the law of theadministratie agency says that a position is primarily con/dential when infact it is not( we can always challenge that in court. #t is not enough thatthe law calls it primarily con/dential to ma:e it suchE it is the nature of theduties which ma:es a position primarily con/dential.

MR. L4P. The e"ect of a declaration that a position is policy$determining(primarily con/dential or highly technical $ as an e3ception $ is to ta:e itaway from the usual rules and proisions of the Ciil 'erice ?aw and toplace it in a class by itself so that it can aail itself of certain priileges not

aailable to the ordinary run of goernment employees and ocers.

LR. B)R>0'. 0s # hae already said( this classi/cation does not do awaywith the requirement of merit and /tness. 0ll it says is that there arecertain positions which should not be determined by competitiee3amination.

Lor instance( # hae Kust mentioned a position in the 0tomic )nergyCommission. 'hall we require a physicist to undergo a competitiee3amination before appointment 4r a con/dential secretary or anyposition in policy$determining administratie bodies( for that matter Thereare other ways of determining merit and /tness than competitiee3amination. This is not a denial of the requirement of merit and /tness.22%)mphasis supplied&

This e3plicit intent of the framers was recogniAed in Ciil 'ericeCommission . 'alas(2- and hilippine 0musement and Gaming Corporation. RilloraAa(25 which leae no doubt that the question of whether theposition of Corporate 'ecretary of G'#' is con/dential in nature may bedetermined by the Court.

The position of corporate secretary in a goernment ownedand controlled corporation( currently classi/ed as a permanentcareer position( is primarily con/dential in nature.

Lirst( there is a need to e3amine how the term =primarily con/dential innature= is described in Kurisprudence. 0ccording to 'alas(2+

rior to the passage of the 3 3 3 Ciil 'erice 0ct of 1,5, %R.0. >o. +6&(there were two recogniAed instances when a position may be considered

primarily con/dential< Lirstly( when the resident( upon recommendation of the Commissioner of Ciil 'erice( has declared the position to be primarilycon/dentialE and( secondly in the absence of such declaration( when by thenature of the functions of the oce there e3ists =close intimacy= betweenthe appointee and appointing power which insures freedom of intercoursewithout embarrassment or freedom from misgiings of betrayals of personal trust or con/dential matters of state.2@ %)mphasis supplied&

Foweer( 'alas declared that since the enactment of R.0. >o. +6 andiero(2 it is the nature of the position which /nally determines whether aposition is primarily con/dential or not( without regard to e3isting e3ecutieor legislatie pronouncements either way( since the latter will not bind the

courts in case of conNict.

0 position that is primarily con/dential in nature is de/ned as early as 1,56in 8e los 'antos . Mallare(2, through the ponencia of *ustice edro Tuason(to wit<

3 3 3 These positions %policy$determining( primarily con/dential and highlytechnical positions&( inole the highest degree of con/dence( or are closelybound up with and dependent on other positions to which they aresubordinate( or are temporary in nature. #t may truly be said that the goodof the serice itself demands that appointments coming under this categorybe terminable at the will of the ocer that ma:es them.

3 3 3 3

)ery appointment implies con/dence( but much more than ordinarycon/dence is reposed in the occupant of a position that is primarilycon/dential. The latter phrase denotes not only con/dence in the aptitudeof the appointee for the duties of the oce but primarily close intimacywhich insures freedom of discussion( delegation and reportingH withoutembarrassment or freedom from misgiings of betrayals of personal trustor con/dential matters of state. 3 3 3-6 %)mphasis supplied&

'ince the de/nition in 8e los 'antos came out( it has guided numerousother cases.-1 Thus( it still stands that a position is primarily con/dentialwhen by the nature of the functions of the oce there e3ists =closeintimacy= between the appointee and appointing power which insuresfreedom of intercourse without embarrassment or freedom from misgiingsof betrayals of personal trust or con/dential matters of state.

#n classifying a position as primarily con/dential( its functions must not beroutinary( ordinary and day to day in character.- 0 position is notnecessarily con/dential though the one in oce may sometimes handlecon/dential matters or documents.-2 4nly ordinary con/dence is requiredfor all positions in the bureaucracy. But( as held in 8e los 'antos(--H forsomeone holding a primarily con/dential position( more than ordinarycon/dence is required.

#n #ngles . Mutuc(-5 the Court( through Chief *ustice Roberto Concepcionas ponente( stated<

#ndeed( physicians handle con/dential matters. *udges( /scals and courtstenographers generally handle matters of similar nature. The residingand 0ssociate *ustices of the Court of 0ppeals sometimes inestigate( bydesignation of the 'upreme Court( administratie complaints against



1

Kudges of /rst instance( which are con/dential in nature. 4cers of the8epartment of *ustice( li:ewise( inestigate charges against municipal

Kudges. 0ssistant 'olicitors in the 4ce of the 'olicitor General ofteninestigate malpractice charges against members of the Bar. 0ll of theseare =con/dential= matters( but such fact does not warrant the conclusionthat the oce or position of all goernment physicians and all *udges( aswell as the aforementioned assistant solicitors and ocers of the8epartment of *ustice are primarily con/dential in character.-+ %)mphasissupplied&

#t is from 8e los 'antos that the so$called =pro3imity rule= was deried. 0position is considered to be primarily con/dential when there is a primarily

close intimacy between the appointing authority and the appointee( whichensures the highest degree of trust and unfettered communication anddiscussion on the most con/dential of matters.-@ This means that wherethe position occupied is already remote from that of the appointingauthority( the element of trust between them is no longer predominant.-4n further interpretation in Grio( this was clari/ed to mean that acon/dential nature would be limited to those positions not separated fromthe position of the appointing authority by an interening public ocer( orseries of public ocers( in the bureaucratic hierarchy.-,

Consequently( brought upon by their remoteness to the position of theappointing authority( the following were declared by the Court to be notprimarily con/dential positions< City )ngineerE56 0ssistant 'ecretary to theMayorE51 members of the Customs olice Lorce or ort atrolE5 'pecial0ssistant of the Goernor of the Central Ban:( )3port 8epartmentE52 'enior

)3ecutie 0ssistant( Cler: # and 'uperising Cler: # and 'tenographer in the4ce of the residentE5- Management and 0udit 0nalyst # of the LinanceMinistry #ntelligence BureauE55 roincial 0dministratorE5+ #nternal 'ecurity'ta" of the hilippine 0musement and Gaming Corporation %0GC4R&E5@Casino 4perations ManagerE5 and 'lot Machine 0ttendant.5, 0ll positionswere declared to be not primarily con/dential despite haing beenpreiously declared such either by their respectie appointing authorities orthe legislature.

The following were declared in Kurisprudence to be primarily con/dentialpositions< Chief ?egal Counsel of the hilippine >ational Ban:E+6Con/dential 0gent of the 4ce of the 0uditor( G'#'E+1 'ecretary of the'angguniang BayanE+ 'ecretary to the City MayorE+2 'enior 'ecurity and'ecurity Guard in the 4ce of the Dice MayorE+- 'ecretary to the Board of a goernment corporationE+5 City ?egal Counsel( City ?egal 4cer or City

0ttorneyE++ roincial 0ttorneyE+@ riate 'ecretaryE+ and Board'ecretary ## of the hilippine 'tate College of 0eronautics.+,

#n /ne( a primarily con/dential position is characteriAed by the closepro3imity of the positions of the appointer and appointee as well as thehigh degree of trust and con/dence inherent in their relationship.

#neluctably therefore( the position of Corporate 'ecretary of G'#'( or anyG4CC( for that matter( is a primarily con/dential position. The position isclearly in close pro3imity and intimacy with the appointing power. #t alsocalls for the highest degree of con/dence between the appointer andappointee.

#n classifying the position of Corporate 'ecretary of G'#' as primarily

con/dential( the Court too: into consideration the pro3imity rule togetherwith the duties of the corporate secretary( enumerated as follows<@6

1. erforms all duties( and e3ercises the power( as de/ned and enumeratedin 'ection -( Title #;( .8. >o. 11-+E

. 7nderta:es research into past Board resolutions( policies( decisions(directies and other Board action( and relate these to present mattersunder Board considerationE

2. 0nalyAes and ealuates the impact( e"ects and releance of mattersunder Board consideration on e3isting Board policies and proide the

indiidual Board members with these information so as to guide orenlighten them in their Board decisionE

-. Records( documents and reproduces in sucient number all proceedingsof Board meetings and disseminate releant Board decisionsQinformation tothose units concernedE

5. Coordinates with all functional areas and units concerned and monitorsthe manner of implementation of approed Board resolutions( policies anddirectiesE

+. Maintains a permanent( complete( systematic and secure compilation of all preious minutes of Board meetings( together with all their supportingdocumentsE

@. 0ttends( testi/es and produces in Court or in administratie bodies dulycerti/ed copies of Board resolutions( wheneer requiredE

. 7nderta:es the necessary physical preparations for scheduled BoardmeetingsE

,. ays honoraria of the members of the Board who attend Board meetingsE

16. Ta:es custody of the corporate seal and safeguards againstunauthoriAed useE and

11. erforms such other functions as the Board may direct andQor require.

The nature of the duties and functions attached to the position points to itshighly con/dential character.@1 The secretary reports directly to the board

of directors( without an interening ocer in between them.@ #n such anarrangement( the board e3pects from the secretary nothing less than thehighest degree of honesty( integrity and loyalty( which is crucial tomaintaining between them =freedom of intercourse without embarrassmentor freedom from misgiings or betrayals of personal trust or con/dentialmatters of state.=@2

The responsibilities of the corporate secretary are not merely clerical orroutinary in nature. The wor: inoles constant e3posure to sensitie policymatters and con/dential deliberations that are not always open to thepublic( as unscrupulous persons may use them to harm the corporation.Board members must hae the highest con/dence in the secretary toensure that their honest sentiments are always and fully e3pressed( in theinterest of the corporation. #n this respect( the nature of the corporatesecretary!s wor: is a:in to that of a personal secretary of a public ocial( a



12

position long recogniAed to be primarily con/dential in nature.@- The onlydistinction is that the corporate secretary is secretary to the entire board(composed of a number of persons( but who essentially act as one body(while the priate secretary wor:s for only one person. Foweer( the degreeof con/dence inoled is essentially the same.

>ot only do the tas:s listed point to sensitie and con/dential acts that thecorporate secretary must perform( they also include =such other functionsas the Board may direct andQor require(= a clear indication of a closelyintimate relationship that e3ists between the secretary and the board. #nsuch a highly acquainted relation( great trust and con/dence betweenappointer and appointee is required.

The loss of such trust or con/dence could easily result in the board!stermination of the secretary!s serices and ending of his term. This isunderstandably Kusti/ed( as the board could not be e3pected to functionfreely with a suspicious ocer in its midst. #t is for these same reasons that

Kurisprudence( as earlier cited( has consistently characteriAed personal orpriate secretaries( and board secretaries( as positions of a primarilycon/dential nature.@5

The C0 did not err in declaring that the position of Corporate 'ecretary of G'#' is primarily con/dential in nature and does not belong to the careerserice.

The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in arious G4CCs. The ocers li:ely assumed

their positions on permanent career status( e3pecting protection for theirtenure and appointments( but are now re$classi/ed as primarily con/dentialappointees. 'uch concern is unfounded( howeer( since the statutesthemseles do not classify the position of corporate secretary aspermanent and career in nature. Moreoer( there is no absolute guaranteethat it will not be classi/ed as con/dential when a dispute arises. 0s earlierstated( the Court( by legal tradition( has the power to ma:e a /naldetermination as to which positions in goernment are primarilycon/dential or otherwise. #n the light of the instant controersy( the Court!siew is that the greater public interest is sered if the position of acorporate secretary is classi/ed as primarily con/dential in nature.

Moreoer( it is a basic tenet in the country!s constitutional system that=public oce is a public trust(=@+ and that there is no ested right in publicoce( nor an absolute right to hold oce.@@ >o proprietary title attaches to

a public oce( as public serice is not a property right.@ )3ceptingconstitutional oces which proide for special immunity as regards salaryand tenure( no one can be said to hae any ested right in an oce.@, Therule is that oces in goernment( e3cept those created by the constitution(may be abolished( altered( or created anytime by statute.6 0nd any issueson the classi/cation for a position in goernment may be brought to anddetermined by the courts.1

9F)R)L4R)( premises considered( the etition is 8)>#)8. The 8ecision of the Court of 0ppeals dated 'eptember ,( 665( in C0$G.R. ' >o. 5+(as well as its Resolution of *une 5( 66+ are hereby 0LL#RM)8 in toto.



1-

GRINO V. CSC (1991)

The main issue in this petition is whether or not the position of a proincialattorney and those of his legal subordinates are primarily con/dential innature so that the serices of those holding the said items can beterminated upon loss of con/dence.

The facts of this case are simple.

etitioner 'i3to 8emaisip was the /rst appointed roincial 0ttorney of #loilo. Fe held this position from 0pril 2( 1,@2 up to *une ( 1,+ when heo"ered to resign and his resignation was accepted by the then 0cting

Goernor. #n his resignation letter( petitioner 8emaisip recommended theeleation of respondent Teotimo 0randela from 'enior ?egal 4cer toroincial 0ttorney. 4#C Goernor ?icurgo Tirador later on decided toappoint respondent 0randela as the roincial 0ttorney. Respondent CiriloGeleAon( on the other hand( was promoted from ?egal 4cer ## to 'enior?egal 4cer. Respondents Teodolfo 8ato$on and >elson Geduspan wereappointed to the position of ?egal 4cer ##.

4n Lebruary ( 1,( petitioner 'implicio Grio assumed oce as the newlyelected goernor of #loilo. 4ne month later( he informed respondent0randela and all the legal ocers at the roincial 0ttorney!s 4ce abouthis decision to terminate their serices. #n his letter( petitioner Grio mademention of an article pertaining to the #loilo oce of the roincial 0ttorneywhich appeared in the anay >ews and which =undermined that trust andcon/dence= that he reposed on them. etitioner 8emaisip was reappointed

by Goernor Grio as the roincial 0ttorney( The latter( on the other hand(arranged the replacements of the other legal ocers. Respondent CiriloGeleAon was replaced by petitioner 'antos 0guadera( respondent >elsonGeduspan was replaced by petitioner Manuel Casumpang and petitionerManuel Traia too: the place of respondent Teodolfo 8ato$on.

4n March 15( 1,( petitioner Goernor Grio formally terminated theserices of the respondents herein on the ground of loss of trust andcon/dence. This action ta:en by the goernor was appealed byrespondents to the Merit 'ystems rotection Board of the Ciil 'ericeCommission.

4n March ,( 1,,( the Merit 'ystems Board issued an 4rder declaring therespondents! termination illegal and ordering that they be immediatelyrestored to their positions with bac: salaries and other emoluments due

them. This was appealed by petitioner Grio to the Ciil 'ericeCommission.

#n Resolution >o. ,$@2+ dated 4ctober ,( 1,,( the Ciil 'ericeCommission armed the 4rder of the Merit 'ystems rotection Board( anddirected that the respondents be restored to their former legal positionsand be paid bac: salaries and other bene/ts.

etitioners /led a Motion for Reconsideration of the aboe$mentioned8ecision of the Ciil 'erice Commission. The motion was denied on8ecember @( 1,, in Resolution >o. ,$,6.

Fence( this petition for reiew whereby petitioners see: the reersal of Resolution >o. ,$@2+ of the Ciil 'erice Commission and Resolution >o.,$,6 which denied the Motion for Reconsideration.

9e shall /rst discuss whether the position of a proincial attorney isprimarily con/dential so that the holder thereof may be terminated uponloss of con/dence.

#n Cadiente s. 'antos( 1 this Court ruled that the position of a city legalocer is undeniably one which is primarily con/dential in this manner<

#n resoling the merits of the instant case( 9e /nd as an undeniable factthat the position of a City ?egal 4cer is one which is =primarilycon/dential.= This Court held in the case of Claudio s. 'ubido( ?$26+5(0ugust 21( 1,@1( -6 'CR0 -1( that the position of a City ?egal 4cer is

one requiring that utmost con/dence on the part of the mayor be e3tendedto said ocer. The relationship e3isting between a lawyer and his client(whether a priate indiidual or a public ocer( is one that depends on thehighest degree of trust that the latter entertains for the counsel selected.0s stated in the case of inero s. Fechanoa( ?$5+( 4ctober ( 1,++(1 'CR0 -1@ %citing 8e los 'antos s. Mallare( @ hil. ,&( the phrase=primarily con/dential= =denotes not only con/dence in the aptitude of theappointee for the duties of the oce but primarily close intimacy whichinsures freedom of intercourse( without embarrassment or freedom frommisgiings of betrayals of personal trust on con/dential matters of state.%)mphasis supplied.&

The tenure of ocials holding primarily con/dential positions ends uponloss of con/dence( because their term of oce lasts only as long ascon/dence in them endureE and thus their cessation inoles no remoal

%Corpus s. Cuaderno( ?$2@1( March 21( 1,+5( 12 'CR0 5,1$5,+&. 9hensuch con/dence is lost and the ocer holding such position is separatedfrom the serice( such cessation entails no remoal but an e3piration of histerm. #n the case of FernandeA s. Dillegas( ?$1@@( *une 26( 1,+5( 1-'CR0 5-( it was held I

#t is to be understood of course that ocials and employees holdingprimarily con/dential positions continue only for so long as con/dence inthem endures. The termination of their ocial relation can be Kusti/ed onthe ground of loss of con/dence because in that case their cessation fromoce inoles no remoal but merely the e3piration of the term of oce Itwo di"erent causes for the termination of ocial relations recogniAed inthe ?aw of ublic 4cers.

#n the case at bar( when the respondent City Mayor of 8aao terminated

the serices of the petitioner( he was not remoed or dismissed. Therebeing no remoal or dismissal it could not( therefore( be said that there wasa iolation of the constitutional proision that =no ocer or employee in theciil serice shall be suspended or dismissed e3cept for cause as proidedby law= %0rticle ;##$B( 'ection 1 %2&( 1,@2 Constitution&.

The matter of e3piration of a term of an ocer holding a primarilycon/dential position( as distinguished from a remoal or dismissal( wasfurther e3plained by this Court( in the case of #ngles s. Mutuc( ?$62,6(>oember ,( 1,+6( + 'CR0 1@1( in this wise<

9hen an incumbent of a primarily con/dential position holds oce at thepleasure of the appointing power( and the pleasure turns into a displeasure(the incumbent is not remoed or dismissed from oce I his term merelye3pires( in much the same way as an ocer( whose right thereto ceases



15

upon e3piration of the /3ed term for which he had been appointed orelected( is not and cannot be deemed remoed or dismissed therefrom(upon e3piration of said term.

The main di"erence between the former I the primary con/dential ocerI and the latter is that the latter!s term is /3ed or de/nite( whereas that of the former is not pre$/3ed( but inde/nite( at the time of his appointment orelection( and becomes /3ed and determined when the appointing powere3presses its decision to put an end to the serices of the incumbent. 9henthis eent ta:es place( the latter is not remoed or dismissed from oce Ihis term merely e3pired.

The foregoing merely elaborates what this Court( spea:ing thru *ustice *.B.?. Reyes( stressed in the case Corpus s. Cuaderno( ?$2@1( March 21(1,+5( 12 'CR0 5,1. #n said case 9e stated that<

The tenure of ocials holding primarily con/dential positions ends uponloss of con/dence( because their term of oce lasts only as long ascon/dence in them endures( and thus their cessation inoles no remoal.

#n Besa s. hilippine >ational Ban:( 2 where petitioner( who was the Chief ?egal Counsel with the ran: of Dice resident of the respondent hilippine>ational Ban:( questioned his being transferred to the position of Consultant on ?egal Matters in the 4ce of resident( this Court(considering said position to be primarily con/dential held I

#t cannot be denied of course that the wor: of the Chief ?egal Counsel of respondent Ban:( as of any lawyer for that matter( is impressed with ahighly technical aspect. 0s had been pointed out( howeer( it does notmean that thereby a client is precluded from substituting in his steadanother practitioner. That is his rightE Ms decision to terminate therelationship once made is impressed with the attribute of /nality. Thelawyer cannot be heard to complainE it is enough that his right tocompensation earned be duly respected.

#n that sense( it is equally clear that where the position parta:es of theattributes of being both technical and con/dential( there can be noinsistence of a /3ed or a de/nite term if the latter aspect predominates. Toparaphrase the language of the Chief *ustice in the opinion preiously cited(the incumbent of a primarily con/dential position( as was the case of petitioner( should realiAe that at any time the appointing power may decide

that his serices are no longer needed. 0s thus correctly iewed( Corpus .Cuaderno cannot be read as lending support to petitioner!s e"orts to retainhis position as Chief ?egal Counsel of respondent Ban:( contrary to itswishes as so e3plicitly declared in its Resolution >o. 1652.

The question now is I should the ruling in Cadiente be made applicable toa proincial attorney 0ccording to the petitioners( Cadiente must beapplied because by the nature of the functions of a proincial attorney anda city legal ocer( their positions are both primarily con/dential.Respondents( on the other hand( maintain that since the Ciil 'ericeCommission has already classi/ed the position of priate respondent0randela as a career position and certi/ed the same as permanent( he isremoable only for cause( and therefore Cadiente is not applicable.

9e agree with the petitioners and answer the question earlier propoundedin the armatie. 0 city legal ocer appointed by a city mayor to wor: forand in behalf of the city has for its counterpart in the proince a proincialattorney appointed by the proincial goernor. #n the same ein( amunicipality may hae a municipal attorney who is to be named by theappointing power. The positions of city legal ocer and proincial attorneywere created under Republic 0ct >o. 515 which categoriAed them togetheras positions of =trust=( to wit<

'ec. 1,. Creation of positions of roincial 0ttorney and City ?egal ocer. I To enable the proincial and city goernments to aail themseles of thefull time and trusted serices of legal ocers( the positions of proincial

attorney and city legal ocer may be created and such ocials shall beappointed in such manner as is proided for under 'ection four of this 0ct.Lor this purpose the functions hitherto performed by the proincial and city/scals in sering as legal adiser and legal ocer for ciil cases of theproince and city shall be transferred to the proincial attorney and citylegal ocer( respectiely. %)mphasis supplied.& -

By irtue of Republic 0ct >o. 515( both the proincial attorney and citylegal ocer sere as the legal adiser and legal ocer for the ciil cases of the proince and the city that they wor: for. Their serices are preciselycategoriAed by law to be =trusted serices.=

0 comparison of the functions( powers and duties of a city legal ocer asproided in the ?ocal Goernment Code with those of the proincialattorney of #loilo would reeal the close similarity of the two positions. 'aid

functions clearly reNect the highly con/dential nature of the two oces andthe need for a relationship based on trust between the ocer and the headof the local goernment unit he seres. The =trusted serices= to berendered by the ocer would mean such trusted serices of a lawyer to hisclient which is of the highest degree of trust. 5

The fact that the position of respondent 0randela as proincial attorney hasalready been classi/ed as one under the career serice and certi/ed aspermanent by the Ciil 'erice Commission cannot conceal or alter itshighly con/dential nature. 0s in Cadiente where the position of the citylegal ocer was duly attested as permanent by the Ciil 'ericeCommission before this Court declared that the same was primarilycon/dential( this Court holds that the position of respondent 0randela asthe proincial attorney of #loilo is also a primarily con/dential position. Torule otherwise would be tantamount to classifying two positions with the

same nature and functions in two incompatible categories. This being thecase( and following the principle that the tenure of an ocial holding aprimarily con/dential position ends upon loss of con/dence( + the Court/nds that priate respondent 0randela was not dismissed or remoed fromoce when his serices were terminated. Fis term merely e3pired.

The attorney$client relationship is strictly personal because it inolesmutual trust and con/dence of the highest degree( irrespectie of whetherthe client is a priate person or a goernment functionary. @ The personalcharacter of the relationship prohibits its delegation in faor of anotherattorney without the client!s consent.

Foweer( the legal wor: inoled( as distinguished from the relationship(can be delegated. , The practice of delegating wor: of a counsel to hissubordinates is apparent in the 4ce of the roincial 0ttorney wherein it



1+

can be gleaned from the power granted to such ocer to e3erciseadministratie superision and control oer the acts and decision of hissubordinates. 16

#t is therefore possible to distinguish positions in the ciil serice wherelawyers act as counsel in con/dential and non$con/dential positions bysimply loo:ing at the pro3imity of the position in question in relation to thatof the appointing authority. 4ccupants of such positions would beconsidered con/dential employees if the predominant reason they werechosen by the appointing authority is the latter!s belief that he can share aclose intimate relationship with the occupant which measures freedom of discussion( without fear of embarrassment or misgiings of possible

betrayal of personal trust on con/dential matters of state. 11 This implies that positions in the ciil serice of such nature would belimited to those not separated from the position of the appointing authorityby an interening public ocer( or series of public ocers( in thebureaucratic hierarchy. This is an additional reason why the positions of =City ?egal 4cer= and =riate 'ecretary to the resident= wereconsidered primarily con/dential by the Court. 1 4n the other hand( acustoms policeman sering in the Farbor atrol( in relation to theCommissioner of Customs( and an e3ecutie assistant( stenographer( orcler: in the 4ce of the resident( were not considered so by the Court.12

There is no need to e3tend the professional relationship to the legal sta" which assists the con/dential employer aboe described. 'ince thepositions occupied by these subordinates are remote from that of the

appointing authority( the element of trust between them is no longerpredominant. The importance of these subordinates to the appointingauthority now lies in the contribution of their legal s:ills to facilitate thewor: of the con/dential employee. 0t this leel of the bureaucracy( anyimpairment of the appointing authority!s interest as a client( which may becaused through the breach of residual trust by any of these lower$ran:edlawyers( can be anticipated and preented by the con/dential employee( asa reasonably competent oce head( through the e3ercise of his power to=reiew( approe( reerse( or modify= their acts and decisions. 1- 0t thisleel( the client can be protected without need of imposing upon the lower$ran:ed lawyers the /duciary duties inherent in the attorney$clientrelationship. Fence( there is now no obstacle to giing full e"ect to thesecurity of tenure principle to these members of the ciil serice.

Thus( with respect to the legal assistants or subordinates of the proincial

attorney namely( Cirilo GeleAon( Teodolfo 8ato$on and >elson Geduspan(the Cadiente and Besa rulings cannot apply. To recall( said cases speci/callydealt with the positions of city legal ocer of the city and chief legalcounsel of the >B. There was no reference to their legal sta" orsubordinates. 0s head of their respectie departments( the city legalocer( the proincial attorney or the >B chief legal counsel cannot beli:ened to their subordinates. The latter hae been employed due to theirtechnical quali/cations. Their positions are highly technical in character andnot con/dential( so they are permanent employees( and they belong to thecategory of classi/ed employees under the Ciil 'erice ?aw. Thus( theitems of 'enior ?egal 4cer and ?egal 4cer ## remain permanent asclassi/ed by the Ciil 'erice Commission. Consequently( the holders of thesaid items( being permanent employees( enKoy security of tenure asguaranteed under the Constitution.

This notwithstanding( petitioners contend that respondents are estoppedfrom protesting the termination of their serices because of their actionswhich( if ta:en together( would allegedly reeal that they hae acceptedtheir termination( such as< applying for clearances( not remaining in oceand signing their payroll for March 15( 1, ac:nowledging therein thattheir appointment =terminatedQe3pired.=

9e cannot agree with petitioners in this regard. The respondents did theaboe$mentioned acts because their serices were actually dispensed withby petitioner Goernor Grio. 0s a consequence of their termination( theycould not remain in oce and as required of any goernment employeewho is separated from the goernment serice( they had to apply for

clearances. Foweer( this did not mean that they belieed in principle thatthey were alidly terminated. The same should not preent them from lateron questioning the alidity of said termination.

The facts clearly show that respondents protested their termination withthe Ciil 'erice Commission within a month from the time of theirtermination. The Court holds that the said protest was /led within areasonable period of time.

9F)R)L4R)( and in iew of the foregoing( the petition is GR0>T)8 withrespect to the position of proincial attorney of #loilo. Respondent Teotimo0randela is hereby ordered to acate said position upon the /nality of this8ecision. The 8ecision of the respondent Ciil 'erice Commissionpertaining to respondents Cirilo GeleAon( Teodolfo 8ato$on and >elsonGeduspan is hereby 0LL#RM)8.



1@

BRIONES V. OSMENA (1958)

1. 7B?#C 4LL#C)R'E 0B4?#T#4> 4L 4LL#C)E R#GFT C0>>4T B) );)RC#')8#> D#4?0T#4> 4L C#D#? ')RD#C) ?09. I 9hile abolition of the oce doesnot imply remoal of the incumbent( the rule is true only where theabolition is made in good faithE the right to abolish can not be used to coerthe discharge of employees in iolation of the ciil serice law nor can it bee3ercised for personal or political reasons. %Gacho( )t. 0l. . 4smea( )t 0l.(162 hil.( 2@.&

8 ) C # ' # 4 >

R))'( *.B.?.( *.<

This is an action for mandamus with damages( to declare the abolition of petitionersU positions oid and to order the respondent City Mayor toreinstate them to their former positions.

etitioner Concepcion G. Briones is a /rst grade ciil serice eligible. 4nMarch -( 1,2@( she was appointed Cler:$'tenographer in the 4ce of theCity Treasurer of Cebu and on 0ugust 5( 1,2@( she was transferred to the4ce of the City Mayor( in the same capacity as Cler:$'tenographer( butwith permanent status( since then she remained in serice continuously(receiing repeated promotions and increases in salary.

etitioner Laustino 4. Rosagaran( on the other hand( is a second grade ciilserice eligible. Fe was employed in the 4ce of the City Mayor of Cebusince *uly( 1,-6( and promoted to 0dministratie 4cer. #n 1,55( he waspublicly declared and adKudged =Model )mployee.= %0nne3 =G=( records( p.&.

4n *anuary 5( 1,5+( the Municipal Board of the City of Cebu( acting uponthe request of the respondent City Mayor embodied in his letter( dated

*anuary -( 1,5+( passed Resolution >o. 1( series of 1,5+( creating 25positions in the City MayorUs oce( and appropriating therefor thenecessary amount for salaries for si3 months( the amounts of (666 foroce equipment( (666 for oce supplies and an additional amount of 16(666 for the City MayorUs discretionary fund.

The new positions were<chanrob1es irtual 1aw library

riate 'ecretary at 55 a month 1(526.66

0ssistant riate 'ecretary at 15 a month 1(,6.66

Two %& Con/dential 0ssistants at 66 each per month (-66.66

Two %& ?iaison 4cers at 56 each per month 2(666.66

4ne 8rier at 1@5 per month 1(656.66

4ne 8rier at 16 per month @6.66

4ne *anitor at 16 per month @6.66

Two %& ?aborers at 16 each per month 1(--6.66

Two %& 'tenographers at 156 each per month 1(66.66

4ne Receptionist at 126 per month @6.66

ublic Relations 4cer at 266 per month 1(66.66

Two 0ssistant ublic Relations 4cers at 156 each per

month 1(66.66

4ne 'tenographer at 156 per month ,66.66

4ne ?aborer at 16 per month @6.66


Chief( Complaints and #nestigation 8iision at 266 per

month 1(66.66

Two %& ?egal 0ssistants at 66 each per month (-66.66

4ne ?aborer at 16 per month @6.66


Three %2& #nformers at 156 each per month (@66.66

'een %@& #nformers at 16 each per month 5(6-6.66

IIIII

Total 2-(656.66

IIIII

4n Lebruary 1-( 1,5+( the Municipal Board in its Resolution >o. 1@( seriesof 1,5+( approed 4rdinance >o. 1,( abolishing 15 positions in the CityMayorUs oce and 1@ positions in the 4ce of the Municipal Board( or a

total of 2 positions in both oces. 0mong the positions abolished in the4ce of the City Mayor were those occupied by petitioners. %)3h. =F=( pp.2$-&. The 4rdinance was approed by the City Mayor on Lebruary 6(1,5+.

ursuant to said 4rdinance >o. 1,( the City Mayor( on Lebruary 2( 1,5+(wrote separate letters to petitioners notifying them of the abolition of theirpositions and adising them of the termination of their serices =e"ectieat the close of business hours on March 15( 1,5+.= %)3hs. # and #$1( Records(pp. 5$+&. #n reply thereto( petitioners Briones and Rosagaran(respectiely( wrote in March 1,5+( separate letters to the respondent CityMayor %1& ac:nowledging receipt his letters of separation( %& protesting theabolition of their positions( and %2& informing him that they will notrelinquish their positions =until otherwise determined by higher competentauthorities or courts.= %)3hs. * and *$1( Records( pp. @$&.



1

0s the respondent City Mayor persisted in terminating their serices( addedto the fact that the respondents City Treasurer and City 0uditor refused topay their salaries after March 1+( 1,5+( petitioners /led the instant petitionfor reinstatement( bac: salaries( moral damages and attorneyUs fees.

The Court of Lirst #nstance of CebV decided in faor of the petitioners anddeclared the abolition of their oces null and oid for lac: of approal of the 8epartment Fead( as required by the Circular of 0pril 2( 1,5- and by)3ecutie 4rder >o. 56+( series of 1,2-E consequently( it rendered

Kudgment against defendants ordering them to reinstate the two petitionersto their former positions and to pay their bac: salaries as well as the costs

of the suit. Lrom this Kudgment the respondents appealed.0ppellants contend that the proisions of )3ecutie 4rder >o. 56+( 'eries of 1,2-( as reiterated in the roincial Circular of 0pril 2( 1,5-( requiringpreious approal of the 8epartment Fead concerned before abolition of positions by local legislatie bodies can ta:e e"ect( is no longer operatiesince the Commonwealth( in iew of the fact that the Constitution ests inthe resident of the hilippines %0rt. D##( section 16 %1& only generalsuperision( and not control( oer local goernments. This contention issustained by the recent doctrines of this Court( particularly RodrigueA .Montinola %,- hil.( ,+-E 56 4". GaA.( 16H -6& and 8omingueA . ascual%161 hil.( 21&.

The case of ulutan . 8iAon( ,, hil.( 1+E 5 4". GaA.( 26-@( ino:ed bythe trial court( is of no application since that case referred to police ocers(

whose remoal or suspension is goerned by entirely di"erent laws%)3ecutie 4rder >o. 1@5( 'eries 1,2( and Republic 0ct 55@&. Moreoer( inthe ulutan case( the alidity and constitutionality of the roincial Circularand of )3ecutie 4rder >o. 56+( supra( was not in issue.

>eertheless( in our opinion( the decision appealed from should besustained( but on di"erent grounds. 4ur reiew of the eidence on recordconinced us that the reasons gien for the abolition of the positions of theappellees %alleged to be economy and eciency& are untrue( and constitutea mere subterfuge for the remoal without cause of the said appellees( iniolation of the security of Ciil 'erice tenures as proided by theConstitution.

Considering that the appellees hae sered in the oce of the Mayor of Cebu( since Commonwealth days( before the warE that their eciency and

merit has been attested by repeated and constant promotions andincreases in salaryE that petitioner Rosagaran was een proclaimed =Model)mployee= as recently as 1,55E and that Kust a short time before theabolition of their positions( the respondents had created for the same oceof the City Mayor no less than 25 new positions calling for an outlay of +(166 per annum( almost +(666 a month( the e3cuse of promotingeciency and economy is most transparent and unimpressie. 0 decentrespect for the Ciil 'erice proisions of our Constitution dictates that ciilserice eligibles( li:e petitioners herein who hae rendered long andhonorable serice( should not be sacri/ced in faor of non$eligibles gienpositions of recent creation( nor should they be left at the mercy of politicalchanges. #n ulutan . 8iAon %supra& we said<Kgc<chanrobles.com.ph

=#t is eident that the mayor could not legally remoe the petitioner withoutcause( for being a member of the Ciil 'erice( his tenure of oce is

protected by 'ection -( 0rticle ;## of the Constitution( whichsays<chanrob1es irtual 1aw library

W>o ocer or employee in the Ciil 'erice shall be remoed or suspendede3cept for cause as proided by law.U

The Committee on Ciil 'erice of the Constitutional Conention( inrecommending said proision said<chanrob1es irtual 1aw library

W. . . The merit system will be ine"ectie if no safeguards are placed aroundthe separation and remoal of the public employees. The CommitteesUreport requires that remoal shall be made only for causeU and in the

manner proided by law. This means that there should be bona /de reasonsand action may be ta:en only after the employee shall hae been gien afair hearing. This a"ords to public employees reasonable security of tenure.= %0ruego( The Lraming of the hilippine Constitution( 1,-, )d.( p.5+@&

This Court has always upheld these salutary principles. #n our recentdecision in Gacho( )t. 0l. . 4smea( etc. )t. 0l.( ,- hil.( 6( we ruled thatwhile abolition of the oce does not imply remoal of the incumbent( therule is true only where the abolition is made in good faithE that the right toabolish can not be used to discharge employees in iolation of the ciilserice law nor can it be e3ercised for personal or political reasons. Thatruling is conclusie on the case now before us.

0ppellants %respondents below& aer that the petition for mandamus should

hae been dismissed because the appellees hae not e3hausted theaailable administratie remedies. The 'tipulation of Lacts( howeer(e3pressly admitted paragraph 1 of the petition( alleging =that alladministratie remedies hae been e3hausted by the petitioners for thespeedy and ample protection of their rights.= %Records( p. 52&. Theassignment of error is not only groundless but improper.

The decision appealed from is armed( with costs against respondents inboth instances. 'o ordered



1,

ABAKADA GURO V. PURISIMA (2008)

This petition for prohibition1 see:s to preent respondents fromimplementing and enforcing Republic 0ct %R0& ,225 %0ttrition 0ct of 665&.

R0 ,225 was enacted to optimiAe the reenue$generation capability andcollection of the Bureau of #nternal Reenue %B#R& and the Bureau of Customs %B4C&. The law intends to encourage B#R and B4C ocials andemployees to e3ceed their reenue targets by proiding a system of rewards and sanctions through the creation of a Rewards and #ncentiesLund %Lund& and a Reenue erformance )aluation Board %Board&.2 #tcoers all ocials and employees of the B#R and the B4C with at least si3

months of serice( regardless of employment status.- The Lund is sourced from the collection of the B#R and the B4C in e3cess of their reenue targets for the year( as determined by the 8eelopmentBudget and Coordinating Committee %8BCC&. 0ny incentie or reward ista:en from the fund and allocated to the B#R and the B4C in proportion totheir contribution in the e3cess collection of the targeted amount of ta3reenue.5

The Boards in the B#R and the B4C are composed of the 'ecretary of the8epartment of Linance %84L& or hisQher 7ndersecretary( the 'ecretary of the 8epartment of Budget and Management %8BM& or hisQher7ndersecretary( the 8irector General of the >ational )conomic8eelopment 0uthority %>)80& or hisQher 8eputy 8irector General( theCommissioners of the B#R and the B4C or their 8eputy Commissioners( two

representaties from the ran:$and$/le employees and a representatiefrom the ocials nominated by their recogniAed organiAation.+

)ach Board has the duty to %1& prescribe the rules and guidelines for theallocation( distribution and release of the LundE %& set criteria andprocedures for remoing from the serice ocials and employees whosereenue collection falls short of the targetE %2& terminate personnel inaccordance with the criteria adopted by the BoardE %-& prescribe a systemfor performance ealuationE %5& perform other functions( including theissuance of rules and regulations and %+& submit an annual report toCongress.@

The 84L( 8BM( >)80( B#R( B4C and the Ciil 'erice Commission %C'C&were tas:ed to promulgate and issue the implementing rules andregulations of R0 ,225( to be approed by a *oint Congressional 4ersight

Committee created for such purpose.,

etitioners( ino:ing their right as ta3payers /led this petition challengingthe constitutionality of R0 ,225( a ta3 reform legislation. They contend that(by establishing a system of rewards and incenties( the law =transformsHthe ocials and employees of the B#R and the B4C into mercenaries andbounty hunters= as they will do their best only in consideration of suchrewards. Thus( the system of rewards and incenties inites corruption andundermines the constitutionally mandated duty of these ocials andemployees to sere the people with utmost responsibility( integrity( loyaltyand eciency.

etitioners also claim that limiting the scope of the system of rewards andincenties only to ocials and employees of the B#R and the B4C iolatesthe constitutional guarantee of equal protection. There is no alid basis for

classi/cation or distinction as to why such a system should not apply toocials and employees of all other goernment agencies.

#n addition( petitioners assert that the law unduly delegates the power to /3reenue targets to the resident as it lac:s a sucient standard on thatmatter. 9hile 'ection @%b& and %c& of R0 ,225 proides that B#R and B4Cocials may be dismissed from the serice if their reenue collections fallshort of the target by at least @.5X( the law does not( howeer( /3 thereenue targets to be achieed. #nstead( the /3ing of reenue targets hasbeen delegated to the resident without sucient standards. #t willtherefore be easy for the resident to /3 an unrealistic and unattainabletarget in order to dismiss B#R or B4C personnel.

Linally( petitioners assail the creation of a congressional oersightcommittee on the ground that it iolates the doctrine of separation of powers. 9hile the legislatie function is deemed accomplished andcompleted upon the enactment and approal of the law( the creation of thecongressional oersight committee permits legislatie participation in theimplementation and enforcement of the law.

#n their comment( respondents( through the 4ce of the 'olicitor General(question the petition for being premature as there is no actual case orcontroersy yet. etitioners hae not asserted any right or claim that willnecessitate the e3ercise of this CourtUs Kurisdiction. >eertheless(respondents ac:nowledge that public policy requires the resolution of theconstitutional issues inoled in this case. They assert that the allegationthat the reward system will breed mercenaries is mere speculation and

does not suce to inalidate the law. 'een in conKunction with the declaredobKectie of R0 ,225( the law alidly classi/es the B#R and the B4C becausethe functions they perform are distinct from those of the other goernmentagencies and instrumentalities. Moreoer( the law proides a sucientstandard that will guide the e3ecutie in the implementation of itsproisions. ?astly( the creation of the congressional oersight committeeunder the law enhances( rather than iolates( separation of powers. #tensures the ful/llment of the legislatie policy and seres as a chec: to anyoer$accumulation of power on the part of the e3ecutie and theimplementing agencies.

0fter a careful consideration of the conNicting contentions of the parties(the Court /nds that petitioners hae failed to oercome the presumption of constitutionality in faor of R0 ,225( e3cept as shall hereafter be discussed.

0ctual Case 0nd Ripeness

0n actual case or controersy inoles a conNict of legal rights( an assertionof opposite legal claims susceptible of Kudicial adKudication.16 0 closelyrelated requirement is ripeness( that is( the question must be ripe foradKudication. 0nd a constitutional question is ripe for adKudication when thegoernmental act being challenged has a direct aderse e"ect on theindiidual challenging it.11 Thus( to be ripe for Kudicial adKudication( thepetitioner must show a personal sta:e in the outcome of the case or aninKury to himself that can be redressed by a faorable decision of theCourt.1

#n this case( aside from the general claim that the dispute has ripened intoa Kudicial controersy by the mere enactment of the law een without anyfurther oert act(12 petitioners fail either to assert any speci/c and



6

concrete legal claim or to demonstrate any direct aderse e"ect of the lawon them. They are unable to show a personal sta:e in the outcome of thiscase or an inKury to themseles. 4n this account( their petition isprocedurally in/rm.

This notwithstanding( public interest requires the resolution of theconstitutional issues raised by petitioners. The grae nature of theirallegations tends to cast a cloud on the presumption of constitutionality infaor of the law. 0nd where an action of the legislatie branch is alleged tohae infringed the Constitution( it becomes not only the right but in fact theduty of the Kudiciary to settle the dispute.1-

0ccountability of ublic 4cers

'ection 1( 0rticle 11 of the Constitution states<

'ec. 1. ublic oce is a public trust. ublic ocers and employees must atall times be accountable to the people( sere them with utmostresponsibility( integrity( loyalty( and eciency( act with patriotism( and

Kustice( and lead modest lies.

ublic oce is a public trust. #t must be discharged by its holder not for hisown personal gain but for the bene/t of the public for whom he holds it intrust. By demanding accountability and serice with responsibility(integrity( loyalty( eciency( patriotism and Kustice( all goernment ocialsand employees hae the duty to be responsie to the needs of the people

they are called upon to sere.

ublic ocers enKoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in faor of B#R and B4Cocials and employees. R0 ,225 operates on the basis thereof andreinforces it by proiding a system of rewards and sanctions for the purposeof encouraging the ocials and employees of the B#R and the B4C toe3ceed their reenue targets and optimiAe their reenue$generationcapability and collection.15

The presumption is disputable but proof to the contrary is required to rebutit. #t cannot be oerturned by mere conKecture or denied in adance %aspetitioners would hae the Court do& specially in this case where it is anunderlying principle to adance a declared public policy.

etitionersU claim that the implementation of R0 ,225 will turn B#R and B4Cocials and employees into =bounty hunters and mercenaries= is not onlywithout any factual and legal basisE it is also purely speculatie.

0 law enacted by Congress enKoys the strong presumption of constitutionality. To Kustify its nulli/cation( there must be a clear andunequiocal breach of the Constitution( not a doubtful and equiocal one.1+

To inalidate R0 ,225 based on petitionersU baseless supposition is ana"ront to the wisdom not only of the legislature that passed it but also of the e3ecutie which approed it.

ublic serice is its own reward. >eertheless( public ocers may by law berewarded for e3emplary and e3ceptional performance. 0 system of incenties for e3ceeding the set e3pectations of a public oce is notanathema to the concept of public accountability. #n fact( it recogniAes and

reinforces dedication to duty( industry( eciency and loyalty to publicserice of desering goernment personnel.

#n 7nited 'tates . Matthews(1@ the 7.'. 'upreme Court alidated a lawwhich awards to ocers of the customs as well as other parties an amountnot e3ceeding one$half of the net proceeds of forfeitures in iolation of thelaws against smuggling. Citing 8orsheimer . 7nited 'tates(1 the 7.'.'upreme Court said<

The o"er of a portion of such penalties to the collectors is to stimulate andreward their Aeal and industry in detecting fraudulent attempts to eadepayment of duties and ta3es.

#n the same ein( employees of the B#R and the B4C may by law be entitledto a reward when( as a consequence of their Aeal in the enforcement of ta3and customs laws( they e3ceed their reenue targets. #n addition( R0 ,225establishes safeguards to ensure that the reward will not be claimed if itwill be either the fruit of =bounty hunting or mercenary actiity= or theproduct of the irregular performance of ocial duties. 4ne of theseprecautionary measures is embodied in 'ection of the law<

')C. . ?iability of 4cials( )3aminers and )mployees of the B#R and theB4C. Y The ocials( e3aminers( and employees of the B#RH and the B4CHwho iolate this 0ct or who are guilty of negligence( abuses or acts of malfeasance or misfeasance or fail to e3ercise e3traordinary diligence inthe performance of their duties shall be held liable for any loss or inKurysu"ered by any business establishment or ta3payer as a result of such

iolation( negligence( abuse( malfeasance( misfeasance or failure toe3ercise e3traordinary diligence.

)qual rotection

)quality guaranteed under the equal protection clause is equality under thesame conditions and among persons similarly situatedE it is equality amongequals( not similarity of treatment of persons who are classi/ed based onsubstantial di"erences in relation to the obKect to be accomplished.1,9hen things or persons are di"erent in fact or circumstance( they may betreated in law di"erently. #n Dictoriano . )liAalde Rope 9or:ersU 7nion(6this Court declared<

The guaranty of equal protection of the laws is not a guaranty of equality inthe application of the laws upon all citiAens of the 'Htate. #t is not(

therefore( a requirement( in order to aoid the constitutional prohibitionagainst inequality( that eery man( woman and child should be a"ectedali:e by a statute. )quality of operation of statutes does not meanindiscriminate operation on persons merely as such( but on personsaccording to the circumstances surrounding them. #t guarantees equality(not identity of rights. The Constitution does not require that things whichare di"erent in fact be treated in law as though they were the same. Theequal protection clause does not forbid discrimination as to things that aredi"erent. #t does not prohibit legislation which is limited either in the obKectto which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allowsclassi/cation. Classi/cation in law( as in the other departments of :nowledge or practice( is the grouping of things in speculation or practicebecause they agree with one another in certain particulars. 0 law is not



1

inalid because of simple inequality. The ery idea of classi/cation is that of inequality( so that it goes without saying that the mere fact of inequality inno manner determines the matter of constitutionality. 0ll that is required of a alid classi/cation is that it be reasonable( which means that theclassi/cation should be based on substantial distinctions which ma:e forreal di"erences( that it must be germane to the purpose of the lawE that itmust not be limited to e3isting conditions onlyE and that it must applyequally to each member of the class. This Court has held that the standardis satis/ed if the classi/cation or distinction is based on a reasonablefoundation or rational basis and is not palpably arbitrary.

#n the e3ercise of its power to ma:e classi/cations for the purpose of

enacting laws oer matters within its Kurisdiction( the state is recogniAed asenKoying a wide range of discretion. #t is not necessary that theclassi/cation be based on scienti/c or mar:ed di"erences of things or intheir relation. >either is it necessary that the classi/cation be made withmathematical nicety. Fence( legislatie classi/cation may in many casesproperly rest on narrow distinctions( for the equal protection guaranty doesnot preclude the legislature from recogniAing degrees of eil or harm( andlegislation is addressed to eils as they may appear.1 %emphasis supplied&

The equal protection clause recogniAes a alid classi/cation( that is( aclassi/cation that has a reasonable foundation or rational basis and notarbitrary. 9ith respect to R0 ,225( its e3pressed public policy is theoptimiAation of the reenue$generation capability and collection of the B#Rand the B4C.2 'ince the subKect of the law is the reenue$ generationcapability and collection of the B#R and the B4C( the incenties andQor

sanctions proided in the law should logically pertain to the said agencies.Moreoer( the law concerns only the B#R and the B4C because they haethe common distinct primary function of generating reenues for thenational goernment through the collection of ta3es( customs duties( feesand charges.

The B#R performs the following functions<

'ec. 1. The Bureau of #nternal Reenue. Y The Bureau of #nternal Reenue(which shall be headed by and subKect to the superision and control of theCommissioner of #nternal Reenue( who shall be appointed by the residentupon the recommendation of the 'ecretary of the 84LH( shall hae thefollowing functions<

1. 0ssess and collect all ta3es( fees and charges and account for all

reenues collectedE. )3ercise duly delegated police powers for the proper performance of itsfunctions and dutiesE

2. reent and prosecute ta3 easions and all other illegal economicactiitiesE

-. )3ercise superision and control oer its constituent and subordinateunitsE and

5. erform such other functions as may be proided by law.-

4n the other hand( the B4C has the following functions<

'ec. 2. The Bureau of Customs. Y The Bureau of Customs which shall beheaded and subKect to the management and control of the Commissioner of Customs( who shall be appointed by the resident upon the

recommendation of the 'ecretaryof the 84LH and hereinafter referred to asCommissioner( shall hae the following functions<

%1& Collect custom duties( ta3es and the corresponding fees( charges andpenaltiesE%& 0ccount for all customs reenues collectedE%2& )3ercise police authority for the enforcement of tari" and customs lawsE%-& reent and suppress smuggling( pilferage and all other economicfrauds within all ports of entryE%5& 'uperise and control e3ports( imports( foreign mails and the clearanceof essels and aircrafts in all ports of entryE%+& 0dminister all legal requirements that are appropriateE

%@& reent and prosecute smuggling and other illegal actiities in all portsunder its KurisdictionE%& )3ercise superision and control oer its constituent unitsE%,& erform such other functions as may be proided by law.5

Both the B#R and the B4C are bureaus under the 84L. They principallyperform the special function of being the instrumentalities through whichthe 'tate e3ercises one of its great inherent functions Y ta3ation.#ndubitably( such substantial distinction is germane and intimately relatedto the purpose of the law. Fence( the classi/cation and treatment accordedto the B#R and the B4C under R0 ,225 fully satisfy the demands of equalprotection.

7ndue 8elegation

Two tests determine the alidity of delegation of legislatie power< %1& thecompleteness test and %& the sucient standard test. 0 law is completewhen it sets forth therein the policy to be e3ecuted( carried out orimplemented by the delegate.+ #t lays down a sucient standard when itproides adequate guidelines or limitations in the law to map out theboundaries of the delegateUs authority and preent the delegation fromrunning riot.@ To be sucient( the standard must specify the limits of thedelegateUs authority( announce the legislatie policy and identify theconditions under which it is to be implemented.

R0 ,225 adequately states the policy and standards to guide the residentin /3ing reenue targets and the implementing agencies in carrying out theproisions of the law. 'ection spells out the policy of the law<

')C. . 8eclaration of olicy. Y #t is the policy of the 'tate to optimiAe the

reenue$generation capability and collection of the Bureau of #nternalReenue %B#R& and the Bureau of Customs %B4C& by proiding for a systemof rewards and sanctions through the creation of a Rewards and #ncentiesLund and a Reenue erformance )aluation Board in the aboe agenciesfor the purpose of encouraging their ocials and employees to e3ceed theirreenue targets.

'ection - =canaliAed within ban:s that :eep it from oerNowing=, thedelegated power to the resident to /3 reenue targets<

')C. -. Rewards and #ncenties Lund. Y 0 Rewards and #ncenties Lund(hereinafter referred to as the Lund( is hereby created( to be sourced fromthe collection of the B#R and the B4C in e3cess of their respectie reenuetargets of the year( as determined by the 8eelopment Budget andCoordinating Committee %8BCC&( in the following percentages<



)3cess of Collection of the )3cess the Reenue Targets

ercent %X& of the )3cess Collection to 0ccrue to the Lund

26X or belowY 15XMore than 26X

Y 15X of the /rst 26X plus 6X of the remaining e3cess

The Lund shall be deemed automatically appropriated the year immediatelyfollowing the year when the reenue collection target was e3ceeded andshall be released on the same /scal year.

Reenue targets shall refer to the original estimated reenue collectione3pected of the B#R and the B4C for a gien /scal year as stated in theBudget of )3penditures and 'ources of Linancing %B)'L& submitted by theresident to Congress. The B#R and the B4C shall submit to the 8BCC thedistribution of the agenciesU reenue targets as allocated among itsreenue districts in the case of the B#R( and the collection districts in thecase of the B4C.

333 333 333 %emphasis supplied&

Reenue targets are based on the original estimated reenue collectione3pected respectiely of the B#R and the B4C for a gien /scal year asapproed by the 8BCC and stated in the B)'L submitted by the residentto Congress.26 Thus( the determination of reenue targets does not restsolely on the resident as it also undergoes the scrutiny of the 8BCC.

4n the other hand( 'ection @ speci/es the limits of the BoardUs authorityand identi/es the conditions under which ocials and employees whosereenue collection falls short of the target by at least @.5X may beremoed from the serice<

')C. @. owers and Lunctions of the Board. Y The Board in the agency shallhae the following powers and functions<

333 333 333

%b& To set the criteria and procedures for remoing from serice ocials andemployees whose reenue collection falls short of the target by at leastseen and a half percent %@.5X&( with due consideration of all releantfactors a"ecting the leel of collection as proided in the rules andregulations promulgated under this 0ct( subKect to ciil serice laws( rulesand regulations and compliance with substantie and procedural dueprocess< roided( That the following e3emptions shall apply<

1. 9here the district or area of responsibility is newly$created( note3ceeding two years in operation( as has no historical record of collectionperformance that can be used as basis for ealuationE and

. 9here the reenue or customs ocial or employee is a recent transfereein the middle of the period under consideration unless the transfer was dueto nonperformance of reenue targets or potential nonperformance of

reenue targets< roided( howeer( That when the district or area of

responsibility coered by reenue or customs ocials or employees hassu"ered from economic diculties brought about by natural calamities orforce maKeure or economic causes as may be determined by the Board(termination shall be considered only after careful and proper reiew by theBoard.

%c& To terminate personnel in accordance with the criteria adopted in thepreceding paragraph< roided( That such decision shall be immediatelye3ecutory< roided( further( That the application of the criteria for theseparation of an ocial or employee from serice under this 0ct shall bewithout preKudice to the application of other releant laws on accountabilityof public ocers and employees( such as the Code of Conduct and )thical

'tandards of ublic 4cers and )mployees and the 0nti$Graft and Corruptractices 0ctE

333 333 333 %emphasis supplied&

Clearly( R0 ,225 in no way iolates the security of tenure of ocials andemployees of the B#R and the B4C. The guarantee of security of tenure onlymeans that an employee cannot be dismissed from the serice for causesother than those proided by law and only after due process is accordedthe employee.21 #n the case of R0 ,225( it lays down a reasonableyardstic: for remoal %when the reenue collection falls short of the targetby at least @.5X& with due consideration of all releant factors a"ecting theleel of collection. This standard is analogous to ineciency andincompetence in the performance of ocial duties( a ground for disciplinaryaction under ciil serice laws.2 The action for remoal is also subKect to

ciil serice laws( rules and regulations and compliance with substantieand procedural due process.

0t any rate( this Court has recogniAed the following as sucient standards<=public interest(= =Kustice and equity(= =public conenience and welfare= and=simplicity( economy and welfare.=22 #n this case( the declared policy of optimiAation of the reenue$generation capability and collection of the B#Rand the B4C is infused with public interest.

'eparation 4f owers

'ection 1 of R0 ,225 proides<

')C. 1. *oint Congressional 4ersight Committee. Y There is herebycreated a *oint Congressional 4ersight Committee composed of seen

Members from the 'enate and seen Members from the Fouse of Representaties. The Members from the 'enate shall be appointed by the'enate resident( with at least two senators representing the minority. TheMembers from the Fouse of Representaties shall be appointed by the'pea:er with at least two members representing the minority. 0fter the4ersight Committee will hae approed the implementing rules andregulations %#RR& it shall thereafter become functus ocio and thereforecease to e3ist.

The *oint Congressional 4ersight Committee in R0 ,225 was created forthe purpose of approing the implementing rules and regulations %#RR&formulated by the 84L( 8BM( >)80( B#R( B4C and C'C. 4n May ( 66+( itapproed the said #RR. Lrom then on( it became functus ocio and ceasedto e3ist. Fence( the issue of its alleged encroachment on the e3ecutie



2

function of implementing and enforcing the law may be considered mootand academic.

This notwithstanding( this might be as good a time as any for the Court toconfront the issue of the constitutionality of the *oint Congressional4ersight Committee created under R0 ,225 %or other similar laws for thatmatter&.

The scholarly discourse of Mr. *ustice %now Chief *ustice& uno on theconcept of congressional oersight in Macalintal . Commission on)lections2- is illuminating<

Concept and bases of congressional oersightBroadly de/ned( the power of oersight embraces all actiities underta:enby Congress to enhance its understanding of and inNuence oer theimplementation of legislation it has enacted. Clearly( oersight concernspost$enactment measures underta:en by Congress< %a& to monitorbureaucratic compliance with program obKecties( %b& to determine whetheragencies are properly administered( %c& to eliminate e3ecutie waste anddishonesty( %d& to preent e3ecutie usurpation of legislatie authority( and%d& to assess e3ecutie conformity with the congressional perception of public interest.

The power of oersight has been held to be intrinsic in the grant of legislatie power itself and integral to the chec:s and balances inherent ina democratic system of goernment. 3 3 3 3 3 3 3 3 3

4er the years( Congress has ino:ed its oersight power with increasedfrequency to chec: the perceied =e3ponential accumulation of power= bythe e3ecutie branch. By the beginning of the 6th century( Congress hasdelegated an enormous amount of legislatie authority to the e3ecutiebranch and the administratie agencies. Congress( thus( uses its oersightpower to ma:e sure that the administratie agencies perform theirfunctions within the authority delegated to them. 3 3 3 3 3 3 3 3 3

Categories of congressional oersight functions

The acts done by Congress purportedly in the e3ercise of its oersightpowers may be diided into three categories( namely< scrutiny(inestigation and superision.

a. 'crutiny

Congressional scrutiny implies a lesser intensity and continuity of attentionto administratie operations. #ts primary purpose is to determine economyand eciency of the operation of goernment actiities. #n the e3ercise of legislatie scrutiny( Congress may request information and report from theother branches of goernment. #t can gie recommendations or passresolutions for consideration of the agency inoled.

333 333 333

b. Congressional inestigation

9hile congressional scrutiny is regarded as a passie process of loo:ing atthe facts that are readily aailable( congressional inestigation inoles a

more intense digging of facts. The power of Congress to conductinestigation is recogniAed by the 1,@ Constitution under section 1(0rticle D#( 333 333 333

c. ?egislatie superision

The third and most encompassing form by which Congress e3ercises itsoersight power is thru legislatie superision. ='uperision= connotes acontinuing and informed awareness on the part of a congressionalcommittee regarding e3ecutie operations in a gien administratie area.9hile both congressional scrutiny and inestigation inole inquiry intopast e3ecutie branch actions in order to inNuence future e3ecutie branch

performance( congressional superision allows Congress to scrutiniAe thee3ercise of delegated law$ma:ing authority( and permits Congress to retainpart of that delegated authority.

Congress e3ercises superision oer the e3ecutie agencies through itseto power. #t typically utiliAes eto proisions when granting the residentor an e3ecutie agency the power to promulgate regulations with the forceof law. These proisions require the resident or an agency to present theproposed regulations to Congress( which retains a =right= to approe ordisapproe any regulation before it ta:es e"ect. 'uch legislatie etoproisions usually proide that a proposed regulation will become a lawafter the e3piration of a certain period of time( only if Congress does notarmatiely disapproe of the regulation in the meantime. ?ess frequently(the statute proides that a proposed regulation will become law if Congressarmatiely approes it.

'upporters of legislatie eto stress that it is necessary to maintain thebalance of power between the legislatie and the e3ecutie branches of goernment as it o"ers lawma:ers a way to delegate ast power to thee3ecutie branch or to independent agencies while retaining the option tocancel particular e3ercise of such power without haing to pass newlegislation or to repeal e3isting law. They contend that this arrangementpromotes democratic accountability as it proides legislatie chec: on theactiities of unelected administratie agencies. 4ne proponent thuse3plains<

#t is too late to debate the merits of this delegation policy< the policy is toodeeply embedded in our law and practice. #t suces to say that thecomple3ities of modern goernment hae often led Congress$whether byactual or perceied necessity$ to legislate by declaring broad policy goals

and general statutory standards( leaing the choice of policy options to thediscretion of an e3ecutie ocer. Congress articulates legislatie aims( butleaes their implementation to the Kudgment of parties who may or may nothae participated in or agreed with the deelopment of those aims.Consequently( absent safeguards( in many instances the reerse of ourconstitutional scheme could be e"ected< Congress proposes( the )3ecutiedisposes. 4ne safeguard( of course( is the legislatie power to enact newlegislation or to change e3isting law. But without some means of oerseeingpost enactment actiities of the e3ecutie branch( Congress would beunable to determine whether its policies hae been implemented inaccordance with legislatie intent and thus whether legislatie interentionis appropriate.

#ts opponents( howeer( criticiAe the legislatie eto as undueencroachment upon the e3ecutie prerogaties. They urge that any post$



-

enactment measures underta:en by the legislatie branch should belimited to scrutiny and inestigationE any measure beyond that wouldundermine the separation of powers guaranteed by the Constitution. Theycontend that legislatie eto constitutes an impermissible easion of theresidentUs eto authority and intrusion into the powers ested in thee3ecutie or Kudicial branches of goernment. roponents counter thatlegislatie eto enhances separation of powers as it preents the e3ecutiebranch and independent agencies from accumulating too much power.

They submit that reporting requirements and congressional committeeinestigations allow Congress to scrutiniAe only the e3ercise of delegatedlaw$ma:ing authority. They do not allow Congress to reiew e3ecutieproposals before they ta:e e"ect and they do not a"ord the opportunity for

ongoing and binding e3pressions of congressional intent. #n contrast(legislatie eto permits Congress to participate prospectiely in theapproal or disapproal of =subordinate law= or those enacted by thee3ecutie branch pursuant to a delegation of authority by Congress. Theyfurther argue that legislatie eto =is a necessary response by Congress tothe accretion of policy control by forces outside its chambers.= #n an era of delegated authority( they point out that legislatie eto =is the mostecient means Congress has yet deised to retain control oer theeolution and implementation of its policy as declared by statute.=

#n #mmigration and >aturaliAation 'erice . Chadha( the 7.'. 'upremeCourt resoled the alidity of legislatie eto proisions. The case arosefrom the order of the immigration Kudge suspending the deportation of Chadha pursuant to Z --%c&%1& of the #mmigration and >ationality 0ct. The7nited 'tates Fouse of Representaties passed a resolution etoing the

suspension pursuant to Z --%c&%& authoriAing either Fouse of Congress(by resolution( to inalidate the decision of the e3ecutie branch to allow aparticular deportable alien to remain in the 7nited 'tates. The immigration

Kudge reopened the deportation proceedings to implement the Fouse orderand the alien was ordered deported. The Board of #mmigration 0ppealsdismissed the alienUs appeal( holding that it had no power to declareunconstitutional an act of Congress. The 7nited 'tates Court of 0ppeals for>inth Circuit held that the Fouse was without constitutional authority toorder the alienUs deportation and that Z --%c&%& iolated the constitutionaldoctrine on separation of powers.

4n appeal( the 7.'. 'upreme Court declared Z --%c&%& unconstitutional.But the Court shied away from the issue of separation of powers andinstead held that the proision iolates the presentment clause andbicameralism. #t held that the one$house eto was essentially legislatie in

purpose and e"ect. 0s such( it is subKect to the procedures set out in 0rticle# of the Constitution requiring the passage by a maKority of both Fouses andpresentment to the resident. 3 3 3 3 3 3 3 3 3

Two wee:s after the Chadha decision( the Court upheld( in memorandumdecision( two lower court decisions inalidating the legislatie etoproisions in the >atural Gas olicy 0ct of 1,@ and the Lederal TradeCommission #mproement 0ct of 1,6. Lollowing this precedence( lowercourts inalidated statutes containing legislatie eto proisions althoughsome of these proisions required the approal of both Fouses of Congressand thus met the bicameralism requirement of 0rticle #. #ndeed( some of these eto proisions were not een e3ercised.25 %emphasis supplied&

#n Macalintal( gien the concept and con/guration of the power of congressional oersight and considering the nature and powers of a

constitutional body li:e the Commission on )lections( the Court struc: downthe proision in R0 ,1, %The 4erseas 0bsentee Doting 0ct of 662&creating a *oint Congressional Committee. The committee was tas:ed notonly to monitor and ealuate the implementation of the said law but also toreiew( reise( amend and approe the #RR promulgated by theCommission on )lections. The Court held that these functions infringed onthe constitutional independence of the Commission on )lections.2+

9ith this bac:drop( it is clear that congressional oersight is notunconstitutional per se( meaning( it neither necessarily constitutes anencroachment on the e3ecutie power to implement laws nor underminesthe constitutional separation of powers. Rather( it is integral to the chec:s

and balances inherent in a democratic system of goernment. #t may in facteen enhance the separation of powers as it preents the oer$accumulation of power in the e3ecutie branch.

Foweer( to forestall the danger of congressional encroachment =beyondthe legislatie sphere(= the Constitution imposes two basic and relatedconstraints on Congress.2@ #t may not est itself( any of its committees orits members with either e3ecutie or Kudicial power.2 0nd( when ite3ercises its legislatie power( it must follow the =single( /nely wrought ande3haustiely considered( procedures= speci/ed under the Constitution(2,including the procedure for enactment of laws and presentment.

Thus( any post$enactment congressional measure such as this should belimited to scrutiny and inestigation. #n particular( congressional oersightmust be con/ned to the following<

%1& scrutiny based primarily on CongressU power of appropriation and thebudget hearings conducted in connection with it( its power to as: heads of departments to appear before and be heard by either of its Fouses on anymatter pertaining to their departments and its power of con/rmation-6 and

%& inestigation and monitoring-1 of the implementation of laws pursuantto the power of Congress to conduct inquiries in aid of legislation.-

0ny action or step beyond that will undermine the separation of powersguaranteed by the Constitution. ?egislatie etoes fall in this class.

?egislatie eto is a statutory proision requiring the resident or anadministratie agency to present the proposed implementing rules andregulations of a law to Congress which( by itself or through a committee

formed by it( retains a =right= or =power= to approe or disapproe suchregulations before they ta:e e"ect. 0s such( a legislatie eto in the form of a congressional oersight committee is in the form of an inward$turningdelegation designed to attach a congressional leash %other than throughscrutiny and inestigation& to an agency to which Congress has by lawinitially delegated broad powers.-2 #t radically changes the design orstructure of the ConstitutionUs diagram of power as it entrusts to Congress adirect role in enforcing( applying or implementing its own laws.--

Congress has two options when enacting legislation to de/ne nationalpolicy within the broad horiAons of its legislatie competence.-5 #t can itself formulate the details or it can assign to the e3ecutie branch theresponsibility for ma:ing necessary managerial decisions in conformity withthose standards.-+ #n the latter case( the law must be complete in all itsessential terms and conditions when it leaes the hands of the



5

legislature.-@ Thus( what is left for the e3ecutie branch or the concernedadministratie agency when it formulates rules and regulationsimplementing the law is to /ll up details %supplementary rule$ma:ing& orascertain facts necessary to bring the law into actual operation %contingentrule$ma:ing&.-

0dministratie regulations enacted by administratie agencies toimplement and interpret the law which they are entrusted to enforce haethe force of law and are entitled to respect.-, 'uch rules and regulationsparta:e of the nature of a statute56 and are Kust as binding as if they haebeen written in the statute itself. 0s such( they hae the force and e"ect of law and enKoy the presumption of constitutionality and legality until theyare set aside with /nality in an appropriate case by a competent court.51Congress( in the guise of assuming the role of an oerseer( may not passupon their legality by subKecting them to its stamp of approal withoutdisturbing the calculated balance of powers established by the Constitution.#n e3ercising discretion to approe or disapproe the #RR based on adetermination of whether or not they conformed with the proisions of R0,225( Congress arrogated Kudicial power unto itself( a power e3clusielyested in this Court by the Constitution.

Considered 4pinion of Mr. *ustice 8ante 4. Tinga

Moreoer( the requirement that the implementing rules of a law besubKected to approal by Congress as a condition for their e"ectiityiolates the cardinal constitutional principles of bicameralism and the rule

on presentment.5'ection 1( 0rticle D# of the Constitution states<

'ection 1. The legislatie power shall be ested in the Congress of thehilippines which shall consist of a 'enate and a Fouse of Representaties(e3cept to the e3tent resered to the people by the proision on initiatieand referendum. %emphasis supplied&

?egislatie power %or the power to propose( enact( amend and repeallaws&52 is ested in Congress which consists of two chambers( the 'enateand the Fouse of Representaties. 0 alid e3ercise of legislatie powerrequires the act of both chambers. Corrollarily( it can be e3ercised neithersolely by one of the two chambers nor by a committee of either or bothchambers. Thus( assuming the alidity of a legislatie eto( both a single$

chamber legislatie eto and a congressional committee legislatie etoare inalid.

0dditionally( 'ection @%1&( 0rticle D# of the Constitution proides<

'ection @. %1& )ery bill passed by the Congress shall( before it becomes alaw( be presented to the resident. #f he approes the same( he shall sign it(otherwise( he shall eto it and return the same with his obKections to theFouse where it originated( which shall enter the obKections at large in its

*ournal and proceed to reconsider it. #f( after such reconsideration( two$thirds of all the Members of such Fouse shall agree to pass the bill( it shallbe sent( together with the obKections( to the other Fouse by which it shallli:ewise be reconsidered( and if approed by two$thirds of all the Membersof that Fouse( it shall become a law. #n all such cases( the otes of eachFouse shall be determined by yeas or nays( and the names of the members

oting for or against shall be entered in its *ournal. The resident shallcommunicate his eto of any bill to the Fouse where it originated withinthirty days after the date of receipt thereofE otherwise( it shall become alaw as if he had signed it. %emphasis supplied&

)ery bill passed by Congress must be presented to the resident forapproal or eto. #n the absence of presentment to the resident( no billpassed by Congress can become a law. #n this sense( law$ma:ing under theConstitution is a Koint act of the ?egislature and of the )3ecutie. 0ssumingthat legislatie eto is a alid legislatie act with the force of law( it cannotta:e e"ect without such presentment een if approed by both chambersof Congress.

#n sum( two steps are required before a bill becomes a law. Lirst( it must beapproed by both Fouses of Congress.5- 'econd( it must be presented toand approed by the resident.55 0s summariAed by *ustice #sagani CruA5+and Lr. *oaquin G. Bernas( '.*.5@( the following is the procedure for theapproal of bills<

0 bill is introduced by any member of the Fouse of Representaties or the'enate e3cept for some measures that must originate only in the formerchamber.

The /rst reading inoles only a reading of the number and title of themeasure and its referral by the 'enate resident or the 'pea:er to theproper committee for study.

The bill may be =:illed= in the committee or it may be recommended forapproal( with or without amendments( sometimes after public hearings are/rst held thereon. #f there are other bills of the same nature or purpose(they may all be consolidated into one bill under common authorship or as acommittee bill.

4nce reported out( the bill shall be calendared for second reading. #t is atthis stage that the bill is read in its entirety( scrutiniAed( debated upon andamended when desired. The second reading is the most important stage inthe passage of a bill.

The bill as approed on second reading is printed in its /nal form andcopies thereof are distributed at least three days before the third reading.4n the third reading( the members merely register their otes and e3plainthem if they are allowed by the rules. >o further debate is allowed.

4nce the bill passes third reading( it is sent to the other chamber( where itwill also undergo the three readings. #f there are di"erences between theersions approed by the two chambers( a conference committee5representing both Fouses will draft a compromise measure that if rati/edby the 'enate and the Fouse of Representaties will then be submitted tothe resident for his consideration.

The bill is enrolled when printed as /nally approed by the Congress(thereafter authenticated with the signatures of the 'enate resident( the'pea:er( and the 'ecretaries of their respectie chambers[5,

The residentUs role in law$ma:ing.



+

The /nal step is submission to the resident for approal. 4nce approed( itta:es e"ect as law after the required publication.+6

9here Congress delegates the formulation of rules to implement the law ithas enacted pursuant to sucient standards established in the said law(the law must be complete in all its essential terms and conditions when itleaes the hands of the legislature. 0nd it may be deemed to hae left thehands of the legislature when it becomes e"ectie because it is only upone"ectiity of the statute that legal rights and obligations become aailableto those entitled by the language of the statute. 'ubKect to theindispensable requisite of publication under the due process clause(+1 thedetermination as to when a law ta:es e"ect is wholly the prerogatie of Congress.+ 0s such( it is only upon its e"ectiity that a law may bee3ecuted and the e3ecutie branch acquires the duties and powers toe3ecute the said law. Before that point( the role of the e3ecutie branch(particularly of the resident( is limited to approing or etoing the law.+2

Lrom the moment the law becomes e"ectie( any proision of law thatempowers Congress or any of its members to play any role in theimplementation or enforcement of the law iolates the principle of separation of powers and is thus unconstitutional. 7nder this principle( aproision that requires Congress or its members to approe theimplementing rules of a law after it has already ta:en e"ect shall beunconstitutional( as is a proision that allows Congress or its members tooerturn any directie or ruling made by the members of the e3ecutiebranch charged with the implementation of the law.

Lollowing this rationale( 'ection 1 of R0 ,225 should be struc: down asunconstitutional. 9hile there may be similar proisions of other laws thatmay be inalidated for failure to pass this standard( the Court refrains frominalidating them wholesale but will do so at the proper time when anappropriate case assailing those proisions is brought before us.+-

The ne3t question to be resoled is< what is the e"ect of theunconstitutionality of 'ection 1 of R0 ,225 on the other proisions of thelaw 9ill it render the entire law unconstitutional >o.

'ection 12 of R0 ,225 proides<

')C. 12. 'eparability Clause. Y #f any proision of this 0ct is declared inalidby a competent court( the remainder of this 0ct or any proision nota"ected by such declaration of inalidity shall remain in force and e"ect.

#n Tatad . 'ecretary of the 8epartment of )nergy(+5 the Court laid downthe following rules<

The general rule is that where part of a statute is oid as repugnant to theConstitution( while another part is alid( the alid portion( if separable fromthe inalid( may stand and be enforced. The presence of a separabilityclause in a statute creates the presumption that the legislature intendedseparability( rather than complete nullity of the statute. To Kustify thisresult( the alid portion must be so far independent of the inalid portionthat it is fair to presume that the legislature would hae enacted it by itself if it had supposed that it could not constitutionally enact the other. )noughmust remain to ma:e a complete( intelligible and alid statute( whichcarries out the legislatie intent. 3 3 3

The e3ception to the general rule is that when the parts of a statute are somutually dependent and connected( as conditions( considerations(inducements( or compensations for each other( as to warrant a belief thatthe legislature intended them as a whole( the nullity of one part will itiatethe rest. #n ma:ing the parts of the statute dependent( conditional( orconnected with one another( the legislature intended the statute to becarried out as a whole and would not hae enacted it if one part is oid( inwhich case if some parts are unconstitutional( all the other proisions thusdependent( conditional( or connected must fall with them.

The separability clause of R0 ,225 reeals the intention of the legislature toisolate and detach any inalid proision from the other proisions so thatthe latter may continue in force and e"ect. The alid portions can standindependently of the inalid section. 9ithout 'ection 1( the remainingproisions still constitute a complete( intelligible and alid law which carriesout the legislatie intent to optimiAe the reenue$generation capability andcollection of the B#R and the B4C by proiding for a system of rewards andsanctions through the Rewards and #ncenties Lund and a Reenueerformance )aluation Board.

To be e"ectie( administratie rules and regulations must be published infull if their purpose is to enforce or implement e3isting law pursuant to aalid delegation. The #RR of R0 ,225 were published on May 26( 66+ intwo newspapers of general circulation++ and became e"ectie 15 daysthereafter.+@ 7ntil and unless the contrary is shown( the #RR are presumedalid and e"ectie een without the approal of the *oint Congressional4ersight Committee.

9F)R)L4R)( the petition is hereby 0RT#0?? GR0>T)8. 'ection 1 of R0,225 creating a *oint Congressional 4ersight Committee to approe theimplementing rules and regulations of the law is declared7>C4>'T#T7T#4>0? and therefore >7?? and D4#8. The constitutionality of the remaining proisions of R0 ,225 is 7F)?8. ursuant to 'ection 12 of R0 ,225( the rest of the proisions remain in force and e"ect.



@

CSC V. SOJOR (2008)

#' the president of a state uniersity outside the reach of the disciplinary Kurisdiction constitutionally granted to the Ciil 'erice Commission %C'C&oer all ciil serants and ocials

8oes the assumption by the C'C of Kurisdiction oer a president of a stateuniersity iolate academic freedom

The twin questions( among others( are posed in this petition for reiew oncertiorari of the 8ecision1 of the Court of 0ppeals %C0& which annulled two%& C'C Resolutions against respondent Fenry 0. 'oKor.

The Lacts

The uncontroerted facts that led to the controersy( as found by the C'Cand the C0( are as follows<

4n 0ugust 1( 1,,1( respondent 'oKor was appointed by then residentCoraAon 0quino as president of the Central Disayas olytechnic College%CDC& in 8umaguete City. #n *une 1,,@( Republic 0ct %R.0.& >o. ,( orthe =Figher )ducation ModerniAation 0ct of 1,,@(= was enacted. This lawmandated that a Board of Trustees %B4T& be formed to act as the goerningbody in state colleges. The B4T of CDC appointed respondent aspresident( with a four$year term beginning 'eptember 1,, up to'eptember 66.2 7pon the e3piration of his /rst term of oce in 66( hewas appointed president of the institution for a second four$year term(

e3piring on 'eptember -( 66+.-4n *une 5( 66-( CDC was conerted into the >egros 4riental 'tate7niersity %>4R'7&.5 0 Board of Regents %B4R& succeeded the B4T as itsgoerning body.

Meanwhile( three %2& separate administratie cases against respondentwere /led by CDC faculty members before the C'C Regional 4ce %C'C$R4& >o. D## in Cebu City( to wit<

1. 08MC 8C >o. 6$6%0& Y Complaint for dishonesty( grae misconduct andconduct preKudicial to the best interest of the serice /led on *une +( 66by *ose Rene 0. Cepe and >arciso . Ragay. #t was alleged that respondentapproed the release of salary di"erentials despite the absence of therequired lantilla and 'alary 0dKustment Lorm and alid appointments.+

. 08M 8C >o. 6$6 Y Complaint for dishonesty( misconduct andfalsi/cation of ocial documents /led on *uly 16( 66 by *ocelyn *uanonand Carolina Le 'antos. The complaint aerred that respondent maliciouslyallowed the antedating and falsi/cation of the reclassi/cation di"erentialpayroll( to the preKudice of instructors and professors who hae pendingrequest for adKustment of their academic ran:s.@

2. 08M 8C >o. 6$1 Y Complaint for nepotism /led on 0ugust 15( 66 byRose Marie alomar( a former part$time instructor of CDC. #t was allegedthat respondent appointed his half$sister( )strellas 'oKor$Managuilas( ascasual cler:( in iolation of the proisions against nepotism under the0dministratie Code.

Before /ling his counter$adaits( respondent moed to dismiss the /rsttwo complaints on grounds of lac: of Kurisdiction( bar by prior Kudgment andforum shopping.

Fe claimed that the C'C had no Kurisdiction oer him as a presidentialappointee. Being part of the non$competitie or unclassi/ed serice of thegoernment( he was e3clusiely under the disciplinary Kurisdiction of the4ce of the resident %4&. Fe argued that C'C had no authority toentertain( inestigate and resole charges against himE that the Ciil'erice ?aw contained no proisions on the inestigation( discipline( andremoal of presidential appointees. Fe also pointed out that the subKectmatter of the complaints had already been resoled by the 4ce of the4mbudsman.,

Linding no sucient basis to sustain respondentUs arguments( the C'C$R4denied his motion to dismiss in its Resolution dated 'eptember -( 66.16Fis motion for reconsideration11 was li:ewise denied. Thus( respondentwas formally charged with three administratie cases( namely< %1&8ishonesty( Misconduct( and Lalsi/cation of 4cial 8ocumentE %&8ishonesty( Grae Misconduct( and Conduct reKudicial to the Best #nterestof the 'ericeE and %2& >epotism.1

Respondent appealed the actions of the regional oce to the Commissionproper %C'C&( raising the same arguments in his motion to dismiss.12 Feargued that since the B4T is headed by the Committee on Figher )ducationChairperson who was under the 4( the B4T was also under the 4. 'incethe president of CDC was appointed by the B4T( then he was a

presidential appointee. 4n the matter of the Kurisdiction granted toC'C by irtue of residential 8ecree %.8.& >o. 6@1- enacted in 4ctober1,@5( respondent contended that this was superseded by the proisions of R.0. >o. ,(15 a later law which granted to the B4T the power to remoeuniersity ocials.

C'C 8isposition

#n a Resolution dated March 26( 66-(1+ the C'C dismissed respondentUsappeal and authoriAed its regional oce to proceed with the inestigation.Fe was also preentiely suspended for ,6 days. The fallo of the saidresolution states<

9F)R)L4R)( the appeal of Fenry 0. 'oKor( resident of Central Disayas

olytechnic College( is hereby 8#'M#'')8. The Ciil 'erice CommissionRegional 4ce >o. D##( Cebu City( is authoriAed to proceed with the formalinestigation of the cases against 'oKor and submit the inestigationreports to the Commission within one hundred /e %165& days from receipthereof. Linally( 'oKor is preentiely suspended for ninety %,6& days.1@

#n decreeing that it had Kurisdiction oer the disciplinary case againstrespondent( the C'C opined that his claim that he was a presidentialappointee had no basis in fact or in law. C'C maintained that it hadconcurrent Kurisdiction with the B4T of the CDC. 9e quote<

Fis appointment dated 'eptember 2( 66 was signed by thenCommission on Figher )ducation %CF)8& Chairman )ster 0. Garcia.Moreoer( the said appointment e3pressly stated that it was approed andadopted by the Central Disayas olytechnic College Board of Trustees on



0ugust 12( 66 in accordance with 'ection + of Republic 0ct >o. ,%Figher education ModerniAation 0ct of 1,,@&( which e3plicitly proidesthat( =Fe %the president of a state college& shall be appointed by the Boardof RegentsQTrustees( upon recommendation of a duly constituted searchcommittee.= 'ince the resident of a state college is appointed by theBoard of RegentsQTrustees of the college concerned( it is crystal clear thathe is not a presidential appointee. Therefore( it is without doubt that 'oKor(being the resident of a state college %Central Disayas olytechnic College&(is within the disciplinary Kurisdiction of the Commission.

The allegation of appellant 'oKor that the Commission is bereft of disciplinary Kurisdiction oer him since the same is e3clusiely lodged in theCDC Board of Trustees( being the appointing authority( cannot beconsidered. The Commission and the CDC Board of Trustees haeconcurrent Kurisdiction oer cases against ocials and employees of thesaid agency. 'ince the three %2& complaints against 'oKor were /led with theCommission and not with the CDC( then the former already acquireddisciplinary Kurisdiction oer the appellant to the e3clusion of the latteragency.1 %)mphasis supplied&

The C'C categoriAed respondent as a third leel ocial( as de/ned underits rules( who are under the Kurisdiction of the Commission proper.>eertheless( it adopted the formal charges issued by its regional oceand ordered it to proceed with the inestigation<

ursuant to the 7niform Rules on 0dministratie Cases in the Ciil 'erice('oKor( being a third leel ocial( is within the disciplinary Kurisdiction of the

Commission roper. Thus( strictly spea:ing( the Commission has the sole Kurisdiction to issue the formal charge against 'oKor. 3 3 3 Foweer( sincethe C'C R4 >o. D## already issued the formal charges against him andfound merit in the said formal charges( the same is adopted. The C'C R4>o. D## is authoriAed to proceed with the formal inestigation of the caseagainst 'oKor in accordance with the procedure outlined in the aforestated7niform Rules.1, %)mphasis supplied&

>o merit was found by the C'C in respondentUs motion for reconsiderationand( accordingly( denied it with /nality on *uly +( 66-.6

Respondent appealed the C'C resolutions to the C0 ia a petition forcertiorari and prohibition. Fe alleged that the C'C acted without or ine3cess of its Kurisdiction( or with grae abuse of discretion amounting tolac: or e3cess of Kurisdiction when it issued the assailed resolutionsE that

C'C encroached upon the academic freedom of CDCE and that the powerto remoe( suspend( and discipline the president of CDC was e3clusielylodged in the B4T of CDC.

C0 8isposition

4n 'eptember ,( 66-( the C0 issued a writ of preliminary inKunctiondirecting the C'C to cease and desist from enforcing its Resolution datedMarch 26( 66- and Resolution dated *uly +( 66-.1 Thus( the formalinestigation of the administratie charges against 'oKor before the C'C$R4was suspended.

4n *une @( 665( after giing both parties an opportunity to air their sides(the C0 resoled in faor of respondent. #t annulled the questioned C'C

resolutions and permanently enKoined the C'C from proceeding with theadministratie inestigation. The dispositie part of the C0 decision reads<

9F)R)L4R)( in iew of all the foregoing( and /nding that the respondentCiil 'erice Commission acted without Kurisdiction in issuing the assailedResolution >os. 6-621 and 6-6@++ dated March 6( 66- and *uly +(66-( respectiely( the same are hereby 0>>7??)8 and ')T 0'#8). Thepreliminary inKunction issued by this Court on 'eptember ,( 66- ishereby made permanent.

'4 4R8)R)8.

The C0 ruled that the power to appoint carries with it the power to remoeor to discipline. #t declared that the enactment of R.0. >o. ,,,2 in 66-(which conerted CDC into >4R'7( did not diest the B4T of the power todiscipline and remoe its faculty members( administratie ocials( andemployees. Respondent was appointed as president of CDC by the B4T byirtue of the authority granted to it under 'ection + of R.0. >o. ,.- Thepower of the B4T to remoe and discipline erring employees( facultymembers( and administratie ocials as e3pressly proided for under'ection - of R.0. >o. , is also granted to the B4R of >4R'7 under'ection @ of R.0. >o. ,,,. The said proision reads<

ower and 8uties of Goerning Boards. Y The goerning board shall haethe following speci/c powers and duties in addition to its general powers of administration and e3ercise of all the powers granted to the board of directors of a corporation under 'ection 2+ of Batas ambansa Blg. +(

otherwise :nown as the Corporation Code of the hilippines<3 3 3 3

to /3 and adKust salaries of faculty members and administratie ocialsand employees 3 3 3E and to remoe them for cause in accordance with therequirements of due process of law. %)mphasis added&

The C0 added that )3ecutie 4rder %).4.& >o. ,(5 which grantsdisciplinary Kurisdiction to the C'C oer all branches( subdiisions(instrumentalities( and agencies of the goernment( including goernment$owned or controlled corporations with original charters( is a general law.0ccording to the appellate court( ).4. >o. , does not preail oer R.0. >o.,,,(+ a special law.

#ssues

etitioner C'C comes to 7s( see:ing to reerse the decision of the C0 onthe ground that TF) C47RT 4L 0)0?' GR0D)? )RR)8 #> F4?8#>G TF0T)T#T#4>)R 0CT)8 9#TF47T *7R#'8#CT#4> #> #''7#>G R)'4?7T#4> >4.6-621 80T)8 M0RCF 26( 66- 0>8 R)'4?7T#4> >4. 6-@++ 80T)8 *7?+( 66-.@

4ur Ruling

The petition is meritorious.

#. *urisdiction of the C'C



,

The Constitution grants to the C'C administration oer the entire ciilserice. 0s de/ned( the ciil serice embraces eery branch( agency(subdiision( and instrumentality of the goernment( including eerygoernment$owned or controlled corporation., #t is further classi/ed intocareer and non$career serice positions. Career serice positions are thosewhere< %1& entrance is based on merit and /tness or highly technicalquali/cationsE %& there is opportunity for adancement to higher careerpositionsE and %2& there is security of tenure. These include<

%1& 4pen Career positions for appointment to which prior quali/cation in anappropriate e3amination is requiredE

%& Closed Career positions which are scienti/c( or highly technical innatureE these include the faculty and academic sta" of state colleges anduniersities( and scienti/c and technical positions in scienti/c or researchinstitutions which shall establish and maintain their own merit systemsE

%2& ositions in the Career )3ecutie 'ericeE namely( 7ndersecretary(0ssistant 'ecretary( Bureau 8irector( 0ssistant Bureau 8irector( Regional8irector( 0ssistant Regional 8irector( Chief of 8epartment 'erice and otherocers of equialent ran: as may be identi/ed by the Career )3ecutie'erice Board( all of whom are appointed by the residentE

%-& Career ocers( other than those in the Career )3ecutie 'erice( whoare appointed by the resident( such as the Loreign 'erice 4cers in the8epartment of Loreign 0"airsE

%5& Commissioned ocers and enlisted men of the 0rmed Lorces whichshall maintain a separate merit systemE

%+& ersonnel of goernment$owned or controlled corporations( whetherperforming goernmental or proprietary functions( who do not fall underthe non$career sericeE and

%@& ermanent laborers( whether s:illed( semi$s:illed( or uns:illed.26

Career positions are further grouped into three leels. )ntrance to the /rsttwo leels is determined through competitie e3aminations( while entranceto the third leel is prescribed by the Career )3ecutie 'erice Board.21

The positions coered by each leel are<

%a& The /rst leel shall include clerical( trades( crafts( and custodial serice

positions which inole non$professional or subprofessional wor: in a non$superisory or superisory capacity requiring less than four years of collegiate studiesE

%b& The second leel shall include professional( technical( and scienti/cpositions which inole professional( technical( or scienti/c wor: in a non$superisory or superisory capacity requiring at least four years of collegewor: up to 8iision Chief leelE and

%c& The third leel shall coer positions in the Career )3ecutie 'erice.2

4n the other hand( non$career serice positions are characteriAed by< %1&entrance not by the usual tests of merit and /tnessE and %& tenure which islimited to a period speci/ed by law( coterminous with the appointing

authority or subKect to his pleasure( or limited to the duration of a particularproKect for which purpose employment was made.22 The law states<

The >on$Career 'erice shall include<

%1& )lectie ocials and their personal or con/dential sta"E

%& 'ecretaries and other ocials of Cabinet ran: who hold their positionsat the pleasure of the resident and their personal or con/dential sta"%s&E

%2& Chairman and members of commissions and boards with /3ed terms of oce and their personal or con/dential sta"E

%-& Contractual personnel or those whose employment in the goernment isin accordance with a special contract to underta:e a speci/c wor: or Kob(requiring special or technical s:ills not aailable in the employing agency(to be accomplished within a speci/c period( which in no case shall e3ceedone year( and performs or accomplishes the speci/c wor: or Kob( under hisown responsibility with a minimum of direction and superision from thehiring agencyE and

%5& )mergency and seasonal personnel.2-

#t is eident that C'C has been granted by the Constitution and the0dministratie Code Kurisdiction oer all ciil serice positions in thegoernment serice( whether career or non$career. Lrom this grant of general Kurisdiction( the C'C promulgated the Reised 7niform Rules on

0dministratie Cases in the Ciil 'erice.25 9e /nd that the speci/c Kurisdiction( as spelled out in the C'C rules( did not depart from the general Kurisdiction granted to it by law. The Kurisdiction of the Regional 4ce of theC'C and the Commission central oce %Commission roper& is speci/ed inthe C'C rules as<

'ection -. *urisdiction of the Ciil 'erice Commission. Y The Ciil 'ericeCommission shall hear and decide administratie cases instituted by( orbrought before it( directly or on appeal( including contested appointments(and shall reiew decisions and actions of its oces and of the agenciesattached to it.

)3cept as otherwise proided by the Constitution or by law( the Ciil'erice Commission shall hae the /nal authority to pass upon theremoal( separation and suspension of all ocers and employees in the

ciil serice and upon all matters relating to the conduct( discipline andeciency of such ocers and employees.

'ection 5. *urisdiction of the Ciil 'erice Commission roper. Y The Ciil'erice Commission roper shall hae Kurisdiction oer the following cases<

0. 8isciplinary

1. 8ecisions of Ciil 'erice Regional 4ces brought before it on petitionfor reiewE

. 8ecisions of heads of departments( agencies( proinces( cities(municipalities and other instrumentalities( imposing penalties e3ceedingthirty days suspension or /ne in an amount e3ceeding thirty days salarybrought before it on appealE



26

2. Complaints brought against Ciil 'erice Commission roper personnelE

-. Complaints against third leel ocials who are not presidentialappointeesE

5. Complaints against Ciil 'erice ocials and employees which are notacted upon by the agencies and such other complaints requiring direct orimmediate action( in the interest of KusticeE

+. Requests for transfer of enue of hearing on cases being heard by Ciil'erice Regional 4cesE

@. 0ppeals from the 4rder of reentie 'uspensionE and

. 'uch other actions or requests inoling issues arising out of or inconnection with the foregoing enumerations.

B. >on$8isciplinary

1. 8ecisions of Ciil 'erice Commission Regional 4ces brought before itE

. Requests for faorable recommendation on petition for e3ecutieclemencyE

2. rotests against the appointment( or other personnel actions( inolingthird leel ocialsE and

-. 'uch other analogous actions or petitions arising out of or in relation withthe foregoing enumerations.

'ection +. *urisdiction of Ciil 'erice Regional 4ces. Y The Ciil 'ericeCommission Regional 4ces shall hae Kurisdiction oer the followingcases<

0. 8isciplinary

1. Complaints initiated by( or brought before( the Ciil 'erice CommissionRegional 4ces proided that the alleged acts or omissions werecommitted within the Kurisdiction of the Regional 4ce( including Ciil'erice e3amination anomalies or irregularities and the persons complainedof are employees of agencies( local or national( within said geographical

areasE. Complaints inoling Ciil 'erice Commission Regional 4ce personnelwho are appointees of said oceE and

2. etitions to place respondent under reentie 'uspension.

B. >on$8isciplinary

1. 8isapproal of appointments brought before it on appealE

. rotests against the appointments of /rst and second leel employeesbrought before it directly or on appeal. %)mphasis supplied&

Respondent( a state uniersity president with a /3ed term of oceappointed by the goerning board of trustees of the uniersity( is a non$career ciil serice ocer. Fe was appointed by the chairman and membersof the goerning board of CDC. By clear proision of law( respondent is anon$career ciil serant who is under the Kurisdiction of the C'C.

##. The power of the B4R to discipline ocials and employees is note3clusie. C'C has concurrent Kurisdiction oer a president of a stateuniersity.

'ection - of R.0. >o. ,( or the Figher )ducation ModerniAation 0ct of 1,,@( under which law respondent was appointed during the time materialto the present case( proides that the schoolUs goerning board shall haethe general powers of administration granted to a corporation. #n addition('ection - of the law grants to the board the power to remoe school facultymembers( administratie ocials( and employees for cause<

'ection -. owers and 8uties of Goerning Boards. Y The goerning boardshall hae the following speci/c powers and duties in addition to its generalpowers of administration and the e3ercise of all the powers granted to theboard of directors of a corporation under 'ection 2+ of Batas ambansa Blg.+( otherwise :nown as the Corporation Code of the hilippines<

3 3 3 3

h& to /3 and adKust salaries of faculty members and administratie ocialsand employees subKect to the proisions of the reised compensation and

classi/cation system and other pertinent budget and compensation lawsgoerning hours of serice( and such other duties and conditions as it maydeem properE to grant them( at its discretion( leaes of absence under suchregulations as it may promulgate( any proisions of e3isting law to thecontrary not withstandingE and to remoe them for cause in accordancewith the requirements of due process of law. %)mphasis supplied&

The aboe section was subsequently reproduced as 'ection @%i& of thesucceeding law that conerted CDC into >4R'7( R.0. >o. ,,,. >otably(and in contrast with the earlier law( R.0. >o. ,,, now proides that theadministration of the uniersity and e3ercise of corporate powers of theboard of the school shall be e3clusie<

'ec. -. 0dministration. Y The 7niersity shall hae the general powers of acorporation set forth in Batas ambansa Blg. +( as amended( otherwise

:nown as =The Corporation Code of the hilippines.= The administration of the 7niersity and the e3ercise of its corporate powers shall be estede3clusiely in the Board of Regents and the president of the 7niersityinsofar as authoriAed by the Board.

Measured by the foregoing yardstic:( there is no question thatadministratie power oer the school e3clusiely belongs to its B4R. Butdoes this e3clusie administratie power e3tend to the power to remoe itserring employees and ocials

#n light of the other proisions of R.0. >o. ,,,( respondentUs argument thatthe B4R has e3clusie power to remoe its uniersity ocials must fail.'ection @ of R.0. >o. ,,, states that the power to remoe facultymembers( employees( and ocials of the uniersity is granted to the B4R=in addition to its general powers of administration.= This proision is



21

essentially a reproduction of 'ection - of its predecessor( R.0. >o. ,(demonstrating that the intent of the lawma:ers did not change een withthe enactment of the new law. Lor clarity( the te3t of the said section isreproduced below<

'ec. @. owers and 8uties of the Board of Regents. Y The Board shall haethe following speci/c powers and duties in addition to its general powers of administration and the e3ercise of all the powers granted to the Board of 8irectors of a corporation under e3isting laws<

3 3 3 3

i. To /3 and adKust salaries of faculty members and administratie ocialsand employees( subKect to the proisions of the Reised Compensation andosition Classi/cation 'ystem and other pertinent budget andcompensation laws goerning hours of serice and such other duties andconditions as it may deem properE to grant them( at its discretion( leaes of absence under such regulations as it may promulgate( any proision of e3isting law to the contrary notwithstandingE and to remoe them for causein accordance with the requirements of due process of law.2+ %)mphasissupplied&

Derily( the B4R of >4R'7 has the sole power of administration oer theuniersity. But this power is not e3clusie in the matter of disciplining andremoing its employees and ocials.

0lthough the B4R of >4R'7 is gien the speci/c power under R.0. >o. ,,,

to discipline its employees and ocials( there is no showing that suchpower is e3clusie. 9hen the law bestows upon a goernment body the Kurisdiction to hear and decide cases inoling speci/c matters( it is to bepresumed that such Kurisdiction is e3clusie unless it be proed thatanother body is li:ewise ested with the same Kurisdiction( in which case(both bodies hae concurrent Kurisdiction oer the matter.2@

0ll members of the ciil serice are under the Kurisdiction of the C'C( unlessotherwise proided by law. Being a non$career ciil serant does notremoe respondent from the ambit of the C'C. Career or non$career( a ciilserice ocial or employee is within the Kurisdiction of the C'C.

This is not a case of /rst impression.

#n 7niersity of the hilippines . Regino(2 this Court struc: down the

claim of e3clusie Kurisdiction of the 7 B4R to discipline its employees. TheCourt held then<

The Ciil 'erice ?aw %8 6@& e3pressly ests in the Commission appellate Kurisdiction in administratie disciplinary cases inoling members of theCiil 'erice. 'ection ,%K& mandates that the Commission shall hae thepower to =hear and decide administratie disciplinary cases instituteddirectly with it in accordance with 'ection 2@ or brought to it on appeal.=0nd 'ection 2@%a& proides that( =The Commission shall decide upon appealall administratie disciplinary cases inoling the imposition of a penalty of suspension for more than thirty %26& days( or /ne in an amount e3ceedingthirty daysU salary( demotion in ran: or salary or transfer( remoal ordismissal from oce.= %)mphasis supplied&

7nder the 1,@ Constitution( all goernment$owned or controlledcorporations( regardless of the manner of their creation( were consideredpart of the Ciil 'erice. 7nder the 1,@ Constitution( only goernment$owned or controlled corporations with original charters fall within the scopeof the Ciil 'erice pursuant to 0rticle #;$B( 'ection %1&( which states<

=The Ciil 'erice embraces all branches( subdiisions( instrumentalities(and agencies of the goernment( including goernment$owned orcontrolled corporations with original charters.=

0s a mere goernment$owned or controlled corporation( 7 was clearly apart of the Ciil 'erice under the 1,@2 Constitution and now continues tobe so because it was created by a special law and has an original charter.0s a component of the Ciil 'erice( 7 is therefore goerned by 8 6@and administratie cases inoling the discipline of its employees comeunder the appellate Kurisdiction of the Ciil 'erice Commission.2,%)mphasis supplied&

#n the more recent case of Camacho . Gloria(-6 this Court lent credence tothe concurrent Kurisdiction of the C'C when it armed that a case against auniersity ocial may be /led either with the uniersityUs B4R or directlywith the C'C. 9e quote<

Lurther( petitioner contends that the creation of the committee by therespondent 'ecretary( as Chairman of the 7' Board of Regents( wascontrary to the Ciil 'erice Rules. Foweer( he cites no speci/c proisionof the Ciil 'erice ?aw which was iolated by the respondents in forming

the inestigating committee. The Ciil 'erice Rules embodied in )3ecutie4rder , recogniAe the power of the 'ecretary and the uniersity( throughits goerning board( to inestigate and decide matters inoling disciplinaryaction against ocers and employees under their Kurisdiction. 4f courseunder )4 ,( a complaint against a state uniersity ocial may be /ledeither with the uniersityUs Board of Regents or directly with the Ciil'erice Commission( although the C'C may delegate the inestigation of acomplaint and for that purpose( may deputiAe any department( agency(ocial or group of ocials to conduct such inestigation.-1 %)mphasissupplied&

Thus( C'C alidly too: cogniAance of the administratie complaints directly/led before the regional oce( concerning iolations of ciil serice rulesagainst respondent.

###. 0cademic freedom may not be ino:ed when there are alleged iolationsof ciil serice laws and rules.

Certainly( academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. 0cademic freedomencompasses the freedom to determine who may teach( who may betaught( how it shall be taught( and who may be admitted to study.-Lollowing that doctrine( this Court has recogniAed that institutions of higherlearning has the freedom to decide for itself the best methods to achieetheir aims and obKecties( free from outside coercion( e3cept when thewelfare of the general public so requires.-2 They hae the independence todetermine who to accept to study in their school and they cannot becompelled by mandamus to enroll a student.--



2

That principle( howeer( /nds no application to the facts of the presentcase. Contrary to the matters traditionally held to be Kusti/ed to be withinthe bounds of academic freedom( the administratie complaints /ledagainst 'oKor inole iolations of ciil serice rules. Fe is facing charges of nepotism( dishonesty( falsi/cation of ocial documents( grae misconduct(and conduct preKudicial to the best interest of the serice. These areclassi/ed as grae o"enses under ciil serice rules( punishable withsuspension or een dismissal.-5

This Court has held that the guaranteed academic freedom does not giean institution the unbridled authority to perform acts without any statutorybasis.-+ Lor that reason( a school ocial( who is a member of the ciilserice( may not be permitted to commit iolations of ciil serice rulesunder the Kusti/cation that he was free to do so under the principle of academic freedom.

?astly( 9e do not agree with respondentUs contention that his appointmentto the position of president of >4R'7( despite the pending administratiecases against him( sered as a condonation by the B4R of the alleged actsimputed to him. The doctrine this Court laid down in 'alalima . Guingona(

*r.-@ and 0guinaldo . 'antos- are inapplicable to the presentcircumstances. Respondents in the mentioned cases are electie ocials(unli:e respondent here who is an appointed ocial. #ndeed( electione3presses the soereign will of the people.-, 7nder the principle of o3populi est suprema le3( the re$election of a public ocial may( indeed(supersede a pending administratie case. The same cannot be said of a re$appointment to a non$career position. There is no soereign will of thepeople to spea: of when the B4R re$appointed respondent 'oKor to the postof uniersity president.

9F)R)L4R)( the petition is GR0>T)8. The 8ecision of the Court of 0ppealsis R)D)R')8 and ')T 0'#8). The assailed Resolutions of the Ciil 'ericeCommission are R)#>'T0T)8.

CSC G (20 0) i di i i i U ll d i f d f i #



22

CSC V. MAGNAYE (2010)

The Ciil 'erice Commission %C'C& assails in this petition for reiew oncertiorari(1 the Lebruary 6( 66 8ecision and the *une 11( 66resolution of the Court of 0ppeals %C0& in C0$G.R. ' >o. 556. The C0reersed the *uly 6( 66- 8ecision of the Ciil 'erice CommissionRegional 4ce >o. #D %C'CR4$#D& and ordered the reinstatement of respondent Gregorio Magnaye( *r. %Magnaye& with payment of bac:wagesand other monetary bene/ts.

TF) L0CT'

#n March 661( Mayor Roman F. Rosales of ?emery( Batangas( appointedMagnaye as 7tility 9or:er # at the 4ce of )conomic )nterprise 4perationof Mar:etH %4))&. 0fter a few days( Mayor Rosales detailed him to theMunicipal lanning and 8eelopment 4ce.

#n the May elections of that year( Mayor Rosales was defeated by Raul ?.Bendaa( who assumed oce on *une 26( 661. Thereafter( Magnaye wasreturned to his original assignment at the 4)). 4n *uly 11( 661( Bendaaalso placed him on detail at the Municipal lanning and 8eelopment 4ceto assist in the implementation of a 'urey on the #ntegrated Rural0ccessibility lanning roKect.

4n 0ugust 12( 661( the new mayor sered him a notice of terminationfrom employment e"ectie the following day for unsatisfactory conduct andwant of capacity.

Magnaye questioned his termination before the C'C head oce on theground that Mayor Bendaa was not in a position to e"ectiely ealuate hisperformance because it was made less than one and one$half months afterhis %Mayor BendaaUs& assumption to oce. Fe added that his terminationwas without basis and was politically motiated.

The C'C head oce dismissed( without preKudice( MagnayeUs complaintbecause he failed to attach a certi/cate of non$forum shopping. Thereafter(Magnaye /led a complaint with the regional oce of the Ciil 'erice%C'CR4$#D&.

The C'CR4$#D dismissed MagnayeUs complaint for lac: of merit. #t upheldhis dismissal from the serice on the ground that Mayor BendaaUs ownassessment( together with the ealuation made by his superisors(

constituted sucient and reasonable grounds for his termination.Magnaye sought recourse through a petition for reiew with the Court of 0ppeals( citing C'CR4$#DUs alleged errors of fact and of law( non$obserance of due process( and grae abuse of discretion amounting tolac: or e3cess of Kurisdiction. 0dopting the stance of the 4ce of the'olicitor General( the C0 ruled in MagnayeUs faor( mainly on the groundthat he was denied due process since he was not informed of whatconstituted the alleged unsatisfactory conduct and want of capacity thatled to his termination. #t summariAed the positions of the 4'G as follows<

4n *anuary 1( 665( the 4ce of the 'olicitor General %4'G& /led itsmanifestation and motion( in lieu of comment( praying that the assaileddecision be set aside. The 4'G argued that etitionerUs termination wasillegal. The notice of termination did not cite the speci/c instances

indicating etitionerUs alleged unsatisfactory conduct or want of capacity. #twas only on *uly ,( 662( or almost two years after etitionerUs dismissalon 0ugust 12( 661 that his former 8epartment Feads( )ngr. Magsino and)ngr. Masongsong( submitted an assessment and ealuation report toMayor Bendaa( which the latter belatedly solicited when the etitionerappealed to the C'C Regional 4ce. Fence( the circumstances behindetitionerUs dismissal became questionable.

The 4'G also found no eidence at the C'C Regional 4ce leel thatetitioner was informed of his alleged poor performance. There was noeidence that etitioner was furnished copies of 1& Mayor BendaaUs letter(dated *uly ,( 662( addressed to C'C Regional 4ce praying thatetitionerUs termination be sustainedE and & the performance ealuationreport( dated *uly ,( 662( prepared by )ngr. Magsino and )ngr.Masongsong. The 4'G claimed that etitioner was denied due processbecause his dismissal too: e"ect a day after he receied the notice of termination. >o hearing was conducted to gie etitioner the opportunity torefute the alleged causes of his dismissal. The 4'G agreed with etitionerUsclaim that there was insucient time for Mayor Bendaa to determine his/tness or un/tness for the position.2 )mphasis suppliedH

Thus( the fallo of the C0 8ecision- reads<

=9F)R)L4R)( the petition is Granted. The Ciil 'erice CommissionRegional 4ce >o. -Us 8ecision( dated *uly 6( 66- is hereby 'et 0side.0ccordingly( etitioner is 4R8)R)8 R)#>'T0T)8 with full payment of bac:wages and other monetary bene/ts. This case is hereby R)M0>8)8 tothe Ciil 'erice Commission for reception of such eidence necessary forpurposes of determining the amount of bac:wages and other monetarybene/ts to which etitioner is entitled.

'4 4R8)R)8.=

TF) #''7)'

#n this petition( the Ciil 'erice Commission submits the following for ourconsideration<

=#. The dropping of respondent from the rolls of the local goernment unit of ?emery( Batangas was in accord with Ciil 'erice ?aw( rules and

Kurisprudence.

##. The respondent resorted to a wrong mode of appeal and iolated the ruleon e3haustion of administratie remedies and the corollary doctrine of primary Kurisdiction.=

The principal issue( therefore( is whether or not the termination of Magnayewas in accordance with the pertinent laws and the rules.

The eligibility of respondent Magnaye has not been put in issue.

TF) C47RTU' R7?#>G

The Court upholds the decision of the Court of 0ppeals.

Th C'C i i th t M U t i ti i d ith th Ci il l Thi l l t d i th f ? d B : f th



2-

The C'C( in arguing that MagnayeUs termination was in accord with the Ciil'erice law( cited 'ection -%a&( Rule ## of the 1,, C'C 4mnibus Rules on0ppointments and 4ther ersonnel 0ctions which proides that<

'ec. -. >ature of appointment. The nature of appointment shall be asfollows<

a. 4riginal Y refers to the initial entry into the career serice of persons whomeet all the requirements of the position. 333

#t is understood that the /rst si3 months of the serice following an originalappointment will be probationary in nature and the appointee shall undergoa thorough character inestigation. 0 probationer may be dropped from theserice for unsatisfactory conduct or want of capacity anytime before thee3piration of the probationary period. roided that such action isappealable to the Commission.

Foweer( if no notice of termination for unsatisfactory conduct is gien bythe appointing authority to the employee before the e3piration of the si3$month probationary period( the appointment automatically becomespermanent.

7nder Ciil 'erice rules( the /rst si3 months of serice following apermanent appointment shall be probationary in nature( and theprobationer may be dropped from the serice for unsatisfactory conduct orwant of capacity anytime before the e3piration of the probationary period.5

The C'C is of the position that a ciil serice employee does not enKoysecurity of tenure during his +$month probationary period. #t submits thatan employeeUs security of tenure starts only after the probationary period.'peci/cally( it argued that =an appointee under an original appointmentcannot lawfully ino:e right to security of tenure until after the e3piration of such period and proided that the appointee has not been noti/ed of thetermination of serice or found unsatisfactory conduct before the e3pirationof the same.=+

The C'C position is contrary to the Constitution and the Ciil 'erice ?awitself. 'ection 2 %& 0rticle 12 of the Constitution guarantees the rights of allwor:ers not Kust in terms of self$organiAation( collectie bargaining(peaceful concerted actiities( the right to stri:e with quali/cations( humaneconditions of wor: and a liing wage but also to security of tenure( and

'ection %2&( 0rticle #;$B is emphatic in saying that( =no ocer or employeeof the ciil serice shall be remoed or suspended e3cept for cause asproided by law.=

Consistently( 'ection -+ %a& of the Ciil 'erice ?aw proides that =noocer or employee in the Ciil 'erice shall be suspended or dismissede3cept for cause as proided by law after due process.=

4ur Constitution( in using the e3pressions =all wor:ers= and =no ocer oremployee(= puts no distinction between a probationary and a permanent orregular employee which means that both probationary and permanentemployees enKoy security of tenure. robationary employees enKoy securityof tenure in the sense that during their probationary employment( theycannot be dismissed e3cept for cause or for failure to qualify as regular

employees. This was clearly stressed in the case of ?and Ban: of thehilippines . Rowena aden(@ where it was written<

To put the case in its proper perspectie( we begin with a discussion on therespondent!s right to security of tenure. 0rticle #; %B&( 'ection %2& of the1,@ Constitution e3pressly proides that

=nHo ocer or employee of the ciil serice shall be remoed or suspendede3cept for cause proided by law.= 0t the outset( we emphasiAe that theaforementioned constitutional proision does not distinguish between aregular employee and a probationary employee. #n the recent case of 8aAa. ?ugo we ruled that<

The Constitution proides that =>Ho ocer or employee of the ciil sericeshall be remoed or suspended e3cept for cause proided by law.= 'ec. +(par. 1( Chapter 5( Boo: D( Title #$0 of the Reised 0dministratie Code of 1,@ states<

0ll such persons %appointees who meet all the requirements of the position&must sere a probationary period of si3 months following their originalappointment and shall undergo a thorough character inestigation in orderto acquire permanent ciil serice status. 0 probationer may be droppedfrom the serice for unsatisfactory conduct or want of capacity any timebefore the e3piration of the probationary periodE roided( That such actionis appealable to the Commission.

Thus( the serices of respondent as a probationary employee may only beterminated for a Kust cause( that is( unsatisfactory conduct or want of capacity. )mphasis suppliedH

3 3 3.

; 3 3 the only di"erence between regular and probationary employees fromthe perspectie of due process is that the latter!s termination can be basedon the wider ground of failure to comply with standards made :nown tothem when they became probationary employees.=

The constitutional and statutory guarantee of security of tenure is e3tendedto both those in the career and non$career serice positions( and the causeunder which an employee may be remoed or suspended must naturallyhae some relation to the character or /tness of the ocer or employee(for the discharge of the functions of his oce( or e3piration of the proKect

for which the employment was e3tended. , Lurther( well$entrenched is therule on security of tenure that such an appointment is issued and themoment the appointee assumes a position in the ciil serice under acompleted appointment( he acquires a legal( not merely equitable right %tothe position&( which is protected not only by statute( but also by theConstitution 0rticle #;$B( 'ection ( paragraph %2&H and cannot be ta:enaway from him either by reocation of the appointment( or by remoal(e3cept for cause( and with preious notice and hearing.16

9hile the C'C contends that a probationary employee does not enKoysecurity of tenure( its 4mnibus Rules recogniAes that such an employeecannot be terminated e3cept for cause. >ote that in the 4mnibus Rules itcited(11 a decision or order dropping a probationer from the serice forunsatisfactory conduct or want of capacity anytime before the e3piration of

the probationary period =is appealable to the Commission = This can only terminated for unsatisfactory conduct or want of capacity e"ectie 0ugust



25

the probationary period =is appealable to the Commission.= This can onlymean that a probationary employee cannot be /red at will.

>otably( Kurisprudence has it that the right to security of tenure isunaailing in certain instances. #n 4rcullo *r. . Ciil 'erice Commission(1it was ruled that the right is not aailable to those employees whoseappointments are contractual and co$terminous in nature. 'uchemployment is characteriAed by =a tenure which is limited to a periodspeci/ed by law( or that which is coterminous with the appointing authorityor subKect to his pleasure( or which is limited to the duration of a particularproKect for which purpose employment was made.=12 #n 0mores M.8. .Ciil 'erice Commission(1- it was held that a ciil e3ecutie sericeappointee who meets all the requirements for the position( e3cept only theappropriate ciil serice eligibility( holds the oce in a temporary capacityand is( thus( not entitled to a security of tenure enKoyed by permanentappointees.1aphi1

Clearly( MagnayeUs appointment is entirely di"erent from those situations.Lrom the records( his appointment was neer classi/ed as co$terminous orcontractual. >either was his eligibility as a 7tility 9or:er # challenged byanyone.

#n support of its position that an appointee cannot lawfully ino:e the rightto a security of tenure during the probationary period( petitioner C'Cban:ed on the case of ?ucero . Court of 0ppeals and hilippine >ationalBan:.15 This case is( howeer( not applicable because it refers to a priateentity where the rules of employment are not e3actly similar to those in thegoernment serice.

Mayor Bendaa dismissed Magnaye for lac: of capacity and unsatisfactoryconduct. 'ection +( paragraph 1( Chapter 5( Boo: D( Title #$0 of theReised 0dministratie Code of 1,@ states<

%1& 0ppointment through certi/cation.I0n appointment throughcerti/cation to a position in the ciil serice( e3cept as herein otherwiseproided( shall be issued to a person who has been selected from a list of quali/ed persons certi/ed by the Commission from an appropriate registerof eligibles( and who meets all the other requirements of the position.

0ll such persons must sere a probationary period of si3 months followingtheir original appointment and shall undergo a thorough characterinestigation in order to acquire permanent ciil serice status. 0

probationer may be dropped from the serice for unsatisfactory conduct orwant of capacity any time before the e3piration of the probationary period<roided( That such action is appealable to the Commission.

9hile unsatisfactory conduct and want of capacity are alid causes thatmay be ino:ed for dismissal from the serice(1+ the C0 obsered that theMemorandum issued by Mayor Bendaa terminating MagnayeUsemployment did not specify the acts constituting his want of capacity andunsatisfactory conduct. #t merely stated that the character inestigationconducted during his probationary period showed that his employment=need not be necessary to be permanent in status.=1@ 'peci/cally( thenotice of termination partly reads<

ou are hereby noti/ed that your serice as 7tility 9or:er #( thismunicipality under si3 %+& month probationary period( is considered

terminated for unsatisfactory conduct or want of capacity( e"ectie 0ugust1-( 661.

ou are further noti/ed that after a thorough character inestigation madeduring your such probationary period under my administration( yourappointment for employment need not be necessary to be automaticallypermanent in status.1

This notice indisputably lac:s the details of MagnayeUs unsatisfactoryconduct or want of capacity. 'ection D#( .%b& of the 4mnibus Guidelines on0ppointments and other ersonnel 0ctions %C'C Memorandum Circular >o.2( 'eries of 1,,2( as amended by C'C Memorandum Circular >o. 1('eries of 1,,-&( proides<

.. 7nsatisfactory or oor erformance

3 3 3

b. 0n ocial who( for one ealuation period( is rated poor in performance(may be dropped from the rolls after due notice. 8ue notice shall mean thatthe ocer or employee is informed in writing of the status of hisperformance not later than the fourth month of that rating period withsucient warning that failure to improe his performance within theremaining period of the semester shall warrant his separation from theserice. 'uch notice shall also contain sucient information which shallenable the employee to prepare an e3planation. )mphasis andunderscoring suppliedH

Magnaye asserts that no performance ealuation was made between March661 when he was hired by Mayor Rosales until 0ugust 1-( 661 when hisserices were terminated by Mayor Bendaa.1, #t was only on *uly ,(662( at Mayor BendaaUs behest( that his two superisors prepared andsubmitted the ealuation report after the C'CR4$#D directed him to /le ananswer to MagnayeUs appeal.6

This has not been rebutted. #t being not disputed( it was an error on thepart of the C'CR4$#D to rely on such belated performance appraisal.Common sense dictates that the ealuation report( submitted only in 662(could not hae been the basis for MagnayeUs termination.

Besides( Mayor BendaaUs own assessment of MagnayeUs performancecould not hae sered as a sucient basis to dismiss him because said

mayor was not his immediate superior and did not hae daily contacts withhim. 0dditionally( Mayor Bendaa terminated his employment less than oneand one$half months after his assumption to oce. This is clearly a shortperiod within which to assess his performance. #n the case of Miranda .Carreon(1 it was stated<

The 1,@ Constitution proides that =no ocer or employee of the ciilserice shall be remoed or suspended e3cept for cause proided by law.=7nder the Reised 0dministratie Code of 1,@( a goernment ocer oremployee may be remoed from the serice

on two %& grounds< %1& unsatisfactory conduct and %& want of capacity.9hile the Code does not de/ne and delineate the concepts of these twogrounds( howeer( the Ciil 'erice ?aw %residential 8ecree >o. 6@( asamended& proides speci/c grounds for dismissing a goernment ocer or

employee from the serice 0mong these grounds are ineciency and discussed aboe MagnayeUs dismissal was tainted with irregularity because



2+

employee from the serice. 0mong these grounds are ineciency andincompetence in the performance of ocial duties. #n the case at bar(respondents were dismissed on the ground of poor performance. oorperformance falls within the concept of ineciency and incompetence inthe performance of ocial duties which( as earlier mentioned( are groundsfor dismissing a goernment ocial or employee from the serice.

But ineciency or incompetence can only be determined after the passageof sucient time( hence( the probationary period of si3 %+& months for therespondents. #ndeed( to be able to gauge whether a subordinate isinecient or incompetent requires enough time on the part of hisimmediate superior within which to obsere his performance. Thiscondition( howeer( was not obsered in this case. 3 3 3. )mphasis andunderscoring suppliedH

The C'C is the central personnel agency of the goernment e3ercisingquasi$Kudicial functions. =#n cases /led before administratie or quasi$

Kudicial bodies( a fact may be deemed established if it is supported bysubstantial eidence( or that amount of releant eidence which areasonable mind might accept as adequate to Kustify a conclusion.=2 Thestandard of substantial eidence is satis/ed when( on the basis of theeidence on record( there is reasonable ground to beliee that the personterminated was eidently wanting in capacity and had unsatisfactoryconduct. #n this case( the eidence against Magnaye was woefullyinadequate.

Moreoer( Magnaye was denied due process. 9e ruled in Tria . Chairmanatricia 'to. Tomas- that the prohibition in 0rticle #; %B& %& %2& of theConstitution against dismissal of a ciil serice ocer or employee =e3ceptfor cause proided by law= is a guaranty of both procedural and substantiedue process. rocedural due process requires that the dismissal comes onlyafter notice and hearing(5 while substantie due process requires that thedismissal be =for cause.=+

Magnaye was denied procedural due process when he receied his notice of termination only a day before he was dismissed from the serice. )idently(he was e"ectiely depried of the opportunity to defend himself from thecharge that he lac:ed the capacity to do his wor: and that his conduct wasunsatisfactory. 0s well( during his appeal to the C'CR4$#D( he was notfurnished with the submissions of Mayor Bendaa that he could haeopposed. Fe was also denied substantie due process because he wasdismissed from the serice without a alid cause for lac: of any factual or

legal basis for his want of capacity and unsatisfactory conduct. Thus( we reKect petitionerUs argument that the C0 erred when it acted uponthe erroneous remedy aailed of by respondent when he /led a petition forreiew considering that the assailed decision is not in the nature of =awards( Kudgments( /nal orders or resolutions of or authoriAed by anyquasi$Kudicial agency in the e3ercise of its quasi$Kudicial functions= asprescribed under Rule -2 of the Rules of Court. 9hile 'ections @1 and @ of Rule D %B& of the 7niform Rules on 0dministratie Cases in the Ciil

'erice @ proide for the remedy of an appeal from decisions of itsregional oces to the Commission proper( MagnayeUs petition to the C0comes under the e3ceptions to the doctrine of e3haustion of administratieremedies. The C0 correctly cited Republic . ?acap( where a iolation of due process is listed to be among the noted e3ceptions to the rule. 0s

discussed aboe( Magnaye s dismissal was tainted with irregularity becausethe notice gien to him comes short of the notice contemplated by law and

Kurisprudence. The C0 correctly e3ercised Kurisdiction oer this case wherestandards of due process had been patently breached.

Faing been illegally dismissed( Magnaye should be reinstated to hisformer position without loss of seniority and paid bac:wages and othermonetary bene/ts from the time of his dismissal up to the time of hisreinstatement. #n our decision in Ciil 'erice Commission . Gentallan(,we ruled that for reasons of Kustice and fairness( an illegally dismissedgoernment employee who is later ordered reinstated is entitled tobac:wages and other monetary bene/ts from the time of his illegaldismissal until his reinstatement because he is considered as not haingleft his oce.

9F)R)L4R)( the petition is 8)>#)8. The Lebruary 6( 66 8ecision of theCourt of 0ppeals and its *une 11( 66 Resolution denying the motion forreconsideration in C0$G.R. >o. ' >o. 556 are 0LL#RM)8.

SANTOS V YATCO (1959) 8efendant further alleged also under oath among other things that he



2@

SANTOS V. YATCO (1959)

etition for certiorari to reo:e the order of the respondent Kudge cancellinghis preious order of e3ecution. Lor the reasons stated hereinafter( it shouldbe denied.#t appears that in ciil Case >o. J$++- of JueAon City Court of Lirst#nstance( the parties submitted on 8ecember ,( 1,5@( a compromiseagreement whereby( referring to the sale by installment of a parcel of landmade by plainti"s acita D. 8e los 'antos and *ose . de los 'antos todefendant Lrancisco MendoeA( they as:ed the court to render a KudgmentsubKect t the following conditions<

a. 4n or before 8ecember +( 1,5@( defendant shall pay to plainti"s theamount of 1(666.66Eb. 8efendant shall pay 266.66 monthly installment within the /rst /edays of eery month beginning *anuary( 1,5( until the balance shall haebeen paid in fullEc. The balance shall bear interest at 16X per annumEd. That balance of defendant to pay 1(666.66 on or before 8ecember +(1,5@ andQor any two %& successie monthly installments shall be cause forplainti"s to demand of defendant to immediately acate the premises withforfeiture in plainti"s faor of all preious payments madeE that if defendant will refuse to oluntarily acate( plainti"s can as: for e3ecutionof Kudgment against the defendantEe. That plainti"s shall e3ecute the necessary 0B'4?7T) 8))8 4L '0?) of the lot( ?ot >o. -( Bloc: >o. 12 T. C.T. >o. 56,-( JueAon City Registry( infaor of defendant upon payment in full of the balance. 9herefore( thecourt issued on 8ecember 16( 1,5@( a decision approing the agreement(and saying =Kudgment is hereby rendered in accordance with the terms andconditions set forth therein( for the parties to comply therewith.=

4n March 16( 1,5( plainti"s in the same case /led a motion for e3ecution(because defendant had allegedly neglected to pay monthly installmentssince *anuary 1,5. lainti"s set the motion for hearing on March 15( 1,5.Foweer( on March 1-( 1,5( defendants moed %with the conformity of plainti"s! counsel& for postponement to March ( 1,5 =to gie the partiessucient time to come to a more Kust( fair and equitable agreement.=%0nne3 =)=& 0nd the Kudge postponed( as requested.

#t is not clear happened at the hearing on March ( 1,5. 0ccording toplainti"s( MendoeA admitted he iolated the agreement( as:ed for( andwas granted( two days to settle with plainti"s( but he failed to do so.

0ccording to defendant there was a misunderstanding at the hearing. Thefact is( the court issued on March 5( 1,5( an order of e3ecution. Foweer(defendant MendoeA /led on 0pril 1@( 1,5( an urgent motion to quash thewrit of e3ecution( asserting under oath that =immediately after thee3ecution of the compromise agreement . . . plainti" acita D. de los 'antosand defendant Lrancisco MendoeA entered into a erbal agreementwhereby the former assured and led defendant to beliee that proided hecould pay in full and at one time the balance of his indebtedness to herthrough a G'#' Goernment 'erice #nsurance 'ystem& loan which she iswilling to facilitate for defendant( she would e3ecute the necessary deed of absolute sale in faor of the defendant for ?ot >o. -( Bloc: >o. 12$C( cs$221$0M8 of T.C.T. >o. 56,- of JueAon City and would consider the termsand conditions faorable to her in their compromise agreementunenforceable against defendant. . . .=

8efendant further alleged( also under oath( among other things( that heapplied for and secured the necessary loan from the G'#'E that plainti"shad been so adised on March ( 1,5E but plainti" acita D. de los 'antos=arbitrarily and illegally demands and continuous demanding of defendantthat before she complies with the content of said %erbal& agreement(defendant should pay her 1(666.66 by way of attorney!s fees plus thebalance of defendant!s indebtedness computed by her in the amount of 1-(2+2.66( e3cluding interest yet( all to be ta:en from defendant!s G'#'loan as approed( and that the 1(666.66 already paid by defendant to heras stated in paragraph -( supra( is considered by her forfeited in her faor. .. .=

This urgent motion was ta:en up on 0pril 1,( 1,5. 0fter listening to theparties( the Kudge in open court orderedE =in iew of the statement of counsel for plainti"s that they are still open to an amicable settlement(action on the motion to quash writ of e3ecution of the defendant is held inabeyance for two %& wee:s during which period they can settle the caseamicably and report to the Court whateer with agreement they may haereached.=

4n 0pril ( 1,5( defendant manifested in writing that he conferred withplainti" acita D. de los 'antos on 0pril ( 1,5( that he made :nown toher =that he is ready to pay and is o"ering her the sum of 12(5+2( hisbalance indebtedness to her( in accordance with their erbal agreement on8ecember ,( 1,5@ . . . lainti" acita D. de los 'antos brushed asidedefendant!s o"er of payment( and instead( stated that she will abide bytheir said agreement only if she will be paid 1-(566.66. 'he added thatshe is demanding now( 1-(566.66 after she has forfeited the 1(666.66already paid by defendant to her( and that she can not allow the 1(666.66be deducted from the remaining balance of 1-(5+2.66.=

The Kudge called the parties to a pre$trial or conference on *une ( 1,5.>oting defendant!s insistance on non$iolation of the compromisesagreement( he set the case for hearing on *une 2( 1,5. 4n said dateaccording to the *udge( 0tty. Bernardo %for plainti"s& refused to attend thehearing( and defendant proed the material allegations of his urgentmotion as hereinaboe set forth.

9herefore( coninced that there was no Kusti/cation or the issuance of thewrit of e3ecution( the Fon. >icasio atco( *udge( quashed it by his order of

*une -( 1,5. Fence this petition for certiorari to reo:e that particularorder( which petition must necessarily be based on lac: of Kurisdiction or

abuse of discretion. 1 There is no question in this country that a Kudge has Kurisdiction to quash awrit of e3ecution issued by him( particularly where it was improidentlyissued. %8imayuga s. Raymundo( @+ hil.( 1-2( - 4". GaA.( 11&. 'eealso Garcia s( MuoA( 162 hil.( +.

9as there abuse of discretion 9e thin: not. #n the /rst place( there beingopposition on the part of the defendant( who alleged and proed asubsequent erbal agreement amending the compromise( e3ecution couldnot alidly be decreed without a hearing. 0s we said in Co. s. ?ucero( 166hil.( 1+6( 5 4". GaA.( %1@&( @55( when under similar circumstances abreach of the compromise agreement is alleged( =there arises a cause of action which must be passed upon by the court requiring a hearing todetermine whether such breach had really ta:en place.= #n the second

place the allegations proed by MendoeA about their erbal agreement



2

place( the allegations proed by MendoeA about their erbal agreement(his haing secured a loan from the G'#' and his consequent ability todischarge his obligation seemingly Kusti/ed the court!s refusal to eKectdefendant from the premises %on e3ecution& was the consequent forfeiturein faor of the plainti"s of more than 1(666.66 already paid by defendantas preious installments of the purchase price( 2not to mention the of defendants use of the house and theatre erected that parcel of land. 7ponthe other hand( the respondent Kudge!s action caused no irreparable orundue harm plainti"s( because the latter still hae the Kudgment MendoeA.>ote particularly that their unpaid continuous to earn 16X interest.

9herefore( as the court had Kurisdiction and has committed not graeabuse of discretion( the writ of certiorari may not be issued.

etition denied( with costs against petitioners.

DE LA CRU V. CA (1999) petitions for lac: of merit @ The appellate court ruled that the questioned



2,

DE LA CRU V. CA (1999)

etitioners are public school teachers from arious schools in Metro Manilawho were simultaneously charged( preentiely suspended( and eentuallydismissed in 4ctober 1,,6 by then 'ecretary #sidro 8. Cario of the8epartment of )ducation( Culture and 'ports %8)C'&( in decisions issued byhim which uniformly read I This is a mutu$propio administratie complaintseparately /led by the 'ecretary of )ducation( Culture and 'ports againstthe following public school teachers . . . . based on the report submitted bytheir respectie school principals wherein it was alleged that the aboe$named teachers participated in the mass actionQillegal stri:e in 'ept. 1,$1(1,,6 and subsequently de/ed the return$to$wor: order dated 'eptember1@( 1,,6 issued by this 4ce( which acts constitute grae misconduct(

gross neglect of duty( gross iolation of Ciil 'erice ?aw( Rules andRegulations and reasonable oce regulations( refusal to perform ocialduty( gross insubordination conduct preKudicial to the best interest of theserice and absence without ocial leae %094?&( in iolation of residential 8ecree 6@( otherwise :nown as the Ciil 'erice 8ecree of thehilippines.

Required to e3plain within a period of not less than @ hours but not morethan 5 days from receipt of the complaint( respondents failed to submit therequired answer within the gien time up to the present( and despite thedenial of their request for e3tension of 26 days within which to submit theiranswers dated 'eptember 5( 1,,6 /led by their counsel( 0tty. GregorioLabros( in a letter of this 4ce to him dated 'eptmber ( 1,,6(respondents failed to submit the same( which failure( is considered a waieron their part of their right to answer the charges and to controert thesame.

9herefore( after a careful ealuation of the records( this 4ce /nds therespondents guilty as charged. #n accordance with Memorandum Circular26 s. 1,, of the Ciil 'erice Commission on Guidelines in the 0pplicationof enalty in 0dministratie Cases( the herein respondents are dismissedfrom 4ce e"ectie immediately.

The decisions dismissing petitioners were immediately implemented.

etitioners appealed to the Merit 'ystems rotection Board %M'B& andthen to the Ciil 'erice Commission %C'C&. #n 1,,2 the C'C foundpetitioners guilty of =conduct preKudicial to the best interest of the serice=for haing participated in the mass actions and imposed upon them thereduced penalty of si3 %+& months! suspension. Foweer( in iew of thelength of time that petitioners had been out of the serice by reason of theimmediate implementation of the dismissal orders of 'ecretary Cario( theC'C li:ewise ordered petitioners! automatic reinstatement in the sericewithout bac: wages.

etitioners were unhappy with the C'C decision. They initially /led petitionsfor certiorari with this Court( doc:eted as G.R. >os. 111,,( 11--25$556+( 2 and 11+21$1,( - which were all referred to the Court of 0ppealspursuant to Reised 0dministratie Circular >o. 1$,5 5 and there re$doc:eted as C0$G.R. ' >o. 2@+6( C0$G.R. ' >o. 2@+1, and C0$G.R. '>os. 2@@-( 2@6$2@61-( respectiely.

4n , >oember 1,,5 the 'pecial Third 8iision of the Court of 0ppeals +rendered a Koint decision in C0$G.R. ' >os. 2@+1,$6 dismissing the

petitions for lac: of merit. @ The appellate court ruled that the questionedresolutions of the Ciil 'erice Commission /nding petitioners guilty of conduct preKudicial to the best interest of the serice were based onreasonable and Kusti/able groundsE that petitioners! perceied grieanceswere no e3cuse for them not to conduct classes and defy the return$to$wor:order issued by their superiorsE that the immediate e3ecution of thedismissal orders of 'ecretary Cario was sanctioned by 'ec. -@( par. %&( of the 0dministratie Code of 1,@ %).4. >o. ,& as well as 'ec. 2@( par. %b&(0rt. #; of 8 >o. 6@( and 'ec. 2( Rule ;#D of the 4mnibus Rules#mplementing Boo: D of ). 4. >o. ,. Their motion for reconsiderationhaing been denied on 15 May 1,,@( , petitioners then appealed bycertiorari to this Court on + *une 1,,@( doc:eted as G.R. >o. 1,1.

Meanwhile( on - 0pril 1,, the Tenth 8iision of the Court of 0ppeals 16 rendered a Koint decision in C0$G.R. ' >o. 2@@- and >os.2@6$1- li:ewise dismissing the petitions for lac: of merit. 11 Theappellate court reKected petitioners! contention that they should not haebeen penaliAed for participating in the 'eptemberQ4ctober 1,,6 massactions because they were merely e3ercising their constitutional right tofree assembly. #n so ruling the Court of 0ppeals cited Manila ublic 'chool

Teachers 0ssociation . ?aguio( *r. 1 wherein this Court ruled that thepublic school teachers! mass actions of 'eptemberQ4ctober 1,,6 were =toall intents and purposes a stri:e . . . constitutingH a concealed andunauthoriAed stoppage of( or absence from( wor: which it was the teachers!duty to perform( underta:en for essentially economic reasons.= etitioners!contention.that secretary Cario!s decision to dismiss them was notsupported by eidence was li:ewise reKected in iew of petitioners!admissions andQor failure to refute the factual /nding that petitionersactually Koined the mass actions based on the report of absences submittedby their respectie school principals. Their motion for reconsiderationhaing been denied in the resolution of 6 0ugust 1,,+( 12 petitioners then/led a petition for reiew on certiorari with this Court on 1 4ctober 1,,+(doc:eted as G.R. >o. 1+12.

By resolution of @ 4ctober 1,,@ we granted petitioners! motion for theconsolidation of G.R. >os. 1+12 and 1,1 inoling as they didcommon questions of fact and law.

etitioners contend that the Court of 0ppeals grieously erred in armingthe C'C resolutions /nding them guilty of conduct preKudicial to the bestinterest of the serice when their only =o"ense= was to e3ercise theirconstitutional right to peaceably assemble and petition the goernment forredress of their grieances. Moreoer petitioners insist that the massactions of 'eptemberQ4ctober 1,,6 were not =stri:es= as there was noactual disruption of classes. etitioners therefore as: for e3oneration or( inthe alternatie( award of bac: wages for the period of three %2& years whenthey were not allowed to wor: while awaiting resolution of their appeals bythe M'B and C'C( deducting the period of si3 %+& months! suspensioneentually meted them.

The petitions must be denied in iew of preious rulings of this Courtalready settling all the issues raised by petitioners. #t is a ery desirableand necessary Kudicial practice that when a court has laid down a principleof law as applicable to a certain state of facts( it will adhere to that principleand apply it to all future cases where the facts are substantially the same.1- 'tare decisis et non quieta moere. 'tand by the decisions and disturbnot what is settled. 15

absences thus disrupting classes in arious schools in Metro Manila which



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0s early as 1 8ecember 1,,6 we hae categorically ruled in theconsolidated cases of Manila ublic 'chool Teachers 0ssociation .?aguio *r.( 1+ and 0lliance of Concerned Teachers . Fon. #sidro Cario 1@that the mass actions of 'eptemberQ4ctober 1,,6 staged by Metro Manilapublic school teachers =amounted to a stri:e in eery sense of the term(constituting as they did( a concerted and unauthoriAed stoppage of orabsence from wor: which it was said teachers! sworn duty to perform(carried out for essentially economic reasons I to protest and pressure theGoernment to correct what( among other grieances( the stri:ersperceied to be the unKust or preKudicial implementation of the salarystandardiAation law insofar as they were concerned( the non$payment ordelay in payment of arious fringe bene/ts and allowances to which they

were entitled( and the imposition of additional teaching loads and longerteaching hours.= #n Rolando Gan . Ciil 'erice Commission( 1 we deniedthe claim that the teachers were thereby denied their rights to peaceablyassemble and petition the goernment for redress of grieances reasoningthat this constitutional liberty to be upheld( li:e any other liberty( must bee3ercised within reasonable limits so as not to preKudice the public welfare.But the public school teachers in the case of the 1,,6 mass actions did note3ercise their constitutional rights within reasonable limits. 4n the contrary(they committed acts preKudicial to the best interest of the serice bystaging the mass protests on regular school days( abandoning their classesand refusing to go bac: een after they had been ordered to do so. Fad theteachers aailed of their free time I recess( after classes( wee:ends orholidays I to dramatiAe their grieances and to dialogue with the properauthorities within the bounds of law( no one I not the 8)C'( the C'C oreen the 'upreme Court I could hae held them liable for theirparticipation in the mass actions. 1,

9ith respect to our ruling in BM )mployees 4rganiAation . hilippineBlooming Mills Co.( #nc.( 6 ino:ed by petitioners( we hae li:ewise alreadyruled in the Rolando Gan case 1 that the BM ruling I that the rights of free e3pression and assembly could not be lightly disregarded as theyoccupy a preferred position in the hierarchy of ciil liberties I was notapplicable to defend the alidity of the 1,,6 mass actions because whatwere pitted therein against the rights of free e3pression and of assemblywere inferior property rights while the higher consideration inoled in thecase of the stri:ing teachers was the education of the youth which must( atthe ery least( be equated with the freedom of assembly and to petition thegoernment for redress of grieances.

9e armed the foregoing rulings in Bagana . Court of 0ppeals 2 bydenying a similar petition /led by another group of teachers whoparticipated in the 1,,6 mass actions but who claimed to hae beenmerely e3ercising their constitutional right to free assembly. 9e held inBagana that the Court of 0ppeals committed no reersible error in armingthe C'C resolutions /nding the teachers guilty of conduct preKudicial to thebest interest of the serice and imposing penalties of si3 %+& months!suspension without pay. #n Bangalisan . Court of 0ppeals - we added thatthe persistent refusal of the stri:ing teachers to call the mass actions bythe conentional term =stri:e= did not erase the true nature of the massactions as unauthoriAed stoppages of wor: the purpose of which was toobtain a faorable response to the teachers! economic grieances. 9eagain stressed that the teachers were penaliAed not because theye3ercised their right to peaceably assemble but because of the manner bywhich such right was e3ercised( i.e.( going on unauthoriAed and unilateral

absences thus disrupting classes in arious schools in Metro Manila whichproduced aderse e"ects upon the students for whose education theteachers were responsible. But herein petitioners contend that classes werenot actually disrupted because substitute teachers were immediatelyappointed by 'ecretary Cario. Besides being a purely factual assertionwhich this Court cannot ta:e cogniAance of in a petition for reiew( the factthat the prompt remedial action ta:en by 'ecretary Cario might haepartially deNected the aderse e"ects of the mass protests did not erasethe administratie liability of petitioners for the intended consequencesthereof which were the ery reason why such prompt remedial actionbecame necessary.

Considering the foregoing( we /nd that respondent Court of 0ppeals did not

err in sustaining the C'C resolutions /nding petitioners guilty of conductpreKudicial to the best interest of the serice. 0s an alternatie prayer(petitioners as: that in the eent their e3oneration is not decreed they beawarded bac: wages for the period when they were not allowed to wor: byreason of the supposed unKusti/ed immediate implementation of thedismissal orders of 'ecretary Cario while awaiting resolution of theirappeals by the M'B and C'C.

The issue of whether bac: wages may be awarded to teachers orderedreinstated to the serice after the dismissal orders of 'ecretary Cario werecommuted by the C'C to si3 %+& months! suspension is already settled.

#n Bangalisan . Court of 0ppeals 5 we resoled the issue in the negatieon the ground that the teachers were neither e3onerated nor unKusti/ablysuspended( two %& circumstances necessary for the grant of bac: wages inadministratie disciplinary cases. ?i:e herein petitioners( those inBangalisan were also teachers who participated in the 1,,6 mass actionsfor which they were dismissed by 'ecretary Cario but ordered merelysuspended for si3 %+& months by the Ciil 'erice Commission. 4n a pleathat the immediate implementation of the dismissal orders of 'ecretaryCario was unKusti/ed( thus warranting an award of bac: wages the Courtsaid I

0s to the immediate e3ecution of the decision of the 'ecretary againstpetitioners( the same is authoriAed by 'ection -@( paragraph %&( of )3ecutie 4rder >o. ,( thus< =The 'ecretaries and heads of agencies andinstrumentalities( proinces( cities and municipalities shall hae Kurisdictionto inestigate and decide matters inoling disciplinary action againstocers and employees under their Kurisdiction. Their decision shall be /nalin case the penalty imposed is suspension for not more than thirty days or/ne in an amount not e3ceeding thirty days! salary. #n case the decisionrendered by a bureau or oce is appealable to the Commission( the sameshall be e3ecutory e3cept when the penalty is remoal( in which case thesame shall be e3ecutory only after con/rmation by the 'ecretaryconcerned. 0nd since it was already the /nal dismissal orders of 'ecretaryCario which were being carried out( immediate implementation eenpending appeal was clearly sanctioned by the aforequoted proision of the0dministratie Code of 1,@. + Fence( being legal( the immediatee3ecution of the dismissal orders could not be considered unKusti/ed.

The cases cited by petitioners to support their prayer for bac: salaries(namely( 0bellera . City of Baguio @ and Bautista . eralta being caseswhich inoled the unKusti/ed immediate e3ecution of the dismissal ordersof the then Ciil 'erice Commissioner pending appeal to the Ciil 'erice

Board of 0ppeals are therefore not applicable to Kustify petitioners! prayer.



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pp pp K y p p y>either could petitioners be considered to hae been e3onerated from thecharges leelled against them by 'ecretary Cario from the mere fact thatthey were found guilty only of conduct preKudicial to the best interest of theserice by the C'C. #t must be remembered that 'ecretary Cario chargedpetitioners with grae misconduct( gross neglect of duty( gross iolation of ciil serice law( rules and regulations( etc.( for haing participated in the1,,6 illegal mass actions. 4n appeal the C'C while arming the factual/nding that petitioners indeed participated in the mass the factual /ndingthat petitioners indeed participated in the mass actions found them liableonly for conduct preKudicial to the best interest of the serice. Clearly theC'C decision did not proceed from a /nding that petitioners did not committhe acts complained of. Faing been found to hae actually participated in

the illegal mass actions although found answerable for a lesser o"ense(petitioners could not be considered as fully innocent of the charges againstthem. , Being found liable for a lesser o"ense is not equialent toe3oneration. 26

Thus in Bangalisan we denied the claim for bac: wages of those teacherswho were found to hae actually participated in the 1,,6 mass actions butgranted the claim of one Rodolfo Mariano who was absent only because heattended the wa:e and interment of his grandmother. #n *acinto . Court of 0ppeals 21 we again denied the claim for bac: wages of teachers found tohae gien cause for their suspension i.e.( their unKusti/ed abandonment of classes to the preKudice of their students but granted the claim of Merlinda

*acinto who was absent because of illness.

etitioners do not deny( nay they een admit( haing participated in the1,,6 mass actions. Thus haing gien cause for their supension( theirprayer for bac:wages must be denied conformably with settled rulings of this Court.

9F)R)L4R)( the petitions are 8)>#)8 and the assailed 8ecisions of theCourt of 0ppeals dated , >oember 1,,5 and - 0pril 1,,+ are0LL#RM)8. >o costs.

!LORES V. DRILON (199")



-

The constitutionality of 'ec. 12( par. %d&( of R.0. @@( 1 otherwise :nown asthe =Bases Conersion and 8eelopment 0ct of 1,,(= under whichrespondent Mayor Richard *. Gordon of 4longapo City was appointedChairman and Chief )3ecutie 4cer of the 'ubic Bay Metropolitan0uthority %'BM0&( is challenged in this original petition with prayer forprohibition( preliminary inKunction and temporary restraining order =topreent useless and unnecessary e3penditures of public funds by way of salaries and other operational e3penses attached to the oce . . . .= aragraph %d& reads I

%d& Chairman administrator I The resident shall appoint a professional

manager as administrator of the 'ubic 0uthority with a compensation to bedetermined by the Board subKect to the approal of the 'ecretary of Budget( who shall be the e3 o/cio chairman of the Board and who shallsere as the chief e3ecutie ocer of the 'ubic 0uthority< roided(howeer( That for the /rst year of its operations from the e"ectiity of this0ct( the mayor of the City of 4longapo shall be appointed as the chairmanand chief e3ecutie ocer of the 'ubic 0uthority %emphasis supplied&.

etitioners( who claim to be ta3payers( employees of the 7.'. Lacility at the'ubic( Pambales( and ocers and members of the Lilipino Ciilian)mployees 0ssociation in 7.'. Lacilities in the hilippines( maintain that theproiso in par. %d& of 'ec. 12 herein$aboe quoted in italics infringes on thefollowing constitutional and statutory proisions< %a& 'ec. @( /rst par.( 0rt.#;$B( of the Constitution( which states that =nHo electie ocial shall beeligible for appointment or designation in any capacity to any public oceror position during his tenure(= 2 because the City Mayor of 4longapo City isan electie ocial and the subKect posts are public ocesE %b& 'ec. 1+( 0rt.D##( of the Constitution( which proides that =tHhe resident shall . . . .appoint all other ocers of the Goernment whose appointments are nototherwise proided for by law( and those whom he may be authoriAed bylaw to appoint=( - since it was Congress through the questioned proiso andnot the resident who appointed the Mayor to the subKect postsE 5 and( %c&'ec. +1( par. %g&( of the 4mnibus )lection Code( which says<

'ec. +1. rohibited 0cts. I The following shall be guilty of an electiono"ense< . . . %g& 0ppointment of new employees( creation of new position(promotion( or giing salary increases. I 8uring the period of forty$/e daysbefore a regular election and thirty days before a special election( %1& anyhead( ocial or appointing ocer of a goernment oce( agency orinstrumentality( whether national or local( including goernment$owned orcontrolled corporations( who appoints or hires any new employee( whetherproisional( temporary or casual( or creates and /lls any new position(e3cept upon prior authority of the Commission. The Commission shall notgrant the authority sought unless it is satis/ed that the position to be /lledis essential to the proper functioning of the oce or agency concerned( andthat the position shall not be /lled in a manner that may inNuence theelection. 0s an e3ception to the foregoing proisions( a new employee maybe appointed in case of urgent need< roided( howeer( That notice of theappointment shall be gien to the Commission within three days from thedate of the appointment. 0ny appointment or hiring in iolation of thisproision shall be null and oid. %& 0ny goernment ocial who promotes(or gies any increase of salary or remuneration or priilege to anygoernment ocial or employee( including those in goernment$owned orcontrolled corporations . . . .

for the reason that the appointment of respondent Gordon to the subKectposts made by respondent )3ecutie 'ecretary on 2 0pril 1,, was withinthe prohibited -5$day period prior to the 11 May 1,, )lections.

The principal question is whether the proiso in 'ec. 12( par. %d&( of R.0.@@ which states( =roided( howeer( That for the /rst year of itsoperations from the e"ectiity of this 0ct( the mayor of the City of 4longapo shall be appointed as the chairman and chief e3ecutie ocer of the 'ubic 0uthority(= iolates the constitutional proscription againstappointment or designation of electie ocials to other goernment posts.

#n full( 'ec. @ of 0rt. #;$B of the Constitution proides<

>o electie ocial shall be eligible for appointment or designation in anycapacity to any public oce or position during his tenure.

7nless otherwise allowed by law or by the primary functions of his position(no appointie ocial shall hold any other oce or employment in theGoernment or any subdiision( agency or instrumentality thereof(including goernment$owned or controlled corporations or theirsubsidiaries.

The section e3presses the policy against the concentration of seeral publicpositions in one person( so that a public ocer or employee may sere full$time with dedication and thus be ecient in the deliery of public serices.#t is an armation that a public oce is a full$time Kob. Fence( a publicocer or employee( li:e the head of an e3ecutie department described inCiil ?iberties 7nion . )3ecutie 'ecretary( G.R. >o. 2,+( and 0nti$Graft?eague of the hilippines( #nc. . hilip )lla C. *uico( as 'ecretary of 0grarianReform( G.R. >o. 215( + =. . . . should be allowed to attend to his dutiesand responsibilities without the distraction of other goernmental duties oremployment. Fe should be precluded from dissipating his e"orts( attentionand energy among too many positions of responsibility( which may result inhaphaAardness and ineciency . . . .=

articularly as regards the /rst paragraph of 'ec. @( =%t&he basic idea reallyis to preent a situation where a local electie ocial will wor: for hisappointment in an e3ecutie position in goernment( and thus neglect hisconstituents . . . .= @

#n the case before us( the subKect proiso directs the resident to appointan electie ocial( i.e.( the Mayor of 4longapo City( to other goernmentposts %as Chairman of the Board and Chief )3ecutie 4cer of 'BM0&.'ince this is precisely what the constitutional proscription see:s to preent(it needs no stretching of the imagination to conclude that the proisocontraenes 'ec. @( /rst par.( 0rt. #;$B( of the Constitution. Fere( the factthat the e3pertise of an electie ocial may be most bene/cial to thehigher interest of the body politic is of no moment.

#t is argued that 'ec. ,- of the ?ocal Goernment Code %?GC& permits theappointment of a local electie ocial to another post if so allowed by lawor by the primary functions of his oce. But( the contention is fallacious.'ection ,- of the ?GC is not determinatie of the constitutionality of 'ec.12( par. %d&( of R.0. @@( for no legislatie act can preail oer thefundamental law of the land. Moreoer( since the constitutionality of 'ec.,- of ?GC is not the issue here nor is that section sought to be declared

unconstitutional( we need not rule on its alidity. >either can we ino:e a #ndeed( the 'enators would not hae been concerned with the e"ects of



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practice otherwise unconstitutional as authority for its alidity.

#n any case( the iew that an electie ocial may be appointed to anotherpost if allowed by law or by the primary functions of his oce( ignores theclear$cut di"erence in the wording of the two %& paragraphs of 'ec. @( 0rt.#;$B( of the Constitution. 9hile the second paragraph authoriAes holding of multiple oces by an appointie ocial when allowed by law or by theprimary functions of his position( the /rst paragraph appears to be morestringent by not proiding any e3ception to the rule against appointment ordesignation of an electie ocial to the goernment post( e3cept as areparticularly recogniAed in the Constitution itself( e.g.( the resident as headof the economic and planning agencyE , the Dice$resident( who may be

appointed Member of the CabinetE 16 and( a member of Congress who maybe designated e3 ocio member of the *udicial and Bar Council. 11

The distinction between the /rst and second paragraphs of 'ec. @( 0rt. #;$B(was not accidental when drawn( and not without reason. #t was purposelysought by the drafters of the Constitution as shown in their deliberation(thus I

MR. M4>'48. #n other words( what then Commissioner is saying( Mr.residing 4cer( is that the prohibition is more strict with respect toelectie ocials( because in the case of appointie ocials( there may be alaw that will allow them to hold other positions.

MR. L4P. es( # suggest we ma:e that di"erence( because in the case of appointie ocials( there will be certain situations where the law shouldallow them to hold some other positions. 1

The distinction being clear( the e3emption allowed to appointie ocials inthe second paragraph cannot be e3tended to electie ocials who aregoerned by the /rst paragraph.

#t is further argued that the 'BM0 posts are merely e3 ocio to the positionof Mayor of 4longapo City( hence( an e3cepted circumstance( citing Ciil?iberties 7nion . )3ecutie 'ecretary( 12 where we stated that theprohibition against the holding of any other oce or employment by theresident( Dice$resident( Members of the Cabinet( and their deputies orassistants during their tenure( as proided in 'ec. 12( 0rt. D##( of theConstitution( does not comprehend additional duties and functions requiredby the primary functions of the ocials concerned( who are to performthem in an e3 ocio capacity as proided by law( without receiing anyadditional compensation therefor.

This argument is apparently based on a wrong premise. Congress did notcontemplate ma:ing the subKect 'BM0 posts as e3 ocio or automaticallyattached to the 4ce of the Mayor of 4longapo City without need of appointment. The phrase =shall be appointed= unquestionably shows theintent to ma:e the 'BM0 posts appointie and not merely adKunct to thepost of Mayor of 4longapo City. Fad it been the legislatie intent to ma:ethe subKect positions e3 ocio( Congress would hae( at least( aoided theword =appointed= and( instead( =e3 ocio= would hae been used. 1-

)en in the 'enate deliberations( the 'enators were fully aware that subKectproiso may contraene 'ec. @( /rst par.( 0rt. #;$B( but they neerthelesspassed the bill and decided to hae the controersy resoled by the courts.

'ec. @( /rst par.( had they considered the 'BM0 posts as e3 ocio.

CogniAant of the complication that may arise from the way the subKectproiso was stated( 'enator Rene 'aguisag remar:ed that =if theConference Committee Kust said =the Mayor shall be the Chairman= thenthat should foreclose the issue. #t is a legislatie choice.= 15 The 'enatortoo: a iew that the constitutional proscription against appointment of electie ocials may hae been sidestepped if Congress attached the'BM0 posts to the Mayor of 4longapo City instead of directing the residentto appoint him to the post. 9ithout passing upon this iew of 'enator'aguisag( it suces to state that Congress intended the posts to beappointie( thus nibbling in the bud the argument that they are e3 ocio.

The analogy with the position of Chairman of the Metro Manila 0uthoritymade by respondents cannot be applied to uphold the constitutionality of the challenged proiso since it is not put in issue in the present case. #n thesame ein( the argument that if no electie ocial may be appointed ordesignated to another post then 'ec. ( 0rt. #;$B( of the Constitutionallowing him to receie double compensation 1+ would be useless( is nonsequitur since 'ec. does not a"ect the constitutionality of the subKectproiso. #n any case( the Dice$resident for e3ample( an electie ocial whomay be appointed to a cabinet post under 'ec. 2( 0rt. D##( may receie thecompensation attached to the cabinet position if speci/cally authoriAed bylaw.

etitioners also assail the legislatie encroachment on the appointingauthority of the resident. 'ection 12( par. %d&( itself ests in the residentthe power to appoint the Chairman of the Board and the Chief )3ecutie4cer of 'BM0( although he really has no choice under the law but toappoint the Mayor of 4longapo City.

0s may be de/ned( an =appointment= is =tHhe designation of a person( bythe person or persons haing authority therefor( to discharge the duties of some oce or trust(= 1@ or =tHhe selection or designation of a person( bythe person or persons haing authority therefor( to /ll an oce or publicfunction and discharge the duties of the same. 1 #n his treatise( hilippineolitical?aw( 1, 'enior 0ssociate *ustice #sagani 0. CruA de/nes appointment as=the selection( by the authority ested with the power( of an indiidual whois to e3ercise the functions of a gien oce.=

Considering that appointment calls for a selection( the appointing powernecessarily e3ercises a discretion. 0ccording to 9oodbury( *.( 6 =the choiceof a person to /ll an oce constitutes the essence of his appointment(= 1and Mr. *ustice Malcolm adds that an =aHppointment to oce is intrinsicallyan e3ecutie act inoling the e3ercise of discretion.= #n amantasan ng?ungsod ng Maynila . #ntermediate 0ppellate Court 2 we held<

The power to appoint is( in essence( discretionary. The appointing powerhas the right of choice which he may e3ercise freely according to his

Kudgment( deciding for himself who is best quali/ed among those who haethe necessary quali/cations and eligibilities. #t is a prerogatie of theappointing power . . . .

#ndeed( the power of choice is the heart of the power to appoint.0ppointment inoles an e3ercise of discretion of whom to appointE it is not

a ministerial act of issuing appointment papers to the appointee. #n other 9here( as in the case of respondent Gordon( an incumbent electie ocial



--

words( the choice of the appointee is a fundamental component of theappointing power.

Fence( when Congress clothes the resident with the power to appoint anocer( it %Congress& cannot at the same time limit the choice of theresident to only one candidate. 4nce the power of appointment isconferred on the resident( such conferment necessarily carries thediscretion of whom to appoint. )en on the prete3t of prescribing thequali/cations of the ocer( Congress may not abuse such power as todiest the appointing authority( directly or indirectly( of his discretion topic: his own choice. Consequently( when the quali/cations prescribed byCongress can only be met by one indiidual( such enactment e"ectiely

eliminates the discretion of the appointing power to choose and constitutesan irregular restriction on the power of appointment. -

#n the case at bar( while Congress willed that the subKect posts be /lled witha presidential appointee for the /rst year of its operations from thee"ectiity of R.0. @@( the proiso neertheless limits the appointingauthority to only one eligible( i.e.( the incumbent Mayor of 4longapo City.'ince only one can qualify for the posts in question( the resident isprecluded from e3ercising his discretion to choose whom to appoint. 'uchsupposed power of appointment( sans the essential element of choice( is nopower at all and goes against the ery nature itself of appointment.

9hile it may be iewed that the proiso merely sets the quali/cations of the ocer during the /rst year of operations of 'BM0( i.e.( he must be theMayor of 4longapo City( it is manifestly an abuse of congressional authorityto prescribe quali/cations where only one( and no other( can qualify.0ccordingly( while the conferment of the appointing power on the residentis a perfectly alid legislatie act( the proiso limiting his choice to one iscertainly an encroachment on his prerogatie.

'ince the ineligibility of an electie ocial for appointment remains allthroughout his tenure or during his incumbency( he may howeer resign/rst from his electie post to cast o" the constitutionally$attacheddisquali/cation before he may be considered /t for appointment. Thedeliberation in the Constitutional Commission is enlightening<

MR. 80D#8). 4n 'ection -( page 2( line ( # propose the substitution of theword =term= with T)>7R).

MR. L4P. The e"ect of the proposed amendment is to ma:e possible forone to resign from his position.

MR. 80D#8). es( we should allow that prerogatie.

MR. L4P. Resign from his position to accept an e3ecutie position.

MR. 80D#8). Besides( it may turn out in a gien case that because of( say(incapacity( he may leae the serice( but if he is prohibited from beingappointed within the term for which he was elected( we may be depriingthe goernment of the needed e3pertise of an indiidual. 5

Consequently( as long as he is an incumbent( an electie ocial remainsineligible for appointment to another public oce.

was( notwithstanding his ineligibility( appointed to other goernment posts(he does not automatically forfeit his electie oce nor remoe hisineligibility imposed by the Constitution. 4n the contrary( since anincumbent electie ocial is not eligible to the appointie position( hisappointment or designation thereto cannot be alid in iew of hisdisquali/cation or lac: of eligibility. This proision should not be confusedwith 'ec. 12( 0rt. D#( of the Constitution where =%n&o 'enator or Member of the Fouse of Representaties may hold any other oce or employment inthe Goernment . . . during his term without forfeiting his seat . . . .= Thedi"erence between the two proisions is signi/cant in the sense thatincumbent national legislators lose their electie posts only after they haebeen appointed to another goernment oce( while other incumbent

electie ocials must /rst resign their posts before they can be appointed(thus running the ris: of losing the electie post as well as not beingappointed to the other post. #t is therefore clear that ineligibility is notdirectly related with forfeiture of oce. =. . . . The e"ect is quite di"erentwhere it is e3pressly proided by law that a person holding one oce shallbe ineligible to another. 'uch a proision is held to incapacitate theincumbent of an oce from accepting or holding a second oce %'tate e3rel. Dan 0ntwerp Fogan( 2 0la. --5( 1 'o d 5E Mc9illiams >eal(126 Ga @22( +1 ') @1& and to render his election or appointment to thelatter oce oid %'tate e3 rel. Childs 'utton( +2 Minn 1-@( +5 >9 +.0nnotation< -6 0?R ,-5& or oidable %Bas:in 'tate( 16@ 4:la @( 2 p2( -6 0?R ,-1&.= + =9here the constitution( or statutes declare thatpersons holding one oce shall be ineligible for election or appointment toanother oce( either generally or of a certain :ind( the prohibition has beenheld to incapacitate the incumbent of the /rst oce to hold the second sothat any attempt to hold the second is oid %0la. I 'tate e3 rel. Dan0ntwerp . Fogan( 1 'o d 5( 2 0la --5&.= @

0s incumbent electie ocial( respondent Gordon is ineligible forappointment to the position of Chairman of the Board and Chief )3ecutieof 'BM0E hence( his appointment thereto pursuant to a legislatie act thatcontraenes the Constitution cannot be sustained. Fe howeer remainsMayor of 4longapo City( and his acts as 'BM0 ocial are not necessarilynull and oidE he may be considered a de facto ocer( =one whose acts(though not those of a lawful ocer( the law( upon principles of policy and

Kustice( will hold alid so far as they inole the interest of the public andthird persons( where the duties of the oce were e3ercised . . . . undercolor of a :nown election or appointment( oid because the ocer was noteligible( or because there was a want of power in the electing or appointingbody( or by reason of some defect or irregularity in its e3ercise( suchineligibility( want of power or defect being un:nown to the public . . . . orHunder color of an election( or appointment( by or pursuant to a publicunconstitutional law( before the same is adKudged to be such %'tate s.Carroll( 2 Conn.( -,,E 9ilco3 s. 'mith( 5 9endell >..H( 21E 1 0m. 8ec.(12E 'heehan!s Case( 1 Mass( --5( 2 0m. Rep.( 22&.=

Conformably with our ruling in Ciil ?iberties 7nion( any and all per diems(allowances and other emoluments which may hae been receied byrespondent Gordon pursuant to his appointment may be retained by him.

The illegality of his appointment to the 'BM0 posts being now eident(other matters a"ecting the legality of the questioned proiso as well as theappointment of said respondent made pursuant thereto need no longer bediscussed.

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#n thus concluding as we do( we can only share the lament of 'en. 'otero?aurel which he e3pressed in the Noor deliberations of '.B. 1+-( precursorof R.0. @@( when he articulated I

. . . . %much& as we would li:e to hae the present Mayor of 4longapo Cityas the Chief )3ecutie of this 0uthority that we are creatingE %much& as #(myself( would li:e to because # :now the capacity( integrity( industry anddedication of Mayor GordonE %much& as we would li:e to gie him thisterri/c( burdensome and heay responsibility( we cannot do it because of the constitutional prohibition which is ery clear. #t says< =>o electieocial shall be appointed or designated to another position in anycapacity.= ,

Lor( indeed( =a Constitution must be /rm and immoable( li:e a mountainamidst the strife of storms or a roc: in the ocean amidst the raging of thewaes.= 26 4ne of the characteristics of the Constitution is permanence(i.e.( =its capacity to resist capricious or whimsical change dictated not bylegitimate needs but only by passing fancies( temporary passions oroccasional infatuations of the people with ideas or personalities . . . . 'uch aConstitution is not li:ely to be easily tampered with to suit politicale3pediency( personal ambitions or ill$adised agitation for change.= 21

)rgo( under the Constitution( Mayor Gordon has a choice. 9e hae nochoice.

9F)R)L4R)( the proiso in par. %d&( 'ec. 12( of R.0. @@( which states<=. . . roided( howeer( That for the /rst year of its operations from the

e"ectiity of this 0ct( the Mayor of the City of 4longapo shall be appointedas the chairman and chief e3ecutie ocer of the 'ubic 0uthority(= isdeclared unconstitutionalE consequently( the appointment pursuant theretoof the Mayor of 4longapo City( respondent Richard *. Gordon( is #>D0?#8(hence >7?? and D4#8.

Foweer( all per diems( allowances and other emoluments receied byrespondent Gordon( if any( as such Chairman and Chief )3ecutie 4cermay be retained by him( and all acts otherwise legitimate done by him inthe e3ercise of his authority as ocer de facto of 'BM0 are hereby 7F)?8.

PERALTA V. MAT#AY (1971) goernment$owned or controlled corporations . . ..= - etitioner has notdi t d h di t th t t t h f th



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There is need in this appeal from a decision of respondent 0uditor General#smael Mathay for an inquiry into the meaning and signi/cance of theconstitutional inhibition against an ocer or employee of the goernmentreceiing additional or double compensation unless speci/cally authoriAedby law( 1 the decisie legal question being whether or not the cost of liingallowance as well as incentie and Christmas bonuses paid to petitioneredro G. eralta( a Trustee of the Goernment 'erice #nsurance 'ystem(hereinafter called the G'#'( did fall within such a ban. The answer gien byrespondent 0uditor General was in the armatie. 0fter a careful study of the matter( this Court arries at a similar conclusion. Fence this appealcannot prosper.

The facts are undisputed. 0s set forth in the brief of petitioner( the G'#'( onMay 1@( 1,++( in a resolution duly passed( granted him an optionalretirement gratuity of -6(22+.6@. 4f that amount( he was not able tocollect the sum of @(62.+( coering 2(,.+ as cost of liingallowance( 1(@5.66 as incentie bonus( and 1(@@5.66 as Christmasbonus. 'uch items were not passed in audit. the iew of respondent 0uditorGeneral being that they should be deducted from his gratuity( althoughduring petitionerUs incumbency as Trustee( no question was raised when hewas paid such allowance and bonuses. Respondent 0uditor General Kusti/edhis action on the ground that they =parta:e of the nature of additionalcompensation(= a trusteeUs remuneration being /3ed by law in the form of aper diem of 5.66 for eery board meeting of the G'#' attended.Respondent so ruled on *une ( 1,++( and maintained such a stand on'eptember 1( 1,++ when he denied a motion for reconsideration. Fence

this appeal for reiew /led on 'eptember ,( 1,++.

The ruling of respondent 0uditor General( being in accordance with whatthe Constitution requires( must be upheld.

1. #t is e3pressly proided in the Constitution< =>o ocer or employee of thegoernment shall receie additional or double compensation unlessspeci/cally authoriAed by law.= This is to manifest a commitment to thefundamental principle that a public oce is a public trust. #t is e3pected of a goernment ocial or employee that he :eeps uppermost in mind thedemands of public welfare. Fe is there to render public serice. Fe is of course entitled to be rewarded for the performance of the functionsentrusted to him( but that should not be the oerriding consideration. Theintrusion of the thought of priate gain should be unwelcome. Thetemptation to further personal ends( public employment as a means for theacquisition of wealth( is to be resisted. That at least is the ideal. There isthen to be an awareness on the part of an ocer or employee of thegoernment that he is to receie only such compensation as may be /3edby law. 9ith such a realiAation( he is e3pected not to aail himself of deious or circuitous means to increase the remuneration attached to hisposition. #t is an entirely di"erent matter if the legislatie body would itself determine for reasons satisfactory to it that he should receie somethingmore. #f it were to be thus though( there must be a law to that e"ect. 'o theConstitution decrees.

0s is e3pressly declared in the Constitution( the Ciil 'erice is to embrace=all branches and subdiisions of the Goernment . . ..= 2 Conformably tothe aboe( the hilippine Ciil 'erice( by law( includes =all branches(subdiisions and instrumentalities of the Goernment( including

disputed( nor can he dispute that as a trustee( he was an ocer of thegoernment( the G'#' haing been established in order =to promote theeciency and welfare of the employees of the Goernment of thehilippines and to replace the thenH pension systems established inpreious acts.H= 5 0s such ocer( petitioner cannot receie additional ordouble compensation unless speci/cally authoriAed by law. 7nder the G'#'0ct( he is entitled as trustee =to a per diem of 5.66 for each day of actualattendance in session.= + 0s in the case of goernment$controlledcorporations( the term =per diems= was used in the sense of thecompensation or remuneration attached to the oce of Trustee @ 'uch isnot the meaning usually attached to it. 'o it was noted in ?e3al?aboratories . >ational Chemical #ndustries 9or:ers 7nion. 0 =per diem=

is commonly identi/ed with the daily allowance =for each day he %an oceror employee& was away from his home base.= #ts usual signi/cation is thusthat of a reimbursement for e3penses incurred in the performance of oneUsduties. #f employed in a statute( as in this case( in the concept of remuneration( howeer( there must be( to Kustify an additionalcompensation( a speci/c law that so proides. 4therwise( /delity to theconstitutional command is lac:ing.

0 similar approach is called for in determining the nature of a cost of liingallowance. #f it could rightfully be considered as in the nature of areimbursement rather than additional emoluments or perquisites( then theruling of respondent 0uditor General cannot /nd support in theConstitution. 9hat was said in an 0merican 'tate decisionU , has releance.#t was therein categorically stated =that it is uniersally held that anallowance for e3penses incident to the discharge of the duties of oce is

not an increase of salary( a perquisite( nor an emolument of oce.= 16 Tothe same e"ect is this e3cerpt appearing later in the opinion< =0 carefuland( we beliee( e3haustie e3amination of the decisions fails to disclose asingle case in which it has eer been held that a legislatie act( proidingfor an allowance( for e3penses incurred in the discharge of ocial duties( toa public ocer( whose salary or compensation was /3ed at a stated sum(was in iolation of proisions such as are found in many state Constitutions(forbidding an increase of salary ocial terms( or forbidding the granting of \fees(U \perquisites(U or \emolumentsU to such ocer. ?egislatie acts whichdirectly in terms( or as construed( attempted to increase such salaries(hae been held inalid. But no decision has been found or( as we beliee(can be found( which holds a legislatie act to be unconstitutional whichmerely reliees an ocer( who receied a /3ed salary or compensation(from e3pending such salary for e3penses incident to the performance of hisocial duties.= 11 #t is worth noting that there are speci/c proisions in theapplicable statutes allowing trustees or directors( traeling e3penses whichmay be collected by the board of directors of the hilippine Dirginia Tobacco0dministrationE 1 traeling and subsistence e3penses by the members andboard of directors of the Central ?uAon$Cagayan Dalley 0uthorityE 12 andtraeling and other necessary e3penses by the members of the hilippineMedical Care Commission. 1- 'uch proisions are prompted by what mayappear to be an e3cess of caution( for the accepted doctrine is that anallowance to ta:e care of e3penses incurred by an ocial to enable him toful/ll his tas: cannot be loo:ed upon as an additional compensation. 'uch aprinciple does not come to the aid of petitioner though. Fe was unable toshow that the cost of liing allowance receied by him was in the nature of a reimbursement. #t did amount then to an additional compensation.

'o it is in the case of the bonuses receied by him. #t is quite obious thatby its ery nature a bonus parta:es of an additional remuneration or

any deiation from what it prescribes is to display less than full fealty to thecardinal precept of our polity 0 mista:en sympathy for the situation in



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by its ery nature( a bonus parta:es of an additional remuneration orcompensation. 15 The ery characteriAation of what was receied bypetitioner as bonuses being intended by way of an incentie to spur himpossibly to more diligent e"orts and to add to the feeling of well$beingtraditionally associated with the Christmas season would remoe any doubtthat the 0uditor General had no choice e3cept to deduct from petitionerUsgratuity such items.

. #t is apparent that respondent 0uditor General accorded respect anddeference to a constitutional command. To impute legal error to hisactuation is to be obliious of the fundamental postulate that theConstitution is supreme. 4bedience is mandatory. #t cannot be disregarded.

)ery public ocial is sworn to uphold it. There can be no Kusti/cation forany other course of action. To condone whether by intent or inadertence

cardinal precept of our polity. 0 mista:en sympathy for the situation inwhich the petitioner did /nd himself cannot suce to confer authority onrespondent to grant what is as:ed of him in iew of the constitutional ban.Both petitioner( who was himself once a public ocial( and respondent0uditor General must be cogniAant of the paramount character of theConstitution. Thus eeryone in the public serice is only the more stronglybound to submit to such supremacy and abide by the limitations which itimposes upon eery aspect of the authority thus conferred. 1+

9F)R)L4R)( the decision of the 0uditor General of *une ( 1,++( asreiterated in its order denying the motion for reconsideration of 'eptember1( 1,++( is armed. 9ithout pronouncement as to costs.

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