[G.R. No. 98107.  August 18, 1997]

BENJAMIN C. JUCO, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and NATIONAL HOUSING CORPORATION, respondents.

D E C I S I O N

HERMOSISIMA, JR., J.:

This is a petition for certiorari to set aside the Decision of the National Labor Relations Commission (NLRC) dated March 14, 1991, which reversed the Decision dated May 21, 1990 of Labor Arbiter Manuel R. Caday, on the ground of lack of jurisdiction.

Petitioner Benjamin C. Juco was hired as a project engineer of respondent National Housing Corporation (NHC) from November 16, 1970 to May 14, 1975. On May 14, 1975, he was separated from the service for having been implicated in a crime of theft and/or malversation of public funds.

On March 25, 1977, petitioner filed a complaint for illegal dismissal against the NHC with the Department of Labor.

On September 17, 1977, the Labor Arbiter rendered a decision dismissing the complaint on the ground that the NLRC had no jurisdiction over the case.[1]

Petitioner then elevated the case to the NLRC which rendered a decision on December 28, 1982, reversing the decision of the Labor Arbiter.[2]

Dissatisfied with the decision of the NLRC, respondent NHC appealed before this Court and on January 17, 1985, we rendered a decision, the dispositive portion thereof reads as follows:

“WHEREFORE, the petition is hereby GRANTED.  The questioned decision of the respondent National Labor Relations Commission is SET ASIDE.  The decision of the Labor Arbiter dismissing the case before it for lack of jurisdiction is REINSTATED.”[3]

On January 6, 1989, petitioner filed with the Civil Service Commission a complaint for illegal dismissal, with preliminary mandatory injunction.[4]

On February 6, 1989, respondent NHC moved for the dismissal of the complaint on the ground that the Civil Service Commission has no jurisdiction over the case. [5]

On April 11, 1989, the Civil Service Commission issued an order dismissing the complaint for lack of jurisdiction.  It ratiocinated that:

“The Board finds the comment and/or motion to dismiss meritorious.  It was not disputed that NHC is a government corporation without an original charter but organized/created under the Corporate Code.

Article IX, Section 2 (1) of the 1987 Constitution provides:

‘The civil service embraces all branches, subdivisions, instrumentalities and agencies of the government, including government owned and controlled corporations with original charters.’ (underscoring supplied)

From the aforequoted constitutional provision, it is clear that respondent NHC is not within the scope of the civil service and is therefore beyond the jurisdiction of this board.   Moreover, it is pertinent to state that the 1987 Constitution was ratified and became effective on February 2, 1987.

WHEREFORE, for lack of jurisdiction, the instant complaint is hereby dismissed.”[6]

On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal dismissal with preliminary mandatory injunction against respondent NHC.[7]

On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R. Caday ruled that petitioner was illegally dismissed from his employment by respondent as there was evidence in the record that the criminal case against him was purely fabricated, prompting the trial court to dismiss the charges against him.   Hence, he concluded that the dismissal was illegal as it was devoid of basis, legal or factual.

He further ruled that the complaint is not barred by prescription considering that the period from which to reckon the reglementary period of four years should be from the date of the receipt of the decision of the Civil Service Commission promulgated on April 11, 1989.  He also ratiocinated that:

“It appears x x x complainant filed the complaint for illegal dismissal with the Civil Service Commission on January 6, 1989 and the same was dismissed on April 11, 1989 after which on April 28, 1989, this case was filed by the complainant.   Prior to that, this case was ruled upon by the Supreme Court on January 17, 1985 which enjoined the complainant to go to the Civil Service Commission which in fact, complainant did.   Under the circumstances, there is merit on the contention that the running of the reglementary period of four (4) years was suspended with the filing of the complaint with the said Commission. Verily, it was not the fault of the respondent for failing to file the complaint as alleged by the respondent but due to, in the words of the complainant, a ‘legal knot’ that has to be untangled.”[8]

Thereafter, the Labor Arbiter rendered a decision, the dispositive portion of which reads:

"Premises considered, judgment is hereby rendered declaring the dismissal of the complainant as illegal and ordering the respondent to immediately reinstate him to his former position without loss of seniority rights with full back wages inclusive of allowance and to his other benefits or equivalent computed from the time it is withheld from him when he was dismissed on March 27, 1977, until actually reinstated.”[9]

On June 1, 1990, respondent NHC filed its appeal before the NLRC and on March 14, 1991, the NLRC promulgated a decision which reversed the decision of Labor Arbiter Manuel R. Caday on the ground of lack of jurisdiction.[10]

The primordial issue that confronts us is whether or not public respondent committed grave abuse of discretion in holding that petitioner is not governed by the Labor Code.

Under the laws then in force, employees of government-owned and /or controlled corporations were governed by the Civil Service Law and not by the Labor Code. Hence,

Article 277 of the Labor Code (PD 442) then provided:

"The terms and conditions of employment of all government employees, including employees of government-owned and controlled corporations shall be governed by the Civil Service Law, rules and regulations x x x.”

The 1973 Constitution, Article II-B, Section 1(1), on the other hand provided:

“The Civil Service embraces every branch, agency, subdivision and instrumentality of the government, including government-owned or controlled corporations.”

Although we had earlier ruled in National Housing Corporation v. Juco,[11] that employees of government-owned and/or controlled corporations, whether created by special law or formed as subsidiaries under the general Corporation Law, are governed by the Civil Service Law and not by the Labor Code, this ruling has been supplanted by the 1987 Constitution.  Thus, the said Constitution now provides:

“The civil service embraces all branches, subdivision, instrumentalities, and agencies of the Government, including government owned or controlled corporations with original charter.” (Article IX-B, Section 2[1])

In National Service Corporation (NASECO) v. National Labor Relations Commission,[12] we had the occasion to apply the present Constitution in deciding whether or not the employees of NASECO are covered by the Civil Service Law or the Labor Code notwithstanding that the case arose at the time when the 1973 Constitution was still in effect.  We ruled that the NLRC has jurisdiction over the employees of NASECO on the ground that it is the 1987 Constitution that governs because it is the Constitution in place at the time of the

decision.   Furthermore, we ruled that the new phrase “with original charter” means that government-owned and controlled corporations refer to corporations chartered by special law as distinguished from corporations organized under the Corporation Code.   Thus, NASECO which had been organized under the general incorporation stature and a subsidiary of the National Investment Development Corporation, which in turn was a subsidiary of the Philippine National Bank, is excluded from the purview of the Civil Service Commission.

We see no cogent reason to depart from the ruling in the aforesaid case.

In the case at bench, the National Housing Corporation is a government owned corporation organized in 1959 in accordance with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporation, dated January 1, 1959.  Its shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 1459, the former corporation law.  The government entities that own its shares of stock are the Government Service Insurance System, the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation and the People’s Homesite and Housing Corporation.[13] Considering the fact that the NHA had been incorporated under act 1459, the former corporation law, it is but correct to say that it is a government-owned or controlled corporation whose employees are subject to the provisions of the Labor Code.   This observation is reiterated in recent case of Trade Union of the Philippines and Allied Services (TUPAS) v. National Housing Corporation,[14] where we held that the NHA is now within the jurisdiction of the Department of Labor and Employment, it being a government-owned and/or controlled corporation without an original charter.   Furthermore, we also held that the workers or employees of the NHC (now NHA) undoubtedly have the right to form unions or employee’s organization and that there is no impediment to the holding of a certification election among them as they are covered by the Labor Code.

Thus, the NLRC erred in dismissing petitioner’s complaint for lack of jurisdiction because the rule now is that the Civil Service now covers only government-owned or controlled corporations with original charters. [15] Having been incorporated under the Corporation Law, its relations with its personnel are governed by the Labor Code and come under the jurisdiction of the National Labor Relations Commission.

One final point.  Petitioners have been tossed from one forum to another for a simple illegal dismissal case.  It is but apt that we put an end to his dilemma in the interest of justice.

WHEREFORE, the decision of the NLRC in NLRC NCR-04-02036089 dated March 14, 1991 is hereby REVERSED and the Decision of the Labor Arbiter dated May 21, 1990 is REINSTATED.

SO ORDERED.

G.R. No. L-52091 March 29, 1982 TERESO V. MATURAN, petitioner-appellant, vs.Mayor SANTIAGO MAGLANA of San Francisco, Southern Leyte, Vice-Mayor HONORIO MAGONCIA, Municipal Councilors BONIFACIO AMARGA, JR., ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON GAMUTAN, CONSTANCIO ESTAFIA, FELICISIMO BACUS, VICTOR JATAYNA, SR., JUANCHO MORI, Chief of Police FRANCISCO DUTERTE, Municipal Treasurer RAMON TOLIBAS and the MUNICIPALITY OF SAN FRANCISCO, SOUTHERN LEYTE, respondents-appellees.

 

DE CASTRO, J.:

This case was certified to this Court by the Court of Appeals pursuant to its resolution dated October 30, 1979, the issue raised herein being purely legal, which is the interpretation of Presidential Decree No. 12-A and Letter of Instruction No. 14 in relation to the present case.

Petitioner was appointed as patrolman of San Francisco, Southern Leyte on February 1, 1965 with a compensation of P540.00 per annum. On October 1, 1967 he was promoted to the rank of police sergeant at P720.00 per annum. On October 8, 1968 and July 1, 1969 petitioner's salary was adjusted to P1,320.00 and P1,800.00 per annum, respectively. All the aforesaid appointments of petitioner were provisional. On July 1, 1970 his provisional appointment was renewed. Likewise on July 1, 1971 his provisional appointment was renewed with an increase in pay in the amount of P2,640.00 per annum.

On September 15, 1972, respondent Mayor Santiago Maglana suspended the petitioner from office because of two pending criminal cases against him, namely Criminal Case No. 236, for falsification of public document by making untruthful statement in the narration of facts, and Criminal Case No. 312, for falsification of public document. On October 2, 1972 respondent Vice-Mayor Honorio Magoncia, who was then the Acting Mayor instructed petitioner together with Chief of Police Francisco Duterte and Patrolman Asisclo Irong, to tender their resignations pursuant to the Letter of Instruction No. 14 of the President of the Philippines. Petitioner submitted his letter of resignation on October 9, 1972. Petitioner's resignation was approved on January 19, 1973 and petitioner was accordingly informed thereof.

In a letter dated February 19, 1973 petitioner sought the reconsideration of the approval of his resignation for being null and void on the ground that Letter of Instruction No. 14 does not apply to him.

In the meantime, Criminal Case Nos. 236 and 312 were dismissed on January 31, 1973 and November 5, 1973, respectively.

In a letter dated January 12, 1974, Hon. Juan Ponce Enrile then Acting Chairman of the National Police Commission informed petitioner that due to the dismissal of the aforesaid criminal cases, the latter's preventive suspension has been lifted and petitioner was directed to report for duty to his Chief of Police. Petitioner reported for duty on February 1, 1974 but Chief of Police Francisco Duterte refused to accept the former in the police force.

Respondent Mayor sent a letter dated February 5, 1974 to the Chairman of the National Police Commission requesting advice as to whether the resignation tendered by petitioner pursuant to letter of Instruction No. 14 is valid. In a reply letter dated August 13, 1974 the Deputy Executive Commissioner stated that since petitioner resigned from office on October 2, 1972, the lifting of his suspension as directed in the National Police Commission's letter dated January 12, 1974 is no longer feasible, the same having been rendered moot and academic; that said office had occasion to rule that resignations submitted by members of the police force in compliance with the provisions of Letter of Instruction No. 14 are valid, said Instruction being broad in scope to include both local and national officials.

Petitioner sought the intervention of the Governor of Southern Leyte to no avail, hence, on May 21, 1974 petitioner filed a petition for mandamus with claim for back salaries, traveling expense and damages before the Court of First Instance of Southern Leyte, Branch III.

It was alleged by petitioner that the refusal of respondents Mayor and Chief of Police to reinstate him is a violation of paragraph 7 of Presidential Decree No. 12-A which provides:

7. Members of the police force who have been preventively suspended shall, upon exoneration be entitled to immediate reinstatement and payment of the entire salary they failed to receive during the period of suspension;

that the case of petitioner falls squarely within the purview of Presidential Decree No. 12-A which was promulgated on October 4, 1972 and which governs policemen with pending cases; and that Letter of Instruction No. 14 under whose provisions petitioner was made to resign is not applicable to policemen.

In respondents' answer dated July 3, 1974, they set up the defense that petitioner has falsely entered in his duly sworn information sheet that he is a high school graduate of the University of Manila during the school year 1954-55, but in his Personal Data Sheet, CS Form No. 212, dated October 8, 1968 he feloniously alleged and/or entered therein that he is a graduate of the Pana-on Academy in the school year 1950-51 when in truth he was only a second year high school student; that petitioner, who has voluntarily resigned, needs a new appointment and has to meet the qualifications required by law among which, are, that he must be at least a high school graduate and not over 33 years of

age; that petitioner falls short of these requirements; and that petitioner is notoriously undesirable, publicly known to be of bad moral character and oftentimes got drunk while on duty.

On February 4, 1975 respondent court issued a decision dismissing the petition for lack of merit. The court a quo agreed with the opinion of the National Police Commission that resignations submitted by members of the police force in compliance with the provisions of Letter of Instruction No. 14 are valid. Since petitioner has been separated from the service, reinstatement is not the proper remedy. The court also said that the evidence of conflicting entries on petitioner's two information sheets have not been denied or rebutted, hence the preponderance of evidence is against the petitioner that he is not a high school graduate, as he could not have graduated in two high schools, one in the University of Manila during the school year 1954-55 and the other at the Pana-on Academy during the school year 1950-51. Lastly, the trial court ruled that since all petitioner's appointment were provisional, he can be removed at any time by the appointing power, Mayor Maglana.

On appeal to the Court of Appeals, petitioner filed his brief on June 28, 1976. For failure of respondents to submit their brief, the case was submitted for decision on November 16, 1976.

Petitioner made the following assignment of errors:

FIRST ERROR

THE LOWER COURT ERRED IN HOLDING THAT THE RESIGNATION OF PETITIONER FROM THE POSITION OF POLICE SERGEANT OF THE SAN FRANCISCO POLICE FORCE AND THE ACCEPTANCE OF SUCH RESIGNATION BY RESPONDENT MAYOR MAGLANA DURING THE PENDENCY OF A CRIMINAL CASE FILED AGAINST PETITIONER AND WHILE PETITIONER WAS UNDER PREVENTIVE SUSPENSION ARE LEGAL AND VALID;

SECOND ERROR

THE TRIAL COURT ERRED IN HOLDING THAT PETITIONER CAN BE REMOVED FROM THE OFFICE AT ANY TIME BY RESPONDENT MAYOR MAGLANA;

THIRD ERROR

THE LOWER COURT ERRED IN RULING THAT RESPONDENT MAYOR COULD NOT BE COMPELLED TO REINSTATE AND/OR REAPPOINT PETITIONER WHO POSSESSED CIVIL SERVICE ELIGIBILITY AS PATROLMAN AND WITH POLICE TRAINING AT THE POLCOM ACADEMY;

and

FOURTH ERROR

THE COURT BELOW ERRED IN DISMISSING THIS CASE AND DISALLOWING PETITIONER TO COLLECT HIS BACK SALARIES AND TRAVELING EXPENSES.

Petitioner contends that under Presidential Decree No. 12-A promulgated on October 4, 1972 the power to dismiss or remove a member of the police force has been transferred from the Mayor to the Police Commission. Hence, the acceptance of petitioner's resignation by respondent Mayor on January 19, 1973 is null and void because the latter is no longer clothed with authority to dismiss or remove a member of the police force on said date. Furthermore, petitioner stresses that Letter of Instruction No. 14 under whose provisions he was made to resign is not applicable to him as said Instruction covers only officials and employees with pending cases excluding policemen. Lastly, petitioner banks on his testimonial eligibility which he obtained on October 10, 1974 to justify his reappointment.

Presidential Decree No. 12 dated October 3, 1972 created the Adjudication and Investigation Boards in the Police Commission to review and dispose of all administrative cases of city and municipal forces referred to the Commission. On October 4, 1972 Presidential Decree 12-A was promulgated providing for the procedure to be followed in case an administrative charge is filed against any member of the local police agency or when a member of the police force is accused in court of any felony or violation of law. Nowhere in the provisions of said Presidential Decrees show that the power to dismiss or remove has been transferred from the Mayor to the Police Commission as contended by petitioner. It was only on August 8, 1974 when such power was removed from the Mayor pursuant to 'Presidential Decree No. 531 integrating the municipal police forces in an the municipalities of the province of Southern Leyte. Presidential Decree No. 531 states:

SEC. 6. Power of administrative control and supervision. — Administrative control and supervision over the several police and fire departments and jails composing each of the Integrated Police Forces herein constituted shall, prior to the transfer provided for in Section 7 hereof, remain with the offices, agencies and officials in which said power is vested in accordance with existing laws; ... Accordingly, administrative matters, such as appointment promotion suspension separation and other disciplinary action ... and such other matters pertaining to personnel administration which are currently vested in and exercised by other officials pursuant to existing laws, rules and regulations shall remain with said officials, ...

SEC. 7. Administrative control and supervision to be transferred to the Philippine

Constabulary. — After one year, but not later than two years, from the effectivity of this Decree, the power and administrative control and supervision provided for in Section 6 hereof shall be taken over and exercised by the Philippine Constabulary. ...

It is clear therefore that at the time petitioner's resignation was approved by respondent Mayor on January 19, 1973 the latter still had the power to dismiss or remove the former.

Petitioner did not dispute that at the time he was appointed member of the Police Force of San Francisco, Southern Leyte, he had neither qualified in an appropriate examination for the position of policeman nor was he possessed with any civil service eligibility for any position in the government. Such lack of a civil service eligibility makes his appointment temporary 1 and without a definite term and is dependent entirely upon the pleasure of the appointing power. 2

Although indicated as provisional and approved under Section 24 (c) 3 of Republic Act 2260 the petitioner's appointment did rot acquire the character of provisional appointment because of his lack of appropriate civil service eligibility for the position of municipal policeman. The Civil Service Commission cannot even legally approve his appointment as provisional as this act would constitute an unwarranted invasion of the discretion of the appointing power. 4 If the approval of his appointment as provisional under Section 24 (c) of Republic Act 2260 did not make it so, the fact remains that his appointment was temporary which could be terminated without any need to show that the termination was for cause. 5

The fact that petitioner subsequently obtained a testimonial eligibility on October 10, 1974 is of no moment. At the time he received his appointment, as aforestated, petitioner had no eligibility. As such what is required is a new appointment, not merely reinstatement. But even then, he cannot compel the Mayor to reappoint him for the power to appoint is in essence discretionary and the appointing power enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position filled. 6

WHEREFORE, the decision dated February 4, 1975 of the lower court is hereby affirmed. No costs.

SO ORDERED.

G.R. No. L-16969             April 30, 1966

R. MARINO CORPUS, plaintiff-appellant, vs.MIGUEL CUADERNO, SR., defendant-appellee.

Rosauro L. Alvarez, for plaintiff-appellant.G. B. Guevara, R. P. Guevara and E. S. Tipon, for defendant-appellee.

MAKALINTAL, J.:

This is a suit for damage commenced in the Court of First Instance of Manila, where plaintiff asked for half a million pesos and defendant, on his counterclaim, for one and a half million. After trial the court dismissed the complaint and awarded P1,000.00 to defendant. Plaintiff appealed directly to Us in view of the amount claimed by him.

During the time pertinent to this case defendant was Governor of the Central Bank of the Philippines. On January 13, 1949 Corpus was appointed Economist in the Department of Economic Research of said bank. Thereafter he received promotions in position and salary. By 1954 he was Director of the Department of Loans and Credit and Rural Banks Administration. On December 15, 1954 a number of employee of the bank filed an administrative complaint against him. Upon their petition he was suspended from office on February 8, 1955. After investigation he was found guilty on five counts and upon recommendation of the Governor was penalized with suspension without pay from February 8, 1955 to August 30, 1955, the date the Monetary Board of the bank rendered its decision.

On August 31, 1955 Corpus received a letter from Cuaderno informing him that be had been "reinstated in the service of the bank" with the designation of "Technical Assistant to the Governor." On January 17, 1956 he was appointed Special Assistant to the Governor, in charge of the Export Department.

On March 7, 1958 several of his co-employees in the same department filed an administrative complaint against him, alleging a number of acts of misfeasance. The Monetary Board, upon recommendation of the Governor, suspended him on March 18.

On March 25, 1958 Corpus instituted the present action, alleging that his suspension was unwarranted and had been brought about by Cuaderno's malicious machinations. The latter's counterclaim, after the denials and special defenses in his answer, alleged that the complaint had been filed maliciously and that plaintiff had committed libel against him.

On May 5, 1959, while this case was still pending in the lower court, the three-man committee created to investigate the 1958 administrative charges against plaintiff reported to the Monetary Board that if found no basis to recommend

disciplinary action against him and therefore urged that he be reinstated. But on July 20, 1959 the Monetary Board resolved that:

After an exhaustive and mature deliberation of the report of the aforesaid fact-finding committee, and representations of both complainants and respondent, through their respective counsel; and, further, after a thorough review of the service record of the respondent, particularly the various cases presented against him, object of Monetary Board Resolution No. 1527 dated August 30, 1955, which all involve fitness, discipline, etc. of respondent; and moreover, upon formal statement of the Governor that he has lost confidence in the respondent as Special Assistant to the Governor and in charge of the Export Department (such position being primarily confidential and highly technical in nature) , the Monetary Board finds that the continuance of the respondent in the service of the Central Bank would be prejudicial to the best interest of the Central Bank and, therefore, in accordance with the provisions of Section 14 of the Bank Charter, considers the respondent, Mr. R. Marino Corpus, resigned as of the date of his suspension.

On March 22, 1960 the lower court rendered the decision appealed from, absolving Cuaderno from liability but ordering Corpus to pay damages, as aforesaid, the allegation of libel having been duly proven.

Appellant now avers that the lower court erred in holding (1) that appellee is not liable for damages for illegally causing his suspension and eventual removal; and (2) that appellant had committed libel against appellee.

In connection with the first issue it is pertinent to state that the question of legality of appellant's removal by resolution of the Monetary Board of July 20, 1959 has been decided by Us in another case (G.R. No. L-23721, March 31, 1965). We found there that he had been removed not for any of the charges in the administrative complaint against him in 1958 — charges as to which no specific findings were made by the Monetary Board — but by reason of loss of confidence by the Governor of the Bank; and held that loss of confidence alone is not a sufficient and legitimate cause for removal even if the position involved, as in appellant's case, belongs to the category of policy-determining, primarily confidential or highly technical positions referred to in the Constitution. In that case, therefore, We ordered appellant's reinstatement in the service.

The question here now is whether appellant's removal was the result of malicious machinations on the part of appellee, as alleged in the complaint. Appellant starts by saying that Cuaderno harbored a feeling of professional jealousy against him because he was a much solicited guest speaker on economic matters — a subject appellee considered his forte; and that on one occasion, during a hearing in Congress, appellant gave testimony contrary to that which appellee had given, thus putting the latter in a bad light. Resentment

according to appellant was followed by overt acts, thus: Appellee induced a number of bank employees to file the administrative complaints of 1955 and 1958. The 1955 complaint was dated January 20, but as early as January 11 appellee saw to it that an investigating committee was created by the Monetary Board. And before appellant was given a chance to explain his side he was suspended, upon appellee's recommendation, on February 8, 1955. Appellant was not given a chance to read the charges against him except during the trial of the instant case. After the investigation appellant received a letter from appellee, informing him of his reinstatement, but without mentioning the fact that he had been found guilty and given the penalty of suspension without pay. Appellee even congratulated him on his exoneration. To completely convince appellant of this, appellee ordered the preparation of the "back salary" check corresponding to appellant's period of suspension, only to have the check cancelled later on. After the second administrative complaint was filed in 1958 appellee hastily convened an extraordinary meeting of the Monetary Board in order to magnify the false charges against appellant although appellee knew that the meeting was violative of the Central Bank charter, because the object of the meeting, as aforesaid, was not stated in the call, and the object actually stated did not justify an extraordinary meeting at all. To lull appellant into a false sense of security, appellee simply notified him, by letters, to prepare comments on the administrative charges, leading him to believe that he had all the time to do so, but afterwards appellee suddenly changed his tactics and directed the secretary of the Monetary Board to demand that appellant answer the charges as soon as possible. And on March 18, 1958 appellee informed appellant that he had been suspended effective that day. The corresponding letters and notices were delivered to appellant at his house by the bank's security guards, who were in uniform and fully armed — a manner of delivery that proved humiliating to appellant.

We first take up the question of appellant's removal from office as a result of the administrative complaint filed against him in 1958. The removal was embodied in a resolution of the Monetary Board, upon appellee's recommendation as Governor of the Bank. The procedure adopted was in accordance with the provision of the bank charter that the Monetary Board shall "on the recommendation of the Governor, appoint, fix the remunerations, and remove all officers and employees of the Central Bank." (Section 14, R.A. 265.) Under this provision the Board has the power to adopt or reject the recommendation. The decisive action belonged to the Board, not to appellee.

In speaking of the action of the Board, this Court said in G.R. No. L-23721, supra: "we do not believe that in opining that the position of Corpus was one dependent on confidence, the defendant Monetary Board necessarily acted with vindictiveness or wantonness, and not in the exercise of honest judgment."

The record does not show that it was appellee who instigated either or both of

the administrative cases against appellant. The 1955 complaint was filed by ten bank employees, while the one in 1958 was filed by eighteen of appellant's subordinates in his department — persons who would naturally be expected to feel greater loyalty to appellant, their immediate superior, than to appellee. None of the complainants in the first group were in the second group. No acts are attributed to appellee from which it may be inferred that he convinced all or a large number of them to file the charges.

Appellant stresses the fact that in the first administrative case, even before the complainants filed their complaint of January 20, 1955 the Monetary Board had already created an investigating committee, based on "papers presented by the Governor." The resolution to that effect was passed January 11, 1955. The evidence shows, however, that the complainants charged appellant as early as December 15, 1954, reiterated their complaint on the following December 26, and again on January 3, 1955. The complaint of January 20, 1955 was only a more formal and detailed narration of the charges.

In any event, some of the charges were substantiated. True, appellant was absolved of negligence in the performance of official duties and dishonesty, but he was found guilty on five other counts, namely: (1) physical maltreatment of a co-employee; (2) use of insulting language; (3) oppressive treatment of subordinates; (4) promulgation of unreasonable office regulations; and (5) defiance to the Monetary Board. Under the circumstances, malice can hardly be imputed to anybody in the formulation of those charges.

Appellant says it was only during the trial of the present case that he read a copy of the 1955 administrative complaint against him. We are hard put to believe this. One who is thus charged, and suspended by reason thereof, would lose no time finding out what the charges are. And after the administrative investigations had been terminated and appellant received a letter informing him of his restoration to office, he would want to know whether he had been exonerated or not. The fact is that he requested appellee to intercede for him in convincing the members of the Monetary Board to amend the resolution imposing upon him the penalty of suspension without pay — a fact which certainly does not jibe with his alleged ignorance of the charges of which he had been found guilty.

Contrary to appellant's claim, it was not appellee who was responsible for the cancellation of the check covering the period of his suspension. In fact appellee was the one who had the check prepared on September 6, 1955, just before he left on a trip to Istanbul; but as appellant himself stated in a letter-complaint he sent to the Presidential Complaints and Action Committee the check "was subsequently cancelled upon orders of Acting Deputy Governor Castillo on the strength of the Monetary Board resolution which was prepared after Governor Cuaderno's departure on September 6th." This is confirmed by appellant's witness, Jose Carmona, who was Chief Accountant of the Central Bank at the

time.

Neither was appellee responsible for appellant's preventive suspension in connection with the two administrative cases against him. The pertinent resolution of the Monetary Board shows that it suspended appellant (in 1955) "after being appraised (sic) of the findings and observations of the Committee created on January 11, 1955 on the matter at its present stage." The Board was then acting on complainants' petition dated January 3, 1955, precisely urging appellant's suspension. Likewise it appears that in the 1958 administrative case the complainants filed, on March 12 of that year, a motion for the immediate suspension or relief from office of appellant; and (to quote from the corresponding resolution) "after a lengthy and mature deliberation on the matter and upon the recommendation of the Governor, the Board, by unanimous vote, decided to suspend from office effective today, March 18, 1958, Mr. R. Marino Corpus." Both acts of suspension were by the Monetary Board, not by appellee. If appellee recommended suspension, he did so in the performance of his duty as he saw it and not in pursuance of an insidious scheme against appellant.

Concerning the alleged humiliating manner in which the communications from the Monetary Board were served upon appellant, we fail to see how appellee may be held responsible. The bank's security guards who delivered them may have been in uniform and armed at the time, but it does not appear that they did anything to call the public's attention to the import of the messages they were carrying. If they acted in an oppressive and high-handed manner, it is they and not appellee who should be made to answer.

Appellant says that after appellee had lulled him into a false sense of security in connection with the 1958 case, the latter suddenly pressed him to file his answer without first furnishing him a copy of the complaint. The record fails to substantiate this grievance. The complaint was filed on March 7, 1958. Appellant received a letter from Deputy Governor Castillo asking him to appear at the Central Bank at 9 in the evening of March 10, 1958, to furnish the Monetary Board with certain information. According to appellant, when he went to the meeting hall as directed he found nobody there except the Board Secretary, Attorney Filomeno Sta. Ana. In the afternoon of March 14, 1958 appellant received a letter from Sta. Ana asking him to answer the charges. Appellant apparently did not reply to the letter. Then on March 17, 1958 Sta. Ana, upon appellee's instructions, again sent appellant a memorandum asking him to submit his answer without delay. Instead of answering the charges, or asking for a copy thereof if he did not have a copy, as he now claims, appellant had his subordinate, Orlando Villanueva, write a letter on March 18, 1958, telling Sta. Ana that "Mr. Corpus has instructed me to inform you that his lawyer, Atty. Rosauro Alvarez (Roseller Lim and Rosauro Alvarez Law Offices) is now sick with flu and is asking for time." Considering that appellant had engaged a lawyer to defend him, his allegation of ignorance of the charges deserves scant credit.

All that may be said about appellee's actuations is that he lost confidence in appellant in view of the charges filed against him in 1958; and although they were not substantiated, appellee believed in good faith that such loss of confidence was sufficient reason to recommend appellant's removal.

We come now to the question of libel, which is the subject of appellee's counterclaim. The statements for which appellee seeks damages from appellant appeared in the March 21, 1958 issue of The Manila Chronicle, as follows:

CORPUS TALKS OF "INTRIGUER "

A suspended Central Bank official yesterday said that a high-ranking CB official, who was dismissed for malversation from the Philippine National Bank before the war, intrigued and instigated the filing of charges against him.

In an interview, R. Marino Corpus, who was suspended the other day as special assistant to the CB governor and head of the CB export department asserted that the "intriguer" was "dismissed from the PNB when my father, Judge Rafael Corpus, was president of the bank.

Corpus was suspended on the basis of an administrative complaint filed by 18 of the 78 employees of the CB export department.

In a previous interview, Corpus preferred not to comment on his suspension beyond saying that "time will tell who instigated the charges, and why."

Yesterday, Corpus called for the ouster of the CB official he was referring to, averring that this official was automatically disqualified by the CB charter from holding a position in the Bank which calls for "high moral integrity."

When this story hits the streets, the CB official who will be cussing me and will be pushing hard to have me disqualified from the CB will be the one who instigated the charges against me, Corpus added. "He will stop at nothing to run me down, because now that he is exposed, he is automatically disqualified by the charter of the bank from holding a position which calls for high moral integrity."

Recalling how this CB official was dismissed from the PNB before the war, Corpus said the man was discovered "milking" a sugar central.1äwphï1.ñët

The suspended CB official added that President Quezon ordered this official's dismissal because he felt that the moment he (Mr. Quezon) was convinced a government official holding a position of trust was unfit to remain in public service, out he would go.

ASK THEM

Pressed for the identification of the official he was referring to, Corpus said the following would be in a position to reveal who the person was: CB Governor Miguel Cuaderno, who was assistant general manager of the PNB then; CB legal counsel Natalio Balboa, who was in the PNB legal department; CB chief accountant Jose Carmona, who was also in the PNB accounting department, and others like Primitivo Lovina, president of the Chamber of Commerce of the Philippines; PNB President Arsenio Jison, Manuel Marquez, president of the Commercial Bank and Trust Company, and Alfonso Calalang, President of the Bankers Association of the Philippines.

In disclaiming liability, appellant points out that in the aforequoted news item it does not appear that he was speaking of appellee.

In order to maintain a libel suit it is essential that the victim be identifiable (People vs. Monton, L-16772, November 30, 1962), although it is not necessary that he be named (91 A.L.R. 1161). It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the plaintiff was intended, or if he is pointed out by extraneous circumstances so that persons knowing him could and did understand that he was the person referred to.

While no name is mentioned in appellant's defamatory statements, the following circumstances mentioned therein make the object ascertainable: (1) the person in question was a high ranking Central Bank official; (2) he was formerly an official of the Philippine National Bank, and at the time had something to do with sugar centrals; (3) his identity is known by the persons named therein; and (4) he was the one who instigated the aforementioned charges against appellant.

All these circumstances point to appellee. It is established by the evidence that at least two other persons who read the article readily realized that it referred to appellee. Asked how he immediately arrived at such a conclusion, Manuel Marquez explained that "there is a paragraph in the article which says that this CB official was dismissed from the PNB before the war, Corpus said the man was discovered milking a sugar central;" and that "the only official who is at present in the Central Bank and who was with the Philippine National Bank prior to the establishment of the Central Bank, who, to my knowledge, was in some way or another connected with the Sugar Central was Governor Miguel Cuaderno." Aside from appellee, two Central Bank officials who were also with the Philippine National Bank were Natalio Balboa, who was in the legal department thereof, and Jose Carmona, who was in the auditing department. Balboa testified that he knew the article was about appellee for the following reasons:

Because, as I said, the first paragraph of the article it refers to "Intriguer" and I know no other, Mr. Corpus is referring to "intriguer" to Mr. Cuaderno because I

know that he was trying to prevail on Mr. Cuaderno to stop the administrative investigation against Mr. Corpus, when he failed to prevail on Mr. Cuaderno because the other employees are pressing the complaint and the complaint was submitted to the Monetary Board, and he made the conclusion that it was Mr. Cuaderno as the intriguer, that is the first part of it. The second part of it is that he was dismissed from the Philippine National Bank by President Quezon. President Quezon will not dismiss any official of the Philippine National Bank other than the President, Vice-President, General Manager, and Assistant Manager. He would not dismiss the other executive officials or the legal counsel or others, it must be the Philippine National Bank Board of Directors. The third of it is that milking a sugar central, there is no other person connected with the sugar central but Mr. Cuaderno, with the Bataan Sugar Central. I was connected as Secretary of the Ma-ao Sugar Central and there was no complaint and we only met once a month, so, all those there and my opinion was not based on one single item of the article, it was all those three and the rest of the article may be.

Appellant pointed particularly to Marquez and Balboa as among the persons who could identify the Central Bank official he was speaking of, and both declared that the article referred to appellee. Furthermore, five days after he gave the press interview, appellant instituted the present action wherein he accused appellee of having instigated the administrative charges against him — a fact which obviously proves that he was speaking of appellee when he made the derogatory statement complained of.

In view of the evidence just considered, We cannot apply here the rule in Kunkle vs. Cablenews-American, 42 Phil. 757, relied upon by appellant, that the publication of a matter of a defamatory nature in a newspaper, without naming or accurately describing the person to whom the reprobated acts are attributed, will not give rise to a civil action for damages at the instance of a person claiming to be the injured party, unless it appears that the description of the person referred to in the defamatory publication was sufficiently clear that at least one third person would have understood the description as relating to him. Here, more than one third person identified appellee as the object of the libel.

Appellee has not appealed from the decision of the lower court and therefore his prayer that the amount of damages awarded to him be increased must be denied..

The judgment appealed from is affirmed, with costs against plaintiff-appellant.

G.R. No. 78239 February 9, 1989

SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN, JR., respondent.

FERNAN, C.J.:

The principal question raised in this petition for review is whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment.

|

In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately. 

Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21, 1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant.

 

Petitioner’s letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March

1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the litigation, be satisfied.  1

 

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50.  

 

The Ministry of Finance, however, referred petitioner’s letter to the Office of the President for further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:

 

We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was convicted of the crime for which she was accused. In line with the government’s crusade to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspension pendente lite.

 

In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. …

 

Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that “a pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence.” (Sec. 36, par. 2).

 

IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position and that, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction.  

 

Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course on October 13, 1987.

 

Petitioner’s basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained “suspended.” More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same.   4

 

It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public documents and sentenced to imprisonment of four years, two months and one day of prision correccional as minimum, to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable during the term of the principal penalty.  5 Temporary absolute disqualification bars the convict from public office or employment, such disqualification to last during the term of the sentence.   6 Even if the offender be pardoned, as to the principal

penalty, the accessory penalties remain unless the same have been expressly remitted by the pardon.   7 The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office.   8

 

The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly consistent particularly in describing the effects of pardon.

 

The benign mercy of pardon is of British origin, conceived to temper the gravity of the King’s wrath. But Philippine jurisprudence on the subject has been largely influenced by American case law.

 

Pardon is defined as “an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. … A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.”   8-a

 

At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:

 

The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty.   9

 

The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner’s unconditional

pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality.

 

Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code.

 

In Pelobello v. Palatino,  10 We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: “… we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction. … (W)e are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party … concerned from the accessory and resultant disabilities of criminal conviction.

 

The Pelobello v. Palatino and Cristobal v. Labrador cases,  11 and several others  12 show the unmistakable application of the doctrinal case of Ex Parte Garland,  13 whose sweeping generalizations to this day continue to hold sway in our jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions.

 

Consider the following broad statements:

 

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.   14

 

Such generalities have not been universally accepted, recognized or approved.  15 The modern trend of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness.   16

 

The better considered cases regard full pardon (at least one not based on the offender’s innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt.   17 But it relieves him from nothing more. “To say, however, that the offender is a “new man”, and “as innocent as if he had never committed the offense;” is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction.”  18

 

A pardon looks to the future. It is not retrospective.   19 It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any

obligation to make reparation for what has been suffered. “Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.”  20 This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits.

 

Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime for which she was convicted. In the case of State v. Hazzard,  21 we find this strong observation: “To assume that all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been established by the most complete method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot erase the stain of bad character, which has been definitely fixed.   22

 

In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such “moral changes” as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding citizen.

 

Pardon cannot mask the acts constituting the crime. These are “historical” facts which, despite the public manifestation of mercy and forgiveness implicit in pardon, “ordinary, prudent men will take into account in their subsequent dealings with the actor.”  23

 

Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his

civil rights. But unless expressly grounded on the person’s innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing.   24 This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege.

 

Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction   25 although such pardon undoubtedly restores his eligibility for appointment to that office.   26

 

The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction.

 

For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment.

 

Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner’s civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation.   27

 

WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.

 

SO ORDERED.

 

Narvasa, Paras, Gancayco, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

 

Melencio-Herrera, J., concurs in the result.

 

Separate Opinions

 

PADILLA, J.:

 

I concur in the result but on grounds different from those relied upon by the majority opinion.

 

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other accused, she was charged before the Sandiganbayan with the complex crime of Estafa through falsification of public documents. After trial, the accused were convicted and sentenced to imprisonment of four (4) years, two (2)

months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.

 

Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984.

 

By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to re-assume her former office, as of 1 August 1982 (the date of her preventive suspension), that she be paid her back salaries for the entire period of her suspension, and that she be not required to pay her proportionate share of the amount of P 4,892.50.

 

Respondent Assistant Executive Secretary denied petitioner’s request for automatic reinstatement as well as her other claims, because of which denial, this petition for review on certiorari was filed before the Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive Secretary, on the main contention that, as a public officer who has been granted an absolute pardon by the President, she is entitled to reinstatement to her former position without need of a new appointment, and to the other reliefs prayed for.

 

There can be no dispute that the pardon extinguished petitioner’s criminal liability. At the same time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned’s right to hold office, suffrage and on his civil liability. It states:

 

ART. 36. Pardon; its effects. – A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

 

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied)

 

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon extended by the President to the petitioner did not per se entitle her to again hold public office (including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon.

 

An examination of the presidential pardon in question shows that, while petitioner was granted “an absolute and unconditional pardon and restored to full civil and political rights”, yet, nothing therein expressly provides that the right to hold public office was thereby restored to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the right to hold public office as an effect of such pardon, that right must be kept away from the petitioner.

 

It is a recognized principle in public law — hopefully to be honored more in its compliance rather than in its breach — that a “public office is a public trust.” The restoration of the right to hold public office to one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit, positive and specific language. To require this would not be asking too much.

 

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without qualification, restores full civil rights which have been construed, in turn, to include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).

 

If such be the message of said cases, then I submit that a modification is in order, so that an absolute pardon to work a restoration of the right to hold public office must expressly so state, in order to give substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in the light of our times and experience.

 

ACCORDINGLY, I vote to DENY the petition.

 

Melencio-Herrera, Sarmiento, JJ., concur.

 

FELICIANO, J., concurring:

 

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief statements, basically for my own clarification. Article 36 of the Revised Penal Code states:

 

Article 36. Pardon; its effects. – A pardon shall not work the registration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

 

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied)

 

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal Code in its following provisions:

 

Article 40. Death-Its accessory penalties. – The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date of sentence, unless such

accessory penalties have been expressly remitted in the pardon.

 

Article 41. Reclusion perpetua and reclusion temporal. – Their accessory penalties. – The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

 

Article 42. Prision mayor – Its accessory penalties. – The penalty of prision mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

 

Article 43. Prision correccional – Its accessory penalties. – The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)

 

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa through falsification of public documents, included the accessory penalties of temporary absolute disqualification from public office or employment and perpetual special disqualification from the right of suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written on a standard printed form which states in printed words that it was “an absolute and unconditional pardon [which] restored [petitioner] to full civil and political rights.”  1 While the right of suffrage and the right to hold public office or employment are commonly regarded as “political rights,”  2 it must be noted that there are other “political rights”  3 and that the pardon given to petitioner did not expressly and in printer’s ink restore to petitioner the particular right to hold public office and the specific right to vote at elections and plebiscites.

 

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a pardon is to work the restoration of such right to petitioner. Exactly the same point may, of course, be made in respect of the restoration of the right to vote.

 

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930. I believe that they have been left intact by the constitutional provisions on pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al. collided with any provision or principle embodied in either of our prior constitutions. The Chief Justice appears to agree with this position when he referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13) that: “the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that.”

 

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be an unconstitutional restriction on the pardoning power of the President. The limitation on the President’s pardoning power, if limitation it be, does not appear to be an unreasonably onerous one. Articles 36, et al. merely require the President to become completely explicit if the pardon he extends is intended to wipe out not merely the principal but also the accessory penalty of disqualification from holding public office and from voting and to restore the recipient of the pardon to the exercise of such fundamental political rights. Such requirement of explicitness seems entirely in line with the fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of the pardon. In other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the public trust and sentenced to disqualification from voting and from holding such office, does not create the presumption that the recipient of the pardon has thereby suddenly become morally eligible once more to exercise the right to vote and to hold public office.

 

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public office and on this ground, I vote

to DENY the Petition for Review and to AFFIRM the assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.

 

Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

 

 

 

Separate Opinions

 

PADILLA, J.:

 

I concur in the result but on grounds different from those relied upon by the majority opinion.

 

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other accused, she was charged before the Sandiganbayan with the complex crime of Estafa through falsification of public documents. After trial, the accused were convicted and sentenced to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P 3,500.00. They were also ordered to jointly and severally indemnify the government in the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.

 

Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984.

 

By reason of said absolute pardon, petitioner in representations before

the City Treasurer of Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to re-assume her former office, as of 1 August 1982 (the date of her preventive suspension), that she be paid her back salaries for the entire period of her suspension, and that she be not required to pay her proportionate share of the amount of P 4,892.50.

 

Respondent Assistant Executive Secretary denied petitioner’s request for automatic reinstatement as well as her other claims, because of which denial, this petition for review on certiorari was filed before the Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive Secretary, on the main contention that, as a public officer who has been granted an absolute pardon by the President, she is entitled to reinstatement to her former position without need of a new appointment, and to the other reliefs prayed for.

 

There can be no dispute that the pardon extinguished petitioner’s criminal liability. At the same time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned’s right to hold office, suffrage and on his civil liability. It states:

 

ART. 36. Pardon; its effects. – A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

 

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied)

 

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon extended by the President to the petitioner did not per se entitle her to again hold public office (including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon.

 

An examination of the presidential pardon in question shows that, while petitioner was granted “an absolute and unconditional pardon and restored to full civil and political rights”, yet, nothing therein expressly provides that the right to hold public office was thereby restored to the petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the right to hold public office as an effect of such pardon, that right must be kept away from the petitioner.

 

It is a recognized principle in public law-hopefully to be honored more in its compliance rather than in its breach that a “public office is a public trust.” The restoration of the right to hold public office to one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit, positive and specific language. To require this would not be asking too much.

 

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without qualification, restores full civil rights which have been construed, in turn, to include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).

 

If such be the message of said cases, then I submit that a modification is in order, so that an absolute pardon to work a restoration of the right to hold public office must expressly so state, in order to give substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in the light of our times and experience.

 

ACCORDINGLY, I vote to DENY the petition.

 

Melencio-Herrera, Sarmiento, JJ., concur.

 

FELICIANO, J., concurring:

 

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief statements, basically for my own clarification. Article 36 of the Revised Penal Code states:

 

Article 36. Pardon; its effects. – A pardon shall not work the registration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

 

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Emphasis supplied)

 

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal Code in its following provisions:

 

Article 40. Death-Its accessory penalties. – The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date of sentence, unless such accessory penalties have been expressly remitted in the pardon.

 

Article 41. Reclusion perpetua and reclusion temporal. – Their accessory penalties. – The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

 

Article 42. Prision mayor – Its accessory penalties. – The penalty of prision mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as

to the principal penalty, unless the same shall have been expressly remitted in the pardon.

 

Article 43. Prision correccional – Its accessory penalties. – The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)

 

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa through falsification of public documents, included the accessory penalties of temporary absolute disqualification from public office or employment and perpetual special disqualification from the right of suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written on a standard printed form which states in printed words that it was “an absolute and unconditional pardon [which] restored [petitioner] to full civil and political rights.”  1 While the right of suffrage and the right to hold public office or employment are commonly regarded as “political rights,”  2 it must be noted that there are other “political rights”  3 and that the pardon given to petitioner did not expressly and in printer’s ink restore to petitioner the particular right to hold public office and the specific right to vote at elections and plebiscites.

 

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a pardon is to work the restoration of such right to petitioner. Exactly the same point may, of course, be made in respect of the restoration of the right to vote.

 

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930. I believe that they have been left intact by the constitutional provisions on pardon, whether one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al. collided with any provision or principle embodied in either of our prior constitutions. The Chief Justice appears to agree with this position when he referred to Article 36 of the Revised

Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13) that: “the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that.”

 

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be an unconstitutional restriction on the pardoning power of the President. The limitation on the President’s pardoning power, if limitation it be, does not appear to be an unreasonably onerous one. Articles 36, et al. merely require the President to become completely explicit if the pardon he extends is intended to wipe out not merely the principal but also the accessory penalty of disqualification from holding public office and from voting and to restore the recipient of the pardon to the exercise of such fundamental political rights. Such requirement of explicitness seems entirely in line with the fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of the pardon. In other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the public trust and sentenced to disqualification from voting and from holding such office, does not create the presumption that the recipient of the pardon has thereby suddenly become morally eligible once more to exercise the right to vote and to hold public office.

 

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.

G.R. No. 85279 July 28, 1989

SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs.THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents.

Vicente T. Ocampo & Associates for petitioners.

 

CORTES, J:

Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike.

The antecedents are as follows:

On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal.

It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241].

The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 12-37].

Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152].

The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision.

The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute.

On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.

In dismissing the petition for certiorari and prohibition with preliminary injunction

filed by petitioners, the Court of Appeals held that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike.

Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as follows:

1. Do the employees of the SSS have the right to strike?

2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the strike and to order them to return to work?

These shall be discussed and resolved seriatim

I

The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31].

By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike.

Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike.

Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, explained:

MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-organization of government employees, it does not mean that because they have the right to organize, they also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associations or societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising government functions, that could be done because the moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem. We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569].

It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions:

.Sec. 11. Prohibition Against Strikes in the Government. — The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike: Provided, however , That this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations.

No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.

On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue].

But are employees of the SSS covered by the prohibition against strikes?

The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal.

The statement of the Court in Alliance of Government Workers v. Minister of

Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with regard to the right to strike:

The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p. 13; Emphasis supplied].

Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit:

It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179].

E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus:

.SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees' organizations and appropriate government

authorities.

The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit:

.SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate action.

Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof."

II

The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it.

It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.

This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ

prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate.

Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86].

III

In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board.

The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final.

WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED.

SO ORDERED.

G.R. No. L-5156             March 11, 1954

CARMEN FESTEJO, demandante-apelante, vs.ISAIAS FERNANDO, Director de Obras Publicas, demandado-apelado.

D. Eloy B. Bello en representacion de la apelante.El Procurador General Sr. Pompeyo Diaz y el Procurador Sr. Antonio A. Torres en representacion del apelado.

DIOKNO, J.:

Carmen Festejo, dueña de unos terrenos azucareros, de un total de unas 9 hectareas y media de superfice, demando a "Isaias Fernando Director, Bureau of public Works, que como tal Director de Obras Publicas tiene a su cargo los sistemas y proyectos de irrigacion y es el funcionario responsable de la construccion de los sistemas de irrigacion en el pais," alegando que —

The defendant, as Director of the Bureau of Public Works, without authority obtained first from the Court of First Instance of Ilocos Sur, without obtaining first a right of way, and without the consent and knowledge of the plaintiff, and against her express objection unlawfully took possession of portions of the three parcels of land described above, and caused an irrigation canal to be constructed on the portion of the three parcels of land on or about the month of February 1951 the aggregate area being 24,179 square meters to the damage and prejudice of the plaintiff. ----- R. on A., p. 3.

causando a ella variados daños y perjuicios. Pidio, en su consecuencia, sentencia condenando el demandado:

. . . to return or cause to be returned the possession of the portions of land unlawfully occupied and appropriated in the aggregate area of 24,179 square meters and to return the land to its former condition under the expenses of the defendant. . . .

In the remote event that the portions of land unlawfully occupied and appropriated can not be returned to the plaintiff, then to order the defendant to pay to the plaintiff the sum of P19,343.20 as value of the portions totalling an area of 24,179 square meters; ---- R. on A., p. 5.

y ademas a pagar P9,756.19 de daños y P5,000 de honorarios de abogado, con las costas R. on A., pp. 5-6.

El demandado, por medio del Procurador General, presento mocion de sobreseimiento de la demanda por el fundamento de que el Juzgado no tiene jurisdiccion para dictar sentencia valida contra el, toda vez que judicialmente la reclamacion es contra la Republica de Filipinas, y esta no ha presentado su

consentimiento a la demanda. El Juzgado inferior estimo la mocion y sobreseyo la demanda sin perjuicio y sin costas.

En apelacion, la demandante sostiene que fue un error considerar la demanda como una contra la Republica y sobreseer en su virtud la demanda.

La mocion contra "Isaias Fernando, Director de Obras Publicas, encargado y responsable de la construccion de los sistemas de irrigacion en Filipinas" es una dirigida personalmente contra el, por actos que asumio ejecutar en su concepto oficial. La ley no le exime de responsabilidad por las extralimitaciones que cometa o haga cometer en el desempeño de sus funciones oficiales. Un caso semejante es el de Nelson vs. Bobcock (1933) 18 minn. 584, NW 49, 90 ALR 1472. Alli el Comisionado de Carreteras, al mejorar un trozo de la carretera ocupo o se apropio de terrenos contiguos al derecho de paso. El Tribunal Supremo del Estado declaro que es personalmente responsable al dueño de los daños causados. Declaro ademas que la ratificacion de lo que hicieron sus subordinados era equivalente a una orden a los mismos. He aqui lo dijo el Tribunal.

We think the evidence and conceded facts permitted the jury in finding that in the trespass on plaintiff's land defendant committed acts outside the scope of his authority. When he went outside the boundaries of the right of way upon plaintiff's land and damaged it or destroyed its former condition an dusefulness, he must be held to have designedly departed from the duties imposed on him by law. There can be no claim that he thus invaded plaintiff's land southeasterly of the right of way innocently. Surveys clearly marked the limits of the land appropriated for the right of way of this trunk highway before construction began. . . .

"Ratification may be equivalent to command, and cooperation may be inferred from acquiescence where there is power to restrain." It is unnecessary to consider other cases cited, . . ., for as before suggested, the jury could find or infer that, in so far as there was actual trespass by appropriation of plaintiff's land as a dumping place for the rock to be removed from the additional appropriated right of way, defendant planned, approved, and ratified what was done by his subordinates. — Nelson vs. Bobcock, 90 A.L.R., 1472, 1476, 1477.

La doctrina sobre la responsabilidad civil de los funcionarios en casos parecidos se resume como sigue:

Ordinarily the officer or employee committing the tort is personally liable therefor, and may be sued as any other citizen and held answerable for whatever injury or damage results from his tortious act. — 49 Am. Jur. 289.

. . . If an officer, even while acting under color of his office, exceeds the power conferred on him by law, he cannot shelter himself under the plea

that he is a public agent. — 43 Am. Jur. 86.

It is a general rule that an officer-executive, administrative quasi-judicial, ministerial, or otherwise who acts outside the scope of his jurisdiction and without authorization of law may thereby render himself amenable to personal liability in a civil suit. If he exceed the power conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under the color of his office, and not personally. In the eye of the law, his acts then are wholly without authority. — 43 Am. Jur. 89-90.

El articulo 32 del Codigo Civil dice a su vez:

ART. 32. Any public officer or emplyee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

x x x           x x x           x x x

(6) The right against deprivation of property without due process of law;

x x x           x x x           x x x

In any of the cases referred to this article, whether or not the defendant's acts or omission constitutes a criminal offense, the aggrieved party has a right ot commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The inmdemnity shall include moral damages Exemplary damages may also be adjudicated.

Veanse tambien Lung vs. Aldanese, 45 Phil., 784; Syquia vs. Almeda, No. L-1648, Agosto 17, 1947; Marquez vs. Nelson, No. L-2412, Septiembre 1950.

Se revoca la orden apelada y se ordena la continuacion de la tramitacion de la demanda conforme proveen los reglamentos. Sin especial pronunciamiento en cuanto a las costas. Asi se ordena.

G.R. No. L-26803 October 14, 1975

AMERICAN TOBACCO COMPANY, CARNATION COMPANY, CURTISS CANDY COMPANY, CUDAHY PACKING CO., CLUETT, PEABODY & CO., INC., CANNONMILLS COMPANY, FORMICA CORPORATION, GENERALMOTORS CORPORATION, INTERNATIONAL LATEX CORPORATION, KAYSER-ROTH CORPORATION, M and R DIETETIC LABORATORIES, INC., OLIN MATHIESON, PARFUM CIRO, INC., PROCTER and GAMBLE COMPANY, PROCTER and GAMBLE PHILIPPINE MANUFACTURING CORPORATION, PARFUMS PORVIL DENTRIFICES DU DOCTEUR PIERRE REUNIS SOCIETE ANONYME, R.J. REYNOLDS TOBACCO COMPANY, SWIFT AND COMPANY, STERLING PRODUCTS INTERNATIONAL, THE CLOROX COMPANY, WARNER LAMBERT PHARMACEUTICALS COMPANY and ZENITH RADIO CORPORATION, petitioners, vs.THE DIRECTOR OF PATENTS, ATTYS. AMANDO L. MARQUEZ, TEOFILO P. VELASCO, RUSTICO A. CASIA and HECTOR D. BUENALUZ, respondents.

Lichauco, Picazo and Agcaoili for petitioners.

Office of the Solicitor General for respondents.

 

ANTONIO, J.:

In this petition for mandamus with preliminary injunction, petitioners challenge the validity of Rule 168 of the "Revised Rules of Practice before the Philippine Patent Office in Trademark Cases" as amended, authorizing the Director of Patents to designate any ranking official of said office to hear "inter partes" proceedings. Said Rule likewise provides that "all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him." These proceedings refer to the hearing of opposition to the registration of a mark or trade name, interference proceeding instituted for the purpose of determining the question of priority of adoption and use of a trade-mark, trade name or service-mark, and cancellation of registration of a trade-mark or trade name pending at the Patent Office.

Petitioners are parties, respectively, in the following opposition, interference and cancellation proceedings in said Office: Inter Partes Cases Nos. 157, 392, 896, 282, 247, 354, 246,332, 398, 325, 374, 175, 297, 256, 267, 111, 400, 324, 114, 159, 346, and 404.

Under the Trade-mark Law (Republic Act No. 166 ), the Director of Patents is vested with jurisdiction over the above-mentioned cases. Likewise, the Rules of Practice in Trade-mark Cases contains a similar provision, thus:

168. Original jurisdiction over inter partes proceeding. — the Director of Patents shall have original jurisdiction over inter partes proceedings. In the event that the Patent Office should be provided with an Examiner of Interferences, this Examiner shall have the original jurisdiction over these cases, instead of the Director. In the case that the Examiner of Interferences takes over the original jurisdiction over inter partes proceedings, his final decision subject to appeal to the Director of Patents within three months of the receipt of notice of decisions. Such appeals shall be governed by sections 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15 and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable and appropriate, and the appeal fee shall be P25.00.

The Rules of Practice in Trade-mark Cases were drafted and promulgated by the Director of Patents and approved by the then Secretary of Agriculture and Commerce.. 1

Subsequently, the Director of Patents, with the approval of the Secretary of Agriculture and Commerce, amended the afore-quoted Rule 168 to read as follows:

168. Original Jurisdiction over inter partes proceedings. — The Director of Patents shall have original jurisdiction over inter partes proceedings, [In the event that the Patent Office is provided with an Examiner of Interferences, this Examiner shall then have the original jurisdiction over these cases, instead of the Director. In the case that the Examiner of Interferences takes over the original jurisdiction over inter partes proceedings, his final decisions shall be subject to appeal to the Director of Patents within three months of the receipt of notice decision. Such appeals shall be governed by Sections 2, 3, 4, 6, 7, 8,10, 11, 12, 13, 14, 15, and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable and appropriate, and the appeal fee shall be [P25.00.] Such inter partes proceedings in the Philippine Patent Office under this Title shall be heard before the Director of Patents, any hearing officer, or any ranking official designated by the Director, but all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him . (Emphasis supplied.)

In accordance with the amended Rule, the Director of Patents delegated the hearing of petitioners' cases to hearing officers, specifically, Attys. Amando Marquez, Teofilo Velasco, Rustico Casia and Hector Buenaluz, the other respondents herein.

Petitioners filed their objections to the authority of the hearing officers to hear their cases, alleging that the amendment of the Rule is illegal and void because under the law the Director must personally hear and decide inter partes cases . Said objections were overruled by the Director of Patents, hence, the present petition for mandamus , to compel The Director of Patents to personally hear the cases of petitioners, in lieu of the hearing officers.

It would take an extremely narrow reading of the powers of the Director of Patents under the general law 2 and Republic Acts Nos. 165 3 and 166 3* to sustain the contention of petitioners. Under section 3 of RA 165, the Director of Patents is "empowered to obtain the assistance of technical, scientific or other qualified officers or employees of other departments, bureaus, offices, agencies and instrumentalities of the Government, including corporations owned, controlled or operated by the Government, when deemed necessary in the consideration of any matter submitted to the Office relative to the enforcement of the provisions" of said Act. Section 78 of the same Act also empowers "the Director, subject to the approval of the Department Head," to "promulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all business in the Patent Office." The aforecited statutory authority undoubtedly also applies to the administration and enforcement of the Trade-mark Law (Republic Act No. 166).

It has been held that power-conferred upon an administrative agency to which the administration of a statute is entrusted to issue such regulations and orders as may be deemed necessary or proper in order to carry out its purposes and provisions maybe an adequate source of authority to delegate a particular function, unless by express provisions of the Act or by implication it has been withheld. 4 There is no provision either in Republic Act No. 165 or 166 negativing the existence of such authority, so far as the designation of hearing examiners is concerned. Nor can the absence of such authority be fairly inferred from contemporaneous and consistent Executive interpretation of the Act.

The nature of the power and authority entrusted to The Director of Patents suggests that the aforecited laws (Republic Act No. 166, in relation to Republic Act No. 165) should be construed so as to give the aforesaid official the administrative flexibility necessary for the prompt and expeditious discharge of his duties in the administration of said laws. As such officer, he is required, among others, to determine the question of priority in patent interference proceedings, 5 decide applications for reinstatement of a lapsed patent, 6

cancellations of patents under Republic Act No. 165, 7 inter partes proceedings such as oppositions, 8 claims of interference, 9 cancellation cases under the Trade-mark Law 10 and other matters in connection with the enforcement of the aforesaid laws. It could hardly be expected, in view of the magnitude of his responsibility, to require him to hear personally each and every case pending in his Office. This would leave him little time to attend to his other duties. 11 For him to do so and at the same time attend personally to the discharge of every other duty or responsibility imposed upon his Office by law would not further the development of orderly and responsible administration. The reduction of existing delays in regulating agencies requires the elimination of needless work at top levels. Unnecessary and unimportant details often occupy far too much of the time and energy of the heads of these agencies and prevent full and expeditious consideration of the more important issues. the remedy is a far wider range of delegations to subordinate officers. This sub-delegation of power has been

justified by "sound principles of organization" which demand that "those at the top be able to concentrate their attention upon the larger and more important questions of policy and practice, and their time be freed, so far as possible, from the consideration of the smaller and far less important matters of detail." 12

Thus, it is well-settled that while the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. 13

The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his decisions. 14 It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law. Neither does due process of law nor the requirements of fair hearing require that the actual taking of testimony be before the same officer who will make the decision in the case. As long as a party is not deprived of his right to present his own case and submit evidence in support thereof, and the decision is supported by the evidence in the record, there is no question that the requirements of due process and fair trial are fully met. 15 In short, there is no abnegation of responsibility on the part of the officer concerned as the actual decision remains with and is made by said officer. 16 It is, however, required that to "give the substance of a hearing, which is for the purpose of making determinations upon evidence the officer who makes the determinations must consider and appraise the evidence which justifies them." 17

In the case at bar, while the hearing officer may make preliminary rulings on the myriad of questions raised at the hearings of these cases, the ultimate decision on the merits of all the issues and questions involved is left to the Director of Patents. Apart from the circumstance that the point involved is procedural and not jurisdictional, petitioners have not shown in what manner they have been prejudiced by the proceedings.

Moreover, as the Solicitor General Antonio P. Barredo, now a Member of this Court has correctly pointed out, the repeated appropriations by Congress for hearing officers of the Philippine Patent Office form 1963 to 1968 18 not only confirms the departmental construction of the statute, but also constitutes a ratification of the act of the Director of Patents and the Department Head as agents of Congress in the administration of the law. 19

WHEREFORE, the instant petition is hereby dismissed, with costs against petitioners.

[G.R. No. 139792.  November 22, 2000]

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

D E C I S I O N

DAVIDE, JR., C.J.:

In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of Appeals[1] in CA-G.R. SP No. 48301, which held that petitioner’s separation pay under Section 11 of R.A. No. 7924 should be limited to the number of years of his service in the Metropolitan Manila Authority (MMA) only, excluding his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City for which he has already been given retirement gratuity and pension.

The undisputed facts are as follows:

On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office.   After the military-backed EDSA revolt, petitioner was reappointed to the same position.

On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910, [2] as amended, and received his retirement gratuity under the law for his entire years in the government service; and five years thereafter he has been regularly receiving a monthly pension.

On 2 December 1993, petitioner re-entered the government service.   He was appointed Director III of the Traffic Operation Center of the MMA.   His appointment was approved by the Civil Service Commission (CSC).

On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan Manila Development Authority (MMDA).  Section 11 thereof reads:

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

. . .

The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall be strictly enforced.  The national government shall provide such amounts as may be necessary to pay the benefits accruing to displaced employees at the rate of one and one-fourth (1¼) month’s salary for every year of service: Provided, That, if qualified for retirement under existing retirement laws, said employees may opt to receive the benefits thereunder.

On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and Regulations Implementing R.A. No. 7924.  Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of separation benefits to the officials and employees of the former MMA who would be separated as a result of the implementation of R.A. No. 7924.

On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view of his “voluntary option to be separated from the service” his services would automatically cease effective at the close of office hours on 15 September 1996, and that he would be entitled to “separation benefits equivalent to one and one-fourth (1¼) monthly salary for every year of service as provided under Section 11 of the MMDA Law.”

In view of some doubt or confusion as to the extent of his separation benefits, petitioner submitted a Position Paper wherein he asserted that since the retirement gratuity he received under R.A. No. 910, as amended, is not an additional or double compensation, all the years of his government service, including those years in the Judiciary, should be credited in the computation of his separation benefits under R.A. No. 7924.   The Assistant Manager for Finance of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR.

On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that the payment of petitioner’s separation pay must be in accordance with Civil Service Resolution No. 92-063, pertinent portions of which read:

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

…  This being so, while an employee who was paid separation/retirement benefits is not required to refund the same once reemployed in the government service, as aforestated, for reasons of equity however, it would be proper and logical that said separation/retirement benefits should nevertheless be deducted from the retirement/[separation] pay to be received by the

employee concerned.   Moreover, in this instance, the employee concerned has the option either to refund his separation/retirement benefits and claim his gross retirement/separation pay without any deduction corresponding to his separation pay received, or not [to] refund his separation/retirement pay but suffer a deduction of his retirement/separation gratuity for the total amount representing his previous separation/retirement pay received.

His motion for reconsideration having been denied, petitioner elevated the opinion of Director Acebedo to the CSC.

On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of Director Acebedo and dismissing petitioner’s appeal.  Citing Chaves v. Mathay,[3] it held that petitioner cannot be paid retirement benefits twice – one under R.A. No. 910, as amended, and another under R.A. No. 7924 – for the same services he rendered as MeTC Judge.  He can only exercise one of two options in the computation of his separation pay under R.A. 7924.  These options are (1) to refund the gratuity he received under R.A. No. 910, as amended, after he retired from the MeTC and get the full separation pay for his entire years in the government, that is 9 years and 2  months with the MeTC plus two (2) years and eight (8) months for his services as Director III in the defunct MMA, at the rate of one and one-fourth salary for every year of service pursuant to MMDA Memorandum dated 30 August 1996; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from the former MMA for his entire government service.

On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioner’s motion for reconsideration.  Accordingly, petitioner filed with the Court of Appeals a petition to set aside these Resolutions.

On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this case.  It held that the CSC was “correct in dismissing petitioner’s appeal from the opinion of Director Acebedo.”  It ratiocinated as follows:

There is no specific rule of law which applies to petitioner’s case.  Nevertheless, the Court finds it equitable to deny his claim for payment of separation pay at the rate of one and one-fourth (1¼) month’s salary for every year of his service in government, that is, inclusive of the number of years he served as Judge of the Metropolitan Trial Court of Manila [sic].

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

Suffice it to state that upon his retirement from his office as a Judge, petitioner

has already closed a chapter of his government service.  The State has already shown its gratitude for his services when he was paid retirement benefits under Republic Act No. 901 [sic].  For that is what retirement benefits are for.  Rewards [are] given to an employee who has given up the best years of his life to the service of his country (Gov’t. Service Insurance System v. Civil Service Commission, 245 SCRA 179, 188).

Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services as a director of the Metro Manila Authority (MMA), another chapter of petitioner’s government service which has come to a close by the reorganization of the MMA into the Metropolitan Manila Development Authority.

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

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

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

We affirm the assailed judgment.  We agree with the Court of Appeals and the Civil Service Commission that for the purpose of computing or determining petitioner’s separation pay under Section 11 of R.A. No. 7924, his years of service in the Judiciary should be excluded and that his separation pay should be solely confined to his services in the MMA.

In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of “one and one-fourth (1¼) months of salary

for every year of service” cannot by any stretch of logic or imagination be interpreted to refer to the total length of service of an MMA employee in the government, i.e., to include such service in the government outside the MMA.  Since it allows the grant of separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of service in the MMA.  The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner.  The rule is settled that Congress may abolish public offices.  Such a power is a consequent prerogative of its power to create public offices.[4] However, the power to abolish is subject to the condition that it be exercised in good faith.[5] The separation partook of the nature of a disturbance of compensation; hence, the separation pay must relate only to the employment thus affected.

Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous government service.  If he were convinced that it does he could have instead applied for retirement benefits, since by adding his years of service in the MMA to his previous years of service in the Government he could have retired under the third paragraph of Section 11, which pertinently reads:

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

Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement gratuity under R.A. No. 910, as amended; and five years thereafter he has been receiving a monthly pension.

The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides:

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

This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which another compensation is attached. [6]

Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not constitute double compensation.   He could continue receiving the same even if after his retirement he had been receiving salary from the defunct MMA as Director III thereof.   This is but just because said retirement benefits are rewards for his services as MeTC Judge, while his salary was his compensation for his services as Director III of the MMA.

However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the fact that he had received or has been receiving the retirement benefits under R.A. No. 910, as

amended, would be to countenance double compensation for exactly the same services, i.e ., his services as MeTC Judge.   Such would run counter to the policy of this Court against double compensation for exactly the same services.[7] More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of the Constitution, which proscribes additional, double, or indirect compensation.  Said provision reads:

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

Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of the MMA.

WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for want of merit, and the decision of 19 August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

G.R. No. 71562 October 28, 1991

JOSE P. LAUREL V, in his official capacity as Provincial Governor of Batangas, petitioner, vs.CIVIL SERVICE COMMISSION and LORENZO SANGALANG, respondents.

Provincial Attorney for respondent.

R E S O L U T I O N

 

DAVIDE, JR., J.:p

Is the position of Provincial Administrator primarily confidential?

Does the rule on nepotism apply to designation?

May a private citizen who does not claim any better right to a position file a verified complaint with the Civil Service Commission to denounce a violation by an appointing authority of the Civil Service Law and rules?

These are the issues raised in this petition.

The antecedent facts are not disputed.

Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 March 1980, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the Governor, a non-career service position which belongs to the personal and confidential staff of an elective official. 1

On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants and so as not to prejudice the operation of the Provincial Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial Administrator effective 2 January 1981 and to continue until the appointment of a regular Provincial Administrator, unless the designation is earlier revoked. 2

On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868. 3

On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service Commission 4 to bring to its attention the "appointment" of Benjamin

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

In his letter to the Chairman of the Civil Service Commission dated 18 January 1983, 5 Jose A. Oliveros, Acting Provincial Attorney of Batangas, for and in behalf of herein petitioner, asserts that the latter did not violate the provision prohibiting nepotism under Section 49 of P.D. No. 807 because, with respect to the positions of Senior Executive Assistant and Civil Security Officer, both are primarily confidential in nature; and, with respect to the position of Provincial Administrator:

. . . what is prohibited under Section 49 of P.D. 807 is the appointment of a relative to a career Civil Service position, like that of a provincial administrator. Governor Laurel did not appoint his brother, Benjamin, as Provincial Administrator. He merely designated him "Acting Provincial Administrator." And "appointment" and "designation" are two entirely different things. Appointment implies original establishment of official relation. Designation is the imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes a previous appointment of the officer in whom the new or additional duties are imposed.

Appointment is generally permanent, hence the officer appointed cannot be removed except for cause; designation is merely temporary and the new or additional powers may be withdrawn with or without cause.

Benjamin C. Laurel had already been appointed Senior Executive Assistant in the Office of the Governor when Governor Laurel designated him Acting Provincial Administrator.

It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices Act because:

As Acting Provincial Administrator, Benjamin is entitled under Office of the President Memorandum-Circular No. 437, series of 1971, to a monthly representation allowance of P350.00. And said allowance is "strictly on reimbursement basis." 6

On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-358 7 which, inter alia, revokes the designation of Benjamin as Acting Provincial Administrator on the ground that it is "nepotic", or in violation of Section 49, P.D. No. 807 on nepotism. The relevant portion of said section reads as follows:

SECTION 49. Nepotism. — (a) All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.

As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or affinity.

(b) The following are exempted from the operation of the rules on nepotism: (1) persons employed in a confidential capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission.

xxx xxx xxx

Although what was extended to Benjamin was merely a designation and not an appointment, the Civil Service Commission ruled that "the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly." It further held that Section 24(f) of Republic Act No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service). The petitioner, therefore, could not legally and validly designate Benjamin, who successively occupied the non-career positions of Senior Executive Assistant and Civil Security Officer, to the position of Provincial Administrator, a career position under Section 4 of R.A. No. 5185.

Petitioner's motion to reconsider said Resolution, 8 based on the claim that the questioned position is primarily confidential in nature, having been denied in Resolution No. 85-271 of 3 July 1985 9 wherein the respondent Civil Service Commission maintains that said position is not primarily-confidential in nature since it neither belongs to the personal staff of the Governor nor are the duties thereof confidential in nature considering that its principal functions involve general planning, directive and control of administrative and personnel service in the Provincial Office, petitioner filed the instant petition invoking the following grounds:

A. Respondent Commission has committed a (sic) grave abuse of discretion amounting to lack or excess of jurisdiction when it held that the position of provincial administrator is not a primarily-confidential position because said ruling is diametrically opposed to, and in utter disregard of rulings of this Honorable Court as to what is a primarily-confidential position under Article XII-B, Sec. 2 of the Constitution.

B. Respondent Commission gravely abused its discretion and acted without jurisdiction when it arrogated unto itself the power to review a designation made by petitioner by virtue of the powers in him vested under Section 2077 of the Revised Administrative Code.

C. Respondent Commission exceeded its jurisdiction when it gave due course to the complaint of private respondent and thereafter promulgated the resolutions under question in this petition.

D. There is no appeal, nor any other plain, speedy and adequate remedy in the ordinary course of law available to petitioner to have the questioned resolutions of respondent Commission reviewed and thereafter nullified, revoked and set aside, other than this recourse to a petition for certiorari under Rule 65 of the Rules of Court.

In the Comment filed for the respondent Commission on 7 October 1985, the Solicitor General sustains the challenged resolutions and contends that the position of Provincial Administrator is intended to be part of the career system and since it requires a specific civil service eligibility, it belongs to the career service under Section 5(1) of P.D. No. 807 and has not been declared primarily confidential by the President pursuant to Section 1 of P.D. No. 868; that the Commission has the authority to review, disapprove, and set aside even mere designations, as distinguished from appointments, for Section 2 of P.D. No. 807 vests in it the power to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants; and that it can act on Sangalang's complaint pursuant to Section 37 of P.D. No. 807, for what he filed was not an action for quo warranto, but an administrative complaint to correct a violation of the Civil Service law and rules which involved public service and the public interest. Per Benitez vs. Paredes, 10 reiterated in Tañada vs. Tuvera, 11 where the question is one of public right, the people are regarded as the real parties in interest, and the relator at whose instigation the proceedings are instituted need only show that he is a citizen and as such interested in the execution of the laws.

On 11 December 1985, petitioner filed his Reply to the Comment insisting therein that the duties, functions and responsibilities of the Provincial Administrator render said position primarily confidential in nature; the requirement of a specific service eligibility and absence of a presidential declaration that the position is primarily confidential do not place the said position in the career service; the position of Provincial Administrator is in the non-career service; and that the Benitez vs. Paredes and Tañada vs. Tuvera cases are not applicable in this case. Petitioner insists that the controlling doctrines are those enunciated in Salazar vs. Mathay, 12 where this Court held that there are two instances when a position may be considered primarily confidential, to wit: (a) when the President, upon recommendation of the Commissioner of Civil Service (now Civil Service Commission) has declared a position to be primarily

confidential; and (2) in the absence of such declaration, when by the very nature of the functions of the office, there exists close intimacy between the appointee and the appointing power which insures freedom of intercourse without embarrassment or freedom from misgiving or betrayals of personal trust or confidential matters of state and Piñero vs. Hechanova, 13 where this Court ruled that at least, since the enactment of the 1959 Civil Service Act (R.A. No. 2260), it is the nature of the position that finally determines whether a position is primarily confidential, policy determining, or highly technical and that executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict, which must be so, or else "it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII of the Constitution."

In his Rejoinder filed on 16 December 1986, the Solicitor General states that the rulings in the Salazar and Piñero cases have been modified and superseded by Section 6 of P.D. No. 807, and by the third paragraph of Section 1 of P.D. No. 868, which provides:

Any provision of law authorizing any official, other than the President, to declare positions policy-determining, primarily confidential or highly technical which are exempt from the Civil Service Law and rules is hereby repealed, and only the President may declare a position-determining, highly technical or primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the Presidential Reorganization Commission.

The Solicitor General further asseverates that the Commissions' giving due course to the complaint of Sangalang is manifestly valid and legal for it is also in accordance with the declared policies of the State provided for in Section 2 of P.D. No. 807.

In the Resolution of 9 February 1987, this Court gave due course to the petition and required the parties to submit simultaneous memoranda.

We shall take up the issues in the order they are presented above.

1. The first issue becomes important because if the questioned position is primarily confidential, Section 49 of P.D. No. 807 on nepotism would not apply in the instant case. Interestingly, however, petitioner did not raise it in the letter to the Chairman of the Civil Service Commission dated 18 January 1983. 14

On the contrary, he submits, or otherwise admits therein, that said position is not primarily confidential for it belongs to the career service. He even emphasized this fact with an air of absolute certainty, thus:

At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is the appointment of a relative to a career Civil Service position , LIKE THAT OF PROVINCIAL ADMINISTRATOR . . . (capitalization supplied for emphasis).

The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the rule does not apply to designation — only to appointment. He changed his mind only after the public respondent, in its Resolution No. 83-358, ruled that the "prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly" and, more specifically, only when he filed his motion to reconsider said resolution. Strictly speaking, estoppel has bound petitioner to his prior admission. Per Article 1431 of the Civil Code, through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. 15

But even if estoppel were not to operate against him, or regardless thereof, his claim that the position of Provincial Administrator is primarily confidential, is without merit.

As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions, 16 to wit:

Education : Bachelor's degree preferably in Law/Public or Business Administration.

Experience : Six years of progressively responsible experience in planning, directing and administration of provincial government operations. Experience in private agencies considered are those that have been more or less familiar level of administrative proficiency.

Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First Grade/Supervisor).

It may be added that the definition of its functions and its distinguishing characteristics as laid down in the Manual, thus:

xxx xxx xxx

2. DEFINITION:

Under the direction of the Provincial Governor, responsible for the overall coordination of the activities of the various national and local agencies in the province; and general planning, direction and control of the personnel functions

and the administrative services of the Governor's Office.

3. DISTINGUISHING CHARACTERISTICS:

This is the class for top professional level management, administrative and organizational work in the operation of provincial government with highly complex, involved relationships with considerable delegation of authority and responsibility and a high degree of public contact.

render indisputable the above conclusion that the subject position is in the career service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications, (b) opportunity for advancement to higher career positions, and (c) security of tenure. More specifically, it is an open career position, for appointment to it requires prior qualification in an appropriate examination. 17 It falls within the second major level of positions in the career service, per Section 7 of P.D. No. 807, which reads:

Sec. 7. Classes of Positions in the Career Service. — (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows:

xxx xxx xxx

(2) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; . . .

In Piñero, et al. vs. Hechanova, et al., 18 this Court had the occasion to rule that:

It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII 19 of the Constitution.

This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:

. . . and only the President may declare a position policy-determining, highly technical or primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the Presidential Reorganization

Commission.

for the reason that the latter may be considered merely as the initial determination of the Executive, which in no case forecloses judicial review. A rule that exclusively vests upon the Executive the power to declare what position may be considered policy-determining, primarily confidential, or highly technical would subvert the provision on the civil service under the 1973 Constitution which was then in force at the time the decree was promulgated. Specifically, Section 2 of Article XII of said Constitution makes reference to positions which are policy-determining, primarily confidential, or highly technical in nature," thereby leaving no room for doubt that, indeed, it is the nature of the position which finally determines whether it falls within the above mentioned classification. The 1987 Constitution retains this rule when in Section 2 of Article IX-C, it clearly makes reference to "positions which are policy-determining, primarily confidential, or highly technical."

In the light of the foregoing, We cannot accept the view of the Solicitor General in his Rejoinder 20 that Salazar vs. Mathay 21 and Piñero, et al. vs. Hechanova, et al., 22 have already been modified by Section 6 of P.D. No. 807 and the third paragraph of Section 1 of P.D. No. 868.

Not being primarily confidential, appointment thereto must, inter alia , be subject to the rule on nepotism.

We likewise agree with the public respondent that there is one further obstacle to the occupation by Benjamin Laurel of the position of Provincial Administrator. At the time he was designated as Acting Provincial Administrator, he was holding the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential position. He was thereafter promoted as Civil Security Officer, also a primarily confidential position. Both positions belong to the non-career service under Section 6 of P.D. No. 807. As correctly ruled by the public respondent, petitioner cannot legally and validly designate Benjamin Laurel as Acting Provincial Administrator, a career position, because Section 24(f) of R.A. No. 2260 provides that no person appointed to a position in the non- competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service).

2. Being embraced in the career service, the position of Provincial Administrator must, as mandated by Section 25 of P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be issued to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position except the appropriate civil service eligibility, provided, however, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced

sooner if a qualified civil service eligible becomes available. 23

Petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of the prohibition on nepotism under Section 49 of P.D. No. 807. They are related within the third degree of consanguinity and the case does not fall within any of the exemptions provided therein.

Petitioner, however, contends that since what he extended to his brother is not an appointment, but a DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for:

By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly. 24

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty. 25

In Borromeo vs. Mariano, 26 this Court said:

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

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

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would be meaningless and toothless. Any

appointing authority may circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly stated by public respondent, "what cannot be done directly cannot be done indirectly." 28

3. As regards the last issue, We rule that the letter-complaint of Sangalang was validly given due course by public respondent. Undoubtedly, as shown above, there was a violation of law committed by petitioner in designating his brother as Acting Provincial Administrator. Any citizen of the Philippines may bring that matter to the attention of the Civil Service Commission for appropriate action conformably with its role as the central personnel agency to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants, 29 with the power and function to administer and enforce the Constitutional and statutory provisions on the merit system. 30 Moreover, Section 37 of the decree expressly allows a private citizen to directly file with the Civil Service Commission a complaint against a government official or employee, in which case it may hear and decide the case or may deputize any department or agency or official or group of officials to conduct an investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. This provision gives teeth to the Constitutional exhortation that a public office is a public trust and public officers and employees must at all times be, inter alia, accountable to the people. 31 An ordinary citizen who brings to the attention of the appropriate office any act or conduct of a government official or employee which betrays the public interest deserves nothing less than the praises, support and encouragement of society. The vigilance of the citizenry is vital in a democracy.

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

Costs against petitioner.

SO ORDERED.

[G.R. No. 135805.  April 29, 1999]

CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY, respondent.

D E C I S I O N

PARDO, J.:

The case before us is an appeal via certiorari interposed by the Civil Service Commission from a decision of the Court of Appeals ruling that respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null and void the Civil Service Commission’s resolution dismissing him from the service as Vocational School Administrator, Balicuatro College of Arts and Trade, Allen, Northern Samar.

The facts may be succinctly related as follows:

On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism. [1]

After the fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban City, found a prima facie case against respondent , and, on March 5, 1996, issued the corresponding formal charge against him.[2] Accordingly, the Civil Service Commission conducted a formal investigation, and, on January 28, 1997, the Civil Service Commission promulgated its resolution finding no substantial evidence to support the charge of habitual drunkenness and misconduct.   However, the Civil Service Commission found respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service. [3]

On February 25, 1997, respondent Dacoycoy filed a motion for reconsideration;[4] however, on May 20, 1997, the Civil Service Commission denied the motion.[5]

On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action for certiorari with preliminary injunction[6] to set aside the Civil Service Commission’s resolutions.

On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision of the Civil Service Commission, ruling that

respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of nepotism.  The Court further held that it is “the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act.” [7]

Hence, this appeal.

On November 17, 1998, we required respondent to comment on the petition within ten (10) days from notice.[8] On December 11, 1998, respondent filed his comment

We give due course to the petition.

The basic issue raised is the scope of the ban on nepotism.

We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the penalty of dismissal from the service.

The law defines nepotism[9] as follows:

“Sec. 59.  Nepotism. – (1)  All appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.

“As used in this Section, the word “relative” and members of the family referred to are those related within the third degree either of consanguinity or of affinity.

(2)  The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential capacity,  (b)  teachers, (c)  physicians, and (d)  members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission.”

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:

a)   appointing authority;

b)   recommending authority;

c)   chief of the bureau or office, and

d)   person exercising immediate supervision over the appointee.

Clearly, there are four situations covered.  In the last two mentioned situations, it is immaterial who the appointing or recommending authority is.   To

constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee.

Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar.  It is true that he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades.   In fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended the appointment of Rito.   Mr. Daclag's authority to recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers, and casuals and emergency laborers for short durations of three to six months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the provision that such positions shall be under Mr. Daclag’s immediate supervision.   On July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the school.   On January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual utility worker.   However, it was respondent Dacoycoy who certified that “funds are available for the proposed appointment of Rito Dacoycoy” and even rated his performance as “very satisfactory”.   On the other hand, his son Ped stated in his position description form that his father was “his next higher supervisor”.   The circumvention of the ban on nepotism is quite obvious.  Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator.   He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision.   Then Mr. Daclag recommended the appointment of respondent’s two sons and placed them under respondent’s immediate supervision serving as driver and utility worker of the school.   Both positions are career positions.

To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons.  Clearly, he is guilty of nepotism.

At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case.  There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him.[10] He was the respondent official meted out the penalty of dismissal from the service.  On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent[11] as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service.[12]

Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism.  Who now may appeal the decision of the Court of Appeals to the Supreme Court?  Certainly not

the respondent, who was declared not guilty of the charge.  Nor the complainant George P. Suan, who was merely a witness for the government.[13] Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system.  Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court.[14] By this ruling, we now expressly abandon and overrule extant jurisprudence that “the phrase ‘party adversely affected by the decision’ refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office”[15] and not included are “cases where the penalty imposed is suspension for not more then thirty (30) days or fine in an amount not exceeding thirty days salary”[16] or “when the respondent is exonerated of the charges, there is no occasion for appeal.”[17] In other words, we overrule prior decisions holding that the Civil Service Law “does not contemplate a review of decisions exonerating officers or employees from administrative charges” enunciated in Paredes v. Civil Service Commission;[18] Mendez v. Civil Service Commission;[19] Magpale v. Civil Service Commission;[20] Navarro v. Civil Service Commission and Export Processing Zone Authority[21] and more recently Del Castillo v. Civil Service Commission[22]

The Court of Appeals’ reliance on Debulgado vs. Civil Service Commission,[23] to support its ruling is misplaced.  The issues in Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment.   Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative.  Precisely, in Debulgado, the Court emphasized that Section 59 “means exactly what it says in plain and ordinary language: x x x The public policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there.” [24]

Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel.  In Debulgado, we stressed that “[T]the basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one.”[25] “The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive.”[26] If not within the exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head.  As we said in an earlier case “what we need now is not only to punish the wrongdoers or reward the ‘outstanding’ civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft

or circumvention of the law.”[27]

WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-G.R. SP No. 44711.

ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.

No costs.

SO ORDERED.

[G.R. No. 103501-03.  February 17, 1997]

LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.

[G.R. No. 103507.  February 17, 1997]

ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

D E C I S I O N

FRANCISCO, J.:

Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990,[2] as well as the Resolution dated December 20, 1991[3] denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code.  Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence:

“(1)     In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed.  He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

“(2)     In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed.  He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

“(3)    In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed.  They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from public office.”

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused - he being charged in all three (3) cases.  The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read:

“That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager’s check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA’s Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager’s check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.”

x x x

“That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager’s check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA’s Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager’s check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.”

x x x

“That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager’s check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA’s Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager’s check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid

amount.

CONTRARY TO LAW.”

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the president’s office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, “Yes, sir, I will do it.”  About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:

“Office of the President

of the Philippines

Malacañang

January 8, 1986

MEMO TO:  The General Manager

Manila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA’s account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985.

Your immediate compliance is appreciated.

                                                       (Sgd.)  FERDINAND MARCOS.”[4]

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:

“MEMORANDUM

F o r   :   The President

F r o m            :   Minister Roberto V. Ongpin

D a t e             :   7 January 1985

Subject           :   Approval   of    Supplemental   Contracts   and

Request for Partial Deferment of Repayment of PNCC’s Advances for MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:

1.    Supplemental Contract No. 12

                 Package Contract No. 2

 

P11,106,600.95

2.    Supplemental Contract No. 13 5,758,961.52

3.   Supplemental Contract No. 14

               Package Contract No. 2

 

4,586,610.80

4.   Supplemental Contract No. 15 1,699,862.69

5.   Supplemental Contract No. 16

               Package Contract No. 2

 

233,561.22

6.   Supplemental Contract No. 17

              Package Contract No. 2

 

8,821,731.08

7.   Supplemental Contract No. 18

             Package Contract No. 2

 

 6,110,115.75

8.   Supplemental Contract No. 3

             Package Contract No. II

 

 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts.  In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation:

Approved by Price Escalation Committee (PEC) but pended for lack of funds

P   1.9 million

Endorsed by project consultants and currently being evaluated by PEC

 30.7 million

Submitted by PNCC directly to PEC and currently under evaluation

66.5 million

T o t a l P99.1 million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency’s approval for a deferment of  the repayment of PNCC’s advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.Korte

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds.  This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

(Sgd.)  ROBERTO V. ONGPIN

Minister”[5]

In obedience to President Marcos’ verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA - the depository branch of MIAA funds, to issue a manager’s check for said amount payable to Tabuena.  The check was encashed, however, at the PNB Villamor Branch.  Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery

thereof.  The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacañang.  Mrs. Gimenez did not issue any receipt for the money received.

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million.  Peralta was Tabuena’s co-signatory to the letter- request for a manager’s check for this amount.  Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million.  After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena’s car.  Peralta did not go with Tabuena  to deliver the money to Mrs. Gimenez’ office at Aguado Street.  It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena.  The receipt, dated January 30, 1986, reads:

“Malacañang

Manila

January 30, 1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates:

Jan. 10  -  P25,000,000.00

Jan. 16  -    25,000,000.00

Jan. 30  -      5,000,000.00

(Sgd.)  Fe Roa-Gimenez”

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, “out of the ordinary” and “not based on the normal procedure”.  Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash.  Also, no PNCC receipt for the P55 Million was presented.  Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million.  On the other hand, the defense of Tabuena and Peralta, in short, was that they

acted in good faith.  Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAA’s obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC.  Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors[6] committed by the Sandiganbayan for this Court’s consideration.  It appears, however, that at the core of their plea that we acquit them are the following:

1)  the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2)  they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that:

“x x x accused x x x conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of x x x.”

But it would appear that they were convicted of malversation by negligence.  In this connection, the Court’s attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena’s and Peralta’s motion for reconsideration) wherein the Sandiganbayan said:

“x x x                                x x x                                   x x x

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC.Sclaw

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds.  Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds.” (Underscoring supplied.)

To support their theory  that such variance is a reversible flaw, Tabuena and Peralta argue that:

1)  While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time.

2)  The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation.[7]

3)  Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation.[8]

We do not agree with Tabuena and Peralta on this point.  Illuminative and controlling is “Cabello v. Sandiganbayan”[9] where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:

“x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order.  Malversation is committed either intentionally or by negligence.  The dolo or the culpa present in the offense is only a modality in the perpetration of the felony.  Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. x x x.

In Samson vs. Court of Appeals, et. al.,  we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus:

‘While a criminal negligent act is not a simple modality of  a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense.  This is the situation that obtains in the present case.  Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do.  In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent.  This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal.

x x x

‘Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. x x x.

‘The fact that the information does not allege that the falsification was committed with

imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result  has  proven  beneficial  to  him.   Certainly,  having  alleged  that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence.’

“Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.”

Going now to the defense of good faith,  it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused.  Thus, in the two (2) vintage, but significant malversation cases of “US v. Catolico”[10] and “US v. Elviña,”[11] the Court stressed that:

“To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent.  The maxim is actus non facit reum, nisi mens  sit rea - a crime is not committed if the mind of the person performing the act complained of is innocent.”

The rule was reiterated in “People v. Pacana,”[12] although this case involved falsification of public documents and estafa:

“Ordinarily, evil intent must unite with an unlawful act for there to be a crime.  Actus non facit reum, nisi mens sit rea.  There can be no crime when the criminal mind is wanting.”

American jurisprudence echoes the same principle.  It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.[13] The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert.[14] And this, to our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum.  From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation.

First.  Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do.  He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done.  Marcos was undeniably

Tabuena’s superior – the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC.[15] In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out.  And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena’s compliance, without hesitation nor any question, with the MARCOS Memorandum.  Tabuena therefore is entitled to the justifying circumstance of  “Any person who acts in obedience to an order issued by a superior for some lawful purpose.”[16] The subordinate-superior relationship between Tabuena and Marcos is clear.  And so too, is the lawfulness of the  order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC).  However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million.  The Sandiganbayan in this connection said:

“Exhibits “2” and “2-a” (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly:

a.)  for the approval of eight Supplemental Contracts; and

b.)  a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCC’s escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds.

Thus:

‘xxx

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency’s approval for a deferment of repayment of PNCC’s advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds.  This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.’

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in

the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos’ Memo was based) they would only be for a sum of up to P34.5 million.”[17]

x x x                                                                                   x x x                                                                                                     x x x

“V.      Pres. Marcos’ order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos’ Memo (Exhibit “1”) for Tabuena to pay P55 million irrelevant, but it was actually baseless.

This is easy to see.

Exhibit “1” purports to refer itself to the Ongpin Memorandum (Exhibit “2”, “2-a”); Exhibit “1”, however, speaks of P55 million to be paid to the PNCC while Exhibit “2” authorized only P34.5 million.  The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million.  Min. Ongpin’s Memo of January 7, 1985 could not therefore serve as a basis for the President’s order to withdraw P55 million.”[18]

Granting this to be true, it will not nevertheless affect Tabuena’s good faith so as to make him criminally liable.  What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC.  This belief is supported by defense witness Francis Monera who, on direct examination, testified that:

“ATTY ANDRES

Q     Can you please show us in this Exhibit “7” and “7-a” where it is indicated the receivables from MIA as of December 31, 1985?

A      As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit “7-a”, sir, P102,475,392.35.

x x x                          x x x                     x x x.”[19]

ATTY. ANDRES

Q     Can you tell us, Mr. Witness, what these obligations represent?

WITNESS

A      These obligations represent receivables on the basis of our

billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed.  These are billings for escalation mostly, sir.

Q     What do you mean by escalation?

A      Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir.”

         x x x                                x x x                          x x x.”[20]

ATTY ANDRES

Q     When you said these are accounts receivable, do I understand from you that these are due and demandable?

A      Yes, sir.”[21]

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith.[22] Such is the ruling in “Nassif v. People”[23] the facts of which, in brief, are as follows:

“Accused was charged with falsification of commercial document.  A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word “sold” by order of his principal.  Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice.  However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal.”[24]

Second.  There is no denying that the disbursement, which Tabuena admitted as “out of the ordinary”, did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit:

a)  [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)

b)  payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, “State Auditing Code of the Philippines).  In this connection, the Sandiganbayan observed that:

“There were no vouchers to authorize the disbursements in question.  There were no bills to support the disbursement.  There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million.”[25]

c)  failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in.  He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his “immediate compliance” with the directive that he forward to the President’s Office the P55 Million in cash.  Be that as it may, Tabuena surely cannot escape responsibility for such omission.  But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal.  This follows the decision in “Villacorta v. People”[26] where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate wages, leave allowances, etc., held that:

“Nor can negligence approximating malice or fraud be attributed to petitioner.  If he made wrong payments, they were in good faith mainly to  government personnel, some of them working at the provincial auditor’s and the provincial treasurer’s offices.  And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable.”

Likewise controlling is “US v. Elviña”[27] where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion’s reference to certain provisions in the revised Manual on Certificate of Settlement and Balances - apparently made to underscore Tabuena’s personal accountability, as agency head, for MIAA funds - would all the more support the view that Tabuena is vulnerable to civil sanctions only.  Sections 29.2 and 29.5 expressly and solely speak of “civilly liable”   to describe the kind of sanction imposable on a superior officer who performs his duties with “bad faith, malice or gross negligence”’ and on a subordinate officer or employee who commits “willful or negligent acts x x x which are contrary to law, morals, public policy  and good customs even if he acted under order or instructions of his superiors.”

Third.  The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of “conversion”:

“‘Conversion’, as necessary element of offense of embezzlement, being the fraudulent ‘appropriation to one’s own use’ of another’s property which does not necessarily mean to one’s personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is ‘conversion to his own use.’  (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106)

-  At p. 207, Words and Phrases,

   Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it.  The gist of conversion is the usurpation of the owner’s right of property, and not the actual damages inflicted.  Honesty of purpose is not a defense.  (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

-  At page 168, id.

x x x   x x x      x x x

The words ‘convert’ and ‘misappropriate’ connote an act of using or disposing of another’s property as if it were one’s own.  They presuppose that the thing has been devoted to a purpose or use different from that agreed upon.  To appropriate to one’s own use includes not only conversion to one’s personal advantage but every attempt to dispose of the property of another without right.

People vs. Webber, 57 O.G.

p. 2933, 2937

By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use.

  People vs. Luntao, 50 O.G.

  p. 1182, 1183”[28]

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena “to pay immediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION....”, and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez.  Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos’ secretary then.  Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies.  And the good faith of Tabuena in having delivered the money to the President’s office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money.  Thus, it has been said that:

“Good faith in the payment of public funds relieves a public officer from the crime of malversation.

x x x                                  x x x                             x x x

Not every unauthorized payment of public funds is malversation.  There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds.  Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable.”[29]

Fourth.   Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena.  There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum.  Nor is there proof that he profited from the felonious scheme.  In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million.  In the cases of  “US v. Acebedo”[30] and “Ang v. Sandiganbayan”,[31] both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy.  In “Acebedo”, therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace.  It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina.  The Court reversed Acebedo’s conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo.  The Court said, which we herein adopt:

“No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina.  No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime.  If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof.”[32]

In “Ang”, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored.  Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him.  And we also adopt the Court’s observation therein, that:

“The petitioner’s alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu.  The

prosecution failed to show that the petitioner was privy to the conspirational scheme.  Much less is there any proof that he profited from the questioned acts.  Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed.”[33]

The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena,  helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on  its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia.  Besides, the case could not be detached from the realities then prevailing.  As aptly observed by Mr. Justice Cruz in his dissenting opinion:

“We reject history in arbitrarily assuming that the people were free during the era and that the judiciary was independent and fearless.  We know it was not; even the Supreme Court at that time was not free.  This is an undeniable fact that we can not just blink away.  Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity.”[34]

But what appears to be a more compelling reason for their acquittal is the violation of the accused’s basic constitutional right to due process. “Respect for the Constitution”, to borrow once again Mr. Justice Cruz’s words,  “is more important than securing a conviction based on a violation of the rights of the accused.”[35] While going over the records, we were struck by the way the Sandiganbayan actively took part  in the questioning of a defense witness and of the accused themselves.  Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to  consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review,  and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not.[36]

Simply consider the volume of questions hurled by the Sandiganbayan.  At the taking of the testimony of Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination.  Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes’

questions and even more than the combined total of direct and cross-examination questions asked by the counsels).  After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions.[37] The trend intensified during Tabuena’s turn on the witness stand.  Questions from the court after Tabuena’s cross-examination totalled sixty-seven (67).[38] This is more than five times Prosecutor Viernes’ questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta’s case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions.[39]

But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation.[40] (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.)  Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta.  (Questions from the Court are marked with asterisks and italicized for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable.  What follows are the cross-examination of Prosecutor Viernes and the court questions).

“CROSS-EXAMINATION BY PROS. VIERNES

Q     You admit that as shown by these Exhibits “7” and “7-a”, the items here represent mostly escalation billings.  Were those escalation billings properly transmitted to MIA authorities?

A      I don’t have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir.

*AJ AMORES

*Q   This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount?

A      I agree, your Honor.  As far as we are concerned, our billings are what we deemed are valid receivables.  And, in fact, we have been following up for payment.

*Q   This determination of the escalation costs was it accepted as the correct figure by MIA?

A      I don’t have any document as to the acceptance by MIA, your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos.

*PJ GARCHITORENA

*Q   Basically, the letter of Mr. Ongpin is to what effect?

A      The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor.

*Q   It has nothing to do with the implementation of the escalation costs?

A      The details show that most of the accounts refer to our escalations, your Honor.

*Q   Does that indicate the computation for escalations were already billed or you do not have any proof of that?

A      Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor.

*AJ AMORES

*Q   Were there partial payments made by MIA on these escalation billings?

A      Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor.

*PJ GARCHITORENA

*Q   Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company?

WITNESS

A      The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor.  Actually, the payment was in the form of:  assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual

stock of about P1 million; that summed up to P44.4 million all in all.  And you deduct that from the P102 million, the remaining balance would be about P57 million.

*PJ GARCHITORENA

*Q   What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash?

A      Yes, your Honor.

*Q   The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?

A      Yes, your Honor.

*Q   This is as of December 31, 1985?

A      The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.

*Q   We are talking now about the P44 million, more or less, by which the basic account has been reduced.  These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985?

WITNESS

A      Yes, your Honor.

*Q   And your records indicate when these adjustments and payments were made?

A      Yes, your Honor.

*AJ AMORES

*Q   You said there were partial payments before of these escalation billings.  Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments?

A      Yes, your Honor.

*Q   How were these payments made before February 1986, in case or check, if there were payments made?

A      The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

*Q   The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings?

A      I have not reviewed the details of the record, your Honor.  But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented.  It will indicate that there were collections shown by credits indicated on the credit side of the ledger.

*AJ AMORES

*Q   Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings.  Was the payment in cash or just credit of some sort before December 31, 1985?

A      Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor.

*Q   Do you know how the manner of this payment in cash was made by MIA?

A      I do not know, your Honor.

*PJ GARCHITORENA

*Q   But your records will indicate that?

A      The records will indicate that, your Honor.

*Q   Except that you were not asked to bring them?

A      Yes, your Honor.

*Q   At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?

A      Yes, your Honor.

*PJ GARCHITORENA

*Q   Subsequent thereto, we are talking merely of about P44 million?

A      Yes, your Honor, as subsequent settlements.

*Q   After December 31, 1985?

A      Yes, your Honor.

*Q   And they have liquidated that, as you described it, by way of

assignments, adjustments, by offsets and by P2 million of cash payment?

A      Yes, your Honor.

*AJ AMORES

*Q   Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check?

A      I would venture to say it was by check, your Honor.

*Q   Which is the safest way to do it?

A      Yes, your Honor.

*PJ GARCHITORENA

*Q   And the business way?

A      Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q     You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits “7” and “7-a”?

WITNESS

A      The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir.

Q     This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit “7” are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985?

A      The entries started June 30 in the ledger card.  And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger.  I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account.  What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q   We are talking about the letter of Minister Ongpin?

A      The letter of Minister Ongpin refers to escalation billings, sir.

*Q   As of what date?

A      The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q     In accordance with this letter marked Exhibit “7” and “7-a”, there were credits made in favor of MIA in July and November until December 1985.  These were properly credited to the account of MIA?

WITNESS

A      Yes, sir.

Q     In 1986, from your records as appearing in Exhibit “7-a”, there were no payments made to PNCC by MIA for the months of January to June 1986?

A      Yes, sir.

Q     And neither was the amount of P22 million remitted to PNCC by MIA?

A      Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES

*Q   From your records, for the month of January 1986, there was

no payment of this escalation account by MIA?

WITNESS

A      Yes, your Honor.  But on page 2 of Exhibit “7” there appears an assignment of P23 million, that was on September 25, 1986.

*Q   But that is already under the present administration?

A      After February 1986, your Honor.

*Q   But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?

A      Per record there is none appearing, your Honor.

*PJ GARCHITORENA

*Q   The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin?

A      Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.

*Q   After December 31, 1985?

A      There appears also P23 million as credit, that is a form of settlement, your Honor.

*Q   This is as of September 25?

A      Yes, your Honor.  There were subsequent settlements.  P23 million is just part of the P44 million.

*Q   And what you are saying is that, PNCC passed the account to State Investment.  In other words, State Investment bought the credit of MIA?

A      Yes, your Honor.

*Q   And the amount of credit or receivables sold by PNCC to State Investment is P23 million?

A      Yes, your Honor.

*Q   Is there a payback agreement?

A      I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.

*AJ AMORES

*Q   As of now, is this obligation of MIA, now NAIA, paid to

PNCC?

A      There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor.  The amount indicated in the letter is P55 million.

PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

PJ GARCHITORENA

Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused.  Thank you very much Mr. Monera.  x x x.”[41]

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos’ private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt.  Tabuena also denied having used the money for his own personal use.)

“CROSS-EXAMINATION BY PROS. VIERNES

Q     The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions?

A      Three times, sir.

Q     And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?

A      Yes, sir.

Q     It was only on January 30, 1986 that this receipt Exhibit “3” was issued by Mrs. Gimenez?

A      Yes, sir.

*PJ GARCHITORENA

*Q   So January 30 is the date of the last delivery?

A      I remember it was on the 31st of January, your Honor.  What happened is that, I did not notice the date placed by Mrs. Gimenez.

*Q   Are you telling us that this Exhibit “3” was incorrectly dated?

A      Yes, your Honor.

*Q   Because the third delivery was on January 31st and yet the receipt was dated January 30?

A      Yes, your Honor.

*Q   When was Exhibit “3” delivered actually by Mrs. Gimenez?

A      January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q     You did not go to Malacañang on January 30, 1986?

A      Yes, sir, I did not.

Q     Do you know at whose instance this Exhibit “3” was prepared?

A      I asked for it, sir.

Q     You asked for it on January 31, 1986 when you made the last delivery?

A      Yes, sir.

Q     Did you see this Exhibit “3” prepared in the Office of Mrs. Gimenez?

A      Yes, sir.

Q     This receipt was typewritten in Malacañang stationery.  Did you see who typed this receipt?

A      No, sir.  What happened is that, she went to her room and when she came out she gave me that receipt.

*PJ GARCHITORENA

*Q   What you are saying is, you do not know who typed that receipt?

WITNESS

A      Yes, your Honor.

*Q   Are you making an assumption that she typed that receipt?

A      Yes, your Honor, because she knows how to type.

*Q   Your assumption is that she typed it herself?

A      Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q     This receipt was prepared on January 31, although it is dated January 30?

A      Yes, sir, because I was there on January 31st.

Q     In what particular place did Mrs. Gimenez sign this Exhibit “3”?

A      In her office at Aguado, sir.

Q     Did you actually see Mrs. Gimenez signing this receipt Exhibit “3”?

A      No, sir, I did not.  She was inside her room.

Q     So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed?

A      Yes, sir.

*AJ HERMOSISIMA

*Q   So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A      Because I know her signature, your Honor.  I have been receiving letters from her also and when she requests for something from me.  Her writing is familiar to me.

*Q   So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?

A      What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your

Honor.

PJ GARCHITORENA

         That is why you have to wait for the question to be finished and listen to it carefully.  Because when I asked you, you said you saw her signed it.  Be careful Mr. Tabuena.

WITNESS

         Yes, your Honor.

PJ GARCHITORENA

         Continue.

PROS VIERNES

Q     Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit “3”?

A      Nobody, sir.

Q     I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30.  Do we understand from you that this date January 30 is erroneous?

A      Yes, sir, that January 30 is erroneous.  I noticed it only afterwards.  This should be January 31st, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA

*Q   Why did you not ask for a receipt on the first and second deliveries?

A      Because I know that the delivery was not complete yet, your Honor.

*PJ GARCHITORENA

*Q   So you know that the total amount to be delivered was P55 million?

A      Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.

*AJ DEL ROSARIO

*Q   From whom did you receive the President’s memorandum marked Exhibit “1”?  Or more precisely, who handed you this memorandum?

A      Mrs. Fe Roa Gimenez, your Honor.

*Q   Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?

A      The money was in payment for the debt of the MIA Authority to PNCC, your Honor.

*Q   If it was for the payment of such obligation why was there no voucher prepared to cover such payment?  In other words, why was the delivery of the money not covered by any voucher?Calrky

A      The instruction to me was to give it to the Office of the President, your Honor.

*PJ GARCHITORENA

*Q   Be that as it may, why was there no voucher to cover this particular disbursement?

A      I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

*Q   Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity?

WITNESS

A      No, your Honor, I was just following the Order to me of the President.

*PJ GARCHITORENA

*Q   So the Order was out of the ordinary?

A      Yes, your Honor.

*AJ DEL ROSARIO

*Q   Did you file any written protest with the manner with which such payment was being ordered?

A      No, your Honor.

*Q   Why not?

A      Because with that instruction of the President to me, I followed, your Honor.

*Q   Before receiving this memorandum Exhibit “1”, did the former President Marcos discuss this matter with you?

A      Yes, your Honor.

*Q   When was that?

A      He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor.

*PJ GARCHITORENA

*Q   By “I OWE”, you mean the MIAA?

WITNESS

A      Yes, your Honor.

*AJ DEL ROSARIO

*Q   And what did you say in this discussion you had with him?

A      I just said, “Yes, sir, I will do it/”

*Q   Were you the one who asked for a memorandum to be signed by him?

A      No, your Honor.

*Q   After receiving that verbal instruction for you to pay MIAA’s obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of

that obligation?

A      He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor.  I will receive it.

*Q   Is this the first time you received such a memorandum from the President?

A      Yes, your Honor.

*Q   And was that the last time also that you received such a memorandum?

A      Yes, your Honor.

*Q   Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure?

A:     No, sir.

*AJ DEL ROSARIO

*Q   Why did you not ask?

A      I was just ordered to do this thing, your Honor.

*AJ HERMOSISIMA

*Q   You said there was an “I OWE YOU”?

A      Yes, your Honor.

*Q   Where is that “I OWE YOU” now?

A      All I know is that we owe PNCC the amount of P99.1 million, your Honor.  MIAA owes PNCC that amount.

*Q   Was this payment covered by receipt from the PNCC?

A      It was not covered, your Honor.

*Q   So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?

A      Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor.

*Q   Is the PNCC a private corporation or government entity?

A      I think it is partly government, your Honor.

*PJ GARCHITORENA

*Q   That is the former CDCP?

A      Yes, your Honor.

*AJ HERMOSISIMA

*Q   Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacañang?

WITNESS

A      I was just basing it from the Order of Malacañang to pay PNCC through the Office of the President, your Honor.

*Q   Do you know the President or Chairman of the Board of PNCC?

A      Yes, your Honor.

*Q   How was the obligation of MIAA to PNCC incurred.  Was it through the President or Chairman of the Board?

A      PNCC was the one that constructed the MIA, your Honor.

*Q   Was the obligation incurred through the President or Chairman of the Board or President of the PNCC?  In other words, who signed the contract between PNCC and MIAA?

A      Actually, we inherited this obligation, your Honor.  The one who signed for this was the former Director of BAT which is General Singzon.  Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA.  So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor.

*Q   Why did you agree to pay to Malacañang when your obligation was with the PNCC?

A      I was ordered by the President to do that, your Honor.

*Q   You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacañang was  not the creditor?

A      I saw nothing wrong with that because that is coming from the President, your Honor.

*Q   The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary?

A      I was ordered by the President, your Honor.

*PJ GARCHITORENA

*Q   There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime?

A      Yes, your Honor.

*Q   Prior to 1986?

A      Yes, your Honor.

*Q   Can you tell us when you became the Manager of MIA?

A      I became Manager of MIA way back, late 1968, your Honor.

*Q   Long before the MIA was constituted as an independent authority?

A      Yes, your Honor.

*PJ GARCHITORENA

*Q   And by 1986, you have been running the MIA for 18 years?

WITNESS

A      Yes, your Honor.

*Q   And prior to your joining the MIA, did you ever work for the government?

A      No, your Honor.

*Q   So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment with the government?

A      Yes, your Honor.

*Q   While you were Manager of MIA, did you have other subsequent concurrent positions in the government also?

A      I was also the Chairman of the Games and Amusement Board, your Honor.

*Q   But you were not the executive or operating officer of the Games and Amusement Board?

A      I was, your Honor.

*Q   As Chairman you were running the Games and Amusement Board?

A      Yes, your Honor.

*Q   What else, what other government positions did you occupy that time?

A      I was also Commissioner of the Game Fowl Commission, your Honor.

*PJ GARCHITORENA

*Q   That is the cockfighting?

WITNESS

A      Yes, your Honor.

*Q   Here, you were just a member of the Board?

A      Yes, your Honor.

*Q   So you were not running the commission?

A      Yes, your Honor.

*Q   Any other entity?

A      No more, your Honor.

*Q   As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer?

A      Yes, your Honor.

*Q   And you were a commissioner only of the Game Fowl Commission?

A      Yes, your Honor.

*Q   Who was running the commission at that time?

A      I forgot his name, but he retired already, your Honor.

*Q   All of us who joined the government, sooner or later, meet with our Resident COA representative?

A      Yes, your Honor.

*PJ GARCHITORENA

*Q   And one of our unfortunate experience (sic) is when the COA Representative comes to us and says:  “Chairman or Manager, this cannot be”.  And we learn later on that COA has reasons for its procedure and we learn to adopt to them?

WITNESS

A      Yes, your Honor.

*Q   As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply?

A      Yes, your Honor.

*Q   And more than anything else the COA is ever anxious for proper documentation and proper supporting papers?

A      Yes, your Honor.

*Q   Sometimes, regardless of the amount?

A      Yes, your Honor.

*Q   Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary.  After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, “What will I do here?”

A      I did not, your Honor.

*PJ GARCHITORENA

*Q   Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly?

WITNESS

A      What I was going to do is, after those things I was going to tell that delivery ordered by the President  to the COA, your Honor.

*Q   That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Manager’s checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Manager’s checks?

A      Yes, your Honor.

*Q   Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not

so?

A      Yes, your Honor.

*Q   And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that?

A      Yes, your Honor.

*PJ GARCHITORENA

*Q   Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time?

WITNESS

A      No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear.  We are in the government and we in the government fear the COA and we also fear the press.  We might get dragged into press releases on the most innocent thing.  You believe that?

A      Yes, your Honor.

*Q   And usually our best defense is that these activities are properly documented?

A      Yes, your Honor.

*Q   In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion.  I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car?

A      Yes, your Honor.

*Q   Is that not quite a fearful experience to you?

A      I did not think of that at that time, your Honor.

*PJ GARCHITORENA

*Q   You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car?

WITNESS

A      We have security at that time your Honor.

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.

*PJ GARCHITORENA

Thank you for the correction.  Even P1 million only.  How much more with P5 million inside the trunk of your car, was that not a nervous experience?

A      As I have said, your Honor, I never thought of that.

PJ GARCHITORENA

Thank you very much, Mr. Tabuena.  You are excused. x x x.”[42]

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager’s Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million.  He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.)

“CROSS-EXAMINATION BY PROS VIERNES

Q     Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Manager’s check in the amount of P5 million?

A      At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time.

Q     As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Manager’s checks by the PNB?

A      That is the only occasion I signed, sir.

Q     Did you say you were ordered by Mr. Tabuena to sign the request?

A      Yes, sir, and I think the order is part of the exhibits.  And based on that order, I co-signed in the request for the issuance of Manager’s check in favor of Mr. Luis Tabuena.

PROS VIERNES

Q     Was there a separate written order for you to co-sign with Mr. Tabuena?

WITNESS

A      Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA

Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS

I have here a copy, your Honor.  This was the order and it was marked as exhibit “N”.

 

PROS VIERNES

It was marked as Exhibit “M”, your Honor.

Q     How did you know there was an existing liability of MIAA in favor of PNCC at that time?

A      Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor.

Q     When was that Financial Statement prepared?

A      I prepared it around January 22 or 24, something like that, of 1986, sir.

Q     Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year?

A      Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month  because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and

discussed during the meeting.

*PJ GARCHITORENA

*Q   This matter of preparing Financial Statement was not an annual activity but a monthly activity?

A      Yes, your Honor.

*Q   This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year?

A      Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q     You made mention of a request for Escalation Clause by former Minister Ongpin.  Did you personally see that request?

A      When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir.  I have no file because I just read it.

Q     It was Mr. Tabuena who showed you the letter of Minister Ongpin?

A      Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES

Exhibit “2” and “2-A”, your Honor.

PROS VIERNES

Q     You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor?

A      Yes, sir.

Q     Why was it necessary for you to go with him on that occasion?

A      Mr. Tabuena requested me to do the counting by million, sir.  So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes.

Q     Did you actually participate in the counting of the money by

bundles?

A      Yes, sir.

Q     Bundles of how much per bundle?

A      If I remember right, the bundles consisted of P100s and P50s, sir.

Q     No P20s and P10s?

A      Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

*Q   If there were other denominations, you can not recall?

A      Yes, your Honor.

PROS VIERNES

Q     In how many boxes were those bills placed?

A      The P5 million were placed in two (2) peerless boxes, sir.

Q     And you also went with Mr. Tabuena to Aguado?

A      No, sir, I was left behind at Nichols.  After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA.

Q     But the fact is that, this P5 million was withdrawn at passed 5:00 o’clock in the afternoon?

A      I started counting it I think at around 4:30, sir.  It was after office hours.  But then I was there at around 4:00 o’clock and we started counting at around 4:30 p.m. because they have to place it in  a room, which is the office of the Manager at that time.

Q     And Mr. Tabuena left for Malacañang after 5:00 o’clock in the afternoon of that date?

A      Yes, sir.  After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacañang.

PROS VIERNES

Q     And you yourself, returned to your office at MIA?

WITNESS

A      Yes, sir.

Q     Until what time do you hold office at the MIA?

A      Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.

Q     So, even if it was already after 5:00 o’clock in the afternoon, you still went back to your office at MIA?

A      Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ DEL ROSARIO

*Q   Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?

WITNESS

A      Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor.

*Q   And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers?

A      Yes, your Honor, the payments should be covered by vouchers.  But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also.

*Q   Was such payment of P5 million covered by a Journal Voucher?

A      Yes, your Honor.

*Q   Did you present that Journal Voucher here in Court?

A      We have a copy, your Honor.

*Q   Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?

A      We have a copy of the Journal Voucher, your Honor.

*Q   Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA?

A      The payment of P5 million was recorded in a Journal Voucher, your Honor.

*PJ GARCHITORENA

*Q   In other words, the recording was made directly to the Journal?

WITNESS

A      Yes, your Honor.

*Q   There are no other separate documents as part of the application for Manager’s Check?

A      Yes, your Honor, there was none.

*AJ DEL ROSARIO

*Q   After the payment was made, did your office receive any receipt from PNCC?

A      I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor.  Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.

*Q   After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher?

A      Your Honor, a Journal Voucher was prepared for that.

*Q   How about a disbursement voucher?

A      Inasmuch as this was a request for Manager’s check, no disbursement voucher was prepared, your Honor.

*AJ DEL ROSARIO

*Q   Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don’t think there was any basis, your Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

*AJ HERMOSISIMA

*Q   As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities?

A      Your Honor, what we did was to send a request for a Manager’s check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA

*Q   In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher?

WITNESS

A      Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor.

*AJ HERMOSISIMA

*Q   This was an obligation of the MIAA to the PNCC.  Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager?

A      We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor.

*Q   You are supposed to pay only on legal orders.  Did you consider that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a conclusion of the witness.

*PJ GARCHITORENA

Considering that the witness is an expert, witness may answer.

WITNESS

A      The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor.  And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA

*Q   Are you saying that this transaction was made on the basis of that P.D. which you referred to?

A      I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor.

*Q   As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check?

A      I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA

*Q   Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal?

In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded.

WITNESS

A      Yes, your Honor.

*Q   Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature

of the transactions?

A      Yes, your Honor.

*Q   In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is...

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor.  I am also an accountant that is why I could say that...

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A      The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

*Q   Are you saying the Order of the General Manager is an adequate basis for the movement of money?

A      Yes, your Honor, because at that time we have also a recorded liability of P27 million.

*Q   We are not talking of whether or not there was a liability.  What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds?

A      Yes, your Honor.  The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million.  Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents.

*PJ GARCHITORENA

You keep flooding us with details we are not asking for.  We are not asking you whether or not there was valid obligation.  We are not asking you about the escalation clause.  We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

WITNESS

When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say.  I know you are trying to protect yourself.  We are aware of your statement that there are all of these memoranda.

*Q   By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

WITNESS

A      As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA

*Q   This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

WITNESS

A      Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another.

*PJ GARCHITORENA

*Q   Under the Appropriation Act.  Are payments of debts of the MIAA covered by the Appropriation Act?

A      I think the liability was duly recorded and appropriations to pay the amount is.....

(interrupted)

*PJ GARCHITORENA

*Q   Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?

A      No, your Honor.

*Q   Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President?  Or are you telling as you did not read the Decree?

A      I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q   It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

A      No, your Honor.

*Q   In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not?

A      Yes, your Honor.

*Q   So that when disbursements of funds are made, they are made by

authority of not only one person alone so that nobody will restrain him?

A      Yes, your Honor.

*Q   These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

A      Yes, your Honor.

*Q   And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?

A      Yes, your Honor.

*PJ GARCHITORENA

*Q   In other words, the co-signatories counter check each other?

WITNESS

A      Yes, your Honor.

*Q   In your case, you would be the counter check for Mr. Tabuena?

A      Yes, your Honor.

*Q   In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, “I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.”, if in your opinion the disbursement is not proper?

A      Yes, your Honor.

*Q   Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction?

A      Yes, your Honor.

*Q   And this is something you know by the nature of your position and because you are a Certified Public Accountant?

A      Yes, your Honor.

*AJ DEL ROSARIO

*Q   You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed?

A      Yes, your Honor.

*Q   Did you submit a written protest to the manner in which such amount was being disposed of?

A      A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary.

*Q   If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction?

A      I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor.

PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. x x x.”[43]

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides.[44] But not only should his examination be limited to asking “clarificatory” questions,[45] the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial.[46] Here, these limitations were not observed.  Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latter’s questions in length.  The “cold neutrality of an impartial judge” requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was “unduly disturbed” with the number of court questions alone, is quite inaccurate.  A substantial portion of the TSN was incorporated in the majority opinion not  to focus on “numbers”  alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart  from that common standard of fairness and impartiality.  In fact, it is very difficult to be, upon review of the records, confronted with “numbers” without necessarily realizing the partiality of the Court.  In “US v. De Sisto” (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on “numbers” to bolster this.  It was pointed out in the “De Sisto” case that  the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330.  The judge’s questions to the defendant De Sisto totalled 306, the prosecutor’s 347, and the defense counsel’s, 201.  After referring to these figures, the court stated:

“. . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative.  However, taking all this in conjunction with the long and vigorous

examination of the defendant himself by the judge, and the repeated belittling by the judge of defendant’s efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the court’s belief in the defendant’s probable guilt to permit the jury freely to perform its own function of independent determination  of the facts. x x x”

The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given  more leeway in propounding questions to clarify points and to elicit additional relevant evidence.  At the risk of being repetitious, we will amplify on this via some specific examples.  Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the President’s Office thru Mrs. Gimenez, in obedience to the Presidential directive.  One Sandiganbayan Justice, however, hurled the following questions to Peralta:

“AJ DEL ROSARIO

Q:   Since the payment was made on January 31, 1986, and    that was  very close to the election held in that year, did you not entertain any doubt that the amounts were  being  used  for some other purposes?

ATTY. ESTEBAL

With   due  respect  to  the   Honorable   Justice,   We  are            objecting  to  the  question   on   the   ground   that   it  is

improper.

AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This  is   not  covered   in  the   direct  examination, and           secondly,  I don’t think there  was any  basis, Your               Honor.

PJ GARCHITORENA

Considering  the   withdrawal  of  the  question,  just  make the objection on record.”

Nothing from the preceding questions of counsels or of the court would serve as basis for this question.  How then, can this be considered even relevant?  What is the connection between the payment made to the President’s

office and the then forthcoming presidential  “snap election”? In another instance, consider the following questions of Presiding Justice Garchitorena:

*PJ GARCHITORENA

*Q   Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal?

xxx

*Q   In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded.

xxx

*Q   Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions?

xxx

*Q   In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is...

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor.  I am also an accountant that is why I could say that...

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A      The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

*Q   Are you saying the Order of the General Manager is an adequate basis for the movement of money?

*Q   We are not talking of whether or not there was a liability.  What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds?

*PJ GARCHITORENA

You keep flooding us with details we are not asking for.  We are not asking you whether or not there was valid obligation.  We are not asking you about the escalation clause.  We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say.  I know you are trying to protect yourself.  We are aware of your statement that there are all of these memoranda.

*Q   By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

*PJ GARCHITORENA

*Q   This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

*PJ GARCHITORENA

*Q   Under the Appropriation Act.  Are payments of debts of the MIAA covered by the Appropriation Act?

*PJ GARCHITORENA

*Q   Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what

the question is?

xxx

*Q   Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President?  Or are you telling as you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q   It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

*Q   In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not?

*Q   So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him?

*Q   These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

*Q   And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?

*PJ GARCHITORENA

*Q   In other words, the co-signatories counter check each other?

*Q   In your case, you would be the counter check for Mr. Tabuena?

*Q   In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, “I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.”, if in your opinion the disbursement is not proper?

*Q   Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction?

*Q   And this is something you know by the nature of your position and because you are a Certified Public Accountant?”[47]

How can these questions be considered clarificatory when they clearly border more on cross-examination questions?  Thus, the Dissenting Opinion’s focus on the distinction between the two kinds of trial to justify the Sandiganbayan’s active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that:

“A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution.”[48]

“We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney.  However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society.”[49]

“Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length.  The circumstances may be such in a given case as to justify the court in so doing....This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination.  It is always embarrassing for counsel to object to what he may deem improper questions by the court.  Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude.  While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations.  The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate....”[50]

“While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor.  It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays....The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel.”[51]

“The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action

necessary or advisable.”[52]

“He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.”[53]

“The impartiality of the judge — his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases....”[54]

“Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the  minds of the litigants.  For obvious reasons, it is the bounden duty of all to strive for the preservation of the people’s faith in our courts.”[55]

“Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge.  Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just.  The parties are entitled to no less than this, as a minimum guaranty of due process.”[56]

We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking “good faith”. It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioner’s acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a “dangerous precedent”  and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the

wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code.  The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED.

G.R. No. L-46096 July 30, 1979

EUFEMIO T. CORREA, petitioner, vs.COURT OF FIRST INSTANCE OF BULACAN (BRANCH 11), CITY SHERIFF OF QUEZON CITY, MUNICIPALITY OF NORZAGARAY, BULACAN, HON. ARMANDO ENRIQUEZ, as the Incumbent Mayor of Norzagaray, Bulacan, CANDIDO P. CRUZ, ISABELO SAPLALA, TOMAS PALAD, ANTONIO SILVERIO, MELANIO ESTEBAN, ELIGIO PUNZAL, CELEDONIO PRINCIPE, ANTONIO ANCHETA, and JUANITO SARMIENTO, respondents.

Magtanggol C. Gunigundo for petitioner.

Ponciano G. Hernandez for private respondents.

 

ANTONIO, J.:1äwphï1.ñët

Petition for certiorari, prohibition and declaratory relief assailing the Order dated April 22, 1977 of respondent Court of First Instance of Bulacan, Branch II, denying petitioner's Motion to Quash Writ of Execution issued in Civil Case No. 3621- M. The following are the relevant facts:

On December 13, 1968, respondent Court rendered judg- ment in Civil Case No. 3621-M in favor of therein plaintiffs (private respondents herein) and adversely against therein defendants Eufemio T. Correa (petitioner herein) and Virgilio Sarmiento. The pertinent portions of the decision read as follows: têñ.£îhqwâ£

This Court finds that defendants Eufemio T. Correa and Virgilio Sarmiento, municipal mayor and municipal treasurer of Norzagaray, Bulacan respectively, should be ordered personally to pay the salaries which the plaintiffs failed to receive by reason of their illegal removal from office until they are actually reinstated.

xxx xxx xxx

WHEREFORE, judgment is hereby rendered:

1. Permanently enjoining the defendants from enforcing and/or implementing the Administrative Order No. 1, Series of 1968;

2. Declaring the termination of the services of the plaintiffs illegal and of no legal effect;

3. Ordering the defendant Eufemio T. Correa to reinstate the plaintiffs to their former position as policemen in the Police Force of Norzagaray, Bulacan;

4. Ordering the defendants Eufemio T. Correa and Virgilio Sarmiento to pay, jointly and severally to the plaintiff Juanito Sarmiento his salary for the period beginning January 15, 1968, plaintiff Melanio Esteban his said for the period beginning February 1, 1968; and plaintiffs Candido Cruz, Isabelo Saplala, Tomas Palad; Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe their salaries for the period beginning January 23, 1968, until they are actually reinstated to their former positions;

5. Ordering defendant Eufemio T. Correa and Virgilio Sarmiento to pay, jointly and severally, the costs of this suit.

SO ORDERED.

The aforesaid decision was affirmed by the Court of Appeals on March 22, 1976, and the motion for reconsideration of the Appellate Court's decision was denied on May 11, 1976. On August 24, 1976, the decision of the Court of Appeals became final and executory. 1

It is in connection with the efforts of the petitioner to quash the writ of execution issued to enforce the aforestated final judgment that the present proceedings arose. Thus, on March 8, 1977, petitioner filed a Motion to Quash the Writ of Execution and to Direct Execution to the Municipality of Norzagaray, Bulacan, alleging that at the time the writ was served on him, he was no longer mayor of Norzagaray, Bulacan. Petitioner invoked the principle that when judgment is rendered against an officer of the municipal corporation who is sued in his official capacity for the payment of back salaries of officers illegally removed, the judgment is binding upon the corporation, whether or not the same is included as party to the action. 2

On April 22, 1977, respondent Court issued the Order denying the Motion to Quash Writ of Execution. Petitioner thus came to this Court, maintaining that he could no longer be required to pay the back salaries of the private respondents because payment on his part presupposes his continuance in office, which is not the case. He contends that it is the Municipality of Norzagaray that is liable for said payment, invoking Aguador v. Enerio. 3 and Sison v. Pajo 4 Further, petitioner alleges that the fact that he is no longer municipal mayor of Norzagaray, constitutes a substantial change in the situation of the parties which makes the issuance of the writ of execution inequitable.

Petitioner prays, among others, that judgment be rendered declaring that the payment of back salaries of private respondents should be made by the incumbent mayor and by the municipality of Norzagaray, Bulacan, and that petitioner is no longer liable for the payment thereof; and annulling the Order dated April 22, 1977 of respondent court denying the motion to quash the writ of execution.

On May 24, 1977, this Court required petitioner to implead the Municipality of Norzagaray, Bulacan as party respondent and on June 25, 1977, petitioner filed an amended petition impleading the Municipality of Norzagaray and Amando Enriquez, the incumbent municipal mayor.

In his amended petition, petitioner alleges that the writ of execution is already being enforced against the personal properties of petitioner; that such enforcement during the pendency of the instant petition would probably work injustice to petitioner; and that petitioner stands to suffer great and irreparable injury if enforcement of the writ is not temporarily restrained. Petitioner, therefore, prays that the execution be stayed or a temporary restraining order be issued pending resolution of the instant proceedings.

On August 1, 1977, private respondents filed their Comment maintaining that respondent court acted correctly and committed no abuse of discretion when it denied petitioner's motion to quash the writ of execution, (1) it being the ministerial duty of the trial court to issue a writ for the enforcement of a final and executory judgment; and (2) since the personal liability of the petitioner and his co-defendant to pay the back salaries of the private respondents as mandated in the decision sought to be executed cannot be shifted or transferred to the municipality of Norzagaray, Bulacan, for to do so would be to vary the terms of a final judgment. On August 12, 1977, this Court resolved to consider the Comment of respondents as answer to the petition and required the parties to file their respective memoranda, and thereafter the case was submitted for decision.

The issue is whether or not respondent Court in denying the Motion to Quash the Writ of Execution acted with grave abuse of discretion or with lack or excess of jurisdiction.

It cannot be denied that both the judgments of the Court of First Instance of Bulacan and of the Court of Appeals categorically state that the liability of herein petitioner is personal. Thus, according to the trial court, "Eufemio T. Correa and Virgilio Sarmiento, municipal mayor and municipal treasurer of Norzagaray, Bulacan, respectively, should be ordered personally to pay the salaries which the plaintiffs failed to receive by reason of their illegal removal from office until they are actually reinstated." (Emphasis supplied).

In affirming the decision of the trial court, the Court of Appeals 5 ruled that "The defendants are personally liable jointly and severally because they acted without justifiable cause (Nemenzo vs. Sabillano, Sept. 7, 1968, 25 SCRA 1)." 6

The jurisprudence relied upon by the petitioner in his effort to shift the responsibility to the Municipality of Norzagaray appears inapplicable. In Aguador v. Enerio, supra, cited by petitioner, the municipal mayor and the members of the Municipal Council of Oroquieta were specifically ordered "to appropriate necessary amounts to pay the salary differentials for the petitioners and also for

the payment of their entire salaries from month to month, subject naturally to the availability of funds after all statutory and subsisting contractual obligations shall have been properly covered by adequate appropriations. " The issue raised was whether or not, after the municipal mayor, members of the municipal council and the municipal treasurer were expressly made parties in the mandamus case and in the contempt proceedings, it was necessary to include the municipality as a party, to make the latter liable. This issue was resolved in the negative by this Court. In the case of Sison v. Pajo, supra, the trial court directed the Acting Municipal Mayor and Acting Chief of Police of Bamban, Tarlac to reinstate Bonifacio Lacanlale as Acting Chief of Police, effective June 30, 1957 "with the incident of payment of back salaries by the Municipality of Bamban." The issue was whether or not the municipality of Bamban could be ordered to pay the back salaries of the Chief of Police, it appearing that said municipality was not impleaded in the case. This Court ruled that the fact that the Municipality of Bamban, Tarlac was not by name impleaded in the case of reinstatement and back salaries does not affect the employee's right to the payment of back salaries, considering that the officers required by law to represent the municipality in an suits were made parties in their official capacity, hence the case was heard and decided as if the municipality had been made a party. In both eases the judgment of the Court specifically directed the municipality to pay the back salaries.

Here, the judgment of the trial court, which was affirmed by the Court of Appeals, found petitioners Eufemio T. Correa and Virgilio Sarmiento personally liable for the payment of the salaries which the dismissed policemen failed to receive because of their illegal removal from office, and ordered them "to pay jointly and severally to the plaintiff Juanito Sarmiento his salary for the period beginning January 15, 1968; plaintiff Melanio Esteban his salary for the period beginning February 1, 1968; and plaintiffs Candido Cruz, Isabelo Saplala, Tomas Palad, Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe their salaries for the period beginning January 23, 1968, until they are actually reinstated to their former positions."

In Nemenzo vs. Sabillano, 7 the Court ruled that appellant Municipal Mayor Bernabe Sabillano was "correctly adjudged liable" for the payment of the back salaries of appellee Police Corporal Joaquin P. Nemenzo because his act of dismissing appellee "without previous administrative investigation and without justifiable cause ... is clearly an injury to appellee's rights. Appellant cannot hide under the mantle of his official capacity and pass the liability to the municipality of which he was mayor. There are altogether too many cases of this nature, wherein local elective officials, upon assumption of office, wield their new-found power indiscriminately by replacing employees with their own proteges, regardless of the laws and regulations governing the civil service. Victory at the polls should not be taken as authority for the commission of such illegal acts."

In the discharge of govermental functions, "municipal corporations are

responsible for the acts of its officers, except if and when and only to the extent that , they have acted by authority of the law, and in comformity with the requirements thereof." 8

A Public officer who commits a tort or other wrongful act, done in excess or beyond the scope of his duty, is not protected by his office and is personally liable therefor lie any private individual. 9 This principle of personal liability has been applied to cases where a public officer removes another officer or discharges an employee wrongfully, the reported cases saying that by reason of non-compliance with the requirements of law in respect to removal from office, the officials were acting outside their official authority." 10

Respondent Court, therefore, did not commit grave abuse of discretion in denying petitioner's motion to quash writ of execution. The writ was strictly in accordance with the terms of the judgment.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

[G.R. No.114683. January 18, 2000]

JESUS C. OCAMPO, petitioner, vs. OFFICE OF THE OMBUDSMAN and MAXIMO ECLIPSE, respondents.

D E C I S I O N

BUENA, J.:

This petition for certiorari seeks to nullify the Resolutions of the Ombudsman in OMB-Adm-O-92-0020 dated November 18, 1993[1] and February 28, 1994[2] which dismissed petitioner from the service, with forfeiture of benefits and special perpetual disqualification to hold office in the government or any government-owned or controlled corporation, and which denied the motion for reconsideration thereof, respectively.

The facts are as follows:

Petitioner is the Training Coordinator of. NIACONSULT, INC., a subsidiary of the National Irrigation Administration.

On March 21, 1988, K.N. Paudel of the Agricultural Development Bank of Nepal (ADBN) wrote a letter to NIACONSULT requesting a training proposal on small-scale community irrigation development.[3]

On November 17, 1988, petitioner as the training coordinator of the NIACONSULT, sent a letter-proposal requested by ABDN.[4] Another letter was sent by petitioner on January 31, 1989 to Dr. Peiter Roeloffs of ADBN confirming the availability of NIACONSULT to conduct the training program and formally requesting advance payment of thirty (30%) percent of the training fees[5] in the amount of US $9,600.00 or P204,960.00.

NIACONSULT conducted the training program for six Nepalese Junior Engineers from February 6 to March 7, 1989.[6] ADBN, thru its representative, Deutsche Gesselschaft ) Technische Zusummenarbeit (GTZ) Gmbh Technical Cooperation of the Federal Republic of Germany paid to the petitioner the agreed training fee in two installments of P61,488.00 and P143,472.00.[7]

On April 1, 1991, NIACONSULT, through its president, Wilfredo S. Tiongco, wrote a letter to petitioner demanding the turn-over of the total training fee paid by ADBN which petitioner personally received.[8] Despite receipt of the letter, petitioner failed to remit the said amount prompting NIACONSULT through its president, Maximino Eclipse, to file an administrative case before respondent OMBUDSMAN for serious misconduct and/or fraud or willful breach of trust.[9] MisjÓ uris

Finding enough basis to proceed with the administrative case, the Administrative Adjudication Bureau of the respondent OMBUDSMAN, on February 17, 1992, issued an

order[10] requiring petitioner to file his counter-affidavit within ten (10) days from receipt with a caveat that failure to file the same would be deemed a waiver of his right to present evidence. Despite notice, petitioner failed to comply with the said order.

A year later, or on March 17, 1993, respondent OMBUDSMAN issued another order[11] giving petitioner another chance to file his counter-affidavit and controverting evidence. Again, petitioner failed. Thus, on April 14, 1993, private respondent was required to appear before the OMBUDSMAN to present evidence to support its complaint.[12]

Thereafter, on November 18, 1993, respondent OMBUDSMAN issued the assailed Resolution, the decretal portion of which reads:

"Withal, for such dishonesty, untrustworthiness, and conduct prejudicial to the service as established by overwhelming evidences, it is respectfully recommended that respondent Jesus C. Ocampo be discharged from the service, with forfeiture of benefits and special perpetual disqualification to hold office in the government or any government-owned or controlled corporation; without prejudice to any civil action NIACONSULT, Inc., may institute to recover the amount so retained by the respondent.

SO ORDERED."[13]

On February 16, 1994 petitioner moved for reconsideration and to re-open the case claiming that he was denied due process in that the administrative case was resolved on the basis of the complainant's evidences, without affording him the opportunity to file a counter-affidavit and to present his evidence. Petitioner likewise contends that he was not given access to the records of the subject transaction vital to his defense and in the preparation of his counter-affidavit despite his verbal requests to the graft investigator.[14]

The respondent OMBUDSMAN denied the motion on February 28, 1994.[15]

Aggrieved, petitioner filed the instant petition basically reiterating his arguments in his motion for reconsideration.

We gave due course to the petition and required the parties to submit their respective memoranda.

While the case is pending, petitioner filed a Manifestation on May 24, 1997[16] stating that the criminal complaint for estafa and falsification filed against him based on the same facts or incidents which gave rise to the administrative case, was dismissed by the Regional Trial Court on February 24, 1997. With the dismissal of the criminal case, petitioner manifests that the administrative case can no longer stand on its own and therefore should be dismissed.[17]

Such manifestation is not well taken. Jjä lex

The dismissal of the criminal case will not foreclose administrative action filed against petitioner or give him a clean bill of health in all respects. The Regional Trial Court, in dismissing the criminal complaint, was simply saying that the prosecution was unable to prove the guilt of petitioner beyond reasonable doubt, a condition sine qua non for conviction. The lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[18] Thus, considering the difference in the quantum of evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings, the findings and conclusions in one should not necessarily be binding on the other.[19]

Going now to the crux of the controversy, petitioner asserts that he was denied the opportunity to be heard.

The essence of due process is an opportunity to be heard. One may be heard, not solely by verbal presentation but also, and perhaps even many times more creditably and practicable than oral argument, through pleadings. In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated to due process in its strict judicial sense.[20]

Petitioner has been amply accorded the opportunity to be heard. He was required to answer the complaint against him. In fact, petitioner was given considerable length of time to submit his counter-affidavit. It took more than one year from February 17, 1992 before petitioner was considered to have waived his right to file his counter-affidavit and the formal presentation of the complainant's evidence was set. The March 17, 1993 order was issued to give the petitioner a last chance to present his defense, despite the private respondent's objections. But petitioner failed to comply with the second order. NewÓ miso

Thus, petitioner's failure to present evidence is solely of his own making and cannot escape his own remissness by passing the blame on the graft investigator. While the respondent OMBUDSMAN has shown forebearance, petitioner has not displayed corresponding vigilance. He therefore cannot validly claim that his right to due process was violated. We need only to reiterate that a party who chooses not to avail of the opportunity to answer the charges cannot complain of a denial of due process.[21]

Petitioner's claim that he was not given any notice of the order declaring him to have waived his right to file his counter-affidavit and of allowing the private respondent to present evidence ex-parte is unmeritorious.

The orders of respondent OMBUDSMAN requiring petitioner to submit his counter-affidavit and which was admittedly received by the latter explicitly contain a warning that if no counter-affidavit was filed within the given period, a waiver would be considered and the administrative proceedings shall continue according to the rules. Thus, respondent OMBUDSMAN need not issue another order notifying petitioner that he has waived his right to file a counter-affidavit. In the same way, petitioner need not be notified of the ex-parte hearing for the reception of private respondent's evidence. As such, he could not have been expected to appear at the ex-parte hearing.

With regard to the petitioner's claim that he made requests for the production of the documents alleged to be material to his defense, the record is bereft of any proof of such requests. If it were true that the graft investigator did not act on such requests, petitioner should have filed the proper motion before the respondent OMBUDSMAN for the production of the documents or to compel the respondent complainant to produce whatever record necessary for his defense. Petitioner did not. It was only after the respondent OMBUDSMAN issued the assailed resolution of November 18, 1993 that he bewailed the alleged failure of respondent's graft investigator to require the production of the records of the subject transaction.

The record of this case indisputably shows that petitioner is guilty of dishonesty and conduct prejudicial to the government when he failed to remit the payment of the training program conducted by NIACONSULT. The evidence presented sufficiently established that petitioner received the payments of ADBN through its representative, GTZ, Philippines the amount of US $9,600.00 and that he failed to account this and remit the same to the corporation. All these acts constitute dishonesty and untrustworthiness.

WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed Resolutions of the respondent OMBUDSMAN are hereby AFFIRMED.

SO ORDERED.

[G.R. No. 130872.  March 25, 1999]

FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

BELLOSILLO, J.:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the Sandiganbayan of thirteen (13) counts of estafa through falsification of public documents.[1] They now seek a review of their conviction as they insist on their innocence.

Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, his co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays.

In the 1985 election for the Kabataang Barangay Jowil Red[2] won as KB Chairman of Barangay Matalaba, Santa Cruz.  Parenthetically, Lenlie Lecaroz did not run as candidate in this electoral exercise as he was no longer qualified for the position after having already passed the age limit fixed by law.

Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality.  Imee Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to Red confirming his appointment and advising him further that copies of his appointment papers would be sent to him in due time through the KB Regional Office.[3] Red received the telegram on 2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz.

On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon the invitation of one of its members, Kagawad Rogato Lumawig.  In that meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of the municipal council until his appointment had been cleared by the Governor of Marinduque.  Nonetheless, the telegram was included in the agenda as one of the subjects discussed in the meeting.

Red finally received his appointment papers sometime in January 1986.[4] But it was only on 23 April 1986, when then President Corazon C. Aquino was already in power,[5] that he forwarded these documents to Mayor Lecaroz.  This notwithstanding, Red was still not allowed by the mayor to sit as sectoral representative in the Sanggunian.

Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie Lecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period 16 January 1986 to 30 January 1987.  Lenlie Lecaroz signed the payroll for 1-15 January 1986 and then authorized someone else to sign all the other payrolls for the succeeding quincenas and claim the corresponding salaries in his behalf.

On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment papers from President Marcos, Red was finally able to secure from the Aquino Administration a confirmation of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz.

Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials to let him assume the position of KB sectoral representative.  After preliminary investigation, the Ombudsman filed with the Sandiganbayan thirteen (13) Informations for estafa through falsification of public documents against petitioners, and one (1) Information for violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against Mayor Lecaroz alone.

On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all counts of estafa through falsification of public documents and sentenced each of them to -

a)  imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS, ELEVEN (11) MONTHS AND ONE (1) DAY of prision correccional to a maximum of TEN (10) YEARS AND ONE (1) DAY of prison mayor FOR EACH OF THE ABOVE CASES;

b)  a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE ABOVE CASES or a total of SIXTY-FIVE THOUSAND PESOS (P65,000), and

c)  perpetual special disqualification from public office in accordance with Art. 214 of the Revised Penal Code.

x x x (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX HUNDRED SEVENTY-FIVE PESOS (P23,675), the amount unlawfully obtained, to the Municipality of Sta.  Cruz, Marinduque in restitution.

The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of the KB presidency upon the expiration of the term of accused Lenlie Lecaroz was valid.  Conversely, the accused Lenlie Lecaroz ceased to be a member of the KB on the last Sunday of November 1985 and, as such, was no longer the legitimate representative of the youth sector in the municipal council of Sta. Cruz, Marinduque.

In convicting both accused on the falsification charges, the Sandiganbayan elucidated -

x x x x when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his son, the accused LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz for the payroll period starting January 15, 1986, reinstating accused LENLIE LECAROZ to his position in the Sangguniang Bayan, he was deliberately stating a falsity when he certified that LENLIE LECAROZ was a member of the Sangguniang Bayan.  The fact is that even accused LENLIE LECAROZ himself no longer attended the sessions of the Sangguniang Bayan of Sta. Cruz, and starting with the payroll for January 16 to 31, 1986, did not personally pick up his salaries anymore.

The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which reads:

Art. 171.  Falsification by public officer, employee or notary or ecclesiastical minister. - The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary public who, taking advantage of his official position, shall falsify a document by committing any of the following acts: x x x x 4. Making untruthful statements in a narration of facts.

x x x x

Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.

Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw salaries from the municipality to which he was not entitled for services he had admittedly not rendered.  This constitutes Estafa x x x x the deceit being the falsification made, and the prejudice being that caused to the municipality of Sta. Cruz, Marinduque for having paid salaries to LENLIE LECAROZ who was not entitled thereto.

Conspiracy was alleged in the Informations herein, and the Court found the allegation sufficiently substantiated by the evidence presented.

There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son LENLIE in the municipal payrolls from January 16, 1986 to January 31, 1987, yet he did so.  He could not have had any other purpose than to enable his son LENLIE to draw salaries thereby.  This conclusion is inescapable considering that the very purpose of a payroll is precisely that -- to authorize the payment of salaries.  And LENLIE LECAROZ did his part by actually drawing the salaries during the periods covered, albeit through another person whom he had authorized.

By the facts proven, there was conspiracy in the commission of Estafa between father and son.

However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3.019, the Sandiganbayan acquitted Mayor Francisco Lecaroz.  It found that Red was neither authorized to sit as member of the SB because he was not properly appointed thereto nor

had he shown to the mayor sufficient basis for his alleged right to a seat in the municipal council.  On this basis, the court a quo concluded that Mayor Lecaroz was legally justified in not allowing Red to assume the position of Kagawad.

On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by the accused.  This prompted herein petitioners to elevate their cause to us charging that the Sandiganbayan erred:

First, in holding that Red had validly and effectively assumed the office of KB Federation President by virtue of his oath taken before then Assemblywoman Carmencita Reyes on 27 September 1985, and in concluding that the tenure of accused Lenlie Lecaroz as president of the KB and his coterminous term of office as KB representative to the SB had accordingly expired;

Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth representative to the SB had expired, in holding that accused Lenlie Lecaroz could no longer occupy the office, even in a holdover capacity, despite the vacancy therein;

Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president had expired, in holding that by reason thereof accused Lenlie Lecaroz became legally disqualified from continuing in office as KB Sectoral Representative to the SB even in a holdover capacity;

Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the provisions of the pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie Lecaroz was legally entitled and even mandated to continue in office in a holdover capacity;

Fifth, in holding that the accused had committed the crime of falsification within the contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa of which they had been convicted required criminal intent and malice as essential elements;

Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over, still the trial court erred in not holding - considering the difficult legal questions involved - that the accused acted in good faith and committed merely an error of judgment, without malice and criminal intent; and,

Seventh, in convicting the accused for crimes committed in a manner different from that alleged in the Information under which the accused were arraigned and tried.

The petition is meritorious.  The basic propositions upon which the Sandiganbayan premised its conviction of the accused are: (a) although Jowil Red was duly elected KB Chairman he could not validly assume a seat in the Sanggunian as KB sectoral representative for failure to show a valid appointment; and, (b) Lenlie Lecaroz who was the incumbent KB representative could not hold over after his term expired because pertinent laws do not provide for holdover.

To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral representatives to the SB and of the KB Federation Presidents. 

Section 7 of BP Blg. 51 and Sec. 1 of the KB Constitution respectively provide -

Sec. 7. Term of Office. - Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980.

In the case of the members of the sanggunian representing the association of barangay councils and the president of the federation of kabataang barangay, their terms of office shall be coterminous with their tenure is president of their respective association and federation .

x x x x

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last Sunday of November 1985 or such time that the newly elected officers shall have qualified and assumed office in accordance with this Constitution.

The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did not present an authenticated copy of his appointment papers; neither did he take a valid oath of office.  Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in a holdover capacity since his term had already expired.  The Sandiganbayan however rejected this postulate declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be no holdover with respect to positions in the SB.

We disagree with the Sandiganbayan.  The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term.[6] It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified.  Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law.[7]

In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after the expiration of his term in case his successor fails to qualify, it does not also say that he is proscribed from holding over.  Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified.[8] The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment,[9] otherwise it is reasonable to assume that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices,[10] and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions.

[11] This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy[12] and to avoid a hiatus in the performance of government functions.[13]

The Sandiganbayan maintained that by taking his oath of office before Assemblywoman Reyes in 1985 Red validly assumed the presidency of the KB upon the expiration of the term of Lenlie Lecaroz.  It should be noted however that under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI thereof, members of the then Batasang Pambansa were not authorized to administer oaths.  It was only after the approval of RA No. 6733[14]on 25 July 1989 and its subsequent publication in a newspaper of general circulation that members of both Houses of Congress were vested for the first time with the general authority to administer oaths.  Clearly, under this circumstance, the oath of office taken by Jowil Red before a member of the Batasang Pambansa who had no authority to administer oaths, was invalid and amounted to no oath at all.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office.[15] Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete.  Until then, he has none at all.  And for as long as he has not qualified, the holdover officer is the rightful occupant.  It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie Lecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer,[16] or at least a de facto officer[17] entitled to receive the salaries and all the emoluments appertaining to the position.  As such, he could not be considered an intruder and liable for encroachment of public office.[18]

On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4, of The Revised Penal Code, are intentional felonies for which liability attaches only when it is shown that the malefactors acted with criminal intent or malice.[19] If what is proven is mere judgmental error on the part of the person committing the act, no malice or criminal intent can be rightfully imputed to him.  Was criminal intent then demonstrated to justify petitioners' conviction?  It does not so appear in the case at bar.

Ordinarily, evil intent must unite with an unlawful act for a crime to exist.  Actus non facit reum, nisi mens sit rea.  There can be no crime when the criminal mind is wanting.  As a general rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer from felonious responsibility.  The exception of course is neglect in the discharge of a duty or indifference to consequences, which is equivalent to a criminal intent, for in this instance, the element of malicious intent is supplied by the element of negligence and imprudence[20] In the instant case, there are clear manifestations of good faith and lack of criminal intent on the part of petitioners.

First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he presented to Mayor Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-Manotoc informing him of his supposed appointment to the SB,

together with a photocopy of a "Mass Appointment."  Without authenticated copies of the appointment papers, Red had no right to assume office as KB representative to the Sanggunian, and petitioner Mayor Lecaroz had every right to withhold recognition, as he did, of Red as a member of the Sanggunian.

Second. It appears from the records that although Red received his appointment papers signed by President Marcos in January 1986, he forwarded the same to Mayor Francisco Lecaroz only on 23 April 1986 during which time President Marcos had already been deposed and President Aquino had already taken over the helm of government.  On 25 March 1986 the Freedom Constitution came into being providing in Sec. 2 of Art.  III thereof that -

Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by. proclamation or executive order or upon the designation of their successors if such appointment is made within a period of one (1) year from February 26, 1986 (underscoring supplied).

Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial governor forwarded the papers of Jowil Red to then Minister of Interior and Local Government Aquilino Pimentel, Jr., requesting advice on the validity of the appointment signed by former President Marcos.  The response was the issuance of MILG Provincial Memorandum-Circular No. 86-02[21] and Memorandum-Circular No. 86-17[22] stating that -

PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02

2.  That newly elected KB Federation Presidents, without their respective authenticated appointments from the president, cannot, in any way, represent their associations in any sangguniang bayan/sangguniang panlalawigan, as the case may be, although they are still considered presidents of their federations by virtue of the July 1985 elections.

MEMORANDUM CIRCULAR NO. 86-17

It is informed, however, that until replaced by the Office of the President or by this Ministry the appointive members of the various Sangguniang Bayan, Sangguniang Panlunsod, and the Sangguniang Panlalawigan shall continue to hold office and to receive compensation due them under existing laws, rules and regulations.

The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars virtually confirmed the right of incumbent KB Federation Presidents to hold and maintain their positions until duly replaced either by the President herself or by the Interior Ministry.  Explicit therein was the caveat that newly elected KB Federation Presidents could not assume the right to represent their respective associations in any Sanggunian unless their appointments were authenticated by then President Aquino herself.  Truly, prudence impelled Mayor Lecaroz to take the necessary steps to verify the legitimacy of Red's appointment to the Sanggunian.

Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents Macapagal, Marcos and Aquino concerning the doctrine of holdover.  This consistently expressed the view espoused by the executive branch for more than thirty (30) years that the mere fixing of the term of office in a statute without an express prohibition against holdover is not indicative of a legislative intent to prohibit it, in light of the legal principle that just as nature abhors a vacuum so does the law abhor a vacancy in the government.[23] Reliance by petitioners on these opinions, as well as on the pertinent directives of the then Ministry of Interior and Local Government, provided them with an unassailable status of good faith in holding over and acting on such basis; and,

Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in the community, would deliberately blemish his good name, and worse, involve his own son in a misconduct for a measly sum of P23,675.00, such as this case before us.  As aptly deduced by Justice Del Rosario[24]

If I were to commit a crime, would I involve my son in it?  And if I were a town mayor, would I ruin my name for the measly sum of P1,894.00 a month?  My natural instinct as a father to protect my own son and the desire, basic in every man, to preserve one's honor and reputation would suggest a resounding NO to both questions.  But the prosecution ventured to prove in these thirteen cases that precisely because they were father and son and despite the relatively small amount involved, accused Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to falsify several municipal payrolls for the purpose of swindling their own town of the amount of P1,894.00 a month, and the majority has found them guilty.  I find discomfort with this verdict basically for the reason that there was no criminal intent on their part to falsify any document or to swindle the government.

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith.[25] In Cabungcal v. Cordova[26] we affirmed the doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would entitle an aggrieved party to damages against that official.  We reiterated this principle in Mabutol v. Pascual[27] which held that public officials may not be liable for damages in the discharge of their official functions absent any bad faith. Sanders v. Veridiano II[28] expanded the concept by declaring that under the law on public officers, acts done in the performance of official duty are protected by the presumption of good faith.

In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2) circumstances which purportedly indicated criminal intent.  It pointed out that the name of accused Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which meant that his term had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor Francisco Lecaroz in the payroll periods from 15 January 1986 and thereafter for the next twelve and a half (12 -1/2) months was for no other purpose than to enable him to draw salaries from the municipality.[29] There is however no evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the name of Lenlie Lecaroz to be dropped from the payroll for the first quincena of January 1986.  On the contrary, it is significant that while Lenlie Lecaroz' name did not appear in

the payroll for the first quincena of January 1986, yet, in the payroll for the next quincena accused Lenlie Lecaroz was paid for both the first and second quincenas, and not merely for the second half of the month which would have been the case if he was actually "dropped" from the payroll for the first fifteen (15) days and then "reinstated" in the succeeding payroll period, as held by the court a quo.

From all indications, it is possible that the omission was due to the inadequate documentation of Red's appointment to and assumption of office, or the result of a mere clerical error which was later rectified in the succeeding payroll.  This however cannot be confirmed by the evidence at hand.  But since a doubt is now created about the import of such omission, the principle of equipoise should properly apply.  This rule demands that all reasonable doubt intended to demonstrate error and not a crime should be resolved in favor of the accused.  If the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[30]

Petitioners have been convicted for falsification of public documents through an untruthful narration of facts under Art. 171, par. 4, of The Revised Penal Code.  For the offense to be established, the following elements must concur: (a) the offender makes in a document statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and, (d) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person.

The first and third elements of the offense have not been established in this case.  In approving the payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded certifications thus -

I hereby certify on my official oath that the above payroll is correct, and that the services above stated have been duly rendered.  Payment for such services is also hereby approved from the appropriations indicated.

When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts but a conclusion of law expressing his belief that Lenlie Lecaroz was legally holding over as member of the Sanggunian and thus entitled to the emoluments attached to the position.  This is an opinion undoubtedly involving a legal matter, and any "misrepresentation" of this kind cannot constitute the crime of false pretenses.[31] In People v. Yanza[32] we ruled -

Now then, considering that when defendant certified she was eligible for the position, she practically wrote a conclusion of law which turned out to be inexact or erroneous - not entirely groundless - we are all of the opinion that she may not be declared guilty of falsification, specially because the law which she has allegedly violated (Art. 171, Revised Penal Code, in connection with other provisions), punishes the making of untruthful statements in a narration of facts - emphasis on facts x x x x Unfortunately, she made a mistake of judgment; but she could not be held thereby to have intentionally made a false statement of fact in violation of Art. 171 above-mentioned.

The third element requiring that the narration of facts be absolutely false is not even adequately satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the Sanggunian was not entirely bereft of basis, anchored as it was on the universally accepted doctrine of holdover.  La mera inexactitude no es bastante para integrar este delito.[33] If the statements are not altogether false, there being some colorable truth in them, the crime of falsification is deemed not to have been committed.

Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved in this case.  The court a quo used as indication of conspiracy the fact that the accused Mayor certified the payrolls authorizing payment of compensation to his son Lenlie Lecaroz and that as a consequence thereof the latter collected his salaries.  These are not legally acceptable indicia, for they are the very same acts alleged in the Informations as constituting the crime of estafa through falsification.  They cannot qualify as proof of complicity or unity of criminal intent.  Conspiracy must be established separately from the crime itself and must meet the same degree of proof, i.e., proof beyond reasonable doubt.  While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together however, the evidence must reasonably be strong enough to show community of criminal design.[34]

Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its finding of conspiracy, the Sandiganbayan stressed that the two accused are father and son.  Granting that this is not even ad hominem, we are unaware of any presumption in law that a conspiracy exists simply because the conspirators are father and son or related by blood.

WHEREFORE, the petition is GRANTED.  The assailed Decision of 7 October 1994 and Resolution of 1 October 1997 of the Sandiganbayan are REVERSED and SET ASIDE, and petitioners FRANCISCO M. LECAROZ and LENLIE LECAROZ are ACQUITTED of all the thirteen (13) counts of estafa through falsification of public documents (Crim. Cases Nos. 13904-13916).  The bail bonds posted for their provisional liberty are cancelled and released.  Costs de oficio.

SO ORDERED.

G.R. No. 169604             March 6, 2007

NELSON P. COLLANTES, Petitioner, vs.HON. COURT OF APPEALS, CIVIL SERVICE COMMISSION and DEPARTMENT OF NATIONAL DEFENSE, Respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

A decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law; and whether it be made by the court that rendered it or by the highest court in the land.1

What would happen, however, if two separate decisions, irreconcilably conflicting with each other, both attained finality? Quite clearly, to hold that both decisions are immutable and unalterable would cause not only confusion and uncertainty, but utter bewilderment upon the persons tasked to execute these judgments.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to set aside the Decision2 dated 10 March 2005 and the Resolution3

dated 31 August 2005 of the Court of Appeals in CA-G.R. SP No. 78092.

The undisputed facts of this case are summarized by the Court of Appeals:

Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career Executive Service Eligibility on 29 February 1996. Then President Fidel V. Ramos accorded him the rank of Career Executive Service Officer (CESO) II on 10 February 1997. More than a year later, he was appointed as Undersecretary for Peace and Order of the Department of Interior and Local Government (DILG).

With the change of administration, Collantes allegedly received word from persons close to then President Ejercito Estrada to give up his position so that the President could unreservedly appoint his key officials. As such, Collantes relinquished his post at the DILG.

Thereafter, on 1 July 1998, President Estrada appointed Collantes to the controversial post – Undersecretary for Civilian Relations of the Department of National Defense (DND). As it happened, his stint in the DND was short lived. Collantes was supposedly ordered by then Secretary Orlando Mercado to renounce his post in favor of another presidential appointee, General Orlando Soriano. In deference to the President’s prerogative, he resigned from office believing that he will soon be given a new assignment.

Unfortunately, Collantes was not given any other post in the government, as in

fact, he received a letter from President Estrada terminating his services effective 8 February 1999. Consequently, on 24 March 1999, Collantes requested the assistance of the Career Executive Service Board relative to the termination of his services as Undersecretary for Civilian Relations of the DND invoking his right to security of tenure as a CESO.

The termination of Collantes’ services, notwithstanding, President Estrada accorded Collantes the highest rank in the CES ranking structure, CESO Rank I, on 17 July 1999. But then, despite this promotion in rank, Collantes did not receive new appointment, and worse, the President appointed Mr. Edgardo Batenga to the much coveted position of Undersecretary for Civilian Relations of the DND.

Taking definite action on the matter, Collantes instituted a Petition for Quo Warranto and Mandamus before Us on 29 January 2001, docketed as C.A. G.R. SP NO. 62874. Collantes maintained that he was constructively dismissed from work, without any cause and due process of law, and thus, his position in the DND was never vacated at all. Accordingly, he prayed that the appointment of Mr. Edgardo Batenga be nullified, and that he be reinstated to his former position with full back salaries. Notably, Collantes also sought for appointment to a position of equivalent rank commensurate to his CESO Rank I if reinstatement to his former position is no longer legally feasible.

Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes’ letter-request issuing Resolution No. 011364, and thereby holding that Collantes’ relief as Undersecretary of DND amounted to illegal dismissal as he was not given another post concomitant to his eligibility.

Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No. 62874 dismissing the Petition for Quo Warranto and Mandamus filed by Collantes. Significantly, We pronounced:

"By such actuations of the petitioner, the Court finds that he has (sic) effectively resigned from his position as Undersecretary of the DND, and the public respondents are under no compulsion to reinstate him to his old position.

x x x x

"In this case, petitioner has undoubtedly shown his intention to relinquish his public office, and has in fact surrendered such post to the Chief Executive, who, on the other hand, has shown his acceptance of the same by appointing a new person to the position relinquished by the petitioner.

x x x x

Quo warranto, it must be pointed out, is unavailing in the instatnt case, as the

public office in question has not been usurped, intruded into or unlawfully held by the present occupant. Nor does the incumbent undersecretary appear to have done or suffered an act which forfeits his assumption. (Section 1, Rule 66, 1997 Rules of Civil Procedure). Furthermore, it appears that the action for quo warranto, assuming it is available, has already lapsed by prescription, pursuant to Section 11 of the pertinent Rule ...

x x x x

WHEREFORE, premises considered, the instant petition for Quo Warranto and Mandamus is hereby DISMISSED."

The controversy reached the Supreme Court as G.R. No. 149883. Nevertheless, the case was considered closed and terminated when Collantes manifested his desire not to pursue his appeal and withdraw his Petition for Review on Certiorari. Thereafter, Collantes moved for the execution of CSC Resolution No. 011364, which was accordingly granted through CSC Resolution No. 020084 dated 15 January 2002 "directing the DND to give Collantes a position where his eligibility is appropriate and to pay his backwages and other benefits from the time of his termination up to his actual reinstatement."

In a Letter dated 7 February 2002, the Legal Affairs Division of the DND, through Atty. Leticia A. Gloria, urged the CSC to revisit its Resolutions which were entirely in conflict with Our 30 August 2001 Decision in C.A. G.R. SP NO. 62874, which has attained finality pursuant to the Supreme Court’s Resolution in G.R. No. 149883.

Consequently, in complete turnabout from its previous stance, the CSC issued Resolution No. 021482 dated 12 November 2002 declaring that had it been properly informed that a Petition for Quo Warranto and Mandamus was then pending before Us, it would have refrained from ruling on Collantes’ quandary, thus:

"WHEREFORE, the Motion for Reconsideration of Assistant Secretary for Legal Affairs Leticia A. Gloria of the department of National Defense (DND) is hereby GRANTED and CSC Resolutions Nos. 01-1364 dated August 13, 2001 and 02-0084 dated January 15, 2002 are reversed. Accordingly, pursuant to the decision of the Court of Appeals, Nelson P. Collantes is deemed effectively resigned from his position as Undersecretary of the DND."

Forthwith, Collantes moved for a reconsideration of this Resolution, but was denied by the CSC in the second assailed Resolution No. 030542 dated 5 May 2003.4

On 18 July 2003, herein petitioner Collantes then filed a Petition for Certiorari with the Court of Appeals praying for the reversal of the Civil Service

Commission (CSC) Resolutions No. 021482 and No. 030542. Before the Court of Appeals can decide this case, however, petitioner was appointed as General Manager of the Philippine Retirement Authority on 5 August 2004. The Court of Appeals dismissed the Petition for Certiorari in the assailed 10 March 2005 Decision:

WHEREFORE, the Petition for Certiorari is hereby DISMISSED. No grave abuse of discretion may be imputed against the Civil Service Commission for rendering Resolution Nos. 021482 and 030542, dated 12 November 2002 and 5 May 2003, respectively. No pronouncement as to costs.5

The Motion for Reconsideration filed by petitioner was denied in the assailed 31 August 2005 Resolution.6

Petitioner filed the present Petition for Review, seeking the reversal of the foregoing Decision and Resolution of the Court of Appeals. In view of his 5 August 2004 appointment, however, petitioner’s prayer is now limited to seeking the payment of backwages and other benefits that may have been due him from the time of his alleged dismissal on 8 February 1999 to his appointment on 5 August 2004. Petitioner submits the following issues for our consideration:

A.

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT HELD THAT THE DECISION IN CA-G.R. NO. 62874 IN THE COURT OF APPEALS IS A BAR TO IMPLEMENT THE FINAL AND EXECUTORY JUDGMENT OF THE CIVIL SERVICE COMMISSION DATED AUGUST 14, 2001.

B.

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT DID NOT FIND THAT THE CIVIL SERVICE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REVERSED ITS VERY OWN DECISION WHICH HAS LONG BECOME FINAL AND EXECUTORY AND IN FLAGRANT VIOLATION OF PETITIONER’S RIGHT TO DUE PROCESS.

C.

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT UPHELD THE RESOLUTION OF THE CIVIL SERVICE COMMISSION WHICH HELD THAT PETITIONER MAY BE REMOVED FROM HIS POSITION AS UNDERSECRETARY OF THE DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE CONCOMITANT TRANSFER TO A POSITION EQUIVALENT IN RANK OR BE REMOVED

THEN, BE FLOATED PERPETUALLY, WHICH IS TANTAMOUNT TO A CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT TO SECURITY OF TENURE AS A CAREER EXECUTIVE SERVICE ELIGIBLE.7

Both petitioner and herein respondents CSC and Department of National Defense (DND) invoke the doctrine of immutability of final judgments.

Petitioner claims that the 13 August 2001 Resolution of the CSC, which held that petitioner "was illegally removed as Undersecretary of the Department of National Defense and therefore x x x should be given a position where his eligibility is appropriate or sufficient," has attained finality. Petitioner adds that, not only has there been no appeal or motion for reconsideration filed within the allowable periods, the CSC even granted the Motion for Execution filed by petitioner in its Order dated 15 January 2002. Petitioner thereby invokes our ruling that, before a writ of execution may issue, there must necessarily be a final judgment or order that disposes of the action or proceeding.8 Petitioner also faults the CSC for ruling on a mere letter filed by Atty. Leticia Gloria of the DND, which petitioner claims is fatally defective for failure to comply with the procedural due process clause of the Constitution, the Rules of Court, and the Uniform Rules in Administrative Cases in the Civil Service which require notice to adverse parties.9

Respondents, on the other hand, invoke the same doctrine of immutability of final judgments, this time with respect to the 30 August 2001 Decision of the Court of Appeals dismissing the Petition for Quo Warranto and Mandamus filed by petitioner. This Court of Appeals Decision became final and executory when petitioner withdrew the Motion for Extension to File a Petition for Review on Certiorari he filed with this Court.10

Forum Shopping, Res Judicata, and Litis Pendentia

Our rules on forum shopping are meant to prevent such eventualities as conflicting final decisions as in the case at bar. We have ruled that what is important in determining whether forum shopping exists or not is the vexation caused the courts and parties-litigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different fora upon the same issues.11

More particularly, the elements of forum shopping are: (a) identity of parties or at least such parties as represent the same interests in both actions; (b) identity of the rights asserted and the reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.12

Forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata).13 If the forum shopping is not considered willful and deliberate, the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above. However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice.14

Petitioner disputes respondents’ claim, and the CSC’s ruling,15 that he had lodged two separate actions. Petitioner explains that he never filed a case before the CSC. He merely sought the assistance of the Career Executive Service Board (CESB) in a letter-request dated 24 March 1999. Said letter-request, petitioner claims, did not ask for any ruling.

Petitioner claims that, considering that two years had already lapsed without any response from the CESB, he filed on 23 January 2001 his Petition for Quo Warranto and Mandamus with the Court of Appeals. Petitioner was surprised when he learned through the 8 February 2001 letter of the CESB that, on 29 November 2000, it referred petitioner’s request to the CSC for appropriate action.16 Petitioner was not required to submit any pleading in support of his request. Apparently, the CSC treated the letter-request as a complaint or petition over which it could exercise its adjudicative powers, as it issued its 13 August 2001 Resolution declaring petitioner to have been illegally removed as Undersecretary of the DND, and should therefore be given a position appropriate or sufficient for his eligibility.17 As stated above, the Court of Appeals Decision dismissing the Petition for Quo Warranto and Mandamus was rendered 17 days later, on 30 August 2001. Petitioner filed with this Court a motion for an extension of time within which to file a Petition for Review on Certiorari, but he later submitted a Manifestation for the withdrawal of this motion as he decided not to pursue his appeal.18 Instead, petitioner filed with the CSC on 25 October 2001 a Motion for the Issuance of a Writ of Execution,19 which the CSC granted on 15 January 2002.20

In repeatedly asserting that he did not file two separate actions, petitioner is arguing, without stating it categorically, that he cannot be held liable for forum shopping. However, what one cannot do directly cannot be done indirectly. Petitioner had been aware, through the 8 February 2001 letter of the CESB, that his request for assistance was referred to the CSC on 29 November 2000 for appropriate action. From that point on, he knew that two government agencies – the CSC and the Court of Appeals – were simultaneously in the process of reaching their respective decisions on whether petitioner was entitled to

reinstatement or to a position appropriate to his eligibility. Therefore, it cannot be denied that petitioner knew, from the moment of receipt of the 8 February 2001 letter of the CESB, that he had effectively instituted two separate cases, and whatever original intention he had for his letter-request is, by then, forgotten. Petitioner subsequently proceeded to act like a true forum shopper – he abandoned the forum where he could not get a favorable judgment, and moved to execute the Resolution of the forum where he succeeded.

Petitioner’s above actuation is, in fact, a violation of his certification against forum shopping with the Court of Appeals, a ground for dismissal of actions distinct from forum shopping itself. As petitioner knew from the receipt of the CESB letter that another claim was pending in a quasi-judicial agency concerning these issues, he was bound by his certification with the Court of Appeals to report such fact within five days from his knowledge thereof. This circumstance – of being surprised by the discovery of another pending claim with another court or quasi-judicial agency – is the very situation contemplated by letter (c) in the first paragraph of Section 5, Rule 7 of the Rules of Court:

Section 5. Certification against forum shopping. – The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. (Emphases supplied.)

Petitioner, however, further asserts that the issues brought in the Petition for Certiorari filed with the Court of Appeals on 18 July 2003 and the Petition for Quo Warranto and Mandamus filed on 29 January 2001 are distinct, and that the Decision of the Court of Appeals in the latter cannot constitute res judicata with respect to the former.21 Petitioner claims that the issues, remedies and reliefs in the two cases are different, citing as basis the textbook definitions of quo warranto, certiorari and mandamus. Petitioner further claims that:

There is a clear distinction between the right of petitioner to the position of Undersecretary for Civilian Relations and his right to be re-appointed to another position of equivalent rank, in view of his CESO I status. The former issue may have been resolved by the Court of Appeals when it ruled that petitioner Collantes had "effectively resigned from his position as Undersecretary of the DND, and the public respondents are under no compulsion to reinstate him to his old position." The latter issue, or the right of petitioner Collantes to be given a new assignment fitting to his CESO I rank, arises from his right to security of

tenure as a Career Executive Service Eligible, and not from his appointment to the DND.22

This allegedly clear distinction springs from petitioner’s claim that he resigned from his position, but not from his rank as a Career Executive Service Officer (CESO). Petitioner claims that, as a CESO, there is a "great difference between (1) resigning from one’s position and (2) resigning or relinquishing one’s rank, as position is different from one’s rank. POSITION refers to the particular or specific office from which one may be appointed. RANK, on the other hand, refers not to a particular position but to the class to which one belongs in the hierarchy of authority in an organization or bureaucracy."23 Petitioner cites Cuevas v. Bacal24:

[S]ecurity of tenure to members of the CES does not extend to the particular positions to which they may be appointed --- a concept which is applicable only to the first and second-level employees in the civil service --- but to the rank to which they are appointed by the President.

x x x x

Mobility and flexibility in the assignment of personnel, the better to cope with the exigencies of public service, is thus the distinguishing feature of the Career Executive Service. x x x.

and General v. Roco25:

In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies.

While there is indeed a distinction between position and rank, such that a CESO may be transferred or reassigned from one position to another without losing his rank, there can be no distinction between resigning from a position and resigning from a rank. The rank of a CESO is deactivated upon separation from the government service, which includes the resignation of a CESO from his position. The CESB has clarified this concept of being in the inactive status in its Resolution No. 554, series of 2002:

Rule II

x x x x

7. CESO in Inactive Status - is a CESO who no longer occupies a position in the CES as a result of any of the modes of separation from the government service, provided that such separation is not due to dismissal from the service for cause.

x x x x

Rule IV

Section 1. Modes of Deactivating a CES Rank. – There are three (3) modes by which the CES Rank of a CESO may be deactivated from the CES:

1. Acceptance of a position by virtue of an appointment outside the coverage of the CES;

2. Dropping from the rolls of government officials and employees; and

3. Other modes of separation from the CES, provided that separation from the CES resulting from dismissal from the service for cause and after due process shall result in the loss of CES rank and shall not be considered as a mode of deactivation.

x x x x

Sec. 2. Effect of Deactivation of CES Rank. – A CESO whose CES rank has been deactivated by the Board loses all the rights and privileges accorded to him/her by law on account of his/her CES rank.

Likewise, it would be absurd for us to rule that a civil servant who resigns from his position can compel the President to appoint him to another position. Such a ruling would effectively derogate the discretion of the appointing authority,26 as it will give the CESO the option to choose which position he or she wants, by the simple expediency of resigning from the position he or she does not want.

In sum, there is an identity of issues in the two cases which resulted in the two conflicting final and executory decisions. But while, as stated above, the second petition can be dismissed on the ground of either res judicata or non-compliance with the undertakings in petitioner’s certification against forum shopping, these grounds can only be invoked when the case is still pending. As petitioner points out, the Resolution of the CSC had already become final and executory.

The 30 August 2001 Decision of the Court of Appeals, however, has also attained finality. Hence, we go back to the main issue in this petition: which of the two final and executory decisions should be given effect, the 30 August 2001 Court of Appeals Decision dismissing the petitioner’s Petition for Quo Warranto, or the 13 August 2001 CSC Resolution declaring petitioner Collantes to be illegally removed as Undersecretary of the DND?

Two Conflicting Final and Executory Decisions

Jurisprudence in the United States offers different solutions to this problem:

Where there have been two former actions in which the claim or demand, fact or matter sought to be religated has been decided contrarily, the rule that, where there is an estoppel against an estoppel, it "setteth the matter at large" has been applied by some authorities, and in such case both parties may assert their claims anew. Other authorities have held that, of two conflicting judgments on the same rights of the same parties, the one which is later in time will prevail, although it has also been held that the judgment prior in time will prevail. It has been held that a decision of a court of last resort is binding on the parties, although afterward, in another cause, a different principle was declared.27

There are thus three solutions which we can adopt in resolving the case at bar: the first is for the parties to assert their claims anew, the second is to determine which judgment came first, and the third is to determine which of the judgments had been rendered by a court of last resort.

As there are conflicting jurisprudence on the second solution, it is appropriate for this Court to adopt either the first or the third solution. The first solution involves disregarding the finality of the two previous judgments and allowing the parties to argue on the basis of the merits of the case anew. The third solution merely involves the determination of which judgment has been rendered by this Court, the court of last resort in this jurisdiction.

Adopting the third solution will result in the denial of this Petition for Certiorari. Whereas the finality of the 13 August 2001 CSC Resolution came about by the failure to file a motion for reconsideration or an appeal within the proper reglementary periods, the finality of the 30 August 2001 Court of Appeals Decision was by virtue of the 12 November 2001 Resolution28 of this Court which declared the case closed and terminated upon the manifestation of petitioner that he decided not to pursue his appeal and was thus withdrawing the motion for extension of time to file a petition for review on certiorari.

The better solution, however, is to let the parties argue the merits of the case anew, and decide the case on the basis thereof. We can do this either by remanding the case to a lower court, or by resolving the issues in this disposition. The latter recourse is more appropriate, for three reasons: (1) all the facts, arguments, and pleadings in support of the parties’ contentions are now before us, with the parties advancing the very same contentions as those in this Petition; (2) a remand to the Court of Appeals would entail asking the latter to resolve the very same issues it had passed upon twice; and (3) a remand to the Court of Appeals would only entail another unnecessary delay in the termination of the case when the case is now ripe for adjudication before us.

The merits of the case are the focus of petitioner’s third assignment of error in the present petition. Petitioner claims that the Court of Appeals committed a grave and reversible error when it upheld the resolution of the CSC which allegedly effectively held "that petitioner may be removed from his position as Undersecretary of the Department of National Defense without the concomitant transfer to a position equivalent in rank or be removed then, be floated perpetually, which is tantamount to a constructive dismissal, in violation of his right to security of tenure as a career executive service eligible."29

Petitioner’s arguments presuppose that he had been removed from his position as Undersecretary of the DND. He, however, did not present any evidence to that effect, whether in this Petition or in his earlier Petition for Quo Warranto and Mandamus with the Court of Appeals. If he is implying that he was removed from office by virtue of his account that he was approached by persons close to President Joseph Estrada who asked him to relinquish his post, which he did, then this Petition must fail, for, by his own deliberate deed, he resigned from his position.

There are no special legal effects when a resignation is one of a courtesy resignation. The mere fact that the President, by himself or through another, requested for someone’s resignation does not give the President the obligation to appoint such person to another position. A courtesy resignation is just as effectual as any other resignation. There can be no implied promises of another position just because the resignation was made out of courtesy. Any express promise of another position, on the other hand, would be void, because there can be no derogation of the discretion of the appointing power,30 and because its object is outside the commerce of man.31 As held by the Court of Appeals in its 30 August 2001 Decision:

In the first place, petitioner has not established by any quantum of certainty the veracity of his claim that he was promised an equivalent position in the government. Assuming, however, that such promise was true, petitioner, as a ranking member of the bureaucracy, ought to have known that such promise offers no assurance in law that the same would be complied with. The time-honored rule is that public office is a public trust, and as such, the same is governed by law, and cannot be made the subject of personal promises or negotiations by private persons.32

WHEREFORE, the present Petition for Review on Certiorari is DENIED. No costs.

SO ORDERED.

[G.R. No. 129616.  April 17, 2002]

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners, vs. JULIETA MONSERATE, respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

This petition for review on certiorari[1] seeks to set aside the Decision dated June 20, 1997 of the Court of Appeals in CA-G.R. No. 39670,[2] declaring null and void the Resolution No. 952043 dated March 21, 1995 and Resolution No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC), and ordering the reinstatement of Julieta G. Monserate as Division Manager II of the Resources Management Division, Ports Management Office, Philippine Ports Authority (PPA), Iloilo City.

The facts are:

Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Port Management Office, PPA, Iloilo City.   Barely a year later, she was promoted to the position of Cashier II and then as Finance Officer (SG-16) in 1980.[3]

In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the permanent position of Manager II (SG-19) of the Resource Management Division, same office.   The Comparative Data Sheet[4] accomplished by the PPA Reorganization Task Force shows the ranking of  the six (6) aspirants to the said position, thus:

“COMPARATIVE DATA SHEET

OFFICE:                                       PMO ILOILODIVISION:                                               RES.

MANAGEMENT DIVISIONPOSITION:                                               DIVISION

MANAGERREQUIRED CS ELIG.:                 CS PROF / RA 1080

                 CANDIDATES                                ELIGIBILITY              xxx               TOTAL

1.       MONSERATE, JULIETA                 CS Prof.                       xxx                  79.52.       ANINO, RAMON                              1st grade                       xxx                  703.       TEODOSIO, APRIL                             PD 907 (CPA)             

xxx                   674.       MORTOLA, DARIO                            CS Prof.                       xxx                   675.       ESPINOSA, AMALIK                         Bar                               xxx                   63.5

6.       PERFECTO, BASCOS                         RA 1080                       xxx                   59.5”

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed[5] respondent to the position of Manager II (Resource Management Division).   On even date, respondent assumed office and discharged the functions thereof.   On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA) approved her appointment.

Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per the Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals Board, protesting against respondent’s appointment.   The PPA Appeals Board, in a Resolution[6] dated August 11, 1988, sustained the protest and rendered ineffective respondent’s appointment based on “(1) CSC MC No. 5, s. 1988, Par. 3;[7] (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;[8] and  (3) Civil Service Eligibility.” These grounds were not explained or discussed in the Resolution, the dispositive portion of which reads:

“WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as Resources Management Division Manager of the Port Management Office of Iloilo.”

On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-88[9] (entitled “Creation of the PPA Manager’s Pool”), dated September 28, 1988, issued by the new PPA General Manager, Mr. Rogelio A. Dayan.   That Special Order excluded the name of respondent from the pool-list and placed instead the name of petitioner as Manager II, Resource Management Division.   In effect, the Special Order implemented the August 11, 1988 Resolution of the PPA Appeals Board.

Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated November 2, 1988.[10] She questioned her replacement under PPA Special Order No. 479-88, claiming that the proceedings before the PPA Appeals Board were irregular because  (1) she was not notified of the hearing before it;  (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner Anino;[11] (3) she was not informed of the reasons behind her replacement; and (4) their Port Manager (in Iloilo City), who was then an official member of the Board, was not included in the said proceedings.

On November 8, 1988, pending resolution of her appeal/request for clarification, respondent received a copy of PPA Special Order No. 492-88[12] dated October 21, 1988, also issued by General Manager Dayan.  This PPA Order officially reassigned her to the position of Administrative Officer (SG-15) which was petitioner Anino's former position and was lower than her previous position as Finance Officer (SG 16) before she was appointed as Division Manager.

Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager Dayan on her earlier appeal/request for clarification, respondent filed on November 25, 1988 a “precautionary appeal”[13] with the CSC.  She manifested that as of said date (November 25), she has not yet been furnished a certified copy of the PPA Appeals Board Resolution.

On January 2, 1989, respondent received a copy of her new appointment as Administrative Officer dated  October 1, 1988.[14] It was also during this time when she learned that PPA General Manager Dayan had just issued petitioner’s appointment dated October 21, 1988 as Manager II in the Resource Management Division effective February 1, 1988.

On January 16, 1989, respondent filed with the CSC an appeal formally protesting against petitioner Anino’s appointment and at the same time questioning the propriety of the August 11, 1988 Resolution of the PPA Appeals Board.   This appeal remained pending with the CSC for more than six (6) years despite respondent's requests for early resolution.   In the meantime, she assumed the position of Administrative Officer.

Eventually, the CSC, in its Resolution No. 95-2043[15] dated March 21, 1995, dismissed respondent’s appeal, thus:

“It is well-established rule that an appointment, although approved by this Commission, does not become final until the protest filed against it is decided by the agency or by the Commission.   Although Monserate had already assumed the position of RMD Manager II, the appointing authority may still withdraw the same if a protest is seasonably filed.   This is covered by Section 19, Rule VI of the Omnibus Rules implementing EO 292 x x x.

“Monserate’s claim that she is more qualified than Anino is not relevant to the issue before this Commission.   In cases of protest filed or appealed to the Commission, the main question to be resolved is whether or not the appointee meets the qualification standard.  x x x.  The Commission will not disturb the choice of the appointing authority as long as the appointee meets the qualification prescribed for the position in question.”

Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No. 95-6640 dated October 24, 1995.

In due time, respondent filed with the Court of Appeals a petition for review impleading as respondents the PPA General Manager and petitioner Anino.

On June 20, 1997, the Court of Appeals rendered a Decision[16] nullifying the twin Resolutions of the CSC.   It ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not supported by evidence and that the same was irregularly issued due to lack of proper notice to respondent with respect to the Board’s proceedings.  It concluded that her reassignment from the position of Manager II, Resource Management Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative of her constitutional right to security of tenure and due process.   The dispositive portion of the Court of Appeals' Decision reads:

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

“SO ORDERED.”

Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition.  On November 30, 1997, petitioner Anino retired from the government service.[17]

Petitioners ascribe to the Court of Appeals the following errors:

I    THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER, THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.

II  THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATE’S APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR THE CSC.

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

The pivotal issue in this case is whether or not there was due process when respondent was replaced by petitioner Anino from her position as Manager II, Resource Management Division, and demoted as Administrative Officer.

Petitioners vehemently aver that respondent was never demoted since demotion, being in the nature of administrative penalty, presupposes a conviction in an administrative case.  Here, respondent was not charged of any administrative case.  Rather, she was displaced from her position as an “aftermath of the PPA reorganization, authorized by law, the implementation of which having been carried out with utmost good faith.”

Furthermore, the said displacement was just the necessary effect of the August 11, 1988 Resolution of the PPA Appeals Board which sustained petitioner Anino’s timely protest against respondent’s appointment. Petitioners theorize that the appointment of respondent as Resource Management Division Manager did not become final until the

protest filed against her was favorably decided in her favor by the CSC.  In support of this contention, they cited Section 19, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), which provides inter alia:

“SEC 19.  An appointment, though contested, shall take effect immediately upon its issuance if the appointee assumes the duties of the position and the appointee is entitled to receive the salary attached to the position.  However, the appointment, together with the decision of the department head, shall be submitted to the Commission for appropriate action within 30 days from the date of its issuance, otherwise the appointment becomes ineffective thereafter.  Likewise, such appointment shall become ineffective in case the protest is finally resolved against the protestee, in which case, he shall be reverted to his former position.”

Petitioners also contend that the head of an agency, being the appointing authority, is the one most knowledgeable to decide who can best perform the functions of the office.  The appointing authority has a wide latitude of choice subject only to the condition that the appointee should possess the qualifications required by law.  Consequently, “the CSC acted rightly when it did not interfere in the exercise of discretion by the PPA appointing authority, there being no evidence of grave abuse of discretion thereof or violation of the Civil Service Law and Rules.”

The petition is unmeritorious.

In the first place, the PPA reorganization in 1988 has nothing to do with respondent’s demotion from the contested position of Manager II, Resource Management Office (SG-19), to the lower position of Administrative Officer (SG-15).   Antithetically, it was precisely because of the said reorganization that respondent applied to the higher position of Division Manager II.  In fact, the Comparative Data Sheet accomplished by the PPA Reorganization Task Force itself shows that respondent ranked No. 1, while petitioner Anino ranked No. 2, from among the six (6) contenders to the said post.  Respondent was eventually issued a permanent appointment as such Division Manager on February 1, 1988 by then PPA General Maximo Dumlao, Jr., during which time she actually assumed office and discharged its functions.  This appointment was later approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of the Civil Service Field Office-PPA.

Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 Resolution of the PPA Appeals Board when respondent was demoted to the lower position of Administrative Officer.  This is further shown by the following orders and appointments subsequently issued by then PPA General Manager Rogelio Dayan:

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

2.  Appointment of respondent, dated October 1, 1988, to the position of Administrative Officer;

3.  PPA Special Order No. 492-88 dated October 21, 1988 which officially

reassigned respondent to the position of Administrative Officer; and

4.  Appointment of petitioner Anino, dated October 21, 1988, to the position of Manager II, Resource Management Division, effective February 1, 1988.

Therefore, contrary to petitioners’ claim, respondent was demoted, not by reason of the PPA reorganization in 1988, but due to the PPA Appeals Board Resolution dated August 11, 1988 sustaining petitioner Anino’s protest against respondent’s appointment.

Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Resolution of the PPA Appeals Board which “upholds the appointment of Ramon A. Anino as Resource Management Division Manager.” But how can it uphold his appointment when he was not yet appointed then?   It bears stressing that he was appointed on a much later date - October 21, 1988, or more than two (2) months after August 11, 1998 when the PPA Appeals Board Resolution was issued.   Stated differently, the PPA Appeals Board could not uphold an appointment which was not yet existing.

Equally questionable are the grounds for respondent’s demotion stated in the August 11, 1998 Resolution:  “(1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and  (3) Civil Service Eligibility.” These grounds are incomprehensible for lack of discussion or explanation by the Board to enable respondent to know the reason for her demotion.

We uphold the Court of Appeals’ finding that the August 11, 1998 PPA Appeals Board Resolution was void for lack of evidence and proper notice to respondent.   As aptly held by the Appellate Court:

“In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the appointment of the private respondent (Ramon Anino) as Division Manager, the grounds against petitioner's (Julieta Monserate) appointment were:  a) the CSC MC No. 5, s. 1988, Par 3;  b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil service eligibility.

"x x x

“To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by evidence.   Of the CSC MC No. 5, the petitioner had no pending administrative or criminal case at the time of her appointment as Manager.    x x x.

“With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation and recommendation of her appointment as Manager II, passed several committees created by the PPA.    x x x.   Moreover, she had a 1.9 average performance rating compared to the private respondent who only got 2.03.  x x x.

“On eligibility, she has a Career Service Professional eligibility while the private respondent only has a First Grade Civil Service Eligibility. 

“She added that she was not aware of any proceeding on her demotion as a Division Manager.  As a matter of fact, it was only upon her iniative sometime during the latter part of November, 1988 that she was able to obtain a copy of the August 11, 1988 Resolution of the Appeals Board. The resolution sustained the private respondent’s appointment as Division Manager even if on August 11, 1988, he was not yet extended any appointment.  As a matter of fact, he was appointed only on October 1, 1988 (should be October 21, 1988).

“Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null and void.  She was never notified of any proceeding; she was not furnished either a copy of the resolution.  What she received instead was a Special Order dated September 29, 1988 already ordering her demotion.   She was not at all given the oppurtunity of defending herself before the Appeals Board.

“x x x.

“In the case now before us, the petitioner did not receive or was not given a copy of the August 11, 1988 Resolution of the Appeals Board.   She did not even know that she was demoted until after she received a copy of the of the Special Order No. 479-88.”[19]

From all indications, it is indubitable that substantial and procedural irregularities attended respondent’s demotion from the position of Manager II, Resource Management Division, to the lower position of Administrative Officer.   Indeed, her demotion, tantamount to a revocation of her appointment as Manager II, is a patent violation of her constitutional rights to security of tenure and due process.  In Aquino vs. Civil Service Commission,[20] this Court emphasized that “once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable, right (to the position) which is protected not only by statute, but also by the constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.”

Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of qualified persons to vacant positions in the civil service.[21] However, the moment the discretionary power of appointment is exercised and the appointee assumed the duties and functions of the position, such appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except for cause. Here, no iota of evidence was ever established to justify the revocation of respondent's appointment by demoting her.  Respondent’s security of tenure guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing power.[22]

Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource Management Division, it merely restored her appointment to the said position to which her right to security of tenure had already attached.   To be sure, her position as Manager II never became vacant since her demotion was void.  In this jurisdiction, "an appointment to a non-vacant position in the

civil service is null and void ab initio."[23]

We now delve on the backwages in favor of respondent.

The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding backwages.  This matter becomes controversial because respondent assumed the lower position of Administrative Officer during the pendency of her protest against petitioner Anino’s appointment to the contested position.  Also, petitioner Anino retired from the service on November 30, 1997.

In this respect, while petitioner Anino’s appointment to the contested position is void, as earlier discussed, he is nonetheless considered a de facto officer during the period of his incumbency.[24] A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular.[25] In Monroy vs. Court of Appeals,[26] this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title.  A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure.  In the later case of Civil Liberties Union vs. Executive Secretary,[27] this Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer, thus:

“x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensations attached to the office.”

In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith.  This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances.  Respondent had assumed under protest the position of Administrative Officer sometime in the latter part of 1988, which position she currently holds.  Since then, she has been receiving the emoluments, salary and other compensation attached to such office.  While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived thereof.  She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager.  Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer.  The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.

WHEREFORE, the petition is DENIED.  The challenged Decision of the Court of Appeals dated June 20, 1997 is AFFIRMED with MODIFICATION in the sense that

petitioner Ramon A. Anino is ordered to pay respondent Julieta Monserate backpay differentials pertaining to the period from the time he wrongfully assumed the contested position of Manager II up to his retirement on November 30, 1997.

SO ORDERED.

[G.R. No. 118883.  January 16, 1998]

SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE MAYOR NENITO AQUINO and MAYOR LYDIA T. ROMANO, petitioner, vs. COURT OF APPEALS and AUGUSTO T. ANTONIO, respondents.

D E C I S I O N

PANGANIBAN, J.:

Although a resignation is not complete without an acceptance thereof by the proper authority, an office may still be deemed relinquished through voluntary abandonment which needs no acceptance.

Statement of the Case

Before us is a petition for review under Rule 45 of the Rules of Court seeking a reversal of the Decision[1] of the Court of Appeals[2] promulgated on January 31, 1995 in CA-G.R. SP No. 34158, which modified the Decision dated February 18, 1994 of the Regional Trial Court[3] of Virac, Catanduanes, Branch 42, in Sp. Civil Case No. 1654.

The dispositive portion of the assailed Decision of the appellate court reads:

“WHEREFORE, the judgment appealed from is hereby MODIFIED such that paragraphs 1, 2 and 4 thereof are deleted.  Paragraph 3 is AFFIRMED.  No pronouncement as to costs.”[4]

Antecedent Facts

Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay, San Andres, Catanduanes in March 1989.  He was later elected president of the Association of Barangay Councils (ABC)[5] for the Municipality of San Andres, Catanduanes.  In that capacity and pursuant to the Local Government Code of 1983, he was appointed by the President as member of the Sangguniang Bayan of the Municipality of San Andres.

Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local Government (DILG) declared the election for the president of the Federation of the Association of Barangay Councils (FABC) of the same province, in which private respondent was a voting member, void for want of a quorum.  Hence, a reorganization of the provincial council became necessary. 

Conformably, the DILG secretary designated private respondent as a temporary member of the Sangguniang Panlalawigan of the Province of Catanduanes, effective June 15, 1990.

In view of his designation, private respondent resigned as a member of the Sangguniang Bayan.  He tendered his resignation[6] dated June 14, 1990 to Mayor Lydia T. Romano of San Andres, Catanduanes, with copies furnished to the provincial governor, the DILG and the municipal treasurer.  Pursuant to Section 50 of the 1983 Local Government Code[7] (B.P. Blg. 337), Nenito F. Aquino, then vice-president of the ABC, was subsequently appointed by the provincial governor as member of the Sangguniang Bayan[8] in place of private respondent.  Aquino assumed office on July 18, 1990 after taking his oath.[9]

Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC president was reversed by the Supreme Court in Taule vs. Santos.[10] In the same case, the appointment of Private Respondent Antonio as sectoral representative to the Sangguniang Panlalawigan was declared void, because he did not possess the basic qualification that he should be president of the federation of barangay councils.[11] This ruling of the Court became final and executory on December 9, 1991.

On March 31, 1992, private respondent wrote to the members of the Sangguniang Bayan of San Andres advising them of his re-assumption of his “original position, duties and responsibilities as sectoral representative”[12] therein.  In response thereto, the Sanggunian issued Resolution No. 6, Series of 1992, declaring that Antonio had no legal basis to resume office as a member of the Sangguniang Bayan.[13]

On August 13, 1992, private respondent sought from the DILG a definite ruling relative to his right to resume his office as member of the Sangguniang Bayan.[14] Director Jacob F. Montesa, department legal counsel of the DILG, clarified Antonio’s status in this wise:

“Having been elected President of the ABC in accordance  with  the Department’s Memorandum Circular No. 89-09,[15] you became an ex-officio member in the sanggunian.  Such position has not been vacated inasmuch as you did not resign nor abandon said office when you were designated as temporary representative of the Federation to the Sangguniang Panlalawigan of Catanduanes on June 7, 1990.  The Supreme Court in Triste vs. Leyte State College Board of Trustees (192 SCRA 327), declared that: ‘designation  implies temporariness.  Thus, to ‘designate’ a public officer to another position may mean to vest him with additional duties while he performs the functions of his permanent office.  In some cases, a public officer may be ‘designated’ to a position in an acting capacity as when an undersecretary is designated to discharge the functions of the Secretary pending the appointment of a permanent Secretary.’

Furthermore, incumbent ABC presidents are mandated by the Rules and

Regulations Implementing the 1991 Local Government Code to continue to act as president of the association and to serve as ex-officio members of the sangguniang bayan, to wit:

Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep. Act  No. 7160, provides that:

‘The incumbent presidents of the municipal, city and provincial chapters of the liga shall continue to serve as ex-officio members of the sanggunian concerned until the expiration of their term of office, unless sooner removed for cause.’

‘(f) x x x Pending election of the presidents of the municipal, city, provincial and metropolitan chapters of the liga, the incumbent presidents of the association of barangay councils in the municipality, city, province and Metropolitan Manila, shall continue to act as president of the corresponding liga chapters under this Rule.’

In view of the foregoing, considering that the annuled designation is only an additional duty to your primary function, which is the ABC President, we find no legal obstacle if you re-assume your representation in the sanggunian bayan as ex-officio member.”[16]

Despite this clarification, the local legislative body issued another resolution[17] reiterating its previous stand.

In response to private respondent’s request,[18] Director Montesa opined that Antonio did not relinquish or abandon his office;  and that since he was the duly elected ABC president, he could re-assume his position in the Sanggunian.[19] A copy of said reply was sent to the members of the local legislative body.

Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to re-assume office as sectoral representative.

On December 10, 1992, private respondent filed a petition for certiorari and mandamus with preliminary mandatory injunction and/or restraining order before the RTC.  On February 18, 1994, the trial court rendered its decision holding that Augusto T. Antonio’s resignation from the Sangguniang Bayan was ineffective and inoperative, since there was no acceptance thereof by the proper authorities.  The decretal portion of the decision reads:

“WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the petitioner and against the respondents and ordering the latter:

(1)      to pay the petitioner jointly and severally the amount of P10,000.00 as attorney’s fees and the cost of the suit;

(2)      to allow petitioner to assume his position as sectoral

representative of the Sangguniang Bayan of San Andres, Catanduanes;

(3)      to pay the petitioner jointly and severally his uncollected salaries similar to those received by the other members of the Sangguniang Bayan of San Andres, Catanduanes as certified to by the Municipal Budget Officer and Municipal Treasurer of the same municipality from April 8, 1992 up to the date of this judgment; and

(4)     declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to have no effect.”[20]

Petitioners appealed this judgment to the Court of Appeals.

Appellate Court’s Ruling

Respondent Court of Appeals affirmed the trial court’s ruling but deleted the first, second and fourth paragraphs of its dispositive portion.  It held that private respondent’s resignation was not accepted by the proper authority, who is the President of the Philippines.  While the old Local Government Code is silent as to who should accept and act on the resignation of any member of the Sanggunian, the law vests in the President the power to appoint members of the local legislative unit.  Thus, resignations must be addressed to and accepted by him.  It added that, though the secretary of the DILG is the alter ego of the President and notice to him may be considered notice to the President, the records are bereft of any evidence showing that the DILG secretary received and accepted the resignation letter of Antonio.

Moreover, granting that there was complete and effective resignation, private respondent was still the president of the ABC and, as such, he was qualified to sit in the Sangguniang Bayan in an ex officio capacity by virtue of Section 494[21] of R.A. 7160[22] and Memorandum Circular No. 92-38.[23] In view, however, of the May 1994 elections in which a new set of barangay officials was elected, Antonio’s reassumption of office as barangay representative to the Sangguniang Bayan was no longer legally feasible.

The appellate court added that private respondent could not be considered to have abandoned his office.  His designation as member of the Sangguniang Panlalawigan was merely temporary and not incompatible with his position as president of the ABC of San Andres, Catanduanes.

Finally, Respondent Court deleted the award of attorney’s fees for being without basis, and held that Resolution Nos. 6 and 28 of the Sangguniang Bayan of San Andres involved a valid exercise of the powers of said local body.  It thus modified the trial court’s judgment by affirming paragraph 3 and deleting the

other items.  Unsatisfied, petitioners brought the present recourse.[24]

Issues

The petitioner, in its memorandum,[25] submits before this Court the following issues:

“I.  Whether or not respondent’s resignation as ex-officio member of Petitioner Sangguniang Bayan ng San Andres, Catanduanes is deemed complete so as to terminate his official relation thereto;

“II.       Whether or not respondent had totally abandoned his ex-officio membership in Petitioner Sangguniang Bayan;

“III. Whether or not respondent is entitled to collect salaries similar to those received by other members of Petitioner Sangguniang Bayan from April 8, 1992 up to date of judgment in this case by the Regional Trial Court of Virac, Catanduanes.”[26]

In sum, was there a complete and effective resignation?  If not, was there an abandonment of office?

This Court’s Ruling

The petition is meritorious.  Although the terms of office of barangay captains, including private respondent, elected in March 1989 have expired, the Court deemed it necessary to resolve this case, as the Court of Appeals had ordered the payment of the uncollected salaries allegedly due prior to the expiration of Respondent Antonio’s term.

First Issue:  Validity of Resignation

The petitioner submits that the resignation of private respondent was valid and effective despite the absence of an express acceptance by the President of the Philippines.  The letter of resignation was submitted to the secretary of the DILG, an alter ego of the President, the appointing authority.  The acceptance of respondent’s resignation may be inferred from the fact that the DILG secretary himself appointed him a member of the Sangguniang Panlalawigan of Catanduanes.[27]

In Ortiz vs. COMELEC,[28] we defined resignation as the “act of giving up or the act of an officer by which he declines his office and renounces the further right to use it.  It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority.”  To constitute a complete and

operative resignation from public office, there must be:  (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority.[29] The last one  is required by reason of Article 238 of the Revised Penal Code.[30]

The records are bereft of any evidence that private respondent’s resignation was accepted by the proper authority.  From the time that he was elected as punong barangay up to the time he resigned as a member of Sangguniang Bayan, the governing law was B.P. 337 or the Local Government Code of 1983.  While said law was silent as to who specifically should accept the resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing rules states that the “[r]esignation of sanggunian members shall be acted upon by the sanggunian concerned, and a copy of the action taken shall be furnished the official responsible for appointing a replacement and the Ministry of Local Government.  The position shall be deemed vacated only upon acceptance of the resignation.”

It is not disputed that private respondent’s resignation letter was addressed only to the municipal mayor of San Andres, Catanduanes.  It is indicated thereon that copies were furnished the provincial governor, the municipal treasurer and the DILG.  Neither the mayor nor the officers who had been furnished copies of said letter expressly acted on it.  On hindsight, and assuming arguendo that the aforecited Sec. 6 of Rule XIX is valid and applicable, the mayor should have referred or endorsed the latter to the Sangguniang Bayan for proper action.  In any event, there is no evidence that the resignation was accepted by any government functionary or office.

Parenthetically, Section 146 of B.P. Blg. 337 states:

“Sec. 146. Composition. - (1)  The sangguniang bayan shall be the legislative body of the municipality and shall be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who shall be the presiding officer pro tempore, eight members elected at large, and the members appointed by the President consisting of the president of the katipunang bayan and the president of the kabataang barangay municipal federation.  x x x.”  (Emphasis supplied.)

Under established jurisprudence, resignations, in the absence of statutory provisions as to whom they should be submitted, should be tendered to the appointing person or body.[31] Private respondent, therefore, should have submitted his letter of resignation to the President or to his alter ego, the DILG secretary.  Although he supposedly furnished the latter a copy of his letter, there is no showing  that  it was duly received, much less, that it was acted upon.  The third requisite being absent, there was therefore no valid and complete resignation.

Second Issue:  Abandonment of Office

While we agree with Respondent Court that the resignation was not valid absent any acceptance thereof by the proper authority, we nonetheless hold that Private Respondent Antonio has effectively relinquished his membership in the Sangguniang Bayan due to his voluntary abandonment of said post.

Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof.[32] Indeed, abandonment of office is a species of resignation;  while resignation in general is a formal relinquishment,  abandonment is a voluntary relinquishment through nonuser.[33] Nonuser refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to exercise an easement or an office (Black’s Law Dictionary, 6th ed.).

Abandonment springs from and is accompanied by deliberation and freedom of choice.[34] Its concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy.[35]

Clear intention to abandon should be manifested by the officer concerned.  Such intention may be express or inferred from his own conduct.[36] Thus, the failure to perform the duties pertaining to the office must be with the officer’s actual or imputed intention to abandon and relinquish the office.[37] Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such a continuance that the law will infer a relinquishment.[38] Therefore, there are two essential elements of abandonment: first, an intention to abandon and, second, an overt or “external” act by which the intention is carried into effect. [39]

Petitioner argues that the following clearly demonstrate private respondent’s abandonment of his post in the Sangguniang Bayan:

“Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of Catanduanes was worded ‘temporary,’ but his acts more than clearly established his intention to totally abandon his office, indicating an absolute relinquishment thereof.  It bears to emphasize that respondent actually tendered his resignation and subsequently accepted an ex-officio membership in the Sangguniang Panlalawigan of Catanduanes.  He performed his duties and functions of said office for almost two (2) years, and was completely aware of the appointment and assumption on July 18, 1990 of Nenito F. Aquino, who was then Vice-President of the Association of Barangay Councils (ABC) of San Andres, Catanduanes, as ex-officio member of petitioner Sangguniang Bayan representing the ABC.

x x x                                             x x x                                     x x x

Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondent’s former position for twenty (20) months, without him questioning the term of office of the former if indeed respondent’s designation as ex-officio member of the Sangguniang Panlalawigan was only temporary.  Likewise, for

almost eight (8) months after knowledge of the decision in Taule vs. Santos, et. al., Ibid., nullifying his designation as representative to the Sangguniang Panlalawigan, respondent opted to remain silent, and in fact failed to seasonably act for the purpose of reassuming his former position.  Evidently, respondent had clearly abandoned his former position by voluntary relinquishment of his office through non-user.”[40] [Underscoring supplied.]

We agree with petitioner.  Indeed, the following clearly manifest the intention of private respondent to abandon his position: (1)  his failure to perform his function as member of the Sangguniang Bayan, (2)  his failure to collect the corresponding remuneration for the position, (3) his failure to object to the appointment of Aquino as his replacement in the Sangguniang Bayan,  (4) his prolonged failure to initiate any act to reassume his post in the Sangguniang Bayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan.

On the other hand, the following overt acts demonstrate that he had effected his intention: (1) his letter of resignation from the Sangguniang Bayan;[41] (2) his assumption of office as member of the Sangguniang Panlalawigan, (3) his faithful discharge of his duties and functions as member of said Sanggunian, and (4) his receipt of the remuneration for such post.

It must be stressed that when an officer is “designated” to another post, he is usually called upon to discharge duties in addition to his regular responsibilities.  Indeed, his additional responsibilities are prescribed by law to inhere, as it were, to his original position.  A Supreme Court justice, for instance, may be designated member of the House of Representatives Electoral Tribunal.  In some cases, a public officer may be “designated” to a position in an acting capacity, as when an undersecretary is tasked to discharge the functions of a secretary for a temporary period.[42] In all cases, however, the law does not require the public servant to resign from his original post.  Rather, the law allows him to concurrently discharge the functions of both offices.

Private respondent, however, did not simultaneously discharge the duties and obligations of both positions.  Neither did he, at that time, express an intention to resume his office as member of the Sangguniang Bayan.  His overt acts, silence, inaction and acquiescence, when Aquino succeeded him to his original position, show that Antonio had abandoned the contested office.  His immediate and natural reaction upon Aquino’s appointment should have been to object or, failing to do that, to file appropriate legal action or proceeding.  But he did neither.  It is significant that he expressed his intention to resume office only on March 31, 1992, after Aquino had been deemed resigned on March 23, 1992,  and months after this Court had nullified his “designation” on August 12, 1991.  From his passivity, he is deemed to have recognized the validity of Aquino’s appointment and the latter’s discharge of his duties as a member of the Sangguniang Bayan.

In all, private respondent’s failure to promptly assert his alleged right implies

his loss of interest in the position.  His overt acts plainly show that he really meant his resignation and understood its effects.  As pointed out by the eminent American commentator, Mechem:[43]

“Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it, not only when his refusal to perform was wilful, but also where, while he intended to vacate the office, it was because he in good faith but mistakenly supposed he had no right to hold it.”

Lastly, private respondent, who remained ABC president, claims the legal right to be a member of the Sangguniang Bayan by virtue of Section 146 of B.P. Blg. 337.  However, his right thereto is not self-executory, for the law itself requires another positive act -- an appointment by the President or the secretary of local government per E.O. 342.[44] What private respondent could have done in order to be able to reassume his post after Aquino’s resignation was to seek a reappointment from the President or the secretary of local government.  By and large, private respondent cannot claim an absolute right to the office which, by his own actuations, he is deemed to have relinquished.[45]

We reiterate our ruling in Aparri vs. Court of Appeals: [46]

“A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public x x x.  The right to hold a public office under our political system is therefore not a natural right.  It exists, when it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it x x x.  There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office.  Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary x x x.”

Third Issue:  Salary

Having ruled that private respondent had voluntarily abandoned his post at the Sangguniang Bayan, he cannot be entitled to any back salaries.  Basic is the “no work, no pay”[47] rule.  A public officer is entitled to receive compensation for services actually rendered for as long as he has the right to the office being claimed.[48] When the act or conduct of a public servant constitutes a relinquishment of his office, he has no right to receive any salary incident to the

office he had abandoned.[49]

WHEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED and SET ASIDE.  No costs.

SO ORDERED.

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner, vs.THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs.PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.

Antonio P. Coronel for petitioners in 83815.

 

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 1988 1

and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other than his primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.83815 3

and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23,

1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers –– one, the President and her official family, and the other, public servants in general –– allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by example." 7 Article IX-B, Section 7, par. (2) 8 provides:

Sec. 7. . . . . .

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

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10 being the first official construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of appointments or designations of an appointive executive official to positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed by the primary functions of the public official, but only to the holding of multiple positions which are not related to or necessarily included in the position of the public official concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by

petitioners on the principal submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the Cabinet and their deputies or assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful

provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. 11

The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these instrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in reaction to the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983."

Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the

evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive compensation therefrom would be discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or

employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their case." 14

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the

Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet, 15 and to act as President without relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to qualify. 16 Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. 17 Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. 19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase "unless otherwise provided in this Constitution" must be

given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required 22 by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies.

The Secretaries of Finance and Budget cannot sit in the MonetaryBoard. 24

Neither can their respective undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in the areas of money, banking and credit. 25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the

official position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office." 27 An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and Inspection Board, 31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments." 32

The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of

efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties and functions being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be supervision, thereby deprived of the means for control and resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of his position," 36 express reference to certain high-ranking appointive public officials like members of the Cabinet were made. 37

Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when although not required by current law, membership of certain high-ranking executive officials in other offices and corporations is necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade and Industry. 38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions and duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the article on the Civil Service Commission had been approved on third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only after the draft Constitution had undergone reformatting and "styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.

That this exception would in the final analysis apply also to the President and his official family is by reason of the legal principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary functions may be considered as not constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." 43 The proper interpretation therefore depends more on how it was understood by the people adopting it than

in the framers's understanding thereof. 44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a

department head spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of.

During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered. 46 It has been held that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.