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Rule 64 Review of Judgments & Final Orders or Resolutions of the COMELEC & COA

EN BANC

G.R. No. 81954 August 8, 1989

CESAR Z. DARIO, petitioner,vs.HON. SALVADOR M. MISON, HON. VICENTE JAYME and HON. CATALINO MACARAIG, JR., in their respective capacities asCommissioner of Customs, Secretary of Finance, and Executive Secretary,respondents.

G.R. No. 81967 August 8, 1989

VICENTE A. FERIA JR., petitioner,vs.HON. SALVADOR M. MISON, HON. VICENTE JAYME, and HON. CATALINO MACARAIG, JR., in their respective capacities asCommissioner of Customs, Secretary of Finance, and Executive Secretary,respondents.

G.R. No. 82023 August 8, 1989

ADOLFO CASARENO, PACIFICO LAGLEVA, JULIAN C. ESPIRITU, DENNIS A. AZARRAGA, RENATO DE JESUS, NICASIO C.GAMBOA, CORAZON RALLOS NIEVES, FELICITACION R. GELUZ, LEODEGARIO H. FLORESCA, SUBAER PACASUM,

ZENAIDA LANARIA, JOSE B. ORTIZ, GLICERIO R. DOLAR, CORNELIO NAPA, PABLO B. SANTOS, FERMIN RODRIGUEZ,DALISAY BAUTISTA, LEONARDO JOSE, ALBERTO LONTOK, PORFIRIO TABINO, JOSE BARREDO, ROBERTO ARNALDO,ESTER TAN, PEDRO BAKAL, ROSARIO DAVID, RODOLFO AFUANG, LORENZO CATRE, LEONCIA CATRE, ROBERTO ABADApetitioners,vs.COMMISSIONER SALVADOR M. MISON, COMMISSIONER, BUREAU OF CUSTOMS, respondent.

G.R. No. 83737 August 8, 1989

BENEDICTO L. AMASA and WILLIAM S. DIONISIO, petitioners,vs.PATRICIA A. STO. TOMAS, in her capacity as Chairman of the Civil Service Commission and SALVADOR MISON, in hiscapacity as Commissioner of the Bureau of Customs, respondents.

G.R. No. 85310 August 8, 1989

SALVADOR M. MISON, in his capacity as Commissioner of Customs, petitioner,vs.CIVIL SERVICE COMMISSION, ABACA, SISINIO T., ABAD, ROGELIO C., ABADIANO, JOSE P., ABCEDE, NEMECIO C., ABIOG,ELY F., ABLAZA, AURORA M., AGBAYANI, NELSON I., AGRES ANICETO, AGUILAR, FLOR, AGUILUCHO MA. TERESA R.,AGUSTIN, BONIFACIO T., ALANO, ALEX P., ALBA, MAXIMO F. JR., ALBANO, ROBERT B., ALCANTARA, JOSE G., ALMARIO,RODOLFO F., ALVEZ, ROMUALDO R., AMISTAD RUDY M., AMOS, FRANCIS F., ANDRES, RODRIGO V., ANGELES, RICARDOS., ANOLIN, MILAGROS H., AQUINO, PASCASIO E., ARABE, MELINDA M., ARCANGEL, AGUSTIN S., JR., ARPON, ULPLIANOU., JR., ARREZA, ARTEMIO M., JR., ARROJO, ANTONIO P., ARVISU, ALEXANDER S., ASCAÑ;O, ANTONIO T., ASLAHON,JULAHON P., ASUNCION, VICTOR R., ATANGAN, LORNA S., ATIENZA, ALEXANDER R., BACAL, URSULINO C., BAÑ;AGA,MARLOWE, Z., BANTA, ALBERTO T., BARREDO, JOSE B., BARROS, VICTOR C., BARTOLOME, FELIPE A., BAYSAC,REYNALDO S., BELENO, ANTONIO B., BERNARDO, ROMEO D., BERNAS, MARCIANO S., BOHOL, AUXILIADOR G., BRAVO,VICTOR M., BULEG, BALILIS R., CALNEA, MERCEDES M., CALVO, HONESTO G., CAMACHO, CARLOS V., CAMPOS,

RODOLFO C., CAPULONG, RODRIGO G., CARINGAL, GRACIA Z., CARLOS, LORENZO B., CARRANTO, FIDEL U.,CARUNGCONG, ALFREDO M., CASTRO, PATRICIA J., CATELO, ROGELIO B., CATURLA, MANUEL B., CENIZAL, JOSEFINA F.,CINCO, LUISITO, CONDE0, JOSE C., JR., CORCUERA, FIDEL S., CORNETA, VICENTE S., CORONADO, RICARDO S., CRUZ,EDUARDO S., CRUZ, EDILBERTO A., CRUZ, EFIGENIA B., CRUZADO, MARCIAL C., CUSTODIO, RODOLFO M., DABON,NORMA M., DALINDIN, EDNA MAE D., DANDAL, EDEN F., DATUHARON, SATA A., DAZO, GODOFREDO L., DE CASTRO,LEOPAPA, DE GUZMAN, ANTONIO A., DE GUZMAN, RENATO E., DE LA CRUZ, AMADO A., JR., DE LA CRUZ, FRANCISCO C.,DE LA PEÑ;A, LEONARDO, DEL CAMPO, ORLANDO, DEL RIO, MAMERTO P., JR., DEMESA, WILHELMINA T., DIMAKUTA,SALIC L., DIZON, FELICITAS A., DOCTOR, HEIDY M., DOLAR, GLICERIO R., DOMINGO, NICANOR J., DOMINGO, PERFECTOV., JR., DUAY, JUANA G., DYSANGCO, RENATO F., EDILLOR, ALFREDO P., ELEVAZO, LEONARDO A., ESCUYOS, MANUELM., JR., ESMERIA, ANTONIO E., ESPALDON, MA. LOURDES H., ESPINA, FRANCO A., ESTURCO, RODOLFO C., EVANGELINO,FERMIN I., FELIX, ERNESTO G., FERNANDEZ, ANDREW M., FERRAREN, ANTONIO C., FERRERA, WENCESLAO A.,FRANCISCO, PELAGIO S., JR., FUENTES, RUDY L., GAGALANG, RENATO V., GALANG, EDGARDO R., GAMBOA, ANTONIO

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C., GAN, ALBERTO R., GARCIA, GILBERT M., GARCIA, EDNA V., GARCIA, JUAN L., GAVIOLA, LILIAN V., GEMPARO,SEGUNDINA G., GOBENCIONG, FLORDELIZ B., GRATE, FREDERICK R., GREGORIO, LAURO P., GUARTICO, AMMON H.,GUIANG, MYRNA N., GUINTO, DELFIN C., HERNANDEZ, LUCAS A., HONRALES, LORETO N., HUERTO, LEOPOLDO H., HULAR, LANNYROSS E., IBAÑ;EZ, ESTER C., ILAGAN, HONORATO C., INFANTE, REYNALDO C., ISAIS, RAY C., ISMAEL, HADJIAKRAM B., JANOLO, VIRGILIO M., JAVIER, AMADOR L., JAVIER, ROBERTO S., JAVIER, WILLIAM R., JOVEN, MEMIA A.,JULIAN, REYNALDO V., JUMAMOY, ABUNDIO A., JUMAQUIAO, DOMINGO F., KAINDOY, PASCUAL B., JR., KOH, NANIE G.,LABILLES, ERNESTO S., LABRADOR, WILFREDO M., LAGA, BIENVENIDO M., LAGLEVA, PACIFICO Z., LAGMAN,

EVANGELINE G., LAMPONG, WILFREDO G., LANDICHO, RESTITUTO A., LAPITAN, CAMILO M., LAURENTE, REYNALDO A.,LICARTE, EVARISTO R., LIPIO, VICTOR O., LITTAUA, FRANKLIN Z., LOPEZ, MELENCIO L., LUMBA, OLIVIA., MACAISA,BENITO T., MACAISA, ERLINDA C., MAGAT, ELPIDIO, MAGLAYA, FERNANDO P., MALABANAN, ALFREDO C., MALIBIRAN,ROSITA D., MALIJAN, LAZARO V., MALLI, JAVIER M., MANAHAN, RAMON S., MANUEL, ELPIDIO R., MARAVILLA, GIL B.,MARCELO, GIL C., MARIÑ;AS, RODOLFO V., MAROKET, JESUS C., MARTIN, NEMENCIO A., MARTINEZ, ROMEO M.,MARTINEZ, ROSELINA M., MATIBAG, ANGELINA G., MATUGAS, ERNESTO T., MATUGAS, FRANCISCO T., MAYUGA, PORTIAE., MEDINA, NESTOR M., MEDINA, ROLANDO S., MENDAVIA, AVELINO I., MENDOZA, POTENCIANO G., MIL, RAY M.,MIRAVALLES, ANASTACIA L., MONFORTE, EUGENIO, JR., G., MONTANO, ERNESTO F., MONTERO, JUAN M. III., MORALDE,ESMERALDO B., JR., MORALES, CONCHITA D.L., MORALES, NESTOR P., MORALES, SHIRLEY S., MUNAR, JUANITA L.,MUÑ;OZ, VICENTE R., MURILLO, MANUEL M., NACION, PEDRO R., NAGAL, HENRY N., NAPA, CORNELIO B., NAVARRO,HENRY L., NEJAL, FREDRICK E., NICOLAS, REYNALDO S., NIEVES, RUFINO A., OLAIVAR, SEBASTIAN T., OLEGARIO, LEOQ., ORTEGA, ARLENE R., ORTEGA, JESUS R., OSORIO, ABNER S., PAPIO, FLORENTINO T. II, PASCUA, ARNULFO A.,PASTOR, ROSARIO, PELAYO, ROSARIO L., PEÑ;A, AIDA C., PEREZ, ESPERIDION B., PEREZ, JESUS BAYANI M., PRE,ISIDRO A., PRUDENCIADO, EULOGIA S., PUNZALAN, LAMBERTO N., PURA, ARNOLD T., QUINONES, EDGARDO I., QUINTOS,AMADEO C., JR., QUIRAY, NICOLAS C., RAMIREZ, ROBERTO P., RAÑ;ADA, RODRIGO C., RARAS, ANTONIO A., RAVAL,

VIOLETA V., RAZAL, BETTY R., REGALA, PONCE F., REYES, LIBERATO R., REYES, MANUEL E., REYES, NORMA Z., REYES,TELESFORO F., RIVERA, ROSITA L., ROCES, ROBERTO V., ROQUE, TERESITA S., ROSANES, MARILOU M., ROSETE, ADANI., RUANTO, REY, CRISTO C., JR., SABLADA, PASCASIO G., SALAZAR, SILVERIA S., SALAZAR, VICTORIA A., SALIMBACOD,PERLITA C., SALMINGO, LOURDES M., SANTIAGO, EMELITA B., SATINA, PORFIRIO C., SEKITO, COSME B., JR., SIMON,RAMON P., SINGSON, MELECIO C., SORIANO, ANGELO L., SORIANO, MAGDALENA R., SUMULONG, ISIDRO L., JR., SUNICO,ABELARDO T., TABIJE, EMMA B., TAN, RUDY, GOROSPE, TAN, ESTER S., TAN, JULITA S., TECSON, BEATRIZ B.,TOLENTINO, BENIGNO A., TURINGAN, ENRICO T., JR., UMPA, ALI A., VALIC, LUCIO E., VASQUEZ, NICANOR B., VELARDE,EDGARDO C., VERA, AVELINO A., VERAME, OSCAR E., VIADO, LILIAN T., VIERNES, NAPOLEON K., VILLALON, DENNIS A.,VILLAR, LUZ L., VILLALUZ, EMELITO V., ZATA, ANGEL A., JR., ACHARON, CRISTETO, ALBA, RENATO B., AMON, JULITA C.,AUSTRIA, ERNESTO C., CALO, RAYMUNDO M., CENTENO, BENJAMIN R., DE CASTRO, LEOPAPA C ., DONATO, ESTELITAP., DONATO, FELIPE S., FLORES, PEDRITO S., GALAROSA, RENATO, MALAWI, MAUYAG, MONTENEGRO, FRANCISCO M.,OMEGA, PETRONILO T., SANTOS, GUILLERMO F., TEMPLO, CELSO, VALDERAMA, JAIME B., and VALDEZ, NORAM., respondents.

G.R. No. 85335 August 8, 1989

FRANKLIN Z. LITTAUA, ADAN I. ROSETE, FRANCISCO T. MATUGAS, MA. J. ANGELINA G. MATIBAG, LEODEGARDIO H.FLORESCA, LEONARDO A. DELA PEÑ;A, ABELARDO T. SUNICO, MELENCIO L. LOPEZ, NEMENCIO A. MARTIN, RUDY M.AMISTAD, ERNESTO T. MATUGAS, SILVERIA S. SALAZAR, LILLIAN V. GAVIOLA, MILAGROS ANOLIN, JOSE B. ORTIZ,ARTEMIO ARREZA, JR., GILVERTO M. GARCIA, ANTONIO A. RARAS, FLORDELINA B. GOBENCIONG, ANICETO AGRES,EDGAR Y. QUINONES, MANUEL B. CATURLA, ELY F. ABIOG, RODRIGO C. RANADA, LAURO GREGORIO, ALBERTO I. GAN,EDGARDO GALANG, RAY C. ISAIS, NICANOR B. VASQUEZ, MANUEL ESCUYOS, JR., ANTONIO B. BELENO, ELPIO R.MANUEL, AUXILIADOR C. BOHOL, LEONARDO ELEVAZO, VICENTE S. CORNETA, petitioners,vs.COM. SALVADOR M. MISON/BUREAU OF CUSTOMS and the CIVIL SERVICE COMMISSION, respondents.

G.R. No. 86241 August 8, 1989

SALVADOR M. MISON, in his capacity as Commissioner of Customs, petitioner,vs.CIVIL SERVICE COMMISSION, SENEN S. DIMAGUILA, ROMEO P. ARABE BERNARDO S. QUINTONG, GREGORIO P. REYES,and ROMULO C. BADILLO respondents

SARMIENTO, J .:

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The Court writes finis to this contreversy that has raged bitterly for the several months. It does so out of ligitimate presentement of mosuits reaching it as a consequence of the government reorganization and the instability it has wrought on the performance anefficiency of the bureaucracy. The Court is apprehensive that unless the final word is given and the ground rules are settled, the issuwill fester, and likely foment on the constitutional crisis for the nation, itself biset with grave and serious problems.

The facts are not in dispute.

On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TIMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONACONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION.Among other things, Proclamation No. 3 provided:

SECTION 1. ...

The President shall give priority to measures to achieve the mandate of the people to:

(a) Completely reorganize the government, eradicate unjust and oppressive structures, and all iniquitous vestiges othe previous regime; 1

. . .

Pursuant thereto, it was also provided:

SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, anthe eradication of graft and corruption.

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office untotherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such made within a period of one year from February 25, 1986.

SECTION 3. Any public officer or employee separated from the service as a result of the organization effected under thiProclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.

SECTION 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefullpreserved. In case any office or body is abolished or reorganized pursuant to this Proclamation, its FUNDS and propertieshall be transferred to the office or body to which its powers, functions and responsibilities substantially pertain.2

Actually, the reorganization process started as early as February 25, 1986, when the President, in her first act in office, called upon "aappointive public officials to submit their courtesy resignation(s) beginning with the members of the Supreme Court."3 Later on, sheabolished the Batasang Pambansa4 and the positions of Prime Minister and Cabinet 5 under the 1973 Constitution.

Since then, the President has issued a number of executive orders and directives reorganizing various other government offices, anumber of which, with respect to elected local officials, has been challenged in this Court, 6and two of which, with respect to appointefunctionaries, have likewise been questioned herein. 7

On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THIMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized th"unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government reorganization hagenerated, and prescribed as "grounds for the separation/replacement of personnel," the following:

SECTION 3. The following shall be the grounds for separation replacement of personnel:

1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by thMnistry Head concerned;

3) Gross incompetence or inefficiency in the discharge of functions;

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4. PACIFICO LAGLEVA

5. JULIAN C. ESPIRITU

6. DENNIS A. AZARRAGA

7. RENATO DE JESUS

8. NICASIO C. GAMBOA

9. CORAZON RALLOS NIEVES

10. FELICITACION R. GELUZ

11. LEODEGARIO H. FLORESCA

12. SUBAER PACASUM

13. ZENAIDA LANARIA

14. JOSE B. ORTIZ

15. GLICERIO R. DOLAR

16. CORNELIO NAPA

17. PABLO B. SANTOS

18. FERMIN RODRIGUEZ

19. DALISAY BAUTISTA

20. LEONARDO JOSE

21. ALBERTO LONTOK

22. PORFIRIO TABINO

23. JOSE BARREDO

24. ROBERTO ARNALDO

25. ESTER TAN

26. PEDRO BAKAL

27. ROSARIO DAVID

28. RODOLFO AFUANG

29. LORENZO CATRE

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30. LEONCIA CATRE

31. ROBERTO ABADA

32. ABACA, SISINIO T.

33. ABAD, ROGELIO C.

34. ABADIANO, JOSE P

35. ABCEDE, NEMECIO C.

36. ABIOG, ELY F.

37. ABLAZA, AURORA M.

38. AGBAYANI, NELSON I.

39. AGRES, ANICETO

40. AGUILAR, FLOR

41. AGUILUCHO, MA. TERESA R.

42. AGUSTIN, BONIFACIO T.

43. ALANO, ALEX P.

44. ALBA, MAXIMO F. JR.

45. ALBANO, ROBERT B.

46. ALCANTARA, JOSE G.

47. ALMARIO, RODOLFO F.

48. ALVEZ, ROMUALDO R.

49. AMISTAD, RUDY M.

50. AMOS, FRANCIS F.

51. ANDRES, RODRIGO V.

52. ANGELES, RICARDO S.

53. ANOLIN, MILAGROS H.

54. AQUINO, PASCASIO E. L.

55. ARABE, MELINDA M.

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56. ARCANGEL, AGUSTIN S, JR.

57. ARPON, ULPIANO U., JR.

58. ARREZA, ARTEMIO M, JR.

59. ARROJO, ANTONIO P.

60. ARVISU, ALEXANDER S.

61. ASCAÑ;O, ANTONIO T.

62. ASLAHON, JULAHON P.

63. ASUNCION, VICTOR R.

64. ATANGAN, LORNA S.

65. ANTIENZA, ALEXANDER R.

66. BACAL URSULINO C.

67. BAÑ;AGA, MARLOWE Z.

68. BANTA, ALBERTO T.

69. BARROS, VICTOR C.

70. BARTOLOME, FELIPE A.

71. BAYSAC, REYNALDO S.

72. BELENO, ANTONIO B.

73. BERNARDO, ROMEO D.

74. BERNAS, MARCIANO S.

75. BOHOL, AUXILIADOR G.

76. BRAVO, VICTOR M.

77. BULEG, BALILIS R.

78. CALNEA, MERCEDES M.

79. CALVO, HONESTO G.

80. CAMACHO, CARLOS V.

81. CAMPOS, RODOLFO C.

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82. CAPULONG, RODRIGO G.

83. CARINGAL, GRACIA Z.

84. CARLOS, LORENZO B.

85. CARRANTO, FIDEL U.

86. CARUNGCONG, ALFREDO M.

87. CASTRO, PATRICIA J.

88. CATELO, ROGELIO B.

89. CATURLA, MANUEL B.

90. CENIZAL, JOSEFINA F.

91. CINCO, LUISITO

92. CONDE, JOSE C., JR.

93. CORCUERA, FIDEL S.

94. CORNETA, VICENTE S.

95. CORONADO, RICARDO S.

96. CRUZ, EDUARDO S.

97. CRUZ, EDILBERTO A,

98. CRUZ, EFIGENIA B.

99. CRUZADO,NORMA M.

100. CUSTODIO, RODOLFO M.

101. DABON, NORMA M.

102. DALINDIN, EDNA MAE D.

103. DANDAL, EDEN F.

104. DATUHARON, SATA A.

105. DAZO, GODOFREDO L.

106. DE CASTRO, LEOPAPA

107. DE GUZMAN, ANTONIO A.

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108. DE GUZMAN, RENATO E.

109. DE LA CRUZ, AMADO A., JR.

110. DE LA CRUZ, FRANCISCO C.

111. DE LA PEÑ;A, LEONARDO

112. DEL CAMPO, ORLANDO

113. DEL RIO, MAMERTO P., JR.

114. DEMESA, WILHELMINA T.

115. DIMAKUTA, SALIC L.

116. DIZON, FELICITAS A.

117. DOCTOR, HEIDY M.

118. DOMINGO, NICANOR J.

119. DOMINGO, PERFECTO V., JR.

120. DUAY, JUANA G.

121. DYSANGCO, RENATO F.

122. EDILLOR, ALFREDO P.

123. ELEVAZO, LEONARDO A

124. ESCUYOS, MANUEL M., JR.

125. ESMERIA, ANTONIO E.

126. ESPALDON, MA. LOURDES H.

127. ESPINA, FRANCO A.

128. ESTURCO, RODOLFO C.

129. EVANGELINO, FERMIN I.

130. FELIX, ERNESTO G.

131. FERNANDEZ, ANDREW M.

132. FERRAREN, ANTONIO C.

133. FERRERA, WENCESLAO A.

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134. FRANCISCO, PELAGIO S, JR.

135. FUENTES, RUDY L.

136. GAGALANG, RENATO V.

137. GALANG, EDGARDO R.

138. GAMBOA, ANTONIO C.

139. GAN, ALBERTO P

140. GARCIA, GILBERT M.

141. GARCIA, EDNA V.

142. GARCIA, JUAN L.

143. GAVIOIA, LILIAN V.

144. GEMPARO, SEGUNDINA G.

145. GOBENCIONG, FLORDELIZ B.

146. GRATE, FREDERICK R.

147. GREGORIO, LAURO P.

148. GUARTICO, AMMON H.

149. GUIANG, MYRNA N.

150. GUINTO, DELFIN C.

151. HERNANDEZ, LUCAS A.

152. HONRALES, LORETO N.

153. HUERTO, LEOPOLDO H.

154. HULAR, LANNYROSS E.

155. IBAÑ;EZ, ESTER C.

156. ILAGAN, HONORATO C.

157. INFANTE, REYNALDO C.

158. ISAIS, RAY C.

159. ISMAEL, HADJI AKRAM B.

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160. JANOLO, VIRGILIO M.

161. JAVIER, AMADOR L.

162. JAVIER, ROBERTO S.

163. JAVIER, WILLIAM R.

164. JOVEN, MEMIA A.

165. JULIAN, REYNALDO V.

166. JUMAMOY, ABUNDIO A.

167. JUMAQUIAO, DOMINGO F.

168. KAINDOY, PASCUAL B., JR.

169. KOH, NANIE G.

170. LABILLES, ERNESTO S.

171. LABRADOR, WILFREDO M.

172. LAGA, BIENVENIDO M.

173. LAGMAN, EVANGELINE G.

174. LAMPONG, WILFREDO G.

175. LANDICHO, RESTITUTO A.

176. LAPITAN, CAMILO M.

177. LAURENTE, REYNALDO A.

178. LICARTE, EVARISTO R.

179. LIPIO, VICTOR O.

180. LITTAUA, FRANKLIN Z.

181. LOPEZ, MELENCIO L.

182. LUMBA, OLIVIA R.

183. MACAISA, BENITO T.

184. MACAISA, ERLINDA C.

185. MAGAT, ELPIDIO

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186. MAGLAYA, FERNANDO P.

187. MALABANAN, ALFREDO C.

188. MALIBIRAN, ROSITA D.

189. MALIJAN, LAZARO V.

190. MALLI, JAVIER M.

191. MANAHAN, RAMON S.

192. MANUEL, ELPIDIO R.

193. MARAVILLA, GIL B.

194. MARCELO, GIL C.

195. MARIÑ;AS, RODOLFO V.

196. MAROKET ,JESUS C.

197. MARTIN, NEMENCIO A.

198. MARTINEZ, ROMEO M.

199. MARTINEZ, ROSELINA M.

200. MATIBAG, ANGELINA G.

201. MATUGAS, ERNESTO T.

202. MATUGAS, FRANCISCO T.

203. MAYUGA, PORTIA E.

204. MEDINA, NESTOR M.

205. MEDINA, ROLANDO S.

206. MENDAVIA, AVELINO

207. MENDOZA, POTENCIANO G.

208. MIL, RAY M.

209. MIRAVALLES, ANASTACIA L.

210. MONFORTE, EUGENIO, JR. G.

211. MONTANO, ERNESTO F.

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212. MONTERO, JUAN M. III

213. MORALDE, ESMERALDO B., JR.

214. MORALES, CONCHITA D. L

215. MORALES, NESTOR P.

216. MORALES, SHIRLEY S.

217. MUNAR, JUANITA L.

218. MUÑ;OZ, VICENTE R.

219. MURILLO, MANUEL M.

220. NACION, PEDRO R.

221. NAGAL, HENRY N.

222. NAVARRO, HENRY L.

223. NEJAL FREDRICK E.

224. NICOLAS, REYNALDO S.

225. NIEVES, RUFINO A.

226. OLAIVAR, SEBASTIAN T.

227. OLEGARIO, LEO Q.

228. ORTEGA, ARLENE R.

229. ORTEGA, JESUS R.

230. OSORIO, ABNER S.

231. PAPIO FLORENTINO T. II

232. PASCUA, ARNULFO A.

233. PASTOR, ROSARIO

234. PELAYO, ROSARIO L.

235. PEÑ;A, AIDA C.

236. PEREZ, ESPERIDION B.

237. PEREZ, JESUS BAYANI M.

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238. PRE, ISIDRO A.

239. PRUDENCIADO, EULOGIA S.

240. PUNZALAN, LAMBERTO N.

241. PURA, ARNOLD T.

242. QUINONES, EDGARDO I.

243. QUINTOS, AMADEO C., JR.

244. QUIRAY, NICOLAS C.

245. RAMIREZ, ROBERTO P.

246. RANADA, RODRIGO C.

247. RARAS, ANTONIO A.

248. RAVAL, VIOLETA V.

249. RAZAL, BETTY R.

250. REGALA, PONCE F.

251. REYES, LIBERATO R.

252. REYES, MANUEL E.

253. REYES, NORMA Z.

254. REYES, TELESPORO F.

255. RIVERA, ROSITA L.

256. ROCES, ROBERTO V.

257. ROQUE, TERESITA S.

258. ROSANES, MARILOU M.

259. ROSETE, ADAN I.

260. RUANTO, REY CRISTO C., JR.

261. SABLADA, PASCASIO G.

262. SALAZAR, SILVERIA S.

263. SALAZAR, VICTORIA A.

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264. SALIMBACOD, PERLITA C.

265. SALMINGO, LOURDES M.

266. SANTIAGO, EMELITA B.

267. SATINA, PORFIRIO C.

268. SEKITO, COSME B JR.

269. SIMON, RAMON P.

270. SINGSON, MELENCIO C.

271. SORIANO, ANGELO L.

272. SORIANO, MAGDALENA R.

273. SUNICO, ABELARDO T .

274. TABIJE, EMMA B.

275. TAN, RUDY GOROSPE

276. TAN, ESTER S.

277. TAN, JULITA S.

278. TECSON, BEATRIZ B.

279. TOLENTINO, BENIGNO A.

280. TURINGAN, ENRICO T JR.

281. UMPA, ALI A.

282. VALIC, LUCIO E.

283. VASQUEZ, NICANOR B.

284. VELARDE, EDGARDO C.

285. VERA, AVELINO A.

286. VERAME, OSCAR E.

287. VIADO, LILIAN T.

288. VIERNES, NAPOLEON K

289. VILLALON, DENNIS A.

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290. VILLAR, LUZ L.

291. VILLALUZ, EMELITO V.

292. VILLAR, LUZ L.

293. ZATA, ANGELA JR.

294. ACHARON, CRISTETO

295. ALBA, RENATO B.

296. AMON, JULITA C.

297. AUSTRIA, ERNESTO C.

298. CALO, RAYMUNDO M.

299. CENTENO, BENJAMIN R.

300. DONATO, ESTELITA P.

301. DONATO, FELIPE S

302. FLORES, PEDRITO S.

303. GALAROSA, RENATO

304. MALAWI, MAUYAG

305. MONTENEGRO, FRANSISCO M.

306. OMEGA, PETRONILO T.

307. SANTOS, GUILLERMO P.

308. TEMPLO, CELSO

309. VALDERAMA, JAIME B.

310. VALDEZ, NORA M.

Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No. 81967; Messrs. Adolfo Caserano PacificLagleva Julian C. Espiritu, Dennis A. Azarraga Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos Nieves anFelicitacion R. Geluz Messrs. Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B. Ortiz, Ms. Gliceria R. DolaMs. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Daligay Bautista, Messrs. Leonardo Jose, Alberto Lontok, Porfirio TabinJose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre,, Ms. LeonciCatre, and Roberto Abaca, are the petitioners in G.R. No. 82023; the last 27916 individuals mentioned are the private respondents inG.R. No. 85310.

As far as the records will likewise reveal, 17 a total of 394 officials and employees of the Bureau of Customs were given individuanotices of separation. A number supposedly sought reinstatement with the Reorganization Appeals Board while others went to the CivService Commission. The first thirty-one mentioned above came directly to this Court.

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On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the reinstatement of the 279 employees, the 27private respondents in G.R. No. 85310, the dispositive portion of which reads as follows:

WHEREFORE, it is hereby ordered that:

1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of Customwithout loss of seniority rights;

2. Appellants be paid their back salaries reckoned from the dates of their illegal termination based on the rates undethe approved new staffing pattern but not lower than their former salaries.

This action of the Commission should not, however, be interpreted as an exoneration of the appellants from any accusation owrongdoing and, therefore, their reappointments are without prejudice to:

1. Proceeding with investigation of appellants with pending administrative cases, and where investigations have beefinished, to promptly, render the appropriate decisions;

2. The filing of appropriate administrative complaints against appellants with derogatory reports or information evidence so warrants.

SO ORDERED. 18

On July 15, 1988, Commissioner Mison, represented by the Solicitor General, filed a motion for reconsideration Acting on the motionthe Civil Service Commission, on September 20, 1988, denied reconsideration.19

On October 20, 1988, Commissioner Mison institutedcertiorari proceedings with this Court, docketed, as above-stated, as G.R. No85310 of this Court.

On November 16,1988, the Civil Service Commission further disposed the appeal (from the resolution of the Reorganization AppealBoard) of five more employees, holding as follows:

WHEREFORE, it is hereby ordered that:

1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of Customwithout loss of seniority rights; and

2. Appellants be paid their back salaries to be reckoned from the date of their illegal termination based on the rateunder the approved new staffing pattern but not lower than their former salaries.

This action of the Commission should not, however, be interpreted as an exoneration of the herein appellants from anaccusation of any wrongdoing and therefore, their reappointments are without prejudice to:

1. Proceeding with investigation of appellants with pending administrative cases, if any, and where investigationhave been finished, to promptly, render the appropriate decisions; and

2. The filing of appropriate administrative complaints against appellant with derogatory reports or information, if an

and if evidence so warrants.

SO ORDERED. 20

On January 6, 1989, Commissioner Mison challenged the Civil Service Commission's Resolution in this Court; his petitioner has beedocketed herein as G.R. No. 86241. The employees ordered to be reinstated are Senen Dimaguila, Romeo Arabe, BemardQuintong,Gregorio Reyes, and Romulo Badillo. 21

On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERSAND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION," 22was signed into law. Under Section 7thereof:

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Sec. 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation of thprovisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and shall bentitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuaand temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid thappropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of theffectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be: ProvideThat application for clearance has been filed and no action thereon has been made by the corresponding department o

agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (month salary for every year of service. Such separation pay and retirement benefits shall have priority of payment out of thsavings of the department or agency concerned. 23

On June 23, 1988, Benedicto Amasa and William Dionisio, customs examiners appointed by Commissioner Mison pursuant to thostensible reorganization subject of this controversy, petitioned the Court to contest the validity of the statute. The petition is docketeas G.R. No. 83737.

On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission had ordered reinstated by its June 30,198Resolution filed their own petition to compel the Commissioner of Customs to comply with the said Resolution. The petition is docketeas G.R. No. 85335.

On November 29, 1988, we resolved to consolidate all seven petitions.

On the same date, we resolved to set the matter for hearing on January 12, 1989. At the said hearing, the parties, represented by thecounsels (a) retired Justice Ruperto Martin; (b) retired Justice Lino Patajo. (c) former Dean Froilan Bacungan (d) Atty. Lester Escoba(e) Atty. Faustino Tugade and (f) Atty. Alexander Padilla, presented their arguments. Solicitor General Francisco Chavez argued obehalf of the Commissioner of Customs (except in G.R. 85335, in which he represented the Bureau of Customs and the Civil ServicCommission).lâwphî1.ñèt Former Senator Ambrosio Padilla also appeared and argued as amicus curiae Thereafter, we resolved to require theparties to submit their respective memoranda which they did in due time.

There is no question that the administration may validly carry out a government reorganization — insofar as these cases arconcerned, the reorganization of the Bureau of Customs — by mandate not only of the Provisional Constitution,supra, but also of thevarious Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority under the 1986-198revolutionary government. It should also be noted that under the present Constitution, there is a recognition, albeit implied, that government reorganization may be legitimately undertaken, subject to certain conditions.24

The Court understands that the parties are agreed on the validity of a reorganization per se the only question being, as shall be lateseen: What is the nature and extent of this government reorganization?

The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain parties tsue, 25 and other technical objections, for two reasons, "[b]ecause of the demands of public interest, including the need for stability the public service,"26 and because of the serious implications of these cases on the administration of the Philippine civil service and thrights of public servants.

The urgings in G.R. Nos. 85335 and 85310, that the Civil Service Commission's Resolution dated June 30, 1988 had attained character of finality for failure of Commissioner Mison to apply for judicial review or ask for reconsideration seasonalbly undePresidential Decree No. 807, 27 or under Republic Act No. 6656, 28 or under the Constitution, 29 are likewise rejected. The records showthat the Bureau of Customs had until July 15, 1988 to ask for reconsideration or come to this Court pursuant to Section 39 Presidential Decree No. 807. The records likewise show that the Solicitor General filed a motion for reconsideration on July 151988.30 The Civil Service Commission issued its Resolution denying reconsideration on September 20, 1988; a copy of this Resolutiowas received by the Bureau on September 23, 1988.31 Hence the Bureau had until October 23, 1988 to elevate the matte

on certiorari to this Court.32 Since the Bureau's petition was filed on October 20, 1988, it was filed on time.

We reject, finally, contentions that the Bureau's petition (in G.R. 85310) raises no jurisdictional questions, and is therefore bereft of anbasis as a petition for certiorari under Rule 65 of the Rules of Court. 33 We find that the questions raised in Commissioner Mison'spetition (in G.R. 85310) are, indeed, proper for certiorari , if by "jurisdictional questions" we mean questions having to do with "anindifferent disregard of the law, arbitrariness and caprice, or omission to weigh pertinent considerations, a decision arrived at withourational deliberation, 34 as distinguished from questions that require "digging into the merits and unearthing errors of judgment35 which isthe office, on the other hand, of review under Rule 45 of the said Rules. What cannot be denied is the fact that the act of the CiService Commission of reinstating hundreds of Customs employees Commissioner Mison had separated, has implications not only othe entire reorganization process decreed no less than by the Provisional Constitution, but on the Philippine bureaucracy in generathese implications are of such a magnitude that it cannot be said that — assuming that the Civil Service Commission erred — thCommission committed a plain "error of judgment" that Aratuc says cannot be corrected by the extraordinary remedy of certiorari or any

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special civil action. We reaffirm the teaching of Aratuc — as regards recourse to this Court with respect to rulings of the Civil ServicCommission — which is that judgments of the Commission may be brought to the Supreme Court throughcertiorari alone, under Rule65 of the Rules of Court.

In Aratuc we declared:

It is once evident from these constitutional and statutory modifications that there is a definite tendency to enhance aninvigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding ofree, peaceful and honest elections. The framers of the new Constitution must be presumed to have definite knowledge owhat it means to make the decisions, orders and rulings of the Commission "subject to review by the Supreme Court'. Ansince instead of maintaining that provision intact, it ordained that the Commission's actuations be instead 'brought to thSupreme Court on certiorari ", We cannot insist that there was no intent to change the nature of the remedy, considering ththe limited scope of certiorari , compared to a review, is well known in remedial law.36

We observe no fundamental difference between the Commission on Elections and the Civil Service Commission (or the Commission oAudit for that matter) in terms of the constitutional intent to leave the constitutional bodies alone in the enforcement of laws relative toelections, with respect to the former, and the civil service, with respect to the latter (or the audit of government accounts, with respect tthe Commission on Audit). As the poll body is the "sole judge"37 of all election cases, so is the Civil Service Commission the singlearbiter of all controversies pertaining to the civil service.

It should also be noted that under the new Constitution, as under the 1973 Charter, "any decision, order, or ruling of each Commissiomay be brought to the Supreme Court oncertiorari ," 38 which, as Aratuc tells us, "technically connotes something less than saying thathe same 'shall be subject to review by the Supreme Court,' " 39 which in turn suggests an appeal by petition for review under Rule 45Therefore, our jurisdiction over cases emanating from the Civil Service Commission is limited to complaints of lack or excess o jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction, complaints that justifycertiorari under Rule 65.

While Republic Act No. 6656 states that judgments of the Commission are "final and executory"40 and hence, unappealable, under Rule65, certiorari precisely lies in the absence of an appeal. 41

Accordingly, we accept Commissioner Mison petition (G.R. No. 85310) which clearly charges the Civil Service Commission with gravabuse of discretion, a proper subject of certiorari , although it may not have so stated in explicit terms.

As to charges that the said petition has been filed out of time, we reiterate that it has been filed seasonably. It is to be stressed that thSolicitor General had thirty days from September 23, 1988 (the date the Resolution, dated September 20,1988, of the Civil Servic

Commission, denying reconsideration, was received) to commence the instantcertiorari proceedings. As we stated, under theConstitution, an aggrieved party has thirty days within which to challenge "any decision, order, or ruling" 42 of the Commission. To saythat the period should be counted from the Solicitor's receipt of the main Resolution, dated June 30, 1988, is to say that he should nhave asked for reconsideration But to say that is to deny him the right to contest (by a motion for reconsideration) any ruling, other thathe main decision, when, precisely, the Constitution gives him such a right. That is also to place him at a "no-win" situation because he did not move for a reconsideration, he would have been faulted for demandingcertiorari too early, under the general rule that amotion for reconsideration should preface a resort to a special civil action. 43 Hence, we must reckon the thirty-day period from receipt othe order of denial.

We come to the merits of these cases.

G.R. Nos. 81954, 81967, 82023, and 85335:

The Case for the Employees

The petitioner in G.R. No. 81954, Cesar Dario was one of the Deputy Commissioners of the Bureau of Customs until his relief on ordeof Commissioner Mison on January 26, 1988. In essence, he questions the legality of his dismiss, which he alleges was upon thauthority of Section 59 of Executive Order No. 127,supra, hereinbelow reproduced as follows:

SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry shalin a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding salarieand benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986or Article III of the Freedom Constitution.

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The new position structure and staffing pattern of the Ministry shall be approved and prescribed by the Minister within onhundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder shall bfilled with regular appointments by him or by the President, as the case may be. Those incumbents whose positions are noincluded therein or who are not reappointed shall be deemed separated from the service. Those separated from the servicshall receive the retirement benefits to which they may be entitled under existing laws, rules and regulations. Otherwise, theshall be paid the equivalent of one month basic salary for every year of service, or the equivalent nearest fraction thereofavorable to them on the basis of highest salary received but in no case shall such payment exceed the equivalent of 1

months salary.

No court or administrative body shall issue any writ of preliminary injunction or restraining order to enjoin thseparation/replacement of any officer or employee effected under this Executive Order.44

a provision he claims the Commissioner could not have legally invoked. He avers that he could not have been legally deemed to be a"[incumbent] whose [position] [is] not included therein or who [is] not reappointed"45 to justify his separation from the service. Hcontends that neither the Executive Order (under the second paragraph of the section) nor the staffing pattern proposed by thSecretary of Finance 46 abolished the office of Deputy Commissioner of Customs, but, rather, increased it to three.47 Nor can it be saidso he further maintains, that he had not been "reappointed" 48 (under the second paragraph of the section) because "[[r]eappointmentherein presupposes that the position to which it refers is a new one in lieu of that which has been abolished or although an existinone, has absorbed that which has been abolished." 49 He claims, finally, that under the Provisional Constitution, the power to dismispublic officials without cause ended on February 25, 1987,50 and that thereafter, public officials enjoyed security of tenure under thprovisions of the 1987 Constitution.51

Like Dario Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy Commissioner at the Bureau until his separation directed bCommissioner Mison. And like Dario he claims that under the 1987 Constitution, he has acquired security of tenure and that he cannobe said to be covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 — during the effectivity the Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING THE POWERS AND FUNCTIONS OF THECOMMISSIONER OF CUSTOMS,"52 the Commissioner of Customs has the power "[t]o appoint all Bureau personnel, except thosappointed by the President," 53 and that his position, which is that of a Presidential appointee, is beyond the control of CommissioneMison for purposes of reorganization.

The petitioners in G.R. No. 82023, collectors and examiners in venous ports of the Philippines, say, on the other hand, that the purposof reorganization is to end corruption at the Bureau of Customs and that since there is no finding that they are guilty of corruption, thecannot be validly dismissed from the service.

The Case for Commissioner Mison

In his comments, the Commissioner relies on this Court's resolution inJose v. Arroyo54 in which the following statement appears in thelast paragraph thereof:

The contention of petitioner that Executive Order No. 127 is violative of the provision of the 1987 Constitution guaranteeincareer civil service employees security of tenure overlooks the provisions of Section 16, Article XVIII (Transitory Provisionswhich explicitly authorize the removal of career civil service employees "not for cause but as a result of the reorganizatiopursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution." Bvirtue of said provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even aftethe ratification of the Constitution, and career civil service employees may be separated from the service without cause as result of such reorganization.55

For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense. He further states that the deadlinprescribed by the Provisional Constitution (February 25, 1987) has been superseded by the 1987 Constitution, specifically, th

transitory provisions thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this very Court has so declarein Jose v. Arroyo. Mison submits that contrary to the employees' argument, Section 59 of Executive Order No. 127 is applicable (iparticular, to Dario and Feria in the sense that retention in the Bureau, under the Executive Order, depends on either retention of thposition in the new staffing pattern or reappointment of the incumbent, and since the dismissed employees had not been reappointedthey had been considered legally separated. Moreover, Mison proffers that under Section 59 incumbents are considered on holdovestatus, "which means that all those positions were considered vacant."57The Solicitor General denies the applicability of PalmaFernandez v. De la Paz 58 because that case supposedly involved a mere transfer and not a separation. He rejects, finally, the force aneffect of Executive Order Nos. 17 and 39 for the reason that Executive Order No. 17, which was meant to implement the ProvisionConstitution, 59had ceased to have force and effect upon the ratification of the 1987 Constitution, and that, under Executive Order N39, the dismissals contemplated were "for cause" while the separations now under question were "not for cause" and were a result ogovernment reorganize organization decreed by Executive Order No. 127. Anent Republic Act No. 6656, he expresses doubts on the

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constitutionality of the grant of retroactivity therein (as regards the reinforcement of security of tenure) since the new Constitution clearallows reorganization after its effectivity.

G.R. Nos. 85310 and 86241

The Position of Commissioner Mison

Commissioner's twin petitions are direct challenges to three rulings of the Civil Service Commission: (1) the Resolution, dated June 301988, reinstating the 265 customs employees above-stated; (2) the Resolution, dated September 20, 1988, denying reconsideratioand (3) the Resolution, dated November 16, 1988, reinstating five employees. The Commissioner's arguments are as follows:

1. The ongoing government reorganization is in the nature of a "progressive"60 reorganization "impelled by the need to overhaul theentire government bureaucracy" 61 following the people power revolution of 1986;

2. There was faithful compliance by the Bureau of the various guidelines issued by the President, in particular, as to deliberation, anselection of personnel for appointment under the new staffing pattern;

3. The separated employees have been, under Section 59 of Executive Order No. 127, on mere holdover standing, "which means thaall positions are declared vacant;" 62

4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory provisions of the 1987 Constitution;

5. Republic Act No. 6656 is of doubtful constitutionality.

The Ruling of the Civil Service Commission

The position of the Civil Service Commission is as follows:

1. Reorganizations occur where there has been a reduction in personnel or redundancy of functions; there is no showing that threorganization in question has been carried out for either purpose — on the contrary, the dismissals now disputed were carried out bmere service of notices;

2. The current Customs reorganization has not been made according to Malacañ;ang guidelines; information on file with thCommission shows that Commissioner Mison has been appointing unqualified personnel;

3. Jose v. Arroyo, in validating Executive Order No. 127, did not countenance illegal removals;

4. Republic Act No. 6656 protects security of tenure in the course of reorganizations.

The Court's ruling

Reorganization, Fundamental Principles of. —

I.

The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We quote:

Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuanto Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shag bentitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of generapplication in force at the time of their separation. In lieul thereof, at the option of the employees, they may be considered femployment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned ocontrolled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in linwith the existing policy, had been accepted. 63

The Court considers the above provision critical for two reasons: (1) It is the only provision — in so far as it mentions removals not focause — that would arguably support the challenged dismissals by mere notice, and (2) It is the single existing law on reorganizatio

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after the ratification of the 1987 Charter, except Republic Act No. 6656, which came much later, on June 10, 1988. [Nota beeExecutive Orders No. 116 (covering the Ministry of Agriculture & Food), 117 (Ministry of Education, Culture & Sports), 119 (Health), 12(Tourism), 123 (Social Welfare & Development), 124 (Public Works & Highways), 125 transportation & Communications), 126 (Labor &Employment), 127 (Finance), 128 (Science & Technology), 129 (Agrarian Reform), 131 (Natural Resources), 132 (Foreign Affairs), an133 (Trade & Industry) were all promulgated on January 30,1987, prior to the adoption of the Constitution on February 2, 1987].64

It is also to be observed that unlike the grants of power to effect reorganizations under the past Constitutions, the above provisio

comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and instrumentalities. Under Section Article XVI, of the 1935 Constitution:

Section 4. All officers and employees in the existing Government of the Philippine Islands shall continue in office until thCongress shall provide otherwise, but all officers whose appointments are by this Constitution vested in the President shavacate their respective office(s) upon the appointment and qualification of their successors, if such appointment is made witha period of one year from the date of the inauguration of the Commonwealth of the Philippines.65

Under Section 9, Article XVII, of the 1973 Charter:

Section 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office unotherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose appointments arby this Constitution vested in the Prime Minister shall vacate their respective offices upon the appointment and qualification otheir successors. 66

The Freedom Constitution is, as earlier seen, couched in similar language:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office untotherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such made within a period of one year from February 25, 1986.67

Other than references to "reorganization following the ratification of this Constitution," there is no provision for "automatic" vacancieunder the 1987 Constitution.

Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten thpassage from the old to the new Constitution free from the "fetters" of due process and security of tenure.

At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a resuof reorganization carried out by reason of economy or to remove redundancy of functions. In the latter case, the Government is obligeto prove good faith.68 In case of removals undertaken to comply with clear and explicit constitutional mandates, the Government is nohard put to prove anything, plainly and simply because the Constitution allows it.

Evidently, the question is whether or not Section 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the Governmento remove career public officials it could have validly done under an "automatic" vacancy-authority and to remove them without rhymeor reason.

As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take the silencof the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a moment's notice.

What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic" vacancy, it should have said so in clear

terms, as its 1935, 1973, and 1986 counterparts had so stated.

The constitutional "lapse" means either one of two things: (1) The Constitution meant to continue the reorganization under the prioCharter (of the Revolutionary Government), in the sense that the latter provides for "automatic" vacancies, or (2) It meant to put a stoto those 'automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two stages of reorganization — the first, to iconferment or authorization under Proclamation No. 3 (Freedom Charter) and the second, to its implementation on its effectivity dat(February 2, 1987).lâwphî1.ñèt But as we asserted, if the intent of Section 16 of Article XVIII of the 1987 Constitution were to extend the effects oreorganize tion under the Freedom Constitution, it should have said so in clear terms. It is illogical why it should talk of two phases reorganization when it could have simply acknowledged the continuing effect of the first reorganization.

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Second, plainly the concern of Section 16 is to ensure compensation for victims" of constitutional revamps — whether under thFreedom or existing Constitution — and only secondarily and impliedly, to allow reorganization. We turn to the records of thConstitutional Commission:

INQUIRY OF MR. PADILLA

On the query of Mr. Padilla whether there is a need for a specific reference to Proclamation No. 3 and not merely state "resuof the reorganization following the ratification of this Constitution', Mr. Suarez, on behalf of the Committee, replied that it necessary, inasmuch as there are two stages of reorganization covered by the Section.

Mr. Padilla pointed out that since the proposal of the Commission on Government Reorganization have not been implementeyet, it would be better to use the phrase "reorganization before or after the ratification of the Constitution' to simplify thSection. Mr. Suarez instead suggested the phrase "as a result of the reorganization effected before or after the ratification othe Constitution' on the understanding that the provision would apply to employees terminated because of the reorganizatiopursuant to Proclamation No. 3 and even those affected by the reorganization during the Marcos regime. Additionally, MSuarez pointed out that it is also for this reason that the Committee specified the two Constitutions the Freedom Constitutio— and the 1986 [1987] Constitution. 69

Simply, the provision benefits career civil service employees separated from the service. And the separation contemplated must be duto or the result of (1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the reorganization from February 1987, and (3) the resignations of career officers tendered in line with the existing policy and which resignations have been acceptedThe phrase "not for cause" is clearly and primarily exclusionary, to exclude those career civil service employees separated "for causeIn other words, in order to be entitled to the benefits granted under Section 16 of Article XVIII of the Constitution of 1987, two requisiteone negative and the other positive, must concur, to wit:

1. the separation must not be for cause, and

2. the separation must be due to any of the three situations mentioned above.

By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987, advanced b jurisprudence to February 2, 1987. 70 It Can only mean, then, that whatever reorganization is taking place is upon the authority of thpresent Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it can not be legitimately stated that we amerely continuing what the revolutionary Constitution of the Revolutionary Government had started. We are through with reorganizatiounder the Freedom Constitution — the first stage. We are on the second stage — that inferred from the provisions of Section 16 o

Article XVIII of the permanent basic document.

This is confirmed not only by the deliberations of the Constitutional Commission,supra, but is apparent from the Charter's own words. also warrants our holding in Esguerra and Palma-Fernandez , in which we categorically declared that after February 2, 1987, incumbenofficials and employees have acquired security of tenure, which is not a deterrent against separation by reorganization under thquondam fundamental law.

Finally, there is the concern of the State to ensure that this reorganization is no "purge" like the execrated reorganizations under martirule. And, of course, we also have the democratic character of the Charter itself.

Commissioner Mison would have had a point, insofar as he contends that the reorganization is open-ended ("progressive"), had it beea reorganization under the revolutionary authority, specifically of the Provisional Constitution. For then, the power to removgovernment employees would have been truly wide ranging and limitless, not only because Proclamation No. 3 permitted it, bubecause of the nature of revolutionary authority itself, its totalitarian tendencies, and the monopoly of power in the men and women wh

wield it.

What must be understood, however, is that notwithstanding her immense revolutionary powers, the President was, neverthelesmagnanimous in her rule. This is apparent from Executive Order No. 17, which established safeguards against the strong arm anruthless propensity that accompanies reorganizations — notwithstanding the fact that removals arising therefrom were "not for causeand in spite of the fact that such removals would have been valid and unquestionable. Despite that, the Chief Executive saw, as wsaid, the "unnecessary anxiety and demoralization" in the government rank and file that reorganization was causing, and prescribeguidelines for personnel action. Specifically, she said on May 28, 1986:

WHEREAS, in order to obviate unnecessary anxiety and demoralization among the deserving officials and employeesparticularly in the career civil service, it is necessary to prescribe the rules and regulations for implementing the saiconstitutional provision to protect career civil servants whose qualifications and performance meet the standards of servic

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demanded by the New Government, and to ensure that only those found corrupt, inefficient and undeserving are separatefrom the government service; 71

Noteworthy is the injunction embodied in the Executive Order that dismissals should be made on the basis of findings of inefficiencygraft, and unfitness to render public service.*

The President's Memorandum of October 14, 1987 should furthermore be considered. We quote, in part:

Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further layofthis year of personnel as a result of the government reorganization. 72

Assuming, then, that this reorganization allows removals "not for cause" in a manner that would have been permissible in revolutionary setting as Commissioner Mison so purports, it would seem that the Commissioner would have been powerless, in anevent, to order dismissals at the Customs Bureau left and right. Hence, even if we accepted his "progressive" reorganization theory, hwould still have to come to terms with the Chief Executive's subsequent directives moderating the revolutionary authority's plenarpower to separate government officials and employees.

Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v. Arroyo, clarified. —

The controversy seems to be that we have, ourselves, supposedly extended the effects of government reorganization under th

Provisional Constitution to the regime of the 1987 Constitution.Jose v. Arroyo73 is said to be the authority for this argument. Evidently, Arroyo indeed so ruled, Arroyo would be inconsistent with the earlier pronouncement of Esguerra and the later holding of PalmaFernandez. The question, however, is: Did Arroyo, in fact, extend the effects of reorganization under the revolutionary Charter to thera of the new Constitution?

There are a few points about Arroyo that have to be explained. First, the opinion expressed therein that "[b]y virtue of said provision threorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of this constitution ancareer civil service employees may be separated from the service without cause as a result of such reorganization" 74 is in the nature oan obiter dictum. We dismissed Jose's petition 75 primarily because it was "clearly premature, speculative, and purely anticipatorybased merely on newspaper reports which do not show any direct or threatened injury,"76 it appearing that the reorganization of thBureau of Customs had not been, then, set in motion. Jose therefore had no cause for complaint, which was enough basis to dismisthe petition. The remark anent separation "without cause" was therefore not necessary for the disposition of the case. InMorales vParades,77 it was held that an obiter dictum "lacks the force of an adjudication and should not ordinarily be regarded as such."78

Secondly, Arroyo is an unsigned resolution while Palma Fernandez is a full-blown decision, although both areen banc cases. While aresolution of the Court is no less forceful than a decision, the latter has a special weight.

Thirdly, Palma-Fernandez v. De la Paz comes as a later doctrine. (Jose v. Arroyo was promulgated on August 11, 1987 while PalmaFernandez was decided on August 31, 1987.) It is well-established that a later judgment supersedes a prior one in case of ainconsistency.

As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the first stage beinthe reorganization under Proclamation No. 3 — which had already been consummated — the second stage being that adverted to the transitory provisions themselves — which is underway. Hence, when we spoke, in Arroyo, of reorganization after the effectivity othe new Constitution, we referred to the second stage of the reorganization. Accordingly, we cannot be said to have carried overeorganization under the Freedom Constitution to its 1987 counterpart.

Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or Esguerra).

As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stern as reorganization under the prioCharter. Whereas the latter, sans the President's subsequently imposed constraints, envisioned a purgation, the same cannot be saof the reorganization inferred under the new Constitution because, precisely, the new Constitution seeks to usher in a democratregime. But even if we concede ex gratia argumenti that Section 16 is an exception to due process and no-removal-"except for causeprovided by law" principles enshrined in the very same 1987 Constitution, 79 which may possibly justify removals "not for cause," there ino contradiction in terms here because, while the former Constitution left the axe to fall where it might, the present organic act requirethat removals "not for cause" must be as a result of reorganization. As we observed, the Constitution does not provide for "automaticvacancies. It must also pass the test of good faith — a test not obviously required under the revolutionary government formerlprevailing, but a test well-established in democratic societies and in this government under a democratic Charter.

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When, therefore, Arroyo permitted a reorganization under Executive Order No. 127 after the ratification of the 198Constitution, Arroyo permitted a reorganization provided that it is done in good faith. Otherwise, security of tenure would be ainsuperable implement. 80

Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith.81 As a general rule, areorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, ndismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security

tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done fpolitical reasons or purposely to defeat sty of tenure, or otherwise not in good faith, no valid "abolition' takes place and whateve"abolition' is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, 82 owhere claims of economy are belied by the existence of ample funds.83

It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence, imposing "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for cause," if by "cause" wrefer to "grounds" or conditions that call for disciplinary action.**

Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case.However, undeRepublic Act No. 6656, we are told:

SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice anhearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished orendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the serviceor other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may bconsidered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatemenor reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffinpattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially thsame functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointmenperformance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and threclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order oseparation provided in Section 3 hereof. 84

It is in light hereof that we take up questions about Commissioner Mison's good faith, or lack of it.

Reorganization of the Bureau of Customs,Lack of Good Faith in. —

The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy — except for the change of personn— has occurred, which would have justified (an things being equal) the contested dismisses. The contention that the staffing pattern athe Bureau (which would have furnished a justification for a personnel movement) is the same s pattern prescribed by Section 34 oExecutive Order No. 127 already prevailing when Commissioner Mison took over the Customs helm, has not been successfullcontradicted 85There is no showing that legitimate structural changes have been made — or a reorganization actually undertaken, fothat matter — at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and firemployees. There can therefore be no actual reorganization to speak of, in the sense, say, of reduction of personnel, consolidation offices, or abolition thereof by reason of economy or redundancy of functions, but a revamp of personnel pure and simple.

The records indeed show that Commissioner Mison separated about 394 Customs personnel but replaced them with 522 as of Augus18, 1988. 86 This betrays a clear intent to "pack" the Bureau of Customs. He did so, furthermore, in defiance of the President's directivto halt further layoffs as a consequence of reorganization. 87Finally, he was aware that layoffs should observe the procedure laid downby Executive Order No. 17.

We are not, of course, striking down Executive Order No. 127 for repugnancy to the Constitution. While the act is valid, still and all, thmeans with which it was implemented is not. 88

Executive Order No. 127, Specific Case of. —

With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof, "[t]hose incumbents whospositions are not included therein or who are not reappointed shall be deemed separated from the service." He submits that becausthe 394 removed personnel have not been "reappointed," they are considered terminated. To begin with, the Commissionerappointing power is subject to the provisions of Executive Order No. 39. Under Executive Order No. 39, the Commissioner of Custommay "appoint all Bureau personnel, except those appointed by the President."89

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Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have validterminated them, they being Presidential appointees.

Secondly, and as we have asserted, Section 59 has been rendered inoperative according to our holding inPalma-Fernandez.

That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean that thpositions held by them had become vacant. InPalma-Fernandez , we said in no uncertain terms:

The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she continuein the performance of her duties merely in a hold over capacity and could be transferred to another position without violatinany of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitatreorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to February 21987 when the 1987 Constitution became effective (De Leon. et al., vs. Hon. Benjamin B. Esquerra, et. al., G.R. No. 78059, 3August 1987). After the said date the provisions of the latter on security of tenure govern.90

It should be seen, finally, that we are not barring Commissioner Mison from carrying out a reorganization under the transitory provisionof the 1987 Constitution. But such a reorganization should be subject to the criterion of good faith.

Resume. —

In resume, we restate as follows:

1. The President could have validly removed government employees, elected or appointed, without cause but only before the effectivitof the 1987 Constitution on February 2, 1987 (De Leon v. Esguerra,supra; Palma-Fernandez vs. De la Paz, supra); in this connectionSection 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination;

2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given reemploymenopportunities (CONST. [1987], art. XVIII, sec. 16; Rep. Act No. 6656, sec. 9);

3. From February 2, 1987, the State does not lose the right to reorganize the Government resulting in the separation of career civservice employees [CONST. (1987), supra] provided, that such a reorganization is made in good faith.(Rep. Act No. 6656, supra.)

G.R. No. 83737

This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a challenge to the validity of Republic Act No6656. In brief, it is argued that the Act, insofar as it strengthens security of tenure91 and as far as it provides for a retroactiveeffect, 92 runs counter to the transitory provisions of the new Constitution on removals not for cause.

It can be seen that the Act, insofar as it provides for reinstatament of employees separated without "a valid cause and after due noticand hearing" 93 is not contrary to the transitory provisions of the new Constitution. The Court reiterates that although the Chartertransitory provisions mention separations "not for cause," separations thereunder must nevertheless be on account of a valreorganization and which do not come about automatically. Otherwise, security of tenure may be invoked. Moreover, it can be seen thathe statute itself recognizes removals without cause. However, it also acknowledges the possibility of the leadership using the artifice reorganization to frustrate security of tenure. For this reason, it has installed safeguards. There is nothing unconstitutional about thAct.

We recognize the injury Commissioner Mison's replacements would sustain. We also commisserate with them. But our concern is th

greater wrong inflicted on the dismissed employees on account of their regal separation from the civil service.

WHEREFORE, THE RESOLUTIONS OF THE CIVIL SERVICE COMMISSION, DATED JUNE 30, 1988, SEPTEMBER 20, 1988NOVEMBER 16, 1988, INVOLVED IN G.R. NOS. 85310, 85335, AND 86241, AND MAY 8, 1989, INVOLVED IN G.R. NO. 85310, ARAFFIRMED.

THE PETITIONS IN G.R. NOS. 81954, 81967, 82023, AND 85335 ARE GRANTED. THE PETITIONS IN G.R. NOS. 83737, 8531AND 86241 ARE DISMISSED.

THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE EMPLOYEES SEPARATED AS A RESULT OF HISNOTICES DATED JANUARY 26, 1988.

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THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE APPOINTED AS REPLACEMENTS ARE ORDERED TO VACATTHEIR POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS THAT MAY BE PROVIDED BY LAW.

NO COSTS.

IT IS SO ORDERED.

Gutierrez, Jr., Paras, Gancayco, Bidin, Cortes, Griñ;o-Aquino and Medialdea, JJ., concur.

Padilla, J., took no part.

Separate Opinions

CRUZ, J., concurring:

I concur with the majority view so ably presented by Mr. Justice Abraham F. Sarmiento. While additional comments may seemsuperfluous in view of the exhaustiveness of his ponencia, I nevertheless offer the following brief observations for whatever they ma

be worth.

Emphasizing Article XVII, Section 16 of the Constitution, the dissenting opinion considers the ongoing government reorganization valibecause it is merely a continuation of the reorganization begun during the transition period. The reason for this conclusion is the phras"and the reorganization following the ratification of the Constitution," that is to say, after February 2, 1987, appearing in the saprovision. The consequence (and I hope I have not misread it) is that the present reorganization may still be undertaken with the sam"absoluteness" that was allowed the revolutionary reorganization although the Freedom Constitution is no longer in force.

Reorganization of the government may be required by the legislature even independently of specific constitutional authorization, as ithe case, for example, of R.A. No. 51 and B.P. No. 129. Being revolutionary in nature, the reorganization decreed by Article III of tFreedom Constitution was unlimited as to its method except only as it was later restricted by President Aquino herself through variouissuances, particularly E.O. No. 17. But this reorganization, for all its permitted summariness, was not indefinite. Under Section 3 of thsaid Article III, it was allowed only up to February 29,1987 (which we advanced to February 2, 1987, when the new Constitutiobecame effective).

The clear implication is that any government reorganization that may be undertaken thereafter must be authorized by the legislatuonly and may not be allowed the special liberties and protection enjoyed by the revolutionary reorganization. Otherwise, there woulhave been no necessity at all for the time limitation expressly prescribed by the Freedom Constitution.

I cannot accept the view that Section 16 is an authorization for the open-ended reorganization of the government "following thratification of the Constitution." I read the provision as merely conferring benefits — deservedly or not — on persons separated from thgovernment as a result of the reorganization of the government, whether undertaken during the transition period or as a result of a lawpassed thereafter. What the grants is privileges to the retirees, not power to the provision government. It is axiomatic that grants opower are not lightly inferred, especially if these impinge on individual rights, and I do not see why we should depart from this rule.

To hold that the present reorganization is a continuation of the one begun during the transition period is to recognize the theory of thepublic respondent that all officers and employees not separated earlier remain in a hold-over capacity only and so may be replacedaany time even without cause. That is a dangerous proposition that threatens the security and stability of every civil servant in th

executive department. What is worse is that this situation may continueindefinitely as the claimed "progressive" reorganization has nolimitation as to time.

Removal imports the forcible separation of the incumbent before the expiration of his term and can be done only for cause as provideby law. Contrary to common belief, a reorganization does not result in removal but in a different mode of terminating official relationknown as abolition of the office (and the security of tenure attached thereto.) The erstwhile holder of the abolished office cannot claimhe has been removed without cause in violation of his constitutional security of tenure. The reason is that the right itself hadisappeared with the abolished office as an accessory following the principal. (Ocampo v. Sec. of Justice, 51 O.G. 147; De la Llana Alba, 112 SCRA 294; Manalang v. Quitoriano, 94 Phil. 903.)

This notwithstanding, the power to reorganize is not unlimited. It is essential that it be based on a valid purpose, such as the promotioof efficiency and economy in the government through a pruning of offices or the streamlining of their functions. (Cervantes v. Audito

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General, 91 Phil. 359.) Normally, a reorganization cannot be validly undertaken as a means of purging the undesirables for this woulbe a removal in disguise undertaken enmasse to circumvent the constitutional requirement of legal cause. (Eradication of graft ancorruption was one of the expressed purposes of the revolutionary organization, but this was authorized by the Freedom Constitutioitself.) In short, a reorganization, to be valid, must be done in good faith. (Urgelio v. Osmena, 9 SCRA 317; Cuneta v. Court of Appeal1 SCRA 663; Carino v. ACCFA, 18 SCRA 183.)

A mere recitation — no matter how lengthy — of the directives, guidelines, memoranda, etc. issued by the government and the actio

purportedly taken thereunder does not by itself prove good faith. We know only too well that these instructions, for all their noble ansterile purposes, are rarely followed in their actual implementation. The reality in this case, as the majority opinion has pointed out anas clearly established in the hearing we held, is that the supposed reorganization was undertaken with an eye not to achieving thavowed objectives but to accommodating new appointees at the expense of the dislodged petitioners. That was also the finding of thCivil Service Commission, to which we must accord a becoming respect as the constitutional office charged with the protection of thcivil service from the evils of the spoils system.

The present administration deserves full support in its desire to improve the civil service, but this objective must be pursued in a manneconsistent with the Constitution. This praiseworthy purpose cannot be accomplished by an indiscriminate reorganization that will sweein its wake the innocent along with the redundant and inept, for the benefit of the current favorites.

MELENCIO-HERRERA, J., dissenting:

The historical underpinnings of Government efforts at reorganization hark back to the people power phenomenon of 22-24 Februar1986, and Proclamation No. 1 of President Corazon C. Aquino, issued on 25 February 1986, stating in no uncertain terms that "thpeople expect a reorganization of government." In its wake followed Executive Order No. 5, issued on 12 March 1986, "Creating Presidential Commission on Government Reorganization," with the following relevant provisions:

WHEREAS, there is need to effect the necessary and proper changes in the organizational and functional structures of thnational and local governments, its agencies and instrumentalities, including government-owned and controlled corporationand their subsidiaries, in order to promote economy, efficiency and effectiveness in the delivery of public services

xxx xxx xxx

Section 2. The functional jurisdiction of the PCGR shall encompass, as necessary, thereorganization of the national and locagovernments, its agencies and instrumentalities including government-owned or controlled corporations and their subsidiaries

xxx xxx xxx (Emphasis supplied)

Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as the Freedom Constitution, declaring, in part, in itPreamble as follows:

WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the completreorganization of the government , ... (Emphasis supplied)

and pertinently providing:

ARTICLE II

Section I

xxx xxx xxx


(a) Completely reorganize the government and eradicate unjust and oppressive structures, and all iniquitous vestigeof the previous regime;" (Emphasis supplied)

xxx xxx xxx

ARTICLE III — GOVERNMENT REORGANIZATION

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Section 2. All elective and appointive officials and employees under the 1973 Constitutionshall continue in office untiotherwise provided by proclamation or executive order or upon the designation or appointment and qualification of theirsuccessors, if such is made within a period of one year from February 25, 1986.

Section 3. Any public office or employee separated from the service as a result of the reorganization effected under thProclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunde(Emphasis ours)

On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and Regulations for the Implementation of Section 2, Article Iof the Freedom Constitution' providing, inter alia, as follows:

Section 1. In the course of implementing Article III, Section 2 of the Freedom Constitution, the Head of each Ministry shall seto it that the separation or replacement of officers and employees is madeonly for justifiable reasons, to prevent indiscriminatedismissal, of personnel in the career civil service whose qualifications and performance meet the standards of public service othe New Government.

xxx xxx xxx

The Ministry concerned shall adopt its own rules and procedures for the review and assessment of its own personneincluding the identification of sensitive positions which require more rigid assessment of the incumbents, and shall complet

such review/assessment as expeditiously as possible but not later than February 24, 1987 to prevent undue demoralization inthe public service.

Section 2. The Ministry Head concerned, on the basis of such review and assessment shall determine who shall be separatefrom the service. Thereafter, he shall issue to the official or employee concerned anotice of separation which shall indicatetherein the reason/s or ground /s for such separation and the fact that the separated official or employee has the right to file petition for reconsideration pursuant to this Order. Separation from the service shall be effective upon receipt of such noticeeither personally by the official or employee concerned or on his behalf by a person of sufficient discretion.

Section 3. The following shall be the grounds for separation/ replacement of personnel:

1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2. Existence of a probable cause for violation of the Anti-Graft and Corrupt Practice Act as determined bthe Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of Public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to remain in the service or hiseparation/replacement is in the interest of the service.

Section 11. This Executive Order shall not apply to elective officials or those designated to replace them, presidentiaappointees, casual and contractual employees, or officials and employees removed pursuant to disciplinary proceedings undethe Civil Service Law and rules, and to those laid off as a result of the reorganization undertaken pursuant to Executive OrderNo. 5. (Emphasis supplied)

On 6 August 1986, Executive Order No. 39 was issued by the President "Enlarging the Powers and Functions of the Commissioner oCustoms", as follows:

xxx xxx xxx

SECTION 1. In addition to the powers and functions of the Commissioner of Customs, he is hereby authorized, subject to thCivil Service Law and its implementing rules and regulations:

a) To appoint all Bureau personnel, except those appointed by the President;

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b) To discipline, suspend, dismiss or otherwise penalize erring Bureau officers and employees;

c) To act on all matters pertaining to promotion, transfer, detail, reassignment, reinstatement, reemploymenand other personnel action, involving officers and employees of the Bureau of Customs.

xxx xxx xxx

On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the Ministry of Finance." Similar Orders, approximatelthirteen (13) in all, 1 were issued in respect of the other executive departments. The relevant provisions relative to the Bureau oCustoms read:

RECALLING that the reorganization of the government is mandated expressly in Article II, Section l(a) and Article III of thFreedom Constitution;

HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is directed that the necessary and proper changes in theorganizational and functional structures of the government, its agencies and instrumentalities, be effected in order to promotefficiency and effectiveness in the delivery of public services;

BELIEVING that it is necessary to reorganize the Ministry of Finance to make it more capable and responsive, organizationalland functionally, in its primary mandate of judiciously generating and efficiently managing the financial resources of th

Government, its subdivisions and instrumentalities in order to attain the socio-economic objectives of the national developmenprograms.

xxx xxx xxx

SEC. 2. Reorganization. — The Ministry of Finance, hereinafter referred to as Ministry, ishereby reorganized , structurally andfunctionally , in accordance with the provisions of this Executive Order.

SEC. 33. Bureau of Customs.

... Executive Order No. 39 dated 6 August 1986 which grants autonomy to the Commissioner of Customs in matters oappointment and discipline of Customs personnelshall remain in effect .

SEC. 55. Abolition of Units Integral to Ministry. — All units not included in the structural organization as herein provided and all positions thereof are hereby deemed abolished. ... Their personnel shall be entitled to the benefits provided in the seconparagraph of Section 59 hereof.

SEC. 59. New Structure and Pattern. — Upon approval of this Executive Order, the officers and employees of the Ministrshall, in a holdover capacity , continue to perform their respective duties and responsibilities and receive the correspondinsalaries and benefits unless in the meantime they are separated from government service pursuant to executive Order No. 17(1986) or article III of the Freedom Constitution.

The new position structure and staffing pattern of the ministry shall be approved and prescribed by the Minister within onhundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder shall bfilled with regular appointments by him or by the President, as the case may be.Those incumbents whose positions are noincluded therein or who are not reappointed shall be deemed separated from the service. Those separated from the serviceshall receive the retirement benefits to which they may be entitled under the existing laws, rules and regulations. Otherwise

they shall be paid the equivalent of one month basic salary for every year of service or the equivalent nearest fraction therefavorable to them on the basis of highest salary received, but in no case shall such payment exceed the equivalent of 1months salary.

No court or administrative body shall issue any writ or preliminary junction or restraining order to enjoin thseparation/replacement of any officer or employee affected under this Executive Order.

Section 67 — All laws, ordinances, rules, regulations and other issuances or parts thereof, which are inconsistent with thisExecutive Order, are hereby repealed or modified accordingly.

xxx xxx xxx (Emphasis ours)

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On 2 February 1987, the present Constitution took effect (De Leon, et al., vs. Esguerra, G.R. No. 78059, August 31, 1987153 SCR602). Reorganization in the Government service pursuant to Proclamation No. 3,supra, was provided for in its Section 16, Article XVIentitled Transitory Provisions, reading:

Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganizatiopursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shabe entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of genera

application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered femployment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government owned ocontrolled corporations and their subsidiaries. Ms provision also applies to career officers whose resignation, tendered in linwith the existing policy, has been accepted.

On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla, transmitted to the Department of Finance for approval thproposed "position structure and staffing pattern" of the Bureau of Customs. Said Department gave its imprimatur. Thereafter, thstaffing pattern was transmitted to and approved by the Department of Budget and Management on 7 September 1987 fimplementation. Under the old staffing pattern, there were 7,302 positions while under the new staffing pattern, there are 6,53positions CSC Resolution in CSC Case No. 1, dated 20 September 1988, pp. 3-4).

On 22 September 1987, Salvador M. Mison assumed office as Commissioner of Customs.

On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of Reorganization Executive Orders" was issuereading, insofar as revelant to these cases, as follows:

It is my concern that ongoing process of government reorganization be conducted in a manner that is expeditious, as well asensitive to the dislocating consequences arising from specific personnel decisions.

The entire process of reorganization, and in particular the process of separation from service, must be carried out in the mohumane manner possible.

For this purpose, the following guidelines shall be strictly followed:

1. By October 21, 1987, all employees covered by the Executive Orders for each agency on reorganizatioshall be:

a. informed of their reappointment or

b. offered another position in the same department/ agency or

c. informed of their termination.

2. In the event of an offer for a lower position, there will be no reduction in the salary.

xxx xxx xxx

4. Each department/agency shall constitute a Reorganization Appeals Board at the central office, on obefore October 21, 1987, to review or reconsider appeals or complaints relative to reorganization. All casesubmitted to the Boards shall be resolved subject to the following guidelines:

a. publication or posting of the appeal procedure promulgated by the Department Secretary;

b. adherence to due process;

c. disposition within 30 days from submission of the case;

d written notification of the action taken and the grounds thereof.

Action by the Appeals Review Board does not preclude appeal to the Civil Service Commission.

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5. Placement in the new staffing pattern of incumbent personnel shall be completed prior to the hiring of newpersonnel, if any.


On 25 November 1987 Commissioner Mison wrote the President requesting a grace period until the end of February 1988 within whicto completely undertake the reorganization of the Bureau of Customs pursuant to Executive Order No. 127 dated 30 January 1987Said request was granted in a letter-reply by Executive Secretary Catalino Macaraig, Jr., dated 22 December 1987.

On 6 January 1988, within the extended period requested, Bureau of Customs Memorandum "Re: Guidelines on the Implementation oReorganization Executive Orders" was issued in the same tenor as the Malacanang Memorandum of 2 October 1987, providinginteralia:

To effectively implement the reorganization at the Bureau of Customs, particularly in the selection and placement of personneand insure that the best qualified and most competent personnel in the career service are retained, the following guidelineare hereby prescribed for the guidance of all concerned

1. By February 28, 1988 all employees covered by Executive Order No. 127 and the grace period extended to thBureau of Customs by the President of the Philippines on reorganization shall be:

a. informed of their reappointment, or

b. offered another position in the same department or agency or


2. In the event of termination, the employee shall:

a. be included in a consolidated list compiled by the Civil Service Commission. All departments who arerecruiting shall give preference to the employees in the list; and

b. continue to receive salary and benefits until February 28, 1988, and

c. be guaranteed the release of separation benefits within 45 days from termination and in no case later thaJune 15, 1988.


It is to be noted that paragraph 1 above and its sub-sections reproduced verbatim the Malacanang Guidelines of 2 October 1987 in ththe employees concerned were merely to be informed of their termination.

On 28 January 1988 Commissioner Mison addressed identical letters of termination to Bureau of Customs officers and employeeeffective on 28 February 1988.

As of 18 August 1988, Commissioner Mison appointed five hundred twenty-two (522) officials and employees of the Bureau of Custom(CSC Resolution in CSC Case No. 1, dated 20 September 1988, p. 6). In fact, in a letter dated 27 January 1988, Commissioner Miso

recommended Jose M. Balde for appointment to President Aquino as one of three (3) Deputy Commissioners under Executive OrdeNo. 127.

In the interim, during the pendency of these Petitions, Republic Act No. 6656, entitled "An Act to Protect the Security of Tenure of CivService Officers and Employees in the Implementation of Government Reorganization" was passed by Congress on 9 June 1988. ThPresident signed it into law on 10 June 1988 and the statute took effect on 29 June 1988.

On 20 June 1988 Motions were filed, in these cases pending before this Court, invoking the provisions of Republic Act No. 6656. Threlevant provisions thereof read:

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SECTION 1. It is hereby declared the policy of the State to protect the security of tenure of civil service officers and employeein the reorganization of the various agencies of the National government ....

SECTION 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice andhearing . A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished orendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the serviceor other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may b

considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatemenor reappointment by an aggrieved party:

(a) Where there is a significant increase in the number of positions in the new staffing pattern of the department oagency concerned;

(b) Where an office is abolished and another performing substantially the same functions is created;

(c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit;

(d) Where there is a reclassification of offices in the department or agency concerned and the reclassified officeperform substantially the same functions as the original offices;

(e) Where the removal violates the order of separation provided in Section 3 hereof.

xxx xxx xxx

SECTION 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation othe provisions of this Act, shall beordered reinstated or reappointed as the case may be without loss of seniority and shall bentitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuaand temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid thappropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of theffectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be: ProvideThat application for clearance has been filed and no action thereon has been made by the corresponding department oagency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (month salary for every year of service. Such separation pay and retirement benefits shall have priority of payment out of thsavings of the department or agency concerned.

xxx xxx xxx

SECTION 11. The executive branch of the government shall implement reorganization schemes within a specified period otime authorized by law.

In the case of the 1987 reorganization of the executive branch, all departments and agencies which are authorized bexecutive orders promulgated by the President to reorganize shall have ninety (90) days from the approval of this Act withiwhich to implement their respective reorganization plans in accordance with the provisions of this Act.

xxx xxx xxx

SECTION 13. All laws, rules and regulations or parts thereof, inconsistent with the provisions of this Act are hereby repeale

or modified accordingly. The rights and benefits under this Act shall beretroactive as of June 30, 1987.


Given the foregoing statutory backdrop, the issues can now be addressed.

Scope of Section 16, Art. XVIII, 1987 Constitution

Crucial to the present controversy is the construction to be given to the abovementioned Constitutional provision (SECTION 16, fobrevity), which speaks of.

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Career civil service employees separated from the service not for cause

but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986

and the reorganization following the ratification of this Constitution ... (paragraphing supplied).

To our minds, SECTION 16 clearly recognizes (1) the reorganization authorized by Proclamation No. 3; (2) that sucseparation is NOT FOR CAUSE but as a result of the reorganization pursuant to said Proclamation; and (3) that threorganization pursuant to Proclamation No. 3 may be continued even after the ratification of the 1987 Constitution during thtransition period.

Separation NOT FOR CAUSE

The canon for the removal or suspension of a civil service officer or employee is that it must be FOR CAUSE. That means a guaranteof both procedural and substantive due process. Basically, procedural due process would require that suspension or dismissal comonly after notice and hearing. Substantive due process would require that suspension or dismissal be 'for cause'." Bernas ThConstitution of the Republic of the Philippines: A Commentary, Vol. II, First Edition, 1988, p. 334)

The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987 Constitution, which states that 'No officor employee of the civil service shall be removed or suspended except FOR CAUSE provided by law."

There can be no question then as to the meaning of the phrase FOR CAUSE. It simply means the observance of both procedural ansubstantive due process in cases of removal of officers or employees of the civil service. When SECTION 16 speaks, therefore, oseparation from the service NOT FOR CAUSE, it can only mean the diametrical opposite. The constitutional intent to exempt thseparation of civil service employees pursuant to Proclamation No. 3 from the operation of Article IX-B, Section 2(3), becomes readiapparent. A distinction is explicitly made between removal FOR CAUSE, which as aforestated, requires due process, and dismissNOT FOR CAUSE, which implies that the latter is not bound by the "fetters' of due process.

It is obviously for that reason that Section 16 grants separation pay and retirement benefits to those separated NOT FOR CAUSE bas a result of the reorganization precisely to soften the impact of the non-observance of due process. "What is envisioned in Section 1is not a remedy for arbitrary removal of civil servants enjoying security of tenure but some form of relief for members of the career civservice who may have been or may be legally but involuntarily 'reorganized out' of the service or may have voluntarily resignepursuant to the reorganization policy" (ibid., p. 615).

Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even After Ratification

By its very context, SECTION 16 envisages the continuance of the reorganization pursuant to Proclamation No. 3 even after ratificatioof the Constitution and during the transition period. The two [2] stages contemplated, namely, (1) the stage before and (2) afteratification, refer to the same nature of separation "NOT FOR CAUSE but as a result of Proclamation No. 3." No valid reason has beeadvanced for a different treatment after ratification as the majority opines i.e., that separation NOT FOR CAUSE is allowed beforatification but that, thereafter, separation can only be FOR CAUSE.

A fundamental principle of Constitutional construction is to assure the realization of the purpose of the framers of the organic law and othe people who adopted it.

That the reorganization commenced pursuant to Proclamation No. 3 was envisioned to continue even after the ratification of the 198Constitution, at least transitorily, is evident from the intent of its authors discoverable from their deliberations held on 3 October 198

and evincing their awareness that such reorganization had not as yet been fully implemented. Thus:

Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause 'pursuant to the provisions of Article III of Proclamation No. 3issued on March 25, 1986, and the reorganization.' Are those words necessary? Can we not just say 'result of threorganization following the ratification of this Constitution'? In other words, must we make specific reference to ProclamatioNo. 3?

Mr. SUAREZ. Yes. I think the committee feels that is necessary, because in truth there has been a reorganization by virtue oProclamation No. 3. In other words, there are two stages of reorganization covered by this section.

Mr. PADILIA. I understand there is a reorganization committee headed by a minister?

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Mr. SUAREZ. Philippine Commission on Government Reorganization.

Mr. PADILLA. But whether that has already been implemented or not, I do not believe in it. There has been a plan,but I do nothink it has been implemented. If we want to include any previous reorganization after or before the ratification, why do we no just say reorganization before or after the ratification' to simplify the provision and eliminate two-and-a-half sentences that manot be necessary? And as a result of the reorganization, if the committee feels there has been reorganization beforratification and there be reorganization after, we just say 'before or after the ratification of this Constitution.

Mr. SUAREZ. Something like this as a result of the reorganization effected before or after the ratification of the Constitution othe understanding, with the statement into the records, that this would be applicable to those reorganized out pursuant to thFreedom Constitution also.

Mr. PADILLA. That is understood if there has been a reorganization before the ratification or a reorganization after thratification." (RECORDS of the Constitutional Commission, Vol. 5, p. 416) (Emphasis provided)

It should also be recalled that the deadline for the reorganization under Proclamation No. 3 was "one year from February 25, 1986(Article III, Section 2), or up to February 24, 1987. Executive Order No. 17 itself provided that the review/assessment of personnel bcompleted "not later than February 24, 1987." But, confronted with the reality of the ratification of the Constitution before that deadlinwithout reorganization having been completed, there was need for a provision allowing for its continuance even after ratification anuntil completed. It was also to beat that deadline that EO 127 and similar issuances, providing for the reorganization of departments ogovernment, were all dated 30 January 1987 or prior to the plebiscite held on 2 February 1987. The intent to continue and complete threorganizations started is self- evident in SECTION 16.

In Jose vs. Arroyo, et al. (G.R. No. 78435, August 11, 1987), which was a Petition for certiorari and Prohibition to enjoin theimplementation of Executive Order No. 127, we recognized that the reorganization pursuant to Proclamation No. 3 as mandated bSECTION 16, was to continue even after ratification when we stated:

The contention of petitioner that EO No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civservice employees security of tenure overlooks the provision of Section 16, Art. XVIII (Transitory Provisions) which explicitauthorizes the removal of career civil service employees not for cause but as a result of the reorganization pursuant tProclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of the Constitution.By virtue of said

provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratificationof this Constitution and career civil service employees may be separated from the service without cause as a result of suchreorganization. (Emphasis ours)

With due respect to the majority, we disagree with its conclusion that the foregoing pronouncement is mere "obiter dictum."

An obiter dictum or dictum has been defined as a remark or opinion uttered, by the way. It is a statement of the couconcerning a question which was not directly before it (In re Hess 23 A. 2d. 298, 301, 20 N.J. Misc. 12).lâwphî1.ñèt It is languageunnecessary to a decision, (a) ruling on an issue not raised, or (an) opinion of a judge which does not embody the resolutioor determination of the court, and is made without argument or full consideration of the point (Lawson v. US, 176 F2d 49, 585 U.S. App. D.C. 167). It is an expression of opinion by the court or judge on a collateral question not directly involved(Crescent Ring Co. v. Travelers Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary for the decision Du Bell vUnion Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167).

In the case at bar, however, directly involved and squarely before the Court was the issue of whether EO 127 violates Section 2(3) Article IX-B of the 1987 Constitution against removal of civil service employees except for cause." Petitioner batted for the affirmative the proposition, while respondents contended that "removal of civil service employees without cause is allowed not only under th

Provisional Constitution but also under the 1987 Constitution if the same is made pursuant to a reorganization after the ratification othe Constitution."

It may be that the Court dismissed that Petition for being premature, speculative and purely anticipatory" inasmuch as petitioner therehad "not received any communication terminating or threatening to terminate his services." But that was only one consideration. ThCourt still proceeded to decide all the issues adversatively contested by the parties, namely "1) that the expiration date of February 21 987 fixed by Section 2 of Proclamation No. 3 on which said Executive order is based had already lapsed; 2) that the Executive Ordehas not been published in the Official Gazette as required by Article 2 of the Civil Code and Section 1 1 of the Revised AdministrativCode; and 3) that its enforcement violates Section 2(3) of Article IX B of the 1987 Constitution against removal of civil servicemployees except for cause."

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The ruling of the Court, therefore, on the Constitutional issues presented, particularly, the lapse of the period mandated bProclamation No. 3, and the validity of EO 127, cannot be said to be mere "obiter." They were ultimate issues directly before the Courexpressly decided in the course of the consideration of the case, so that any resolution thereon must be considered as authoritativprecedent, and not a mere dictum (See Valli v. US, 94 F2d 687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See alsoWeedin v. Tayokichi Yamada 4 F. (2d) 455). Such resolution would not lose its value as a precedent just because the disposition of thcase was also made on some other ground.

.....And this rule applies as to all pertinent questions although only incidentally involved, which are presented and decided the regular course of the consideration of the case, and lead up to the final conclusion (Northern Pac. Ry Co. v. Baker, D.CWash., 3 F. Suppl. 1; See also Wisconsin Power and Light Co. v. City of Beloit 254 NW 119; Chase v. American Cartage Co186 N.W. 598; City of Detroit, et al. v. Public Utilities Comm. 286 N.W. 368). Accordingly, a point expressly decided does nolose its value as a precedent because the disposition of the case is made on some other ground. (Wagner v. Com ProductRefining Co. D.C. N.J. 28 F 2d 617) Where a case presents two or more points, any one of which is sufficient to determine thultimate issue, but the court actually decides all such points, the case is an authoritative precedent as to every point decidedand none of such points can be regarded as having merely the status of a dictum (See U.S. Title Insurance and Trust CoCal., 44 S. Ct. 621, 265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83 F. (2d) 35) and one point should not be denieauthority merely because another point was more dwelt on and more fully argued and considered. (Richmond Screw AnchoCo. v. U.S. 48 S. Ct. 194, 275 U.S. 331, 72 L. Ed. 303)"

It is true that in Palma-Fernandez vs. de la Paz (G.R. No. 78946, April 15, 1986, 160 SCRA 751), we had stated:

The argument that, on the basis of this provision (Section 26 of Executive Order No. 119, or the 'Reorganization Act of thMinistry of Health'), petitioner's term of office ended on 30 January 1987 and that she continued in the performance of heduties merely in a hold-over capacity and could be transferred to another position without violating any of her legal rights, iuntenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would havelapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 198Constitution became effective (De Leon, et al., vs. Hon. Esguerra, et al., G.R. No. 78059, 31 August 1987, 153 SCRA 602After the d date the provisions of the latter on security of tenure govern.

The factual situation in the two cases, however, radically differ. In the cited case, Dra. Palma-Fernandez, the petitioner, had alreadbeen extended a permanent appointment as Assistant Director for Professional Services of the East Avenue Medical Center but wastill being transferred by the Medical Center Chief to the Research Office against her consent. Separation from the service as a result oreorganization was not involved. The question then arose as to whether the latter official had the authority to transfer or whether thpower to appoint and remove subordinate officers and employees was lodged in the Secretary of Health. Related to that issue was thvital one of whether or not her transfer, effected on 29 May 1987, was tantamount to a removal without cause. Significant, too, is t

fact that the transfer was basically made "in the interest of the service" pursuant to Section 24(c) of PD No. 807, or the Civil ServicDecree, and not because she was being reorganized out by virtue of EO 119 or the "Reorganization Act of the Ministry of Healthalthough the said Act was invoked after the fact. And so it was that SECTION 16 was never mentioned, much less invoked in thPalma-Fernandez case.

Finally, on this point, it is inaccurate for the majority to state that there were no reorganization orders after ratification. There wernamely, EO 181 (Reorganization Act of the Civil Service Commission), June 1, 1987; EO 193 (Reorganization Act of the Office oEnergy Affairs), June 10, 1987; EO 230 (Reorganization Act of NEDA), July 22, 1987; EO 262 (Reorganization Act of the Department oLocal Government), July 25, 1987; EO 297 (Reorganization Act of the Office of the Press Secretary), July 25, 1987.

The Element of Good Faith

The majority concedes that reorganization can be undertaken provided it be in good faith but concludes that Commissioner Mison wanot in good faith.

The aforesaid conclusion is contradicted by the records.

Executive Order No. 127, dated 30 January 1987, specifically authorized the reorganization of the Bureau of Customs "structurally anfunctionally" and provided for the abolition of all units and positions thereof not included in the structural organization S election 55).

As stated heretofore, it was the former Commissioner of Customs, Alexander A. Padilla who, on 24 May 1987, transmitted to thDepartment of Finance for approval the proposed "position structure and staffing pattern" of the Bureau of Customs. This was approveby the Department of Finance. Thereafter, it was transmitted to and approved by the Department of Budget and Management on September 1987 for implementation. Under the old staffing pattern, there were 7,302 positions while under the new staffing patterthere are 6,530 positions.

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On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of Reorganization Executive Orders" provided:

By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:


b. offered another position in the same department or agency, or

c. informed of their termination. (emphasis supplied)

On 25 November 1987 Commissioner Mison asked for and was granted by the President an extension up to February 1988 withiwhich to completely undertake the reorganization of the Bureau of Customs.

On 6 January 1988, he issued Bureau of Customs Memorandum "Re Guidelines on the Implementation of Reorganization ExecutivOrders" reiterating the above- quoted portion of the Malacanang Memorandum of 2 October 1987. Pursuant thereto, on 28 Janua1988, Commissioner Mison addressed uniform letters of termination to the employees listed on pages 15, 16 and 17 of the majoriopinion, effective on 28 February 1988, within the extended period granted.

The records further show that upon Commissioner Mison's official inquiry, Secretary of Justice Sedfrey A. Ordoñ;ez, rendered thfollowing Opinion:

. . . It is believed that customs employees who are reorganized out in the course of the implementation of E.O. No. 12(reorganizing the Department of Finance) need not be informed of the nature and cause of their separation from the service. is enough that they be 'informed of their termination' pursuant to section 1(c) of the Memorandum dated October 2, 1987 President Aquino, which reads:

1. By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:

xxx xxx xxx

c) Informed of their terminations.

The constitutional mandate that 'no officer or employee of the civil service shall be renewed or suspended except for cause as provided by law' (Sec. 2(4) (sic), Article IX-B of the 1987 Constitution) does not apply to employees who are separated fromoffice as a result of the reorganization of that Bureau as directed in Executive Order No. 127.

xxx xxx xxx

Regarding your (third) query, the issue as to the constitutionality of Executive Order No. 127 is set at rest, after the SupremCourt resolved to dismiss the petition for certiorari questioning its enforceability, for lack of merit (see Jose vs. Arroyo, eal., supra). (Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied)

The former Chairman of the Civil Service Commission, Celerina G. Gotladera likewise periodically consulted by Commissioner Misonalso expressed the opinion that "it is not a prerequisite prior to the separation of an employee pursuant to reorganization that he badministratively charged." (Annex 16, p. 411, Rollo, G.R. No. 85310)

Moreover, the records show that the final selection and placement of personnel was done by a Placement Committee, one of whosmembers is the Head of the Civil Service Commission Field Office, namely, Mrs. Purificacion Cuerdo The appointment of employeemade by Commissioner Mison was based on the list approved by said Placement Committee.

But the majority further faults Mison for defying the President's directive to halt further layoffs as a consequence of reorganization, citinOP Memo of 14 October 1987, reading:

Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further layofthis year of personnel as a result of the government reorganization. (p. 45, Decision)

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The foregoing, however, must be deemed superseded by later developments, namely, the grant to Commissioner Mison by thPresident on 22 December 1987 of a grace period until the end of February 1988 within which to completely undertake threorganization of the Bureau of Customs, which was, in fact, accomplished by 28 February 1988.

To further show lack of good faith, the majority states that Commissioner Mison failed to observe the procedure laid down by EO17, supra, directing inter alia that a notice of separation be issued to an employee to be terminated indicating therein the reason/s oground/s for such separation. That requirement, however, does not appear in Section 59 of EO 127, which provides on the contrar

"that those incumbents whose positions are not included in the new position structure and staffing pattern of the Ministry or who are nreappointed shall be deemed separated from the service." The right granted by EO 17 to an employee to be informed of the ground fohis separation must be deemed to have been revoked by the repealing clause of EO 127 (Section 67) providing that "all lawsordinances or parts thereof, which are inconsistent with this Executive Order, are hereby repealed and modified accordingly."

Moreover, Section 11 of EO 17 explicitly excepts from its coverage a reorganization pursuant to EO 5. Thus

The Executive Order shall not apply to elective officials or those designated to replace them, presidential appointees, casuaand contractual employees, or officials and employees removed pursuant to desciplinary proceedings under the Civil Servicelaw and rules, and to those laid off as a result of reorganization undertaken pursuant to Executive Order No. 5. (Emphasisours)

That EO 127 was issued pursuant to or in implementation of EO 5, is shown by its introductory portion reading:

Recalling that the reorganization of the government is mandated expressly by Article II, Section 1 (a) and Article III of thFreedom Constitution;

Having in mind that pursuant to Executive order No. 5 (1986), it is directed that the necessary and proper changes in thorganizational and functional structures of the government, its agencies and instrumentalities, be effected in order to promotefficiency and effectiveness in the delivery of public service; (Italics supplied)

Constitutionality of Republic Act No. 6656

The majority also relies on Republic Act No. 6656 entitled an "Act to Protect the Security of Tenure of Civil Service Officers anEmployees in the Implementation of Government Reorganization," particularly Section 2 thereof, to test the good faith of CommissioneMison.

We are of the view, however, that in providing for retroactivity in its Section 13, RA 6656 clashes frontally with SECTION 16.

1) SECTION 16 clearly recognizes that career service employees separated from the service by reason of the "complete reorganizatioof the government" pursuant to Proclamation No. 3 may be separated NOT FOR CAUSE. And yet, RA 6656 requires the exact opposit— separation FOR CAUSE. It would not be remiss to quote the provision again:

SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice anhearing. A valid cause for removal exist when, pursuant to a bona fide reorganization, a position has been abolished orendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the serviceor other lawful causes allowed by the Civil Service law. The existence of any or some of the following circumstances may bconsidered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatemenor reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffinpattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially thsame functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointmenperformance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and threclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order oseparation provided in Section 3 hereof. (Republic Act No. 6156)

The standards laid down are the "traditional" criteria for removal of employees from the career service, e.g. valid cause, due notice anhearing, abolition of, or redundancy of offices. Proclamation No. 3, on the other hand, effectuates the "progressive" type reorganization dictated by the exigencies of the historical and political upheaval at the time. The "traditional" type is limited in scope. is concerned with the individual approach where the particular employee involved is charged administratively and where the requisiteof notice and hearing have to be observed. The "progressive" kind of reorganization, on the other hand, is the collective way. It is widein scope, and is the reorganization contemplated under SECTION 16.

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2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not included in SECTION 16. The benefits granted by thlatter provision to employees separated NOT FOR CAUSE but as a consequence of reorganization are "separation pay, retirement, another benefits accruing to them under the laws of general application in force at the time of their separation." The benefit oreinstatement is not included. RA 6656, however, allows reinstatement. That it cannot do because under SECTION 16, it is not one othe laws "in force at the time of their separation."

The Constitution is the paramount law to which all laws must conform. It is from the Constitution that all statutes must derive the

bearings. The legislative authority of the State must yield to the expression of the sovereign will. No statutory enactment can disregarthe Charter from which it draws its own existence (Phil. Long Distance Telephone Co. v. Collector of Internal Revenue, 90 Phil. 67[1952]). But, that is exactly what RA 6656 does in providing for retroactivity — it disregards and contravenes a Constitutionimperative. To save it, it should be applied and construed prospectively and not retroactively notwithstanding its explicit provision. Thenand only then, would it make good law.

Effects of Reorganization

To be sure, the reorganization could effect the tenure of members of the career service as defined in Section 5, Article IV of PresidentiDecree No. 807, and may even result in the separation from the office of some meritorious employees. But even then, the greater gooof the greatest number and the right of the citizenry to a good government, and as they themselves have mandated through the vehicof Proclamation No. 3, provide the justification for the said injury to the individual. In terms of values, the interest of an employee security of tenure must yield to the interest of the entire populace and to an efficient and honest government.

But a reorganized employee is not without rights. His right lies in his past services, the entitlement to which must be provided for by lawEO 127 provides for the same in its Section 59, and so does SECTION 16 when the latter specified that career civil service employeeseparated from the service not for cause:

shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of generaapplication in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered femployment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned ocontrolled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in linwith the existing policy, has been accepted.

This is a reward for the employee's past service to the Government. But this is all There is no vested property right to be reemployed a reorganized office.

The right to an office or to employment with government or any of its agencies is not a vested property right, and removatherefrom will not support the question of due process" Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil servicemployee does not have a constitutionally protected right to his position, which position is in the nature of a public officepolitical in character and held by way of grant or privilege extended by government; generally he has been held to have nproperty right or vested interest to which due process guaranties extend (See Taylor v. Beckham 178 U.S. 548, 44 L Ed. 1187Angilly v. US CA2 NY 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller v. NY StaCivil Service Com 21 Misc 2d 1034, 194 NYS 2d 89).

To ensure, however, that no meritorious employee has been separated from the service, there would be no harm, in fact, it could do lot of good, if the Commissioner of Customs reviews the evaluation and placements he has so far made and sees to it that thosterminated are included in a consolidated list to be given preference by departments who are recruiting (Section 2[a], BOMemorandum, January 6,1988).lâwphî1.ñèt

Conclusion

Premises considered, and subject to the observation hereinabove made, it is our considered view that the separation from the servic"NOT FOR CAUSE but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986" of the affected officeand employees of the Bureau of Customs should be UPHELD, and the Resolutions of the Civil Service Commission, dated 30 Jun1988, 20 September 1988, and 16 November 1988 should be SET ASIDE for having been issued in grave abuse of discretion.

Republic Act No. 6656, in so far as it provides for retroactivity, should be declared UNCONSTITUTIONAL for being repugnant to thletter and spirit of Section 16, Article XVIII of the 1987 Constitution.

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Fernan, C.J., Narvasa, Feliciano, Regalado, JJ., concur.

Separate Opinions

CRUZ, J., concurring:

I concur with the majority view so ably presented by Mr. Justice Abraham F. Sarmiento. While additional comments may seemsuperfluous in view of the exhaustiveness of his ponencia, I nevertheless offer the following brief observations for whatever they mabe worth.

Emphasizing Article XVII, Section 16 of the Constitution, the dissenting opinion considers the ongoing government reorganization valibecause it is merely a continuation of the reorganization begun during the transition period. The reason for this conclusion is the phras"and the reorganization following the ratification of the Constitution," that is to say, after February 2, 1987, appearing in the saprovision. The consequence (and I hope I have not misread it) is that the present reorganization may still be undertaken with the sam"absoluteness" that was allowed the revolutionary reorganization although the Freedom Constitution is no longer in force.

Reorganization of the government may be required by the legislature even independently of specific constitutional authorization, as ithe case, for example, of R.A. No. 51 and B.P. No. 129. Being revolutionary in nature, the reorganization decreed by Article III of t

Freedom Constitution was unlimited as to its method except only as it was later restricted by President Aquino herself through variouissuances, particularly E.O. No. 17. But this reorganization, for all its permitted summariness, was not indefinite. Under Section 3 of thsaid Article III, it was allowed only up to February 29,1987 (which we advanced to February 2, 1987, when the new Constitutiobecame effective).

The clear implication is that any government reorganization that may be undertaken thereafter must be authorized by the legislatuonly and may not be allowed the special liberties and protection enjoyed by the revolutionary reorganization. Otherwise, there woulhave been no necessity at all for the time limitation expressly prescribed by the Freedom Constitution.

I cannot accept the view that Section 16 is an authorization for the open-ended reorganization of the government "following thratification of the Constitution." I read the provision as merely conferring benefits — deservedly or not — on persons separated from thgovernment as a result of the reorganization of the government, whether undertaken during the transition period or as a result of a lawpassed thereafter. What the grants is privileges to the retirees, not power to the provision government. It is axiomatic that grants opower are not lightly inferred, especially if these impinge on individual rights, and I do not see why we should depart from this rule.

To hold that the present reorganization is a continuation of the one begun during the transition period is to recognize the theory of thepublic respondent that all officers and employees not separated earlier remain in a hold-over capacity only and so may be replacedaany time even without cause. That is a dangerous proposition that threatens the security and stability of every civil servant in thexecutive department. What is worse is that this situation may continueindefinitely as the claimed "progressive" reorganization has nolimitation as to time.

Removal imports the forcible separation of the incumbent before the expiration of his term and can be done only for cause as provideby law. Contrary to common belief, a reorganization does not result in removal but in a different mode of terminating official relationknown as abolition of the office (and the security of tenure attached thereto.) The erstwhile holder of the abolished office cannot claimhe has been removed without cause in violation of his constitutional security of tenure. The reason is that the right itself hadisappeared with the abolished office as an accessory following the principal. (Ocampo v. Sec. of Justice, 51 O.G. 147; De la Llana Alba, 112 SCRA 294; Manalang v. Quitoriano, 94 Phil. 903.)

This notwithstanding, the power to reorganize is not unlimited. It is essential that it be based on a valid purpose, such as the promotioof efficiency and economy in the government through a pruning of offices or the streamlining of their functions. (Cervantes v. AuditoGeneral, 91 Phil. 359.) Normally, a reorganization cannot be validly undertaken as a means of purging the undesirables for this woulbe a removal in disguise undertaken enmasse to circumvent the constitutional requirement of legal cause. (Eradication of graft ancorruption was one of the expressed purposes of the revolutionary organization, but this was authorized by the Freedom Constitutioitself.) In short, a reorganization, to be valid, must be done in good faith. (Urgelio v. Osmena, 9 SCRA 317; Cuneta v. Court of Appeal1 SCRA 663; Carino v. ACCFA, 18 SCRA 183.)

A mere recitation — no matter how lengthy — of the directives, guidelines, memoranda, etc. issued by the government and the actiopurportedly taken thereunder does not by itself prove good faith. We know only too well that these instructions, for all their noble ansterile purposes, are rarely followed in their actual implementation. The reality in this case, as the majority opinion has pointed out anas clearly established in the hearing we held, is that the supposed reorganization was undertaken with an eye not to achieving th

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avowed objectives but to accommodating new appointees at the expense of the dislodged petitioners. That was also the finding of thCivil Service Commission, to which we must accord a becoming respect as the constitutional office charged with the protection of thcivil service from the evils of the spoils system.

The present administration deserves full support in its desire to improve the civil service, but this objective must be pursued in a manneconsistent with the Constitution. This praiseworthy purpose cannot be accomplished by an indiscriminate reorganization that will sweein its wake the innocent along with the redundant and inept, for the benefit of the current favorites.

MELENCIO-HERRERA, J., dissenting:

The historical underpinnings of Government efforts at reorganization hark back to the people power phenomenon of 22-24 Februar1986, and Proclamation No. 1 of President Corazon C. Aquino, issued on 25 February 1986, stating in no uncertain terms that "thpeople expect a reorganization of government." In its wake followed Executive Order No. 5, issued on 12 March 1986, "Creating Presidential Commission on Government Reorganization," with the following relevant provisions:

WHEREAS, there is need to effect the necessary and proper changes in the organizational and functional structures of thnational and local governments, its agencies and instrumentalities, including government-owned and controlled corporationand their subsidiaries, in order to promote economy, efficiency and effectiveness in the delivery of public services

xxx xxx xxx

Section 2. The functional jurisdiction of the PCGR shall encompass, as necessary, thereorganization of the national and locagovernments, its agencies and instrumentalities including government-owned or controlled corporations and their subsidiaries


Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as the Freedom Constitution, declaring, in part, in itPreamble as follows:

WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the completreorganization of the government , ... (Emphasis supplied)

and pertinently providing:

ARTICLE II

Section I

xxx xxx xxx


(a) Completely reorganize the government and eradicate unjust and oppressive structures, and all iniquitous vestigeof the previous regime;" (Emphasis supplied)

xxx xxx xxx

ARTICLE III — GOVERNMENT REORGANIZATION

Section 2. All elective and appointive officials and employees under the 1973 Constitutionshall continue in office untiotherwise provided by proclamation or executive order or upon the designation or appointment and qualification of theirsuccessors, if such is made within a period of one year from February 25, 1986.

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Section 3. Any public office or employee separated from the service as a result of the reorganization effected under thProclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunde(Emphasis ours)

On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and Regulations for the Implementation of Section 2, Article Iof the Freedom Constitution' providing, inter alia, as follows:

Section 1. In the course of implementing Article III, Section 2 of the Freedom Constitution, the Head of each Ministry shall seto it that the separation or replacement of officers and employees is madeonly for justifiable reasons, to prevent indiscriminatedismissal, of personnel in the career civil service whose qualifications and performance meet the standards of public service othe New Government.

xxx xxx xxx

The Ministry concerned shall adopt its own rules and procedures for the review and assessment of its own personneincluding the identification of sensitive positions which require more rigid assessment of the incumbents, and shall completsuch review/assessment as expeditiously as possible but not later than February 24, 1987 to prevent undue demoralization inthe public service.

Section 2. The Ministry Head concerned, on the basis of such review and assessment shall determine who shall be separate

from the service. Thereafter, he shall issue to the official or employee concerned anotice of separation which shall indicatetherein the reason/s or ground /s for such separation and the fact that the separated official or employee has the right to file petition for reconsideration pursuant to this Order. Separation from the service shall be effective upon receipt of such noticeeither personally by the official or employee concerned or on his behalf by a person of sufficient discretion.

Section 3. The following shall be the grounds for separation/ replacement of personnel:

1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2. Existence of a probable cause for violation of the Anti-Graft and Corrupt Practice Act as determined bthe Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of Public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to remain in the service or hiseparation/replacement is in the interest of the service.

Section 11. This Executive Order shall not apply to elective officials or those designated to replace them, presidentiaappointees, casual and contractual employees, or officials and employees removed pursuant to disciplinary proceedings undethe Civil Service Law and rules, and to those laid off as a result of the reorganization undertaken pursuant to Executive OrderNo. 5. (Emphasis supplied)

On 6 August 1986, Executive Order No. 39 was issued by the President "Enlarging the Powers and Functions of the Commissioner oCustoms", as follows:

xxx xxx xxx

SECTION 1. In addition to the powers and functions of the Commissioner of Customs, he is hereby authorized, subject to thCivil Service Law and its implementing rules and regulations:

a) To appoint all Bureau personnel, except those appointed by the President;

b) To discipline, suspend, dismiss or otherwise penalize erring Bureau officers and employees;

c) To act on all matters pertaining to promotion, transfer, detail, reassignment, reinstatement, reemploymenand other personnel action, involving officers and employees of the Bureau of Customs.

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xxx xxx xxx

On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the Ministry of Finance." Similar Orders, approximatelthirteen (13) in all, 1 were issued in respect of the other executive departments. The relevant provisions relative to the Bureau oCustoms read:

RECALLING that the reorganization of the government is mandated expressly in Article II, Section l(a) and Article III of thFreedom Constitution;

HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is directed that the necessary and proper changes in theorganizational and functional structures of the government, its agencies and instrumentalities, be effected in order to promotefficiency and effectiveness in the delivery of public services;

BELIEVING that it is necessary to reorganize the Ministry of Finance to make it more capable and responsive, organizationalland functionally, in its primary mandate of judiciously generating and efficiently managing the financial resources of thGovernment, its subdivisions and instrumentalities in order to attain the socio-economic objectives of the national developmenprograms.

xxx xxx xxx

SEC. 2. Reorganization. — The Ministry of Finance, hereinafter referred to as Ministry, ishereby reorganized , structurally andfunctionally , in accordance with the provisions of this Executive Order.

SEC. 33. Bureau of Customs.

... Executive Order No. 39 dated 6 August 1986 which grants autonomy to the Commissioner of Customs in matters oappointment and discipline of Customs personnelshall remain in effect .

SEC. 55. Abolition of Units Integral to Ministry. — All units not included in the structural organization as herein provided and all positions thereof are hereby deemed abolished. ... Their personnel shall be entitled to the benefits provided in the seconparagraph of Section 59 hereof.

SEC. 59. New Structure and Pattern. — Upon approval of this Executive Order, the officers and employees of the Ministr

shall, in a holdover capacity , continue to perform their respective duties and responsibilities and receive the correspondinsalaries and benefits unless in the meantime they are separated from government service pursuant to executive Order No. 17(1986) or article III of the Freedom Constitution.

The new position structure and staffing pattern of the ministry shall be approved and prescribed by the Minister within onhundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder shall bfilled with regular appointments by him or by the President, as the case may be.Those incumbents whose positions are noincluded therein or who are not reappointed shall be deemed separated from the service. Those separated from the serviceshall receive the retirement benefits to which they may be entitled under the existing laws, rules and regulations. Otherwisethey shall be paid the equivalent of one month basic salary for every year of service or the equivalent nearest fraction therefavorable to them on the basis of highest salary received, but in no case shall such payment exceed the equivalent of 1months salary.

No court or administrative body shall issue any writ or preliminary junction or restraining order to enjoin th

separation/replacement of any officer or employee affected under this Executive Order.

Section 67 — All laws, ordinances, rules, regulations and other issuances or parts thereof, which are inconsistent with thisExecutive Order, are hereby repealed or modified accordingly.


On 2 February 1987, the present Constitution took effect (De Leon, et al., vs. Esguerra, G.R. No. 78059, August 31, 1987153 SCR602). Reorganization in the Government service pursuant to Proclamation No. 3,supra, was provided for in its Section 16, Article XVIentitled Transitory Provisions, reading:

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Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganizatiopursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shabe entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of generaapplication in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered femployment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government owned ocontrolled corporations and their subsidiaries. Ms provision also applies to career officers whose resignation, tendered in linwith the existing policy, has been accepted.

On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla, transmitted to the Department of Finance for approval thproposed "position structure and staffing pattern" of the Bureau of Customs. Said Department gave its imprimatur. Thereafter, thstaffing pattern was transmitted to and approved by the Department of Budget and Management on 7 September 1987 fimplementation. Under the old staffing pattern, there were 7,302 positions while under the new staffing pattern, there are 6,53positions CSC Resolution in CSC Case No. 1, dated 20 September 1988, pp. 3-4).

On 22 September 1987, Salvador M. Mison assumed office as Commissioner of Customs.

On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of Reorganization Executive Orders" was issuereading, insofar as revelant to these cases, as follows:

It is my concern that ongoing process of government reorganization be conducted in a manner that is expeditious, as well asensitive to the dislocating consequences arising from specific personnel decisions.

The entire process of reorganization, and in particular the process of separation from service, must be carried out in the mohumane manner possible.

For this purpose, the following guidelines shall be strictly followed:

1. By October 21, 1987, all employees covered by the Executive Orders for each agency on reorganizatioshall be:

a. informed of their reappointment or

b. offered another position in the same department/ agency or


2. In the event of an offer for a lower position, there will be no reduction in the salary.

xxx xxx xxx

4. Each department/agency shall constitute a Reorganization Appeals Board at the central office, on obefore October 21, 1987, to review or reconsider appeals or complaints relative to reorganization. All casesubmitted to the Boards shall be resolved subject to the following guidelines:

a. publication or posting of the appeal procedure promulgated by the Department Secretary;

b. adherence to due process;

c. disposition within 30 days from submission of the case;

d written notification of the action taken and the grounds thereof.

Action by the Appeals Review Board does not preclude appeal to the Civil Service Commission.

5. Placement in the new staffing pattern of incumbent personnel shall be completed prior to the hiring of newpersonnel, if any.

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On 25 November 1987 Commissioner Mison wrote the President requesting a grace period until the end of February 1988 within whicto completely undertake the reorganization of the Bureau of Customs pursuant to Executive Order No. 127 dated 30 January 1987Said request was granted in a letter-reply by Executive Secretary Catalino Macaraig, Jr., dated 22 December 1987.

On 6 January 1988, within the extended period requested, Bureau of Customs Memorandum "Re: Guidelines on the Implementation oReorganization Executive Orders" was issued in the same tenor as the Malacanang Memorandum of 2 October 1987, providinginteralia:

To effectively implement the reorganization at the Bureau of Customs, particularly in the selection and placement of personneand insure that the best qualified and most competent personnel in the career service are retained, the following guidelineare hereby prescribed for the guidance of all concerned

1. By February 28, 1988 all employees covered by Executive Order No. 127 and the grace period extended to thBureau of Customs by the President of the Philippines on reorganization shall be:


b. offered another position in the same department or agency or


2. In the event of termination, the employee shall:

a. be included in a consolidated list compiled by the Civil Service Commission. All departments who arerecruiting shall give preference to the employees in the list; and

b. continue to receive salary and benefits until February 28, 1988, and

c. be guaranteed the release of separation benefits within 45 days from termination and in no case later thaJune 15, 1988.


It is to be noted that paragraph 1 above and its sub-sections reproduced verbatim the Malacanang Guidelines of 2 October 1987 in ththe employees concerned were merely to be informed of their termination.

On 28 January 1988 Commissioner Mison addressed identical letters of termination to Bureau of Customs officers and employeeeffective on 28 February 1988.

As of 18 August 1988, Commissioner Mison appointed five hundred twenty-two (522) officials and employees of the Bureau of Custom(CSC Resolution in CSC Case No. 1, dated 20 September 1988, p. 6). In fact, in a letter dated 27 January 1988, Commissioner Misorecommended Jose M. Balde for appointment to President Aquino as one of three (3) Deputy Commissioners under Executive OrdeNo. 127.

In the interim, during the pendency of these Petitions, Republic Act No. 6656, entitled "An Act to Protect the Security of Tenure of CivService Officers and Employees in the Implementation of Government Reorganization" was passed by Congress on 9 June 1988. ThPresident signed it into law on 10 June 1988 and the statute took effect on 29 June 1988.

On 20 June 1988 Motions were filed, in these cases pending before this Court, invoking the provisions of Republic Act No. 6656. Threlevant provisions thereof read:

SECTION 1. It is hereby declared the policy of the State to protect the security of tenure of civil service officers and employeein the reorganization of the various agencies of the National government ....

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SECTION 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice andhearing . A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished orendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the serviceor other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may bconsidered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatemenor reappointment by an aggrieved party:

(a) Where there is a significant increase in the number of positions in the new staffing pattern of the department oagency concerned;

(b) Where an office is abolished and another performing substantially the same functions is created;

(c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit;

(d) Where there is a reclassification of offices in the department or agency concerned and the reclassified officeperform substantially the same functions as the original offices;

(e) Where the removal violates the order of separation provided in Section 3 hereof.

xxx xxx xxx

SECTION 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation othe provisions of this Act, shall beordered reinstated or reappointed as the case may be without loss of seniority and shall bentitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuaand temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid thappropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of theffectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be: ProvideThat application for clearance has been filed and no action thereon has been made by the corresponding department oagency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (month salary for every year of service. Such separation pay and retirement benefits shall have priority of payment out of thsavings of the department or agency concerned.

xxx xxx xxx

SECTION 11. The executive branch of the government shall implement reorganization schemes within a specified period otime authorized by law.

In the case of the 1987 reorganization of the executive branch, all departments and agencies which are authorized bexecutive orders promulgated by the President to reorganize shall have ninety (90) days from the approval of this Act withiwhich to implement their respective reorganization plans in accordance with the provisions of this Act.

xxx xxx xxx

SECTION 13. All laws, rules and regulations or parts thereof, inconsistent with the provisions of this Act are hereby repealeor modified accordingly. The rights and benefits under this Act shall beretroactive as of June 30, 1987.


Given the foregoing statutory backdrop, the issues can now be addressed.

Scope of Section 16, Art. XVIII, 1987 Constitution

Crucial to the present controversy is the construction to be given to the abovementioned Constitutional provision (SECTION 16, fobrevity), which speaks of.

Career civil service employees separated from the service not for cause

but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986

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and the reorganization following the ratification of this Constitution ... (paragraphing supplied).

To our minds, SECTION 16 clearly recognizes (1) the reorganization authorized by Proclamation No. 3; (2) that sucseparation is NOT FOR CAUSE but as a result of the reorganization pursuant to said Proclamation; and (3) that threorganization pursuant to Proclamation No. 3 may be continued even after the ratification of the 1987 Constitution during thtransition period.

Separation NOT FOR CAUSE

The canon for the removal or suspension of a civil service officer or employee is that it must be FOR CAUSE. That means a guaranteof both procedural and substantive due process. Basically, procedural due process would require that suspension or dismissal comonly after notice and hearing. Substantive due process would require that suspension or dismissal be 'for cause'." Bernas ThConstitution of the Republic of the Philippines: A Commentary, Vol. II, First Edition, 1988, p. 334)

The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section 2(3) of the 1987 Constitution, which states that 'No officor employee of the civil service shall be removed or suspended except FOR CAUSE provided by law."

There can be no question then as to the meaning of the phrase FOR CAUSE. It simply means the observance of both procedural ansubstantive due process in cases of removal of officers or employees of the civil service. When SECTION 16 speaks, therefore, oseparation from the service NOT FOR CAUSE, it can only mean the diametrical opposite. The constitutional intent to exempt th

separation of civil service employees pursuant to Proclamation No. 3 from the operation of Article IX-B, Section 2(3), becomes readiapparent. A distinction is explicitly made between removal FOR CAUSE, which as aforestated, requires due process, and dismissNOT FOR CAUSE, which implies that the latter is not bound by the "fetters' of due process.

It is obviously for that reason that Section 16 grants separation pay and retirement benefits to those separated NOT FOR CAUSE bas a result of the reorganization precisely to soften the impact of the non-observance of due process. "What is envisioned in Section 1is not a remedy for arbitrary removal of civil servants enjoying security of tenure but some form of relief for members of the career civservice who may have been or may be legally but involuntarily 'reorganized out' of the service or may have voluntarily resignepursuant to the reorganization policy" (ibid., p. 615).

Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even After Ratification

By its very context, SECTION 16 envisages the continuance of the reorganization pursuant to Proclamation No. 3 even after ratificatioof the Constitution and during the transition period. The two [2] stages contemplated, namely, (1) the stage before and (2) afte

ratification, refer to the same nature of separation "NOT FOR CAUSE but as a result of Proclamation No. 3." No valid reason has beeadvanced for a different treatment after ratification as the majority opines i.e., that separation NOT FOR CAUSE is allowed beforatification but that, thereafter, separation can only be FOR CAUSE.

A fundamental principle of Constitutional construction is to assure the realization of the purpose of the framers of the organic law and othe people who adopted it.

That the reorganization commenced pursuant to Proclamation No. 3 was envisioned to continue even after the ratification of the 198Constitution, at least transitorily, is evident from the intent of its authors discoverable from their deliberations held on 3 October 198and evincing their awareness that such reorganization had not as yet been fully implemented. Thus:

Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause 'pursuant to the provisions of Article III of Proclamation No. 3issued on March 25, 1986, and the reorganization.' Are those words necessary? Can we not just say 'result of threorganization following the ratification of this Constitution'? In other words, must we make specific reference to ProclamatioNo. 3?

Mr. SUAREZ. Yes. I think the committee feels that is necessary, because in truth there has been a reorganization by virtue oProclamation No. 3. In other words, there are two stages of reorganization covered by this section.

Mr. PADILIA. I understand there is a reorganization committee headed by a minister?

Mr. SUAREZ. Philippine Commission on Government Reorganization.

Mr. PADILLA. But whether that has already been implemented or not, I do not believe in it. There has been a plan,but I do nothink it has been implemented. If we want to include any previous reorganization after or before the ratification, why do we no

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just say reorganization before or after the ratification' to simplify the provision and eliminate two-and-a-half sentences that manot be necessary? And as a result of the reorganization, if the committee feels there has been reorganization beforratification and there be reorganization after, we just say 'before or after the ratification of this Constitution.

Mr. SUAREZ. Something like this as a result of the reorganization effected before or after the ratification of the Constitution othe understanding, with the statement into the records, that this would be applicable to those reorganized out pursuant to thFreedom Constitution also.

Mr. PADILLA. That is understood if there has been a reorganization before the ratification or a reorganization after thratification." (RECORDS of the Constitutional Commission, Vol. 5, p. 416) (Emphasis provided)

It should also be recalled that the deadline for the reorganization under Proclamation No. 3 was "one year from February 25, 1986(Article III, Section 2), or up to February 24, 1987. Executive Order No. 17 itself provided that the review/assessment of personnel bcompleted "not later than February 24, 1987." But, confronted with the reality of the ratification of the Constitution before that deadlinwithout reorganization having been completed, there was need for a provision allowing for its continuance even after ratification anuntil completed. It was also to beat that deadline that EO 127 and similar issuances, providing for the reorganization of departments ogovernment, were all dated 30 January 1987 or prior to the plebiscite held on 2 February 1987. The intent to continue and complete threorganizations started is self- evident in SECTION 16.

In Jose vs. Arroyo, et al. (G.R. No. 78435, August 11, 1987), which was a Petition for certiorari and Prohibition to enjoin theimplementation of Executive Order No. 127, we recognized that the reorganization pursuant to Proclamation No. 3 as mandated bSECTION 16, was to continue even after ratification when we stated:

The contention of petitioner that EO No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civservice employees security of tenure overlooks the provision of Section 16, Art. XVIII (Transitory Provisions) which explicitauthorizes the removal of career civil service employees not for cause but as a result of the reorganization pursuant tProclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of the Constitution.By virtue of said

provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratificationof this Constitution and career civil service employees may be separated from the service without cause as a result of suchreorganization. (Emphasis ours)

With due respect to the majority, we disagree with its conclusion that the foregoing pronouncement is mere "obiter dictum."

An obiter dictum or dictum has been defined as a remark or opinion uttered, by the way. It is a statement of the cou

concerning a question which was not directly before it (In re Hess 23 A. 2d. 298, 301, 20 N.J. Misc. 12). It is languagunnecessary to a decision, (a) ruling on an issue not raised, or (an) opinion of a judge which does not embody the resolutioor determination of the court, and is made without argument or full consideration of the point (Lawson v. US, 176 F2d 49, 585 U.S. App. D.C. 167). It is an expression of opinion by the court or judge on a collateral question not directly involved(Crescent Ring Co. v. Travelers Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary for the decision Du Bell vUnion Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167).

In the case at bar, however, directly involved and squarely before the Court was the issue of whether EO 127 violates Section 2(3) Article IX-B of the 1987 Constitution against removal of civil service employees except for cause." Petitioner batted for the affirmative the proposition, while respondents contended that "removal of civil service employees without cause is allowed not only under thProvisional Constitution but also under the 1987 Constitution if the same is made pursuant to a reorganization after the ratification othe Constitution."

It may be that the Court dismissed that Petition for being premature, speculative and purely anticipatory" inasmuch as petitioner there

had "not received any communication terminating or threatening to terminate his services." But that was only one consideration. ThCourt still proceeded to decide all the issues adversatively contested by the parties, namely "1) that the expiration date of February 21 987 fixed by Section 2 of Proclamation No. 3 on which said Executive order is based had already lapsed; 2) that the Executive Ordehas not been published in the Official Gazette as required by Article 2 of the Civil Code and Section 1 1 of the Revised AdministrativCode; and 3) that its enforcement violates Section 2(3) of Article IX B of the 1987 Constitution against removal of civil servicemployees except for cause."

The ruling of the Court, therefore, on the Constitutional issues presented, particularly, the lapse of the period mandated bProclamation No. 3, and the validity of EO 127, cannot be said to be mere "obiter." They were ultimate issues directly before the Courexpressly decided in the course of the consideration of the case, so that any resolution thereon must be considered as authoritativprecedent, and not a mere dictum (See Valli v. US, 94 F2d 687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See also

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Weedin v. Tayokichi Yamada 4 F. (2d) 455).lâwphî1.ñèt Such resolution would not lose its value as a precedent just because the disposition of thcase was also made on some other ground.

.....And this rule applies as to all pertinent questions although only incidentally involved, which are presented and decided the regular course of the consideration of the case, and lead up to the final conclusion (Northern Pac. Ry Co. v. Baker, D.CWash., 3 F. Suppl. 1; See also Wisconsin Power and Light Co. v. City of Beloit 254 NW 119; Chase v. American Cartage Co186 N.W. 598; City of Detroit, et al. v. Public Utilities Comm. 286 N.W. 368). Accordingly, a point expressly decided does no

lose its value as a precedent because the disposition of the case is made on some other ground. (Wagner v. Com ProductRefining Co. D.C. N.J. 28 F 2d 617) Where a case presents two or more points, any one of which is sufficient to determine thultimate issue, but the court actually decides all such points, the case is an authoritative precedent as to every point decidedand none of such points can be regarded as having merely the status of a dictum (See U.S. Title Insurance and Trust CoCal., 44 S. Ct. 621, 265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83 F. (2d) 35) and one point should not be denieauthority merely because another point was more dwelt on and more fully argued and considered. (Richmond Screw AnchoCo. v. U.S. 48 S. Ct. 194, 275 U.S. 331, 72 L. Ed. 303)"

It is true that in Palma-Fernandez vs. de la Paz (G.R. No. 78946, April 15, 1986, 160 SCRA 751), we had stated:

The argument that, on the basis of this provision (Section 26 of Executive Order No. 119, or the 'Reorganization Act of thMinistry of Health'), petitioner's term of office ended on 30 January 1987 and that she continued in the performance of heduties merely in a hold-over capacity and could be transferred to another position without violating any of her legal rights, iuntenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have

lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 198Constitution became effective (De Leon, et al., vs. Hon. Esguerra, et al., G.R. No. 78059, 31 August 1987, 153 SCRA 602After the d date the provisions of the latter on security of tenure govern.

The factual situation in the two cases, however, radically differ. In the cited case, Dra. Palma-Fernandez, the petitioner, had alreadbeen extended a permanent appointment as Assistant Director for Professional Services of the East Avenue Medical Center but wastill being transferred by the Medical Center Chief to the Research Office against her consent. Separation from the service as a result oreorganization was not involved. The question then arose as to whether the latter official had the authority to transfer or whether thpower to appoint and remove subordinate officers and employees was lodged in the Secretary of Health. Related to that issue was thvital one of whether or not her transfer, effected on 29 May 1987, was tantamount to a removal without cause. Significant, too, is tfact that the transfer was basically made "in the interest of the service" pursuant to Section 24(c) of PD No. 807, or the Civil ServicDecree, and not because she was being reorganized out by virtue of EO 119 or the "Reorganization Act of the Ministry of Healthalthough the said Act was invoked after the fact. And so it was that SECTION 16 was never mentioned, much less invoked in thPalma-Fernandez case.

Finally, on this point, it is inaccurate for the majority to state that there were no reorganization orders after ratification. There wernamely, EO 181 (Reorganization Act of the Civil Service Commission), June 1, 1987; EO 193 (Reorganization Act of the Office oEnergy Affairs), June 10, 1987; EO 230 (Reorganization Act of NEDA), July 22, 1987; EO 262 (Reorganization Act of the Department oLocal Government), July 25, 1987; EO 297 (Reorganization Act of the Office of the Press Secretary), July 25, 1987.

The Element of Good Faith

The majority concedes that reorganization can be undertaken provided it be in good faith but concludes that Commissioner Mison wanot in good faith.

The aforesaid conclusion is contradicted by the records.

Executive Order No. 127, dated 30 January 1987, specifically authorized the reorganization of the Bureau of Customs "structurally anfunctionally" and provided for the abolition of all units and positions thereof not included in the structural organization S election 55).

As stated heretofore, it was the former Commissioner of Customs, Alexander A. Padilla who, on 24 May 1987, transmitted to thDepartment of Finance for approval the proposed "position structure and staffing pattern" of the Bureau of Customs. This was approveby the Department of Finance. Thereafter, it was transmitted to and approved by the Department of Budget and Management on September 1987 for implementation. Under the old staffing pattern, there were 7,302 positions while under the new staffing patterthere are 6,530 positions.

On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the Implementation of Reorganization Executive Orders" provided:

By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:

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b. offered another position in the same department or agency, or

c. informed of their termination. (emphasis supplied)

On 25 November 1987 Commissioner Mison asked for and was granted by the President an extension up to February 1988 withiwhich to completely undertake the reorganization of the Bureau of Customs.

On 6 January 1988, he issued Bureau of Customs Memorandum "Re Guidelines on the Implementation of Reorganization ExecutivOrders" reiterating the above- quoted portion of the Malacanang Memorandum of 2 October 1987. Pursuant thereto, on 28 Janua1988, Commissioner Mison addressed uniform letters of termination to the employees listed on pages 15, 16 and 17 of the majoriopinion, effective on 28 February 1988, within the extended period granted.

The records further show that upon Commissioner Mison's official inquiry, Secretary of Justice Sedfrey A. Ordoñ;ez, rendered thfollowing Opinion:

. . . It is believed that customs employees who are reorganized out in the course of the implementation of E.O. No. 12(reorganizing the Department of Finance) need not be informed of the nature and cause of their separation from the service. is enough that they be 'informed of their termination' pursuant to section 1(c) of the Memorandum dated October 2, 1987

President Aquino, which reads:

1. By October 21, 1987, all employees covered by the Executive orders for each agency on reorganization shall be:

xxx xxx xxx

c) Informed of their terminations.

The constitutional mandate that 'no officer or employee of the civil service shall be renewed or suspended except for cause as provided by law' (Sec. 2(4) (sic), Article IX-B of the 1987 Constitution) does not apply to employees who are separated fromoffice as a result of the reorganization of that Bureau as directed in Executive Order No. 127.

xxx xxx xxx

Regarding your (third) query, the issue as to the constitutionality of Executive Order No. 127 is set at rest, after the SupremCourt resolved to dismiss the petition for certiorari questioning its enforceability, for lack of merit (see Jose vs. Arroyo, eal., supra). (Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied)

The former Chairman of the Civil Service Commission, Celerina G. Gotladera likewise periodically consulted by Commissioner Misonalso expressed the opinion that "it is not a prerequisite prior to the separation of an employee pursuant to reorganization that he badministratively charged." (Annex 16, p. 411, Rollo, G.R. No. 85310)

Moreover, the records show that the final selection and placement of personnel was done by a Placement Committee, one of whosmembers is the Head of the Civil Service Commission Field Office, namely, Mrs. Purificacion Cuerdo The appointment of employeemade by Commissioner Mison was based on the list approved by said Placement Committee.

But the majority further faults Mison for defying the President's directive to halt further layoffs as a consequence of reorganization, citinOP Memo of 14 October 1987, reading:

Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further layofthis year of personnel as a result of the government reorganization. (p. 45, Decision)

The foregoing, however, must be deemed superseded by later developments, namely, the grant to Commissioner Mison by thPresident on 22 December 1987 of a grace period until the end of February 1988 within which to completely undertake threorganization of the Bureau of Customs, which was, in fact, accomplished by 28 February 1988.

To further show lack of good faith, the majority states that Commissioner Mison failed to observe the procedure laid down by EO17, supra, directing inter alia that a notice of separation be issued to an employee to be terminated indicating therein the reason/s o

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ground/s for such separation. That requirement, however, does not appear in Section 59 of EO 127, which provides on the contrar"that those incumbents whose positions are not included in the new position structure and staffing pattern of the Ministry or who are nreappointed shall be deemed separated from the service." The right granted by EO 17 to an employee to be informed of the ground fohis separation must be deemed to have been revoked by the repealing clause of EO 127 (Section 67) providing that "all lawsordinances or parts thereof, which are inconsistent with this Executive Order, are hereby repealed and modified accordingly."

Moreover, Section 11 of EO 17 explicitly excepts from its coverage a reorganization pursuant to EO 5. Thus

The Executive Order shall not apply to elective officials or those designated to replace them, presidential appointees, casuaand contractual employees, or officials and employees removed pursuant to desciplinary proceedings under the Civil Servicelaw and rules, and to those laid off as a result of reorganization undertaken pursuant to Executive Order No. 5. (Emphasisours)

That EO 127 was issued pursuant to or in implementation of EO 5, is shown by its introductory portion reading:

Recalling that the reorganization of the government is mandated expressly by Article II, Section 1 (a) and Article III of thFreedom Constitution;

Having in mind that pursuant to Executive order No. 5 (1986), it is directed that the necessary and proper changes in thorganizational and functional structures of the government, its agencies and instrumentalities, be effected in order to promot

efficiency and effectiveness in the delivery of public service; (Italics supplied)

Constitutionality of Republic Act No. 6656

The majority also relies on Republic Act No. 6656 entitled an "Act to Protect the Security of Tenure of Civil Service Officers anEmployees in the Implementation of Government Reorganization," particularly Section 2 thereof, to test the good faith of CommissioneMison.

We are of the view, however, that in providing for retroactivity in its Section 13, RA 6656 clashes frontally with SECTION 16.

1) SECTION 16 clearly recognizes that career service employees separated from the service by reason of the "complete reorganizatioof the government" pursuant to Proclamation No. 3 may be separated NOT FOR CAUSE. And yet, RA 6656 requires the exact opposit— separation FOR CAUSE. It would not be remiss to quote the provision again:

SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice anhearing. A valid cause for removal exist when, pursuant to a bona fide reorganization, a position has been abolished orendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the serviceor other lawful causes allowed by the Civil Service law. The existence of any or some of the following circumstances may bconsidered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatemenor reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffinpattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially thsame functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointmenperformance and merit; (d) Where there is a reclassification of offices in the department or agency concerned and threclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order oseparation provided in Section 3 hereof. (Republic Act No. 6156)

The standards laid down are the "traditional" criteria for removal of employees from the career service, e.g. valid cause, due notice anhearing, abolition of, or redundancy of offices. Proclamation No. 3, on the other hand, effectuates the "progressive" type reorganization dictated by the exigencies of the historical and political upheaval at the time. The "traditional" type is limited in scope. is concerned with the individual approach where the particular employee involved is charged administratively and where the requisiteof notice and hearing have to be observed. The "progressive" kind of reorganization, on the other hand, is the collective way. It is widein scope, and is the reorganization contemplated under SECTION 16.

2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not included in SECTION 16. The benefits granted by thlatter provision to employees separated NOT FOR CAUSE but as a consequence of reorganization are "separation pay, retirement, another benefits accruing to them under the laws of general application in force at the time of their separation." The benefit oreinstatement is not included. RA 6656, however, allows reinstatement. That it cannot do because under SECTION 16, it is not one othe laws "in force at the time of their separation."

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The Constitution is the paramount law to which all laws must conform. It is from the Constitution that all statutes must derive thebearings. The legislative authority of the State must yield to the expression of the sovereign will. No statutory enactment can disregarthe Charter from which it draws its own existence (Phil. Long Distance Telephone Co. v. Collector of Internal Revenue, 90 Phil. 67[1952]). But, that is exactly what RA 6656 does in providing for retroactivity — it disregards and contravenes a Constitutionimperative. To save it, it should be applied and construed prospectively and not retroactively notwithstanding its explicit provision. Thenand only then, would it make good law.

Effects of Reorganization

To be sure, the reorganization could effect the tenure of members of the career service as defined in Section 5, Article IV of PresidentiDecree No. 807, and may even result in the separation from the office of some meritorious employees. But even then, the greater gooof the greatest number and the right of the citizenry to a good government, and as they themselves have mandated through the vehicof Proclamation No. 3, provide the justification for the said injury to the individual. In terms of values, the interest of an employee security of tenure must yield to the interest of the entire populace and to an efficient and honest government.

But a reorganized employee is not without rights. His right lies in his past services, the entitlement to which must be provided for by lawEO 127 provides for the same in its Section 59, and so does SECTION 16 when the latter specified that career civil service employeeseparated from the service not for cause:

shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of generaapplication in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered femployment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned ocontrolled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in linwith the existing policy, has been accepted.

This is a reward for the employee's past service to the Government. But this is all There is no vested property right to be reemployed a reorganized office.

The right to an office or to employment with government or any of its agencies is not a vested property right, and removatherefrom will not support the question of due process" Yantsin v. Aberdeen, 54 Wash 2d 787, 345 P 2d 178). A civil servicemployee does not have a constitutionally protected right to his position, which position is in the nature of a public officepolitical in character and held by way of grant or privilege extended by government; generally he has been held to have nproperty right or vested interest to which due process guaranties extend (See Taylor v. Beckham 178 U.S. 548, 44 L Ed. 1187Angilly v. US CA2 NY 199 F 2d 642; People ex. rel. Baker v. Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller v. NY StaCivil Service Com 21 Misc 2d 1034, 194 NYS 2d 89).

To ensure, however, that no meritorious employee has been separated from the service, there would be no harm, in fact, it could do lot of good, if the Commissioner of Customs reviews the evaluation and placements he has so far made and sees to it that thosterminated are included in a consolidated list to be given preference by departments who are recruiting (Section 2[a], BOMemorandum, January 6,1988).

Conclusion

Premises considered, and subject to the observation hereinabove made, it is our considered view that the separation from the servic"NOT FOR CAUSE but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986" of the affected officeand employees of the Bureau of Customs should be UPHELD, and the Resolutions of the Civil Service Commission, dated 30 Jun1988, 20 September 1988, and 16 November 1988 should be SET ASIDE for having been issued in grave abuse of discretion.

Republic Act No. 6656, in so far as it provides for retroactivity, should be declared UNCONSTITUTIONAL for being repugnant to thletter and spirit of Section 16, Article XVIII of the 1987 Constitution.

Fernan, C.J., Narvasa, Feliciano, Regalado, JJ., concur.

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EN BANC

G.R. No. 133486 January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner,vs.COMMISSION ON ELECTIONS, respondent.

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms ospeech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credibelections. Quite the contrary, exit polls — properly conducted and publicized — can be vital tools in eliminating the evils of electiofixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidentaproblems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec)enbanc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the poll body

RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representativefrom conducting such exit survey and to authorize the Honorable Chairman to issue the same.

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) haprepared a project, with PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . voduring the elections for national officials particularly for President and Vice President, results of which shall be [broadcasimmediately."2 The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quiccount of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBto undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease andesist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, thexit polls were actually conducted and reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lacor excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents orepresentatives from conducting exit polls during the . . . May 11 elections."3

In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution.

The Court's Ruling

The Petition5 is meritorious.

Procedural Issues:

Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held andone with. Allegedly, there is no longer any actual controversy before us.

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The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on thpeople's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of oudemocratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will onpostpone a task that could well crop up again in future elections.6

In any event, in Salonga v . Cruz Paño, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controllinconstitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent o

protection given by constitutional guarantees."7 Since the fundamental freedoms of speech and of the press are being invoked here, whave resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies beforthe issuing forum, specifically the filing of a motion for reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage o justice,8 when the issue involves the principle of social justice or the protection of labor ,9 when the decision or resolution sought to beset aside is a nullity,10 or when the need for relief is extremely urgent andcertiorari is the only adequate and speedy remedy available.11

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the electioitself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enougopportunity to move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections. Moreover, not only itime of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil actiofor certiorari is therefore justified.

Main Issue:

Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining thprobable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they havofficially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advancoverview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had nobeen resorted to until the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to repobalanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteeadministrative regions."

It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech and of thpress. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec graveabused its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly ancredible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "thconduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds opeople and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in "violence ananarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballotsas the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution;12 and relevant provisionsof the Omnibus Election Code.13 It submits that the constitutionally protected freedoms invoked by petitioner "are not immune tregulation by the State in the legitimate exercise of its police power," such as in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying thcredibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in generabe manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation votes conducted by the Commission, as well as the quick count undertaken by the Namfrel.
























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Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May thComelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence othe freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legaillustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom."14

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.15In the landmarkcase Gonzales v . Comelec ,16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuspublicly and truthfully any matter of public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the peoplin social and political decision-making, and of maintaining the balance between stability and change.17 It represents a profoundcommitment to the principle that debates on public issues should be uninhibited, robust, and wide open.18 It means more than the righto approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existinclimate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes,19 we stress that thefreedom encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Sucfreedoms could not remain unfettered and unrestrained at all times and under all circumstances.20 They are not immune to regulation bythe State in the exercise of its police power .21 While the liberty to think is absolute, the power to express such thought in words andeeds has limitations.

In Cabansag v . Fernandez 22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to sucfreedoms, as follows:

These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number ocases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree oimminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evi

sought to be prevented. . . .23

The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a dangeroutendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite oimmediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general termNor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, ounlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evwhich the legislative body seeks to prevent.24

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias vFugoso25 and American Bible Society v . City of Manila;26 as well as in later ones, Vera v . Arca,27Navarro v . Villegas,28 Imbongv . Ferrer ,29 Blo Umpar Adiong v . Comelec 30 and, more recently, in Iglesia ni Cristo v . MTRCB.31 In setting the standard or test for th"clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the wordused are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about th

substantive evils that Congress has a right to prevent. It is a question of proximity and degree."32

A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right tprevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the timelement; the danger must not only be probable but very likely to be inevitable.33 The evil sought to be avoided must be so substantivas to justify a clamp over one's mouth or a restraint of a writing instrument.34

Justification for a Restriction




























































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Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power exercise prior restraint is not to be presumed; rather the presumption is against its validity.35 And it is respondent's burden to overthrowsuch presumption. Any act that restrains speech should be greeted with furrowed brows,36 so it has been said.

To justify a restriction, the promotion of a substantial government interest must be clearly shown.37 Thus:

A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers aimportant or substantial government interest; if the governmental interest is unrelated to the suppression of free expressionand if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of thainterest.38

Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stiffundamental personal liberties, when the end can be more narrowly achieved.39

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination information meant. to add meaning to the equally vital right of suffrage.40 We cannot support any ruling or order "the effect of whicwould be to nullify so vital a constitutional right as free speech."41 When faced with borderline situations in which the freedom of candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean anfree elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power tregulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speaand the right to know are unduly curtailed.42

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in ordto justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must faoutweigh them.

These freedoms have additional importance, because exit polls generate important research data which may be used to studinfluencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectiveprevents the use of exit poll data not only for election-day projections, but also for long-term research.43

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensur

a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the resuthereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a cleaand present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to soconfusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probabilitthat the results of such exit poll may not be in harmony with the official count made by the Comelec . . . is ever present. In other wordthe exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants arselected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of thcommunity or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consismerely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gatherefrom polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that arseparate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of thelections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and confusion in the voting centers — doenot justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualificatioas to whether the polling is disruptive or not.44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the votincenters.45 There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has anevidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confusthe voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable informatioand ideas that could be derived from them, based on the voters' answer to the survey questions will forever remain unknown andunexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived ostudies on the impact of current events and of election-day and other factors on voters' choices.1âwphi1.nêt
































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In Daily Herald Co. v . Munro,46 the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcastinof early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored tadvance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters fromoutside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for threason that they might indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating speech via an exit porestriction.47

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonablways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exsurveys.

For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed tconduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to votethat the latter may refuse interviewed, and that the interview is not part of the official balloting process. The pollsters may further brequired to wear distinctive clothing that would show they are not election officials.48 Additionally, they may be required to undertake aninformation campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a generaprohibition of disruptive behavior, could ensure a clean, safe and orderly election.

For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province(2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by

the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to thpublic only on the day after the elections.49 These precautions, together with the possible measures earlier stated, may be undertaketo abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment othe constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls —properly conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for thelimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to threal issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited fromexhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereoso as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled oilliterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for thpurpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, bachieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may bprescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing thfundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is mad

PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelecen banc on April 21, 1998 is hereby NULLIFIED andSET ASIDE. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.Kapunan, J., see dissenting opinion.Vitug, J., please see separate opinion.Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.Pardo, J., took no part.













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Separate Opinions

KAPUNAN, J., dissenting opinion;

I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is technically moot. Since the Comelec has not declareexit polls to be illegal and neither did the petitioner present its methodology or system of conducting the exit polls to the poll body, thnullification of the Comelec's questioned resolution is bereft of empirical basis. The decision of this Court constitutes a mere academiexercise in view of the premature nature of the issues and the lack of "concreteness" of the controversy. I wish however, to express mthoughts on a few material points.

The majority opinion cites the general rules that any restrictions to freedom of expression would be burdened with a presumption invalidity and should be greeted with "furrowed brews."1 While this has been the traditional approach, this rules does not apply whereas in this case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots and ensuring thintegrity of the elections. Thus, Mr. Justice Feliciano inNational Press (NPC) v . Comelec 2 wrote:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respeof supervisory or regulatory authority on the part of the COMELEC for the purpose of securing equal opportunity amoncandidates for political office, although such supervision or regulation may result in some limitation of the right of free speecand free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without sucaccompanying limitation. Thus, the applicable rule is the general, time honored one — that a statute is presumed to bconstitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly provinthat assertion.3

The NPC decision holds that if the right to free speech collides with a norm of constitutional stature,4 the rule on heavy presumption oinvalidity does not apply.

Our Constitution mandates the Comelec to enforce and administer laws and regulations relative to the conduct of elections and tsecure the secrecy and sanctity of the ballots to ensure orderly, honest, credible and peaceful elections.5 This Constitutional provisioneffectively displaces the general presumption of invalidity in favor of the presumption that Comelec acted in the exercise of itconstitutionally mandated powers. If no presumption of invalidity arises, I see no occasion for the application of the "clear and presendanger test." As this Court, through Mr. Justice Mendoza, succinctly observed:

. . . the clear-and-present danger test is not, however, a sovereign remedy for all free speech problems. As has been pointeout by a thoughtful student of constitutional law, it was originally formulated for the criminal law and only later appropriated fofree speech cases. For the criminal law is necessarily concerned with the line at which innocent preparation ends and guiltconspiracy or attempt begins. Clearly, it is inappropriate as a test for determining the constitutional validity of law which, lik§11(b) of R.A. No. 6646, are not concerned with the content of political ads but only with their incidents. To apply the cleaand-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regulahammer is all that is needed.6

On the matter of methodology in conducting polls, petitioner gave assurance that the exit poll results will only be made public a daafter the elections, in order to allay fears of "trending," "bandwagon-effect" or disruption. This offers little comfort considering the staof our country's electoral system. Unlike in other countries where voting and counting are computerized, our elections are characterizeby snail-paced counting. It is not infrequent that postponement, failure or annulment of elections occur in some areas designated aelection hot spots.7 Such being the case, exit poll results made public after the day of voting in the regular elections but before thconduct of special elections in these areas may potentially pose the danger of "trending," "bandwagon-effect" and disruption oelections.

In view of the foregoing discussion, I believe the Comelec committed no abuse of discretion in issuing the assailed temporarrestraining order stopping petitioner from conducting exit polls. I, therefore, vote to DENY the petition.

VITUG, J., separate opinion;



















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The instant petition, now technically moot, presents issues so significantly that a slights change of circumstances can have a decisiveffect on, and possibly spell a difference in, the final outcome of the case. I am not inclined to take the case in an academic fashion anpass upon the views expressed by either party in preemptive judgment.

While I understand what the ponencia is saying quite laudably, I also appreciate, upon the other hand, the concern of the Commissioon Elections, i .e., that the conduct of exit polls can have some adverse effects on the need to preserve the sanctity of the ballot. ThCommission performs an indispensable task of ensuring free, honest, and orderly elections and of guarding against any frustration o

the true will of the people. Expectedly, it utilizes all means available within its power and authority to prevent the electoral process frombeing manipulated and rendered an absurdity. Like my colleagues, I greatly prize the freedom of expression but, so also, I cherish nless the right of the people to express their will by means of the ballot. In any case, I must accept the reality that the right to informatioand free speech is not illimitable and immune from the valid exercise of an ever demanding and pervasive police power. Whether ankind of restraint should be upheld or declared invalid in the proper balancing of interest is one that must be resolved at any givemoment, not on perceived circumstances, but on prevailing facts.

Neither of the advocations proffered by the parties in this instance, I believe, should be foreclosed by the Court at this time.

I vote, therefore, to dismiss the petition on the foregoing thesis.

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EN BANC

G.R. No. 161418 April 28, 2004

NOEL Y. REPOL, petitioner,vs.COMMISSION ON ELECTIONS and VIOLETO CERACAS, respondents.

DECISION

CARPIO, J.:

The Case

Petitioner Noel Y. Repol ("Repol") filed this Petition for Certiorari1 on 21 January 2004 alleging that the Commission on Election("COMELEC") First Division2 committed grave abuse of discretion in issuing the Order dated 12 January 2004 ("Order") in SPR CasNo. 1-2004. The Order directed "the parties to maintain theSTATUS QUO ANTE , which is the condition prevailing before the issuance

and implementation of the questioned Order of the courta quo dated January 5, 2004 in Election Case No. T-001 entitled, ‘Noel YRepol versus Violeto Ceracas.’"

The Facts

Repol and private respondent Violeto Ceracas ("Ceracas") were candidates for Municipal Mayor of Pagsanghan, Samar in the 14 Ma2001 elections. On 16 May 2001, Ceracas was proclaimed as the duly elected mayor with 66 votes more than Repol.

On 23 May 2001, Repol filed an election protest before the Regional Trial Court of Tarangnan, Samar, Branch 40 ("trial court"docketed as Election Case No. T-001. Claiming that fraud and other irregularities marred the elections in Precincts 3A, 5A and 7Repol prayed for revision of the ballots in these precincts. Judge Francisco Mazo dismissed the election protest on 28 August 2001. Ocertiorari, the COMELEC First Division reversed the dismissal order of Judge Mazo in a Resolution dated 22 May 2002 "for beingissued with grave abuse of discretion tantamount to lack of jurisdiction." The COMELEC First Division directed the trial court "treinstate the subject election protest, conduct the revision of ballots from the protested precincts and render its Decision with immediat

dispatch." On 18 September 2003, the COMELECen banc denied Ceracas’s motion to reconsider the Resolution dated 22 May 2002The COMELEC en banc affirmed in toto the reinstatement of Repol’s election protest. This time around, trial and revision of the ballotensued with Judge Roberto A. Navidad presiding.

On 30 December 2003, the trial court declared Ceracas’s proclamation void and proclaimed Repol the duly elected mayor oPagsanghan, Samar. The trial court explained thus:

After a very careful study and meticulous and painstaking appraisal of the contested ballots, the Court finds and so holds ththe cheating and commission of various frauds and irregularities in these three contested precincts was massive, used manpeople to fill up the ballots – including the voters, connivance with those perpetrating the fraud and the members of the Boarof Election Inspectors, the perpetrators of the fraud enjoyed the luxury of time to perpetrate the fraud and filling the ballots, thafilling up of some of the ballots was done outside of the voting booth and it is not difficult to finally find the answers to thquestions of the Protestant as to wherever and whatever happened to the 24 excess ballots it noted in precinct 3A (BarangaCanlapwas) and 21 excess ballots in precinct 5A (Brgy. Sto. Ninio).

From the foregoing peculiar facts and circumstances it is clearly evident that the electoral fraud was perpetrated by the use osome ballots as shuttles [lanzadera], by which device, the ballots of the voters who are not skilled in the act of writing or whosfidelity to party is in doubt is illegally written out for them by others.

It is likewise not hard to find the answers why the sisters in law of the Protestee were illegally at the table of the BEI Chairmacontrolling the voting process and even angrily and at the top of their voices demanding that some voters be allowed to vote ailliterates even though there were no proper identifications and indications that indeed they were illiterates. Or why the Minuteof Voting in precinct 5A is not the printed one. It only means that there was something to hide.

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After a very careful study, meticulous and painstaking appraisal of the ballots the Court finds that the handwriting of onperson in some of the ballots in one precinct are also found in the other two precincts.

Thus, the handwriting in the ballots in Exhibits 1, 12, 24, 27, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 51, 53 all in Precinct 3(Canlapwas) is the same handwriting as in the ballots in Exhs. 3, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 56, 558, 59 all in Precinct 5A (Sto. Ninio) and is also the same handwriting in the ballots in Exhs. 3, 12, 13, 14, 25, 30, 36, 38, 444, 49, 51, 52 all in Precinct 7A (Buenos Aires).

The handwriting in the ballots in Exhs. 3, 6, 8, 9, 10, 13, 16, 19, 21, 22, 23, 26 all of Precinct 3A (Canlapwas) is the samhandwriting in the ballots in Exhs. 12, 34, 35, 37, 43, 44, 45, 49, 50, 51, 52, 53, 54, 55, 60, 61, 64, 65, 68, 69, 70, 71 precinct 5A (Sto. Ninio) is the same handwriting in the ballots in Exhs. 10, 26, 27, 28, 29, 36, 61, 62, 65, 66, 67 all of precinc7A (Buenos Aires).

Likewise, the other handwriting in the ballots in Exhs. 4, 48, 60, 61, 64 and 65 all in precinct 3A (Canlapwas) is the samhandwriting in the ballots in Exhs. 14, 15, 16, 17, 18, 19, 20, 21, 22 all in precinct 5A (Sto. Ninio) is the same handwriting in thballots in Exhs. 40, and 47 all in precinct 7A (Buenos Aires).

Likewise, the handwriting in the ballots in Exhs. 11, 8, 20, 30 all of Precinct 3A (Canlapwas) is the same handwriting in thballots in Exhs. 46, 47, 48, 63 all in precinct 5A (Sto. Ninio).

In like manner, the handwriting in the ballots in Exhs. 2, 7, 14, 35, 36 all in precinct 3A (Canlapwas) is the same handwriting the ballots in Exhs. 6, 7, 36, all in precinct 5A (Sto. Ninio).

All these ballots should not be counted in favor of the Protestee.

Further, the following ballots are marked for their being written with or unnecessary decorations serving to easily identify hivote. Accordingly, they should not be counted in favor of the protestee. These ballots are:

1. Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 all of Precinct 5A (Sto. Ninio) and

2. Exhs. 1, 2 and 3 all of precinct 7A (Buenos Aires).

Clearly, the will of the electorate was fraudulently substituted by the will of the perpetrators of the fraud.

All in all a total of 142 votes had been illegally counted in favor of the Protestee. Deducting 66 from 142 we get a total of 76. Iother words, the Protestant garnered a majority of 76 votes over that of the protestee.3

In light of these findings, the trial court rendered judgment as follows:

WHEREFORE, and in view of the foregoing, judgment is hereby rendered DECLARING as null and void the proclamation othe Protestee and instead hereby PROCLAIM AND DECLARE, NOEL Y. REPOL, the duly elected Mayor of PagsanghanSamar in the May 2001 elections with a majority of 77 votes.4

Repol filed before the trial court a motion for execution pending appeal. On 5 January 2004, the trial court granted Repol’s motion anissued a writ of execution. Meanwhile, Ceracas appealed the trial court’s judgment to the COMELEC.

On 6 January 2004, Repol took his oath of office as the duly elected mayor of Pagsanghan, Samar. On the same date, Ceracas filebefore the trial court an omnibus motion to reconsider, set aside and quash the writ of execution.

During the pendency of Ceracas’s appeal with the COMELEC and without waiting for the trial court to resolve his omnibus motionCeracas filed with the COMELEC a Petition for Certiorari (with prayer for temporary restraining order, writ of preliminary injunctioand/or status quo ante) assailing the writ of execution, docketed as SPR No. 1-2004.5 On 12 January 2004, the COMELEC FirsDivision issued the assailed Order directing the parties to maintain thestatus quo ante. The Order reads in part:

Acting on the Petition for Certiorari with Prayer for the issuance of Temporary Restraining Order, Writ of Preliminary Injunctioand/or Status Quo Ante Order filed by Petitioner Violeto Ceracas through counsel on January 8, 2004, the Commission (FirsDivision) hereby directs respondents to file their Answer within ten (10) days from receipt hereof.

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The application for the Writ of Preliminary Injunction shall be heard on January 29, 2004 at ten o’clock in the morning at thComelec Session Hall, Intramuros, Manila.

In the interest of justice and so as not to render the issues moot and academic, the Comelec (First Division) hereby directs thparties to maintain the STATUS QUO ANTE , which is the condition prevailing before the issuance and implementation of thquestioned Order of the court a quo dated January 5, 2004 in Election Case No. T-001, entitled, "Noel Y. Repol versus VioletCeracas".

Accordingly, effective immediately, private respondent Noel Repol, is hereby ordered to cease and desist fromassuming the duties and functions of Municipal Mayor of Pagsanghan, Western Samar until further orders from this Commission. In the meantime, petitioner Violeto Ceracas shall assume the post of Municipal Mayor of Pagsanghan,Western Samar.

The Provincial Election Supervisor of Samar and the Provincial Director of the Philippine National Police (PNP), CatbaloganSamar, are hereby directed to immediately implement this Order and make a return of service within five (5) days from thimplementation thereof.

The Clerk of Commission is hereby directed to serve a copy of this Order together with a copy of the Petition to each of threspondents.6 (Emphasis supplied)

At the scheduled hearing on 29 January 2004, the COMELEC First Division issued an order which reads in full:

In today’s hearing of the application for a Writ of Preliminary Injunction prayed for in the above entitled petition, Atty. Sixto Brillantes appeared for the petitioner, while Attys. Baltazar Y. Repol and Farah D. Repol appeared for the private respondent.

Both parties argued on their respective legal positions.

In view of the pendency of the petition for certiorari filed by private respondent with the Supreme Court questioning the statuquo ante issued on January 12, 2004, both parties are hereby given five (5) days from today or until February 3, 2004 to filtheir respective memoranda on the issue of whether this Commission can resolve on the Application for a Writ of PreliminarInjunction despite the pendency of the said petition. Parties may likewise include in their memoranda authorities anarguments on the life span of a status quo ante Order issued by the Commission. Thereafter, with or without the saimemoranda, the said issue shall be deemed submitted for resolution.

SO ORDERED.

Hence, the instant petition.

The Issues

Repol raises the sole issue of –

WHETHER THE COMELEC IS EMPOWERED UNDER ANY STATUTE, RULE, OR JURISPRUDENCE TO ISSUE ASTATUSQUO ANTE IN EFFECT OVERTURNING THE EFFECTIVE ENFORCEMENT OF THE WRIT OF EXECUTION ISSUED BYTHE TRIAL COURT AND SUSPENDING INDEFINITELY, WITHOUT PRIOR NOTICE AND HEARING, THIMPLEMENTATION OF SUCH WRIT.7

Repol argues that the COMELEC First Division acted with grave abuse of discretion in issuing the status quo anteOrder whichindefinitely suspended and effectively nullified the trial court’s writ of execution. Repol contends that the COMELEC First Division hano authority to issue the Order after the trial court found the election in the protested precincts marred by fraud and after the trial couconsidered meritorious the grounds cited by Repol in his motion for execution pending appeal. According to Repol, the law, rule an jurisprudence limit the COMELEC’s power to issue temporary restraining orders to a non-extendible period of 20 days from the date oissuance.

Ceracas agrees with Repol that the rules do not expressly grant to the COMELEC the power to issuestatus quo ante orders. HoweverCeracas argues that the COMELEC’s power to issue temporary restraining orders and preliminary injunctions necessarily includes thpower to issue status quo ante orders.

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On the other hand, the Office of the Solicitor General (OSG) appearing on behalf of the COMELEC, prays that the Court dismiss thinstant petition. The OSG asserts that Repol cannot challenge before this Court by way of a petition for certiorari an interlocutory ordeissued by a COMELEC Division without first filing a motion for reconsideration with the COMELECen banc .

The Court’s Ruling

The petition is meritorious.

Remedy to Assail Interlocutory Orders of the COMELEC in Division

Where the COMELEC in division allegedly committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing ainterlocutory order, the applicable rule is Section 5(c), Rule 3 of the 1993 COMELEC Rules of Procedure, which states-

Section 5. Quorum; Votes Required. –

(a) x x x.

(b) x x x.

(c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by thCommission en banc except motions on interlocutory orders of the division, which shall be resolved by thedivision which issued the order . (Emphasis supplied)

The 12 January 2004 Order did not dispose of the case completely as there is something more to be done. Interlocutory orders mererule on an incidental issue and do not terminate or finally dispose of the case as they leave something to be done before it is finalldecided on the merits.8 Since the COMELEC First Division issued the interlocutory Order of 12 January 2004, the same COMELECFirst Division should resolve Repol’s motion for reconsideration of the Order. The remedy of the aggrieved party is neither to file motion for reconsideration for certification to the COMELECen banc nor to elevate the issue to this Court via a petition for certioraunder Rule 65 of the Rules of Civil Procedure.

Section 5, Rule 19 of the 1993 COMELEC Rules of Procedure governs motions for reconsideration of decisions of a COMELECDivision, as follows:

SEC. 5. How Motion for Reconsideration Disposed of . - Upon the filing of a motion to reconsider a decision, resolutionorder or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify thpresiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commissionen banc.

In Gementiza v. Commission on Elections,9 the Court explained the import of this rule in this wise:

Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must have a character ofinality before the same can be elevated to the COMELEC en banc . The elementary rule is that an order is final in nature if completely disposes of the entire case. But if there is something more to be done in the case after its issuance, that order interlocutory.

Only final orders of the COMELEC in Division may be raised before the COMELECen banc . Section 3, Article IX-C of the 1987Constitution mandates that only motions for reconsideration of final decisions shall be decided by the COMELEC en banc , thus:

SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in ordeto expedite disposition of election cases, including pre-proclamation controversies.All such election cases shall be heardand decided in Division, provided that motions for reconsideration of decisions shall be decided by the Commissionen banc. (Emphasis supplied)

Under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of "decisions" of a Divisionmeaning those acts having a final character.10 Clearly, the assailed status quo anteOrder, being interlocutory, should first be resolved bythe COMELEC First Division via a motion for reconsideration.

Furthermore, the present controversy does not fall under any of the instances over which the COMELECen banc can take cognizanceof the case. Section 2, Rule 3 of the 1993 COMELEC Rules of Procedure provides:

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SEC. 2. The Commission En Banc. – The Commission shall sit en banc in cases hereinafter specifically provided, or in preproclamation cases upon a vote of a majority of the members of the Commission, or in all other cases where a division is noauthorized to act, or where, upon a unanimous vote of all the Members of a Division, an interlocutory matter or issue relative tan action or proceeding before it is decided to be referred to the Commissionen banc .

The present case is not one of the cases specifically provided under the COMELEC Rules of Procedure in which the COMELEC masit en banc . Neither is this case one where a division is not authorized to act nor a case where the members of the First Divisio

unanimously voted to refer the issue to the COMELEC en banc . Thus, the COMELEC en banc is not even the proper forum whereRepol may bring the assailed interlocutory Order for resolution.

We held in Ambil, Jr. v. Commission on Elections11 that -

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the COMELEC in division canot dispense with the filing of a motion for reconsideration of a decision, resolution or final order of the Division of thCommission on Elections because the case would not reach the Comelec en banc without such motion for reconsideratiohaving been filed x x x.

Repol went directly to the Supreme Court from an interlocutory order of the COMELEC First Division. Section 7, Article IX of the 198Constitution prescribes the power of the Supreme Court to review decisions of the COMELEC, as follows:

Section 7. Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixtdays from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolutioupon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by the commission itseUnless otherwise provided by this constitution or by law, any decision, order, or ruling of each commission may be brought tothe Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

We have interpreted this constitutional provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercisof its adjudicatory or quasi-judicial powers.12 The decision must be a final decision or resolution of the COMELECen banc .13 TheSupreme Court has no power to review via certiorari14 an interlocutory order or even a final resolution of a Division of the COMELECFailure to abide by this procedural requirement constitutes a ground for dismissal of the petition.15

However, this rule is not ironclad. In ABS-CBN Broadcasting Corporation v. COMELEC ,16 we stated –

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may b

glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice or the protection olabor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent ancertiorari is the only adequate and speedy remedy available.

The Court further pointed out in ABS-CBN that an exception was warranted under the peculiar circumstances of the case since therewas hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time for the 11 May 1998 elections. Thsame can be said in Repol’s case. We rule that direct resort to this Court through a special civil action for certiorari is justified under thcircumstances obtaining in the present case.

Validity of the Status Quo Ante Order

The main issue to be resolved in this petition is whether the COMELEC First Division acted with grave abuse of discretion amounting tlack or excess of jurisdiction in issuing the status quo ante Order which effectively overturned the trial court’s grant of execution pendinappeal in Repol’s favor. This issue is not mooted even if the next elections are just a few weeks away. The holding of periodic electionis a basic feature of our democratic government.17 To set aside the resolution of the issue now will only postpone a task that could wecrop up again in future elections.18

We rule in the affirmative.

First . Rule 30 of the 1993 COMELEC Rule of Procedure provides the metes and bounds on the COMELEC’s power to issue injunctivrelief as follows:

SECTION 1. Preliminary Injunction. - The Commission or any of its Divisions may grant preliminary injunction in any ordinaryaction, special action, special case, or special relief pending before it.

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SECTION 2. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted at any time after thcommencement of an action or proceeding and before judgment when it is established that:

(a) The petitioner or protestant is entitled to the relief demanded and the whole or part of such relief consists restraining the commission or continuance of the acts complained of, or in the performance of an act or acts, eithefor a limited period or perpetually.

(b) The commission or continuance of some act complained of during the pendency of the action or the nonperformance thereof would work injustice to the petitioner or protestant.

(c) The respondent or protestee is doing, threatens, or is about to do, or is procuring to be done, some act in violatioof petitioner’s/protestant’s rights respecting the subject of the action, and tending to render the judgment ineffectual.

SECTION 3. Grant of injunction discretionary. - The grant of the preliminary injunction is entirely left to the sound discretion othe Commission or its Divisions.

SECTION 4. Bond for preliminary injunction. - No writ of preliminary injunction shall be issued unless the applicant shall file bond, in an amount to be fixed by the Commission or the Division concerned, to the effect that the petitioner/protestant will pato such party all damages which the latter may sustain by reason of the injunction if the Commission or the Division concerneshall finally decide that the petitioner/protestant was not entitled thereto.

SECTION 5. Preliminary injunction not granted without notice; issuance of restraining order. - No preliminary injunction shabe granted without notice to the adverse party. If it shall appear from the facts shown by affidavits or the verified petition thgreat or irreparable injury would result to the applicant before the matter can be heard on notice,the Commission or anyDivision to which the application for preliminary injunction was made, may issue a restraining order to be effectiveonly for a period of twenty days from date of its issuance. Within the said twenty-day period, the Commission or thDivision, as the case may be, must cause an order to be served on the respondent requiring him to show cause, at a specifietime and place, why the injunction should not be granted, and determine within the same period whether or not the preliminainjunction shall be granted and shall accordingly issue the corresponding order. In the event that the application for preliminarinjunction is denied, the restraining order is deemed automatically vacated. (Emphasis supplied)

A cursory reading of the Order dated 12 January 2004 or the so-called status quo ante Order reveals that it was actually a temporaryrestraining order. It ordered Repol to cease and desist from assuming the position of municipal mayor of Pagsanghan, Samar anddirected Ceracas to assume the post in the meantime. Thestatus quo ante Order had a life span of more than 20 days since th

directive was qualified by the phrase "until further orders from this Commission." This violates the rule that a temporary retraining ordehas an effective period of only 20 days and automatically expires upon the COMELEC’s denial of the preliminary injunction. Thusthe status quo ante Order automatically ceased to have any effect after 1 February 2004 since the COMELEC First Division did noissue a writ of preliminary injunction.

While the hearing on Ceracas’s application for a writ of preliminary injunction was held on 29 January 2004, the COMELEC FirsDivision failed to resolve the application. Instead, it issued an Order directing the parties to file their memoranda until 3 February 200on their respective positions "on the life span of status quo ante orders and whether a writ of preliminary injunction should be granted inthe case." Clearly, the COMELEC First Division’s indecision on the matter not only worked injustice to Repol but also failed to dispel thuncertainty beclouding the real choice of the electorate for municipal mayor.

Second . The decision of the trial court in Election Case No. T-001 was rendered on 30 December 2003, or after almost one year of triand revision of the questioned ballots. It found Repol as the candidate with the plurality of votes. The grant of execution pending appeawas well within the discretionary powers of the trial court.19 In the recent case of Edgar Y. Santos v. Commission on Elections (Firs

Division) and Pedro Q. Panulaya,20

we ruled:

Between the determination by the trial court of who of the candidates won the elections and the finding of the Board Canvassers as to whom to proclaim, it is the court’s decision that should prevail. This was sufficiently explained in the casof Ramas v. COMELEC in this wise:

All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediaexecution should be based "upon good reasons to be stated in a special order." The rationale why such execution iallowed in election cases is, as stated in Gahol v. Riodique, "to give as much recognition to the worth of a trial judge’decision as that which is initially ascribed by the law to the proclamation by the board of canvassers." Thus:

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Why should the proclamation by the board of canvassers suffice as basis of the right to assume officesubject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeedwhen it is considered that the board of canvassers is composed of persons who are less technicallyprepared to make an accurate appreciation of the ballots, apart from their being more apt to yield textraneous considerations, and that the board must act summarily, practically racing against time, while, othe other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly bettetechnical preparation and background, apart from his being allowed ample time for conscientious study an

mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing thimmediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfectioand pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasontherefor.

To deprive trial courts of their discretion to grant execution pending appeal would, in the words of Tobon Uy v. COMELECbring back the ghost of the "grab-the-proclamation-prolong the protest" techniques so often resorted to by devious politicianin the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will the electorate.

Applying Santos to this petition, we hold that the COMELEC First Division committed grave abuse of discretion in settinaside the trial court’s order granting execution pending appeal.

Ceracas was Guilty of Forum Shopping

We must point out that Ceracas is guilty of forum-shopping. At the time he instituted SPR Case No. 1-2004 with the COMELEC, he haa pending omnibus motion to reconsider, set aside and quash the writ of execution with the trial court. In addition, Ceracas’s appeal othe trial court’s adverse decision was also pending before the COMELEC.21 Forum shopping is an act of a party, against whom aadverse judgment or order has been rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, othethan by appeal or special civil action for certiorari.22 It may also be the institution of two or more actions or proceedings grounded on thsame cause on the supposition that one or the other court would make a favorable disposition.23

Due to a clear showing that Ceracas was forum-shopping, the COMELEC First Division, following our ruling inSantos,24 should havedismissed outright instead of giving due course to Ceracas’s petition in SPR No. 1-2004.

WHEREFORE, the instant petition is GRANTED. The Order dated 12 January 2004 of the COMELEC First Division in SPR Case No1-2004 is ANNULLED and said case is ordered DISMISSED on the ground of forum-shopping. The Order dated 5 January 2004 of thRegional Trial Court of Tarangnan, Samar, Branch 40, granting the execution pending appeal of its decision in Election Case No. T001, and the Writ of Execution issued pursuant thereto, areREINSTATED. The full enforcement of the said Writ must forthwith bmade.

This Decision shall be immediately executory.

Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales,Callejo, Sr., Azcuna, and Tinga, JJ., concur.

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