POLITICAL LAW

J. BERSAMIN

POLITICAL AND PUBLIC INTERNATIONAL LAW

GENERAL CONSIDERATIONS

STATE IMMUNITY

AIR TRANSPORTATION OFFICE v. SPOUSES DAVID AND ELISEA RAMOS

G.R. No. 159402, 23 February 2011, THIRD DIVISION (Bersamin, J.)

Suits against State agencies with relation to matters in which they have assumed to act in
private or non-governmental capacity, and various suits against certain corporations created by
the State to engage in matters partaking more of the nature of ordinary business rather than
functions of a governmental or political character, are not regarded as suits against the state.

Spouses David and Elisea Ramos discovered that a portion of the land they own was being
used by the Air Transportation Office (ATO) as part of the runway and running shoulder of the
Loakan Airport. An agreement was entered into by the Spouses and ATO wherein the former agreed
to sell to the latter the portion of the land ATO occupied for a consideration.

After several demands for payment were left unheeded, Spouses Ramos filed a case for
collection for sum of money. Meanwhile, ATO contends that the affected portion of Spouses
Ramos land was included by Former President Marcos to be reserved to be used by the Loakan
Airport. Furthermore, the Regional Trial Court (RTC) had no jurisdiction over the case since the
State has not given its consent to be sued especially since the act done by ATO was made in
performance of its governmental function.

Both the RTC and the Court of Appeals (CA) held ATO liable to pay the agreed upon value
of the affected portion of the land plus damages.

ISSUE:

Whether or not the ATO could be sued without the States consent.

RULING:

YES. The immunity of the State from suit, known also as the doctrine of sovereign immunity
or non-suability of the State, is expressly provided in Article XVI of the 1987 Constitution. The
immunity from suit is based on the political truism that the State, as a sovereign, can do no wrong.

Practical considerations dictate the establishment of an immunity from suit in favor of

the State. Otherwise, and the State is suable at the instance of every other individual, government
service may be severely obstructed and public safety endangered because of the number of suits
that the State has to defend against.

The CA thereby correctly appreciated the juridical character of the ATO as an agency of
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the Government not performing a purely governmental or sovereign function, but was instead
involved in the management and maintenance of the Loakan Airport, an activity that was not
the exclusive prerogative of the State in its sovereign capacity. Hence, the ATO had no claim to
the States immunity from suit.

The Court further observed the doctrine of sovereign immunity cannot be successfully
invoked to defeat a valid claim for compensation arising from the taking without just compensation
and without the proper expropriation proceedings being first resorted to of the Spouses Ramos
property. The Supreme Court ruled that the doctrine of sovereign immunity was not an instrument
for perpetrating any injustice on a citizen. In exercising the right of eminent domain, the Court
explained, the State exercised its jus imperii, as distinguished from its proprietary rights, or jus
gestionis; yet, even in that area, where private property had been taken in expropriation without
just compensation being paid, the defense of immunity from suit could not be set up by the
State against an action for payment by the owners.

LEGISLATIVE DEPARTMENT

LUIS K. LOKIN, JR v. COMMISSION ON ELECTIONS and the HOUSE OF

REPRESENTATIVES
G.R. Nos. 179431-32 & 180443, 22 June 2010, EN BANC (Bersamin, J.)

The administrative IRR was not within the scope of the authority given by the Legislature.
Sec. 8 of R.A. No. 7941 is clear. The Legislature thereby deprived the party-list organization of the
right to change its nominees or to alter the order of nominees once the list is submitted to the
COMELEC, subject to certain exceptions.

The Citizens Battle Against Corruption (CIBAC), a duly registered group under the party-
list system manifested their intent to participate in the May 14, 2007 and through its president,
Villanueva, submitted a list of nominees. Prior to the elections, however, CIBAC filed a certificate
of nomination, substitution and amendment of the list of nominees whereby it withdrew the
nominations of Lokin, Tugna and Galang and substituted Armi Jane R. Borje as one of the nominees
and included: (1) Villanueva, (2) Cruz-Gonzales, and (3) Borje.

Following the close of the polls, Villanueva sent a letter to COMELEC transmitting
therewith the signed petitions of more than 81% of the CIBAC members, in order to confirm the
withdrawal of the nomination of Lokin, Tugna and Galang and the substitution of Borje. CIBAC,
supposedly through its counsel, filed with the COMELEC en banc sitting as the National Board
of Canvassers a motion seeking the proclamation of Lokin as its second nominee.

The COMELEC en banc resolved to approve the withdrawal of the nominations and its
substitution. Lokin then assailed said resolution and Section 13 of Resolution No. 7804 alleging that
the latter resolution expanded Section 8 of R.A. No. 7941, Party-List System Act, the law that the
COMELEC seeks to thereby implement. On the other hand, COMELEC asserts that a
petition for certiorari is an inappropriate recourse in law due to the proclamation of Cruz-Gonzales
as Representative and her assumption of that office; that Lokins proper recourse was an electoral
protest filed in the House of Representatives Electoral Tribunal (HRET); and that, therefore, the
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Court has no jurisdiction over the matter being raised by Lokin.

ISSUES:

1. Whether or not the Court has jurisdiction over Lokin.

2. Whether or not Lokin is guilty of forum shopping.
3. Whether or not Section 13 of Resolution No. 7804 is unconstitutional and violative of Party-
List System Act.

RULING:

1. YES. The controversy involving Lokin is neither an election protest nor an action for quo
warranto, for it concerns a very peculiar situation in which Lokin is seeking to be seated as the
second nominee of CIBAC. This special civil action for certiorari was filed to seek the review of
the resolution of the COMELEC in accordance with Section 7 of Article IX-A of the 1987
Constitution, notwithstanding the oath and assumption of office by Cruz-Gonzales. The
constitutional mandate is now implemented by Rule 64 of the 1997 Rules of Civil Procedure,
which provides for the review of the judgments, final orders or resolutions of the COMELEC and
the Commission on Audit.

2. NO. The mere filing of several cases based on the same incident does not necessarily
constitute forum shopping. The test is whether the several actions filed involve the same
transactions and the same essential facts and circumstances. The actions must also raise identical
causes of action, subject matter, and issues. Elsewise stated, forum shopping exists where the
elements of litis pendentia are present, or where a final judgment in one case will amount to
res judicata in the other.

Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him as
the second nominee of CIBAC. On the other hand, the petition for certiorari was resorted to
assail the September 14, 2007 resolution of the COMELEC and to challenge the validity of Section
13 of Resolution No. 7804, COMELECs basis for allowing CIBACs withdrawal of Lokins
nomination. Applying the test for forum shopping, the consecutive filing of the action
for certiorari and the action for mandamus did not violate the rule against forum shopping even
if the actions involved the same parties, because they were based on different causes of action
and the reliefs they sought were different.

3. YES. The administrative IRR was not within the scope of the authority given by the
Legislature. Sec. 8 of R.A. No. 7941 is clear. The Legislature thereby deprived the party-list
organization of the right to change its nominees or to alter the order of nominees once the list
is submitted to the COMELEC, except when: (a) the nominee dies; (b) the nominee withdraws in
writing his nomination; or (c) the nominee becomes incapacitated. The enumeration is exclusive,
for, necessarily, the general rule applies to all cases not falling under any of the three exceptions.
The fourth instance added under Section 13 of Resolution No. 7804 particularly, the fourth
being when the nomination is withdrawn by the party, is already beyond the authority of the
COMELEC.

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The COMELEC, despite its role as the implementing arm of the Government in the
enforcement and administration of all laws and regulations relative to the conduct of an election,
has neither the authority nor the license to expand, extend, or add anything to the law it seeks
to implement thereby. This invalid rule, regulation, or part thereof cannot be a valid source
of any right, obligation, or power.

EXECUTIVE DEPARTMENT

ARTURO M. DE CASTRO v. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT

GLORIA MACAPAGAL ARROYO
G. R. No. 191002, 17 March 2010, EN BANC (Bersamin, J.)

The constitutional prohibition in Section 15, Article VII of the Constitution applies only
to the executive branch of the government and does not extend to the Judiciary.

A writ of mandamus will not lie to compel the JBC to submit a short list of nominees
to the President it being a ministerial function because there was no unjustified delay in its
performance.

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occured just
days after the presidential elections on May 10, 2010 giving rise to many legal dilemmas. There are
two conflicting constitutional provisions on this matter. Section 15, Article VII (Executive
Department) of the Constitution prohibits the President or Acting President from making
appointments within two months immediately before the next presidential elections and up to
the end of his term, except temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety. In connection with
this, Section 4 (1), Article VIII (Judicial Department) of the Constitution provides that any vacancy
in the Supreme Court shall be filled within 90 days from the occurrence thereof from a list of at
least three nominees prepared by the Judicial and Bar Council for every vacancy.

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the

Judicial and Bar Council (JBC), addressed a letter to the JBC, requesting that the process for
nominations to the office of the Chief Justice be commenced immediately. In its January 18,
2010 meeting en banc, therefore, the JBC passed a resolution. As a result, the JBC opened the
position of Chief Justice for application or recommendation, and published for that purpose
its announcement. Conformably with its existing practice, the JBC automatically considered for
the position of Chief Justice the five most senior of the Associate Justices of the Court. Others
either applied or were nominated. In its meeting of February 8, 2010, the JBC resolved to proceed
to the next step of announcing the names of the following candidates to invite the public to file
their sworn complaint, written report, or opposition, if any, not later than February 22, 2010.
Although it has already begun the process for the filling of the position of Chief Justice Puno in
accordance with its rules, the JBC is not yet decided on when to submit to the President its list
of nominees for the position due to the controversy before the Court being yet unresolved. On
February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the
process for the selection of the nominees for the positiion of Chief Justice would be the public
interview of the candidates and the preparation of the short list of candidates, including the
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interview of the constitutional experts, as may be needed. The actions of the JBC have sparked a
vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought
out highly disparate opinions on whether the incumbent President can appoint the next Chief
Justice or not.

In its comment, the Office of the Solicitor General (OSG) argues that the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010. The
OSG insists, among others, that the JBCs function to recommend is a continuing process, which
does not begin with each vacancy or end with each nomination, because the goal is to submit
the list of nominees to Malacaang on the very day the vacancy arises; the JBC was thus acting
within its jurisdiction when it commenced and set in motion the process of selecting the nominees
to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice
Puno. Further, a writ of mandamus cannot issue to compel the JBC to include or exclude particular
candidates as nominees, considering that there is no imperative duty on its part to include in
or exclude from the list particular individuals, but, on the contrary, the JBCs determination of
who it nominates to the President is an exercise of a discretionary duty.

In the arguments presented in this case, a precedent frequently cited is In Re Appointments

dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon Placido B. Vallorta as Judges of the
Regional Trial Court (Valenzuela), by which the Court held that Section 15, Article VII prohibited
the exercise by the President of the power to appoint to judicial positions during the period
therein fixed. In relation to this, all the intervenors-oppositors submit that Section 15, Article VII
makes no distinction between the kinds of appointments made by the President; and
that the Court, in Valenzuela, ruled that the appointments by the President of the two judges
during the prohibition period were void.

ISSUES:

1. Whether Section 15, Article VII of the Constitution prohibiting the incumbent President to
appoint two months before the presidential elections covers the Judiciary.
2. Whether mandamus will lie to compel the JBC to submit a list of nominees to the President.

RULING:

1. NO. First, had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could have explicitly done
so. They could not have ignored the meticulous ordering of the provisions. They
would have easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that
the prohibition against the President or Acting President making appointments within two months
before the next presidential elections and up to the end of the Presidents or Acting Presidents term
does not refer to the Members of the Supreme Court. Moreover, the usage in Section 4(1), Article
VIII of the word shall an imperative, operating to impose a duty that may be enforced should not
be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to
make an appointment of a Member of the Supreme Court within 90 days from the occurrence of

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the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.

Second. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary. There is no question that one of the reasons underlying the adoption of Section 15 as
part of Article VII was to eliminate midnight appointments from being made by an outgoing
Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.

Third. The non-applicability of Section 15, Article VII to appointments in the Judiciary
was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March
9, 1998 to discuss the question raised by some sectors about the constitutionality of xxx
appointments to the Court of Appeals in light of the forthcoming presidential elections. He assured
that on the basis of the (Constitutional) Commissions records, the election ban had no application
to appointments to the Court of Appeals. This confirmation was accepted by the JBC, which then
submitted to the President for consideration the nominations for the eight vacancies in the Court
of Appeals.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section
16) concern the appointing powers of the President.

Section 14 speaks of the power of the succeeding President to revoke appointments made
by an Acting President, and evidently refers only to appointments in the Executive Department.
It has no application to appointments in the Judiciary, because temporary or acting appointments
can only undermine the independence of the Judiciary due to their being revocable at will. The
letter and spirit of the Constitution safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level courts and the Justices of the third
level courts may only be removed for cause, but the Members of the Supreme Court may be
removed only by impeachment.

Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.

Section 14, Section 15, and Section 16 are obviously of the same character, in that they
affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to
appointments within the Executive Department renders conclusive that Section 15 also applies
only to the Executive Department. This conclusion is consistent with the rule that every part of
the statute must be interpreted with reference to the context, i.e. that every part must be considered
together with the other parts, and kept subservient to the general intent of the whole enactment.
It is absurd to assume that the framers deliberately situated Section 15 between Section
14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If
that was their intention in respect of appointments to the Judiciary, the framers, if only to be
clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within
Section 4 (1) thereof.
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Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to
the Judiciary further undermines the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative Departments. Such a holding will tie
the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for
the Presidency in a presidential election. Consequently, the wisdom of having the new
President, instead of the current incumbent President, appoint the next Chief Justice is itself
suspect, and cannot ensure judicial independence, because the appointee can also become
beholden to the appointing authority. In contrast, the appointment by the incumbent President
does not run the same risk of compromising judicial independence, precisely because her term
will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for the
incumbent President to appoint during the prohibition period the successor of Chief Justice
Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45
days of the 90 days mandated in Section 4(1), Article VIII remaining. The argument is flawed,
because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement
by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the
Supreme Court. The argument also rests on the fallacious assumption that there will still be
time remaining in the 90-day period under Section 4(1), Article VIII.

Seventh. As a matter of fact, in an extreme case, it can even raise a doubt on whether a
JBC list is necessary at all for the President to appoint a Chief Justice if the appointee is to
come from the ranks of the sitting justices of the Supreme Court.

For sure, the framers intended the position of Chief Justice to be permanent, not one to
be occupied in an acting or temporary capacity. In relation to the scheme of things under the
present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in
which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is
unable to perform the duties and powers of the office. It ought to be remembered, however, that
it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to
the confirmation of the Commission on Appointments, and the confirmation process might take
longer than expected.

The appointment of the next Chief Justice by the incumbent President is preferable to
having the Associate Justice who is first in precedence take over. Under the Constitution, the heads
of the Legislative and Executive Departments are popularly elected, and whoever are elected and
proclaimed at once become the leaders of their respective Departments. However, the lack of
any appointed occupant of the office of Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions
absolutely significant to the life of the nation. With the entire Supreme Court being the
Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being
no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the
incumbent President to make within the 90-day period from May 17, 2010, there is no justification
to insist that the successor of Chief Justice Puno be appointed by the next President.

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2. NO. Under the Constitution, it is mandatory for the JBC to submit to the President the
list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint
one of them within the 90-day period from the occurrence of the vacancy. The JBC has no
discretion to submit the list to the President after the vacancy occurs, because that shortens the
90-day period allowed by the Constitution for the President to make the appointment. For the JBC
to do so will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted under the
Constitution to reflect on the qualifications of the nominees named in the list of the JBC before
making the appointment.

The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory
90-day period to appoint is ministerial, but its selection of the candidates whose names will be
in the list to be submitted to the President lies within the discretion of the JBC. The object of the
petitions for mandamus herein should only refer to the duty to submit to the President the list
of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect
of duty, there must be an unjustified delay in performing that duty. For mandamus to lie against
the JBC, therefore, there should be an unexplained delay on its part in recommending nominees
to the Judiciary, that is, in submitting the list to the President.

BILL OF RIGHTS

HERMANO OIL MANUFACTURING & SUGAR CORPORATION vs. TOLL REGULATORY

BOARD
G.R. No. 167290, FIRST DIVISION, November 26, 2014, BERSAMIN, J.*

Constitutional Law; Equal Protection of the Law; Police Power; Due Process; The putting up of
the access fence on the petitioners property was in the valid exercise of police power, assailable only
upon proof that such putting up unduly violated constitutional limitations like due process and equal
protection of the law. A toll way is not an ordinary road. As a facility designed to promote the fastest
access to certain destinations, its use, operation, and maintenance require close regulation. Public
interest and safety require the imposition of certain restrictions on toll ways that do not apply to
ordinary roads. As a special kind of road, it is but reasonable that not all forms of transport could use
it.

Same; Same; A classification based on practical convenience and common knowledge is not
unconstitutional simply because it may lack purely theoretical or scientific uniformity.The access
fence was a reasonable restriction on the petitioners property given the location thereof at the right
side of Sta. Rita Exit of the NLEX. Although some adjacent properties were accorded unrestricted
access to the expressway, there was a valid and reasonable classification for doing so because their
owners provided ancillary services to motorists using the NLEX, like gasoline service stations and food
stores. A classification based on practical convenience and common knowledge is not
unconstitutional simply because it may lack purely theoretical or scientific uniformity.

Same; Police Power; Taking; Just Compensation; The limited access imposed on the petitioners
property did not partake of a compensable taking due to the exercise of the power of eminent domain.
The limited access imposed on the petitioners property did not partake of a compensable taking due
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to the exercise of the power of eminent domain. There is no question that the property was not taken
and devoted for public use. Instead, the property was subjected to a certain restraint, i.e., the access
fence, in order to secure the general safety and welfare of the motorists using the NLEX. There being
a clear and valid exercise of police power, the petitioner was certainly not entitled to any just
compensation.

FACTS:

The petitioner owned a parcel of land located at the right side of the Sta. Rita Exit of the NLEX.
The parcel of land was bounded by an access fence along the NLEX. The petitioner requested that
respondent Toll Regulatory Board (TRB) grant an easement of right of way, contending that it had
been totally deprived of the enjoyment and possession of its property by the access fence that had
barred its entry into and exit from the NLEX. The TRB, however, denied the request.

Thereafter, the petitioner sued the TRB in the RTC demanding specific performance, the grant
of the easement of right of way and damages. DPWH and PNCC were impleaded as indispensible
parties. The petitioner prayed for the issuance of a writ of preliminary injunction/temporary
restraining order enjoining the defendants, its agents and/or representatives from depriving plaintiff
to ingress and egress of its property

TRB filed a Motion to Dismiss on the grounds that: (i) RTC has no jurisdiction over the case;
and (ii) the petition states no cause of action considering that the State cannot be sued without its
consent. The RTC granted the motion to dismiss. This was affirmed by the CA on appeal.

ISSUES:

1. WHETHER OR NOT TRB, DPWH and PNCC are immune from suit.
2. WHETHER OR NOT the RTC has jurisdiction.

RULING:

1. YES as to TRB and DPWH but NO as to PNCC.

The TRB and DPWH performed purely or essentially government or public functions.
As such, they were invested with the inherent power of sovereignty. Being unincorporated
agencies or entities of the National Government, they could not be sued as such.

An unincorporated government agency without any separate juridical personality of its own
enjoys immunity from suit because it is invested with an inherent power of sovereignty. Accordingly,
a claim for damages against the agency cannot prosper otherwise, the doctrine of sovereign immunity
is violated. However, the need to distinguish between an unincorporated government agency
performing governmental function and one performing proprietary functions has arisen. The
immunity has been upheld in favor of the former because its function is governmental or incidental
to such function it has not been upheld in favor of the latter whose function was not in pursuit of a
necessary function of government but was essentially a business.

Nonetheless, the PNCC, being a private business entity, was not immune from suit.
The PNCC was incorporated in 1996 under its original name of Construction Development
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Corporation of the Philippines (CDCP) for a term of 50 years pursuant to the Corporation Code. In
1983, the CDCP changed its corporate name to the PNCC to reflect the extent of the Governments
equity investment in the company, a situation that came about after the government financial
institutions converted their loans into equity following the CDCPs inability to pay the loans. Hence,
the Government owned 90.3% of the equity of the PNCC, and only 9.70% of the PNCCs voting equity
remained under private ownership. Although the majority or controlling shares of the PNCC
belonged to the Government, the PNCC was essentially a private corporation due to its having
been created in accordance with the Corporation Code, the general corporation statute. More
specifically, the PNCC was an acquired asset corporation under Administrative Order No. 59, and was
subject to the regulation and jurisdiction of the Securities and Exchange Commission. Consequently,
the doctrine of sovereign immunity had no application to the PNCC.

2. NO.

Clearly, the reliefs sought by the petitioner were beyond the jurisdiction of the RTC
because no court except the Supreme Court could issue an injunction against the
infrastructure project of the Government. This is because Presidential Decree No. 1818, issued on
January 16, 1981, prohibited judges from issuing restraining orders against government infrastructure
projects, stating in its sole provision: No court in the Philippines shall have jurisdiction to issue any
restraining order, preliminary injunction or preliminary order, preliminary mandatory injunction in
any case, dispute or controversy involving an infrastructure project. Presidential Decree No. 1818 was
amended by Republic Act No. 8975, approved on November 7, 2000.

PD 1818 proscribes the issuance of a writ of preliminary injunction in any case involving an
infrastructure project of the government. The aim of the prohibition, as expressed in its second
whereas clause, is to prevent delay in the implementation or execution of the government
infrastructure projects (particularly through the use of provisional remedies) to the detriment of the
greater goods since it disrupts the pursuit of essential government projects and frustrates the
economic development effort of the nation.

Collection of toll fees is an infrastructure project of the government. The term

infrastructure projects means construction, improvement and rehabilitation of roads, and bridges,
railways, airports, seaports, communication facilities, irrigation, flood control and drainage, water
supply and sewage systems, shore protection, power facilities, national buildings, school buildings,
hospital buildings, and other related construction projects that form part of the government capital
investment.

The definition of infrastructure projects specifically includes the improvement and

rehabilitation of roads and not just its construction. Moreover, PD 1818 itself states that any person,
entity or governmental official cannot be prohibited from continuing the execution or implementation
of such project or pursuing any lawful activity necessary for such execution or implementation.
Undeniably, the collection of toll fees is part of the execution or implementation of the Manila
Cavite Toll Expressway Project (MCTEP) as agreed upon in the TOA.

Putting up of the access fence on the petitioners property was in the valid exercise of
the police power, assailable only upon proof that such putting up violated constitutional
limitations like due process and equal protection of the law.

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A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain
destinations, its use, operation, and maintenance require close regulation. Public interest and safety
require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a
special kind of road, it is but reasonable that not all forms of transport could use it.

Clearly, therefore, the access fence was a reasonable restriction on the petitioners property
given the location thereof at the right side of Sta. Rita Exit of the NLEX. Although some adjacent
properties were accorded unrestricted access to the expressway, there was a valid and reasonable
classification for doing so because their owners provided ancillary services to motorists using the
NLEX, like gasoline service stations and food stores. A classification based on practical convenience
and common knowledge is not unconstitutional simply because it may lack purely theoretical or
scientific uniformity.

The limited access imposed on the petitioners property did not partake of a
compensable taking due to the exercise of the power of eminent domain.

There is no question that the property was not taken and devoted for public use. Instead, the
property was subjected to a certain restraint, i.e., the access fence, in order to secure the general safety
and welfare of the motorists using the NLEX. There being a clear and valid exercise of police power,
the petitioner was certainly not entitled to any just compensation

FUNDAMENTAL POWERS OF THE STATE

LAND BANK OF THE PHILIPPINES v. FEDERICO SUNTAY

G.R. No. 188376, 14 December 2011, FIRST DIVISION (Bersamin, J.)

The enactments of the Legislature decreed that the money to be paid to the landowner
as just compensation for the taking of his land is to be taken only from the Agrarian Reform
Fund.

Federico Suntay owned a land situated in Sta. Lucia, Sablayan, Occidental Mindoro. A
portion of the said land was expropriated by the Department of Agrarian Reform (DAR) pursuant
to Presidential Decree No. 27. Land Bank and DAR fixed the value of the expropriated
portion at P4,497.50/hectare, for a total valuation of P4,251,141.68. Rejecting the valuation,
Suntay filed a petition for determination of just compensation in the Office of the Regional
Agrarian Reform Adjudicator (RARAD) of Region IV, Department of Agrarian Reform
Adjudication Board (DARAB). After summary administrative proceeding, RARAD rendered a
decision fixing the total just compensation for the expropriated portion at P157,541,951.30.
Consequently, Land Bank brought a petition for the judicial determination of just
compensation in the Regional Trial Court, as a Special Agrarian Court, impleading Suntay and
RARAD. Despite the pendency of the case in the RTC, RARAD issued an order declaring that
the decision had become final and executory. After several cases and during the second
execution, the sheriffs held a public auction of Land Banks levied shares of stock in the
Philippine Long Distance Telephone Company (PLDT) and Manila Electric Company
(MERALCO) at the Office of the DARAB Regional Clerk in Mandaluyong City.

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ISSUE:

Whether or not the levy of Land Banks MERALCO shares was void and ineffectual.

RULING:

YES. Land Banks liability under the Comprehensive Agrarian Reform Program (CARP)
was to be satisfied only from the Agrarian Reform Fund (ARF). Executive Order No. 229
implemented the creation of the ARF. It is notable that Section 21 of Republic Act No. 9700
which amended the Comprehensive Agrarian Reform Law (CARL) expressly provided that all
just compensation payments to landowners, including execution of judgments therefore, shall
only be sourced from the Agrarian Reform Fund; and that just compensation payments that
cannot be covered within the approved annual budget of the program shall be chargeable
against the debt service program of the national government, or any unprogrammed item in
the General Appropriations Act.

Consequently, the immediate and indiscriminate levy by the DARAB sheriffs of Land
Banks MERALCO shares, without first determining whether or not such assets formed part of the
ARF, disregarded Land Banks proprietary rights in its own funds and properties. Also
significant is that Section 20 of Executive Order No. 229 has mandated that the ARF shall be
sourced from the receipts of the sale of the assets of the Asset Privatization Trust (APT) and
receipts of the sale of ill- gotten wealth recovered through the Presidential Commission on
Good Government (PCGG) and such other sources as government may deem appropriate; and
that Section 63 of the CARL has authorized that additional amounts be appropriated as and
when needed to augment the ARF.

In addition, as provided under Section 10, Rule 19 of the 2003 DARAB Rules of Procedure,
a condition was imposed before Land Bank could be made to pay the landowner by the
sheriff. The condition was for Suntay as the landowner to first submit to Land Bank the
corresponding deed of transfer in favor of the Government and to surrender the muniments of
the title to his affected property. Yet, by immediately and directly levying on the shares of
stocks of Land Bank and forthwith selling them at a public auction to satisfy the amounts
stated in the assailed writs without first requiring Suntay to comply with the condition, the
DARAB sheriffs unmitigatedly violated the 2003 DARAB Rules of Procedure.

NATIONAL POWER CORPORATION v. HEIRS OF MACABANGKIT SANGKAY

G.R. No. 165828, 24 August 2011, FIRST DIVISION (Bersamin, J.)

The taking of private property for public use, to be compensable, need not be an actual
physical taking or appropriation. Since the nature of an easement practically deprives the owners
of its normal beneficial use, full compensation is warranted.

Pursuant to its legal mandate under Republic Act No. 6395 (An Act Revising the Charter
of the National Power Corporation), NPC undertook the Agus River Hydroelectric Power Plant

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Project in the 1970s to generate electricity for Mindanao. The project included the construction
of several underground tunnels to be used in diverting the water flow from the Agus River to
the hydroelectric plants. Consequently, the Heirs of Macabangkit Sangkay, as the owners of land
situated in Ditucalan, Iligan City, sued the National Power Corporation (NPC) in the Regional
Trial Court (RTC) for the recovery of damages and of the property, with the alternative prayer
for the payment of just compensation. The heirs alleged that the presence of the tunnel deprived
them of the agricultural, commercial, industrial and residential value of their land and that
their land had also become an unsafe place for habitation. NPC countered that the Heirs of
Macabangkit had no right to compensation under section 3(f) of Republic Act No. 6395, under
which a mere legal easement on their land was established and that by reason of the tunnel being
an apparent and continuous easement, any action arising from such easement prescribed in five
years.

ISSUE:

Whether or not NPC is liable for the payment of just compensation.

RULING:

YES. The five-year prescriptive period provided under Section 3(i) of Republic Act No. 6395
is applicable only to an action for damages, and does not extend to an action to recover just
compensation like this case. The action to recover just compensation from the State or its
expropriating agency differs from the action for damages.

Moreover, notwithstanding the fact that petitioner only occupies the sub-terrain portion,
it is liable to pay not merely an easement fee but rather the full compensation for land. This
is so because in this case, the nature of the easement practically deprives the owners of its normal
beneficial use. The taking of private property for public use, to be compensable, need not be an
actual physical taking or appropriation. Indeed, the expropriators action may be short of
acquisition of title, physical possession, or occupancy but may still amount to a taking.
Compensable taking includes destruction, restriction, diminution, or interruption of the rights of
ownership or of the common and necessary use and enjoyment of the property in a lawful manner,
lessening or destroying its value. It is neither necessary that the owner be wholly deprived of the use
of his property, nor material whether the property is removed from the possession of the owner,
or in any respect changes hands.

Due to the need to construct the underground tunnel, NPC should have first moved to
acquire the land from the Heirs of Macabangkit either by voluntary tender to purchase or through
formal expropriation proceedings. In either case, NPC would have been liable to pay to the owners
the fair market value of the land, for Section 3(h) of Republic Act No. 6395 expressly requires such
payment.

EXPORT PROCESSING ZONE AUTHORITY (NOW PHILIPPINE EXPORT ZONE

AUTHORITY) v. JOSE PULIDO, et al.
G.R. No. 188995, 24 August 2011, FIRST DIVISION (Bersamin, J.)
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The pronouncement on the Compromise Agreement stating that the mode of payment of
just compensation is through the swapping of lands, became the law of the case and anything to the
contrary of which the petitioner could not validly rely upon.

The Export Processing Zone Authority (EPZA) now the Philippine Export Zone Authority
(PEZA) commenced an action for the expropriation of three parcels of irrigated riceland situated
in Rosario on May 15, 1981, against the several individual owners. The Regional Trial Court (RTC)
sustained the right of PEZA to expropriate the three parcels of riceland, but later partly
reconsidered and released Lot 1406-A from expropriation. While on appeal, PEZA and the Estate
of Salud Jimenez entered into a Compromise Agreement on January 4, 1993, where it was
stipulated that the Estate of Salud Jimenez would transfer Lot 1406-B to PEZA in exchange for
Lot 434. Consequently, the RTC approved the Compromise Agreement. PEZA however raised the
issue of whether the just compensation should be based on the value or assessment rate prevailing
in 1981 or in 1993, insisting that the just compensation for Lot 1406-B should be equivalent to its
fair market value in 1981, the time of the filing of its expropriation complaint, which was the time
of the taking.

ISSUE:

Whether or not the just compensation for Lot 1406-B should be based on the value or
assessment rate prevalent in 1981 when the action for expropriation was commenced.

RULING:

NO. The just compensation for Lot 1406-B must be based on value of property prevailing
in 1993, the year the parties entered into the Compromise Agreement and thereby agreed that the
just compensation for Lot 1406-B was Lot 434. The Court pronounced there that the compromise
agreement was only about the mode of payment by swapping of lots and only the originally agreed
form of compensation that is by payment, was rescinded. Accordingly, the Ciurt completely
agrees with the RTCs observation that when the parties signed the compromise agreement and
the same was approved, they had in fact settled between themselves the question of what is just
compensation and that both of them had intended that defendant would be compensated on the
basis of prevailing values at the time of the agreement. By agreeing to a land swap in 1993 in the
ill- fated compromise agreement, PEZA had impliedly agreed to paying just compensation using
the market values in 1993. That pronouncement became the law of the case, anything to the
contrary of which the petitioner could not validly rely upon.

APO FRUITS CORPORATION and HIJO PLANTATION, INC. v. COURT OF

APPEALS and LAND BANK OF THE PHILIPPINES
G.R. No. 164195, 4 December 2009, EN BANC (Bersamin, J.)

Interest is a part of just compensation only when the payment to the owner was delayed.

Apo Fruits Corporation (AFC) and Hijo Plantation, Inc. (HPI) voluntarily offered to sell
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their lands, pursuant to the Comprehensive Agrarian Reform Law (CARL). The Land Bank of
the Philippines (Land Bank) initially fixed the just compensation at PhP165,484.47/hectare,
or PhP86,900,925.88 for AFC and PhP164,478,178.14 for HPI. The valuation was rejected, which
prompted Land Bank to open deposit accounts in the names of AFC and HPI, and to credit in
said accounts the sums of PhP26,409,549.86 and PhP45,481,706.76 for AFC and HPI respectively.
AFC and HPI withdrew the amounts from the accounts, but afterwards, they filed separate
complaints for determination of just compensation with the Department of Agrarian Reform
Adjudication Board (DARAB). When DARAB did not act on their complaints for more than three
years, they filed complaints for the determination of just compensation with the Regional Trial
Court (RTC) acting as a Special Agrarian Court (SAC).

The RTC rendered a decision setting the just compensation at PhP1,383,179,000 for both
AFC and HPI's properties. Upon motion for reconsideration, the RTC modified its ruling and
added that the Department of Agrarian Reform (DAR) and Land Bank should pay AFC and HPI
interest at the rate of 12% per annum computed from the time the complaint was filed until
finality of the decision.

The DAR and Land Bank appealed to the Court of Appeals (CA). The CA reversed the
decision of the RTC. AFC and HPI then elevated the issue to the Supreme Court Third Division,
wherein the Court ruled that the order to pay interest at 12% per annum should be deleted.
AFC and HPI raise assail the deletion of the order to pay interest in their motion for
reconsideration.

ISSUE:

Whether AFC and HPI are entitled to the payment of interest in addition to the amount
of just compensation.

RULING:

NO. If property is taken for public use before compensation is deposited with the court
having jurisdiction over the case, the final compensation must include interests on its just value,
to be computed from the time the property is taken up to the time when compensation is actually
paid or deposited with the court. However, interest is a part of just compensation only when the
payment to the owner was delayed. In Land Bank of the Philippines v. Wycoco, the rule was
established that interest is to be imposed only in case of delay in the payment of just compensation,
which fact must be sufficiently established.

In this case, Land Bank did not incur delay in the payment of the just compensation.
When AFC and HPI rejected the initial valuation of Land Bank, the latter promptly opened
deposit accounts in their names and credited amounts equivalent to their valuations, which
both of them withdrew. Furthermore, any intervening delay caused by Land Bank and DAR's
appeal cannot be considered an act of bad faith as to make a party guilty of unjustified delay,
because assailing an erroneous order before a higher court is a remedy afforded by law to every
losing party.

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RIGHT TO INFORMATION

MARIO JOSE E. SERENO v. COMMITTEE ON TRADE AND RELATD MATTERS (CTRM) OF

THE NATIONAL ECEONOMIC AND DEVELOPMENT AUTHORITY (NEDA)*
G.R. No. 175210, February 01, 2016, BERSAMIN, J., FIRST DIVISION

The constitutional guarantee to information does not open every door to any and all
information, but is rather confined to matters of public concern. It is subject to such limitations as may
be provided by law. The States policy of full public disclosure is restricted to transactions involving
public interest, and is tempered by reasonable conditions prescribed by law.

The respondents are correct in claiming exemption on the ground that the meeting held was
classified as a closed-door Cabinet meeting by virtue of the committees composition(an advisory body
composed of various department heads or secretaries) and the nature of its mandate dealing with
matters of foreign affairs, trade and policy-making. The information withheld was within the
scope of the exemption from disclosure because the CTRM meetings were directly related to the
exercise of the sovereign prerogative of the President as the Head of Sate in the conduct of foreign affairs
and the regulation of trade, as provided in Section 3 (a) of Rule IV of the Rules Implementing RA 6713.

Constitutional Law; Freedom of Information; The Supreme Court (SC) has already declared that
the constitutional guarantee of the peoples right to information does not cover national security
matters and intelligence information, trade secrets and banking transactions and criminal matters.
The second requisite is that the information requested must not be excluded by law from the
constitutional guarantee. In that regard, the Court has already declared that the constitutional
guarantee of the peoples right to information does not cover national security matters and
intelligence information, trade secrets and banking transactions and criminal matters. Equally
excluded from coverage of the constitutional guarantee are diplomatic correspondence, closed-door
Cabinet meeting and executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court. In Chavez v. Public Estates Authority, 384 SCRA 152 (2002), the
Court has ruled that the right to information does not extend to matters acknowledged as privileged
information under the separation of powers, which include Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings. Likewise exempted from the
right to information are information on military and diplomatic secrets, information affecting
national security, and information on investigations of crimes by law enforcement agencies before the
prosecution of the accused.

FACTS:

The CTRM held a meeting in which it resolved to recommend to PGMA the lifting of the
suspension of the tariff reduction schedule on petrochemicals and certain plastic products.

The Association of Petrochemical Manufacturers of the Philippines (APMP) wrote to the

CTRM to request a copy of minutes of the meeting. However, the request was denied by CTRM in
view that the limitation pertaining to closed-door cabinet meetings under Section 3(c) of the IRR of
RA 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees applies to
the minutes of the meeting requested by APMP.
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APMP filed a petition for mandamus in the RTC to compel the CTRM to provide the copy of
the minutes and to grant access to the minutes.

Subsequently, the RTC dismissed the petition for mandamus for lack of merit. The RTC
declared the CTRM is an advisory body composed of various department heads or secretaries and is
classified as cabinet meetings and inter-agency communications; and that the record of the
communications of such body falls under the category of privileged information because of the
sensitive subject matter which could seriously affect public interest. Hence, this appeal directly to the
Court on questions of law.

ISSUE:

WHETHER OR NOT the CTRM may be compelled by mandamus to furnish the petitioner
with a copy of the minutes of the meeting based on the constitutional right to information on matters
of public concern and the States policy of full public disclosure.

RULING:

NO. The constitutional guarantee of the right to information on matters of public concern
enunciated in Section 7 of Article III of the 1987 Constitution complements the States policy of full
disclosure in all transactions involving public interest expressed in Section 28 of Article II of the 1987
Constitution. These provisions are aimed at ensuring transparency in policy-making as well as in the
operations of the Government, and at safeguarding the exercise by the people of the freedom of
expression. In a democratic society like ours, the free exchange of information is necessary, and can
be possible only if the people are provided the proper information on matters that affect them. But
the peoples right to information is not absolute. According to Legaspi v. Civil Service Commission,
the constitutional guarantee to information does not open every door to any and all
information. It is limited to matters of public concern, and is subject to such limitations as
may be provided by law. Likewise, the States policy of full public disclosure is restricted to
transactions involving public interest, and is further subject to reasonable conditions
prescribed by law.

Two requisites must concur before the right to information may be compelled by writ of
mandamus:
1. The information sought must be in relation to matters of public concern or public interest.
2. It must not be exempt by law from the operation of the constitutional guarantee.

As to the first requisite, there is no rigid test in determining whether or not a particular
information is of public concern or public interest. Both terms cover a wide-range of issues that the
public may want to be familiar with either because the issues have a direct effect on them or because
the issues naturally arouse the interest of an ordinary citizen. As such, whether or not the
information sought is of public interest or public concern is left to the proper determination of the
courts on case to case basis.

The Philippine petrochemical industry centers on the manufacture of plastic and other related
materials, and provides essential input requirements for the agricultural and industrial sectors of the
country. Thus, the position of the petrochemical industry as an essential contributor to the overall
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growth of our countrys economy easily makes the information sought a matter of public concern or
interest.

The second requisite is that the information requested must not be excluded by law from the
constitutional guarantee. In that regard, the Court has already declared that the constitutional
guarantee of the peoples right to information does not cover national security matters and
intelligence information, trade secrets and banking transactions and criminal matters. Equally
excluded from the coverage of the constitutional guarantee are diplomatic correspondence, closed-
door Cabinet meeting and executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court. In Chavez v. Public Estates Authority, the Court has ruled that
the right to information does not extend to matters acknowledged as privileged information under
the separation of powers, which include Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings. Likewise exempted from the right to information are
information on military and diplomatic secrets, information affecting national security, and
information on investigations of crimes by law enforcements agencies the prosecution of the accused.

The respondents are correct in claiming exemption on the ground that the meeting held was
classified as a closed-door Cabinet meeting by virtue of the committees composition and the nature
of its mandate dealing with matters of foreign affairs, trade and policy-making. The information
withheld was within the scope of the exemption from disclosure because the CTRM meetings were
directly related to the exercise of the sovereign prerogative of the President as the Head of Sate in the
conduct of foreign affairs and the regulation of trade, as provided in Section 3 (a) of Rule IV of the
Rules Implementing RA 6713.

In case of conflict, there is a need to strike a balance between the right of the people and the
interest of the Government to be protected. Here, the need to ensure the protection of the privilege
of non-disclosure is necessary to allow the free exchange of ideas among Government officials as well
as to guarantee the well-considered recommendation free from interference of the inquisitive public.

LAW ON PUBLIC OFFICERS

ERIC N. ESTRELLADO and JOSSIE M. BORJA v. KARINA CONSTANTINO DAVID, THE CSC,
HIPOLITO R. GABORNI and ROBERTO S. SE
G.R. No. 184288, February 16, 2016, BERSAMIN, J., EN BANC

The next-in-rank status of a government employee is not a guarantee to ones fitness to the
position aspired for, and the applicant must go through the rigors of a screening and selection process
as determined and conducted by a department or agency, subject only to the standards and guidelines
set by the Civil Service Commission (CSC). This is in keeping with the ideal of promoting through merit
rather than entitlement, and thus ensuring that government service is rewarded with the best fit.

FACTS:

After screening the applicants, the LTO-CO-SPB recommended to the LTO the appointment
of Hipolito R. Garboni and Roberto S. Se to the vacant positions of TRO II and AO IV within the LTO
Law Enforcement Service.

Thereafter, petitioners Eric N. Estrellado, TRO I, and Jossie M. Borja, Records Officer III, who
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were also applicants for the aforementioned positions and in their alleged capacities as next-in-rank
employees, filed with the CSC-NCR a petition to declare the LTO-CO-SPB selection procedure null
and void. They alleged, among others, that Hipolito R. Garboni and Roberto S. Se did not meet the
requirements for the positions of TRO II and AO IV.

The CSC-NCR referred the petition to the LTO Grievance Committee, which did not find
merit in complainants grievances and dismissed the petition. Petitioners appealed to the LTO
Assistant Secretary who dismissed the appeal and directed the LTO Grievance Committee to issue the
Certificate of Final Action on Grievance (CFAG).

The LTO Assistant Secretary appointed Hipolito R. Gaborni as TRO II and Roberto S. Se as
AO IV. Petitioners re-filed with the CSC-NCR their petition to declare the selection procedure of the
LTO-CO-SPB null and void and to recall the approval of the appointments of Gaborni and Se. The
CSC-NCR dismissed the petition for lack of merit.

Petitioners filed an appeal before the CSC, but the latter dismissed the same. Still aggrieved,
the petitioners appealed to the CA by petition for review, asserting that the CSC had erred in
sustaining the validity of the selection procedure undertaken by the LTO-PSB resulting in the
validation of the appointments of Gaborni and Se. The CA affirmed the Resolutions of CSC, thereby
upholding the promotional appointments of Gaborni and Se.

ISSUES:

I. WHETHER OR NOT the screening presupposes conduct of examination and interview of

applicants.
II. WHETHER OR NOT The CSC transgressed the 3-salary grade limitation in relation to Ses
promotion from Engineer II (SG 16) to Administrative Officer IV (SG22), which was six steps
upwards.

RULING:

I. NO.

It is definite that the screening process is that which each department or agency formulates
and administers in accordance with the law, rules, regulations, and standards set by the CSC. If neither
the law nor the implementing rules and regulations define in specific terms or criteria the particulars
of the screening process, then each agency or department is empowered to formulate its own
screening process subject to the standards and guidelines set by the CSC. The CA thus correctly
concluded that the appointing authority exercised the right of choice, freely exercising its best
judgment, in determining the best-qualified applicants from those who had the necessary
qualifications and eligibilities.

The CSC Resolution No. 04-0835 pertained to the violation of the three-salary grade rule, not
to the screening done during the selection process. The petitioners reliance on CSC Resolution No.
04-0835 was misplaced because it did not in any way support their claim that screening necessarily
included interview and examination. Indeed, screening should be viewed as the procedure by which
the Personnel Selection Boards (PSBs) undertake to determine the merit and qualification of the
applicants to be appointed to the positions applied for.
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The appointments in question followed the mandate of the law. The LTOs PSC conducted the
necessary screening of the applicants. The CSC declared that the appointments had resulted from a
deep selection process that considered the appointees superior qualities on educational
achievements, highly specialised trainings, relevant work experience, and consistent high
performance rating/ranking.

II. NO.

The CSC did not transgress the limitation in relation to Ses promotion from Engineer II (SG
16) to Administrative Officer IV (SG22), which was six steps upwards.

Any or all of the following would constitute as a meritorious case, excepted from the 3-salary
grade limitation on promotion and transfer: 1. The position occupied by the person is next-in-rank to
the vacant position, as identified in Merit Promotion Plan and the System of Ranking Positions (SRP)
of the agency; 2. The position is a lone, or entrance position, as indicated in the agency staffing
pattern; 3. The position belongs to the dearth category, such as Medical officers/Specialist positions
and Attorney positions; 4. The positions is unique and/or highly specialized, such as Actuarial
positions and Airways Communicator; 5. The candidates passed through a deep selection process,
taking into consideration the candidates superior qualifications in regard to: Educational
achievements, Highly specialized trainings, Relevant work experience, Consistent high performance
rating/ranking; 6. The vacant position belongs to the closed career system. In connection with the
foregoing, the CSC Regional Director concerned will be the one who will approve and grant any
exception in accordance with the above guidelines.

The limitation was unquestionably subject to exceptions. The promotion of Se was made
under the fifth exception.

After the LTO-CO-SPB considered Ses appointment to fall under the fifth exception, the
petitioners challenged the promotion, but the CSCNCR affirmed the promotion by opining that the
aforementioned rule should not be interpreted in its strict sense and the circumstances on the
appointment of Se would fit in the term very meritorious cases. In respect of Borja, the CSC-NCR
declared that: It cannot be denied that (Se) has completed the academic requirements in Masters in
Business Administration (MBA), which was rated 13% as against 10% for Ms. Borja not to mention that
he was rated a maximum of 5% under Outstanding Accomplishment while there was none for Ms.
Borja.

The CSC fittingly stressed that the three salary grade limitation should not be the sole basis
for the disapproval of an appointment but should be taken as an indicator of possible abuse of
discretion in the appointment process. A relevant inquiry into the qualifications of Borja and Se has
convinced us to hold that Ses appointment should be upheld because he was better qualified than
Borja despite the fact that he was not the next-in-rank or that his promotion would require moving
him to six-salary grades higher.

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ACCOUNTABILITY OF PUBLIC OFFICERS

HILARIO SORIANO v. DEPUTY OMBUDSMAN FOR LUZON VICTOR C. FERNANDEZ,

ET AL.
G.R. No. 168157, AUGUST 19, 2015, BERSAMIN, J., FIRST DIVISION

The discretion of the Office of the Ombudsman in the determination of probable cause to charge
a respondent public official or employee cannot be interfered with in the absence of a clear showing of
grave abuse of discretion amounting to lack or excess of jurisdiction.

Jurisprudence explains that the Office of the Ombudsman is vested with the sole power to
investigate and prosecute, motu proprio or on complaint of any person, any act or omission of any public
officer or employee, office, or agency when such act or omission appears to be illegal, unjust, improper,
or inefficient. The Ombudsmans power to investigate and to prosecute is plenary and unqualified.

The Ombudsman has the discretion to determine whether a criminal case, given its attendant
facts and circumstances, should be filed or not. The Ombudsman may dismiss the complaint should the
Ombudsman find the complaint insufficient in form or substance, or the Ombudsman may proceed with
the investigation if, in the Ombudsmans view, the complaint is in due form and substance. Hence, the
filing or non-filing of the information is primarily lodged within the full discretion of the Ombudsman.

Ombudsman; The power of the Office of the Ombudsman to investigate and to prosecute is
plenary and unqualified.The power of the Office of the Ombudsman to investigate and to prosecute
is plenary and unqualified. The Congress has vested in the Ombudsman broad powers to enable the
Ombudsman to implement her own actions. Moreover, the Constitution vests in the Office of the
Ombudsman the authority and duty to promulgate rules of procedure. Among such rules of procedure
was Administrative Order No. 07, dated April 10, 1990, as amended, clothing the investigating officer
with the authority and the duty to dismiss outright a complaint for want of palpable merit.

Prosecutors; The authority and the duty to dismiss a worthless complaint fully accorded with
the primary responsibility of an officer engaged in public prosecution of offenses not to convict the
offender but to see that justice is done.The authority and the duty to dismiss a worthless complaint
fully accorded with the primary responsibility of an officer engaged in public prosecution of offenses
not to convict the offender but to see that justice is done. The suppression of facts or the concealment
of witnesses capable of establishing the innocence of the accused is highly reprehensible and is a cause
for disciplinary action. Conformably with this tenet, the respondent public officials had the authority
and the duty to dismiss the petitioners complaint once they determined it to be devoid of merit; thus,
no abuse of discretion, much less grave abuse, could be attributed to them.

FACTS:

The petitioner was the president of Soriano Holdings Corporation. He attested that Romeo L.
Santos executed a Deed of Assignment transferring and conveying to Soriano Holdings Corporation
the parcel of land, where the First Coconut Rural Bank, Inc. conducted its business.

Prior to the assignment, however, Santos and First Coconut had a standing lease contract
covering the parcel of land. Thus, although the TCT was still in the name of Santos, First Coconut
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paid its monthly rentals directly to Soriano Holdings Corporation with the acquiescence of Santos.

First Coconut received a copy of the writ of possession issued by RTC directing First Coconut
to vacate the leased premises within five days from notice. First Coconut then learned for the first
time that the land had been the subject of litigation between Santos and one Ma. Teresa Robles.

Atty. Cleofe, then Acting Registrar of Deeds, issued a new owners TCT in the name of Robles
without the payment of proper taxes and fees.

Therefore, the petitioner charged Atty. Cleofe in the Office of the Deputy Ombudsman for
Luzon with the violation of Section 3(e) of R.A. No. 3019, as amended. He alleged that Atty. Cleofe
had given Robles unwarranted advantage or preference by issuing a new owners TCT without the
payment of the proper taxes and fees, and had caused First Coconut, Soriano Holdings Corp and the
Government undue injury through manifest partiality, evident bad faith and gross inexcusable
negligence. He insisted that Deed of Sale between the Spouses Santos and Robles was void because
the parcel of land had already been sold/assigned to Soriano Holdings Corp; and that Soriano
Holdings Corp still held the owners copy of TCT. He argued that Atty. Cleofe had thereby prejudiced
not only First Coconut and Soriano Holdings Corporation by depriving them of their lease, possession,
and ownership of the parcel of land, but had also thereby deprived the Government by way of capital
gains tax and related fees; and that Atty. Cleofe had further besmirched the reputation of Soriano
Holdings Corporation.

Graft investigation and prosecution officer Briones found lack of probable cause to hold Atty.
Cleofe liable as charged and recommended the dismissal of the criminal complaint. The Office of the
Deputy Ombudsman for Luzon denied the petitioners motion for reconsideration.

ISSUES:

I. WHETHER OR NOT the public respondents acted with grave abuse of discretion amounting
to lack or excess of jurisdiction.
II. WHETHER OR NOT the exclusive discretion to determine the existence of probable cause to
charge a public official in a criminal case pertained to the Office of the Ombudsman.
III. WHETHER OR NOT the power of the Office of the Ombudsman to investigate and to
prosecute is plenary and unqualified.

RULING:

I. NO. The public respondents, in dismissing the charge against Atty. Cleofe, did not gravely
abuse their discretion.

The Office of the Ombudsman found the evidence against him to be insufficient to support a
finding of probable cause to charge him. Undoubtedly, he was a public officer discharging official
functions, an essential element of the crime of violation of Section 3(e) of Republic Act No. 3019.
However, the other elements of the crime, specifically: that the accused must have acted with manifest
partiality, evident bad faith or gross inexcusable negligence; and that his acts complained of caused
any undue injury to any party, including the Government, or gave any private party unwarranted
benefits, advantage or preference in the discharge of his functions were not shown to be present.

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Atty. Cleofe was not actuated with malice or bad faith in issuing the new TCT in the name of
Robles, and did not gain any pecuniary benefit from his issuance of the new TCT pursuant to the order
of the RTC, a court of competent jurisdiction, but was rather guided by the ruling in LRA Consulta
Case No. 2402 to the effect that the requirement for the payment of transfer tax, capital gains tax, and
documentary stamp tax, and for the submission of a real estate tax clearance did not apply to a transfer
pursuant to a court order.

The petitioners recourse if he did not consider Atty. Cleofes stance on the treatment of the
transfer by virtue of the judgment of the RTC was to follow the procedure prescribed by Section 117 of
P.D. No. 1529, which was for him to elevate in consulta to the LRA his disagreement with such stance.
However, there is no showing that the petitioner elevated his concerns in consulta. His inaction
signified his acceptance of Atty. Cleofes stance on the matter. Under the circumstances, the petitioner
could not justly accuse Atty. Cleofe of manifest partiality, evident bad faith or gross inexcusable
negligence.

II. YES. The exclusive discretion to determine the existence of probable cause to charge Atty.
Cleofe as a public official in a criminal case pertained to the Office of the Ombudsman.

Such discretion cannot be interfered with. Jurisprudence explains that the Office of the
Ombudsman is vested with the sole power to investigate and prosecute, motu proprio or on complaint
of any person, any act or omission of any public officer or employee, office, or agency when such act
or omission appears to be illegal, unjust, improper, or inefficient. The Ombudsmans power to
investigate and to prosecute is plenary and unqualified.

The Ombudsman has the discretion to determine whether a criminal case, given its attendant
facts and circumstances, should be filed or not. The Ombudsman may dismiss the complaint should
the Ombudsman find the complaint insufficient in form or substance, or the Ombudsman may
proceed with the investigation if, in the Ombudsmans view, the complaint is in due form and
substance. Hence, the filing or non-filing of the information is primarily lodged within the full
discretion of the Ombudsman.

This Court has consistently adopted a policy of noninterference in the exercise of the
Ombudsmans constitutionally mandated powers. The Ombudsman, which is beholden to no one,
acts as the champion of the people and the preserver of the integrity of the public service. However,
this Court is not precluded from reviewing the Ombudsmans action when there is grave abuse of
discretion, in which case the certiorari jurisdiction of the Court may be exceptionally invoked
pursuant to Section 1, Article VIII of the Constitution. We have enumerated instances where the
courts may interfere with the Ombudsmans investigatory powers:

(a) To afford protection to the constitutional rights of the accused;

(b) When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions;
(c) When there is a prejudicial question which is sub judice;
(d) When the acts of the officer are without or in excess of authority;
(e) Where the prosecution is under an invalid law, ordinance or regulation;
(f) When double jeopardy is clearly apparent;
(g) Where the court has no jurisdiction over the offense;
(h) Where it is a case of persecution rather than prosecution;
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(i) Where the charges are manifestly false and motivated by the lust for vengeance.

None of the exceptions was present therein.

III. YES. The power of the Office of the Ombudsman to investigate and to prosecute is plenary
and unqualified.

The Congress has vested in the Ombudsman broad powers to enable the Ombudsman to
implement her own actions. Moreover, the Constitution vests in the Office of the Ombudsman the
authority and duty to promulgate rules of procedure. Among such rules of procedure was
Administrative Order No. 07, dated April 10, 1990, as amended, clothing the investigating officer with
the authority and the duty to dismiss outright a complaint for want of palpable merit.

The authority and the duty to dismiss a worthless complaint fully accorded with the primary
responsibility of an officer engaged in public prosecution of offenses not to convict the offender but
to see that justice is done. The suppression of facts or the concealment of witnesses capable of
establishing the innocence of the accused is highly reprehensible and is a cause for disciplinary action.
Conformably with this tenet, the respondent public officials had the authority and the duty to dismiss
the petitioners complaint once they determined it to be devoid of merit; thus, no abuse of discretion,
much less grave abuse, could be attributed to them.

REPUBLIC OF THE PHILIPPINES v. SANDIGANBAYAN, et al.

G.R. N0. 166859, 169203, 180702, 12 April 2011, EN BANC (BERSAMIN, J.)

Based on the aforementioned Executive Orders, ill-gotten wealth refers to assets and
properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate
family, relatives and close associates through or as a result of their improper or illegal use of
government funds or properties; or their having taken undue advantage of their public office; or
their use of powers, influence or relationships, resulting in their unjust enrichment and
causing grave damage and prejudice to the Filipino people and the Republic of the Philippines.

On July 31, 1987, the Republic commenced Civil Case No. 0033 in the Sandiganbayan by
complaint, impleading as defendants respondent Eduardo M. Cojuangco, Jr. and 59 individual
defendants.

The Republic avers that defendant Eduardo Cojuangco, Jr. taking undue advantage of his
association, influence and connection, acting in unlawful concert with Defendants Ferdinand E.
Marcos and Imelda R. Marcos, and other individuals closely associated with the Marcoses,
embarked upon devices, schemes and stratagems, including the use of various corporations as
fronts, to unjustly enrich themselves at the expense of plaintiff and the Filipino people, such
as when he misused coconut levy funds to buy out majority of the outstanding shares of stock
of San Miguel Corporation in order to control the largest agri-business, foods and beverage
company in the Philippines.

Cojuangco specifically denies the allegations including any insinuation that whatever
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association he may have had with the late Ferdinand Marcos or Imelda Marcos has been in
connection with any of the acts or transactions alleged in the complaint or for any unlawful
purpose.

During the pre-trial, Sandiganbayan advised the Republic to present more factual
evidence to substantiate its allegations, but the Republic nonetheless choosing not to adduce
evidence proving the factual allegations, particularly the matters specifically asked by the Court,
instead plaintiff Republic opted to pursue its claims by Motion for Summary Judgment.

On November 28, 2007, the Sandiganbayan dismissed the case for failure of plaintiff
Republic to prove by preponderance of evidence its causes of action against defendants
Cojuangco, et al.

ISSUE:

Whether or not the Republic albeit without presentation of evidence sufficiently

established Cojuangco and the other defendants liability regarding the so called ill-gotten
wealth.

RULING:

NO. Ill-gotten wealth, by its very nature, assumes a public character. Based on the
aforementioned Executive Orders, ill-gotten wealth refers to assets and properties purportedly
acquired, directly or indirectly, by former President Marcos, his immediate family, relatives
and close associates through or as a result of their improper or illegal use of government funds
or properties; or their having taken undue advantage of their public office; or their use of powers,
influence or relationships, resulting in their unjust enrichment and causing grave damage and
prejudice to the Filipino people and the Republic of the Philippines. Clearly, the assets and
properties referred to supposedly originated from the government itself. To all intents and
purposes, therefore, they belong to the people. As such, upon reconveyance they will be returned
to the public treasury, subject only to the satisfaction of positive claims of certain persons as
may be adjudged by competent courts. Another declared overriding consideration for the
expeditious recovery of ill-gotten wealth is that it may be used for national economic recovery.

All judicial pronouncements demand two concurring elements to be present before

assets or properties were considered as ill-gotten wealth, namely: (a) they must have originated
from the government itself, and (b) they must have been taken by former President Marcos,
his immediate family, relatives, and close associates by illegal means.

But settling the sources and the kinds of assets and property covered by E.O. No. 1 and
related issuances did not complete the definition of ill-gotten wealth. The further requirement
was that the assets and property should have been amassed by former President Marcos, his
immediate family, relatives, and close associates both here and abroad. In this regard, identifying
former President Marcos, his immediate family, and relatives was not difficult, but identifying
other persons who might be the close associates of former President Marcos presented an
inherent difficulty, because it was not fair and just to include within the term close associates

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everyone who had any association with President Marcos, his immediate family, and relatives.
Concerning Cojuangcos shares of stock here, there is no evidence presented by the
Republic that they belong to the Government of the Philippines or any of its branches,
instrumentalities, enterprises, banks or financial institutions. Nor is there evidence that
Cojuangco and the other respondents, taking undue advantage of their connections or
relationship with former President Marcos or his family, relatives and close associates, were able
to acquire those shares of stock.

It does not suffice, as in this case, that the respondent is or was a government official
or employee during the administration of former Pres. Marcos. There must be a prima facie
showing that the respondent unlawfully accumulated wealth by virtue of his close association
or relation with former Pres. Marcos and/or his wife. This is so because otherwise the
respondents case will fall under existing general laws and procedures on the matter.

In Cruz, Jr. v. Sandiganbayan, the Court declared that the petitioner was not a close
associate as the term was used in E.O. No. 1 just because he had served as the President and
General Manager of the GSIS during the Marcos administration.

It is well to point out, consequently, that the distinction laid down by E.O. No. 1 and its
related issuances, and expounded by relevant judicial pronouncements unavoidably
required competent evidentiary substantiation made in appropriate judicial proceedings to
determine: (a) whether the assets or properties involved had come from the vast resources of
government, and (b) whether the individuals owning or holding such assets or properties were
close associates of President Marcos. The requirement of competent evidentiary
substantiation made in appropriate judicial proceedings was imposed because the factual
premises for the reconveyance of the assets or properties in favor of the government due to
their being ill- gotten wealth could not be simply assumed.

Accordingly, the Republic should furnish to the Sandiganbayan in proper judicial

proceedings competent evidence to prove the close associates of President Marcos who had
amassed assets and properties that would be rightly considered as ill-gotten wealth. Therefore,
the decision of November 28, 2007 by the Sandiganbayan is affirmed, because the Republic did
not discharge its burden as the plaintiff to establish by preponderance of evidence that the
respondents SMC shares were illegally acquired with coconut-levy funds.

ADMINISTRATIVE LAW

RE: EMPLOYEES INCURRING HABITUAL TARDINESS IN THE SECOND

SEMESTER OF 2009
A.M. No. 2010-11-SC, 2011, 2 March 2011, EN BANC (BERSAMIN, J.)

The Court enunciated that justifications for absences and tardiness falling under the
categories of illness, moral obligation to family and relatives, performance of household chores,
traffic and health or physical condition are neither novel nor persuasive, and hardly evoke
sympathy. If at all, such justifications may only mitigate liability.

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Several court employees were found to be habitually tardy after the investigation made
by the Office of Administrative Services (OAS). Consequently, the OAS directed the concerned
court employees to explain in writing why no administrative disciplinary action should be
taken against them for their habitual tardiness during the covered period, which habitual
tardiness was in violation of Civil Service Commission (CSC) Memorandum Circular No. 04,
Series of 1991, viz:

An employee shall be considered habitually tardy if he incurs tardiness,

regardless of the number of minutes, ten (10) times a month for at least two (2)
months in a semester or at least two (2) consecutive months during the year.

Most of the employees were found to be first time violators except for Mr. Albert Semilla,
a four-time violator who was nonetheless already with the judiciary for a long time and
characterized as performing his work satisfactorily. In toto, the respective justifications of the
concerned employees consists of illness or poor health, travel difficulties, household
responsibilities, and similar causes.

ISSUE:

Whether or not the employees justifications such as illness, poor health, travel
difficulties and similar causes are sufficient to exonerate them from their habitual tardiness.

RULING:

NO. There is no question that all the concerned employees incurred habitual tardiness
within the context of CSC Memorandum Circular No. 04, Series of 1991. Thereby, they fell
short of the standard of conduct demanded from everyone connected with the administration
of justice. They are always accountable to the people, whom they must serve with utmost
responsibility, integrity, loyalty, and efficiency. They can surely inspire public respect for the
justice system by strictly observing official time, among others. Absenteeism and tardiness are,
therefore, impermissible.

The respective justifications of the concerned employees (consisting of illness or poor

health, travel difficulties, household responsibilities, and similar causes) are not unacceptable.
In Re: Supreme Court Employees Incurring Habitual Tardiness in the 2nd Semester of 2005, the
Court enunciated that justifications for absences and tardiness falling under the categories of
illness, moral obligation to family and relatives, performance of household chores, traffic and
health or physical condition are neither novel nor persuasive, and hardly evoke sympathy. If at
all, such justifications may only mitigate liability.

Thus, following CSC Memorandum Circular No. 19, Series of 1999, considers habitual
tardiness as a light offense with the following penalties: First Offense Reprimand; Second
Offense Suspension; and Third Offense Dismissal. The penalties recommended by the OAS
are well taken. However, in the case of Albert C. Semilla, the Court moderates in light of his
length of service and satisfactory performance; the fact that this infraction of habitual tardiness
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was his first since 2003; and due to his pleas for compassion. Thus, the penalty of 1-month
suspension without pay rather than dismissal was imposed against Mr. Semilla after considering
the mitigating circumstances.

WINSTON F. GARCIA v. MARIO MOLINA

G.R. No. 165223, January 11, 2016, BERSAMIN, J., FIRST DIVISION

Administrative Law; Misconduct; To warrant removal from office, it must have direct relation
to and be connected with the performance of official duties amounting either to maladministration or
willful, intentional neglect and failure to discharge the duties of the office.Misconduct in office, by
uniform legal definition, is such misconduct that affects his performance of his duties as an officer
and not such only as affects his character as a private individual. To warrant removal from office, it
must have direct relation to and be connected with the performance of official duties amounting
either to maladministration or willful, intentional neglect and failure to discharge the duties of the
office. Moreover, it is a transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer. It becomes grave if it involves
any of the additional elements of corruption, willful intent to violate the law or to disregard
established rules, which must be established by substantial evidence.

Same; Preventive Suspension; An employee who is placed under preventive suspension pending
investigation is not entitled to compensation because such suspension is not a penalty but only a means
of enabling the disciplining authority to conduct an unhampered investigation.The respondents
preventive suspension was done pending investigation. In this regard, an employee who is placed
under preventive suspension pending investigation is not entitled to compensation because such
suspension is not a penalty but only a means of enabling the disciplining authority to conduct an
unhampered investigation.

Same; Same; Backwages; Backwages corresponding to the period of suspension of a civil service
employee who is reinstated is proper only if he is found innocent of the charges and the suspension is
declared to be unjustified.The formal charge against the respondent was for grave misconduct, an
administrative offense that justifies the imposition of the preventive suspension of the respondent.
Gloria v. Court of Appeals, 306 SCRA 287 (1999), has clarified that the preventive suspension of civil
service employees charged with dishonesty, oppression or grave misconduct, or neglect of
duty is authorized by the Civil Service Law, and cannot be considered unjustified even if the
charges are ultimately dismissed so as to justify the payment of salaries to the employee concerned.
Moreover, backwages corresponding to the period of suspension of a civil service employee who is
reinstated is proper only if he is found innocent of the charges and the suspension is declared to be
unjustified. Considering that the respondents preventive suspension had legal basis, he was not
entitled to backwages.

FACTS:

Mr. Caretero pointed to Mario Molina as the person who had handed to him the letter entitled
Is It True supposedly written by one R. Ibasco containing scurrilous and libellous statements against
petitioner. Considering that Ibasco denied authorship of the letter, the finger of suspicion came to
point at Mario Moilna, who was consequently administratively investigated for grave misconduct.
After the investigation, a Memorandum was transmitted to Mario Molina to require him to explain
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the circulation and publication of the letter, and to show cause why no administrative sanction should
be imposed on him for doing so. In response, he denied the imputed act.

Thereafter, the petitioner issued Memorandum to formally charge the respondent with grave
misconduct, and to preventively suspend him for 60 days effective upon receipt. Molina sought the
dismissal of the charge on the ground of its being baseless; and requested the conduct of a formal
investigation by an impartial body.

Molina also instituted in the CA a special civil action for certiorari to challenge the legality of
the Memorandum. The CA granted the petition and nullified the Memorandum. The CA ruled that
Molina is entitled to his backwages during the period of his preventive suspension.

ISSUES:

I. WHETHER OR NOT Molina is guilty of grave misconduct.

II. WHETHER OR NOT Molina is entitled to backwages during the period of his preventive
suspension.
III. WHETHER OR NOT Molina is strictly bound by the rule on exhaustion of administrative
remedies.

RULING:

I. NO.

The act of handing over the letter to Caretero did not constitute grave misconduct because
the act did not show or indicate the elements of corruption, or the clear intent to violate the law, or
flagrant disregard of established rule.

Misconduct in office, by uniform legal definition, is such misconduct that affects his
performance of his duties as an officer and not such only as affects his character as a private individual.
To warrant removal from office, it must have direct relation to and be connected with the performance
of official duties amounting either to maladministration or wilful, intentional neglect and failure to
discharge the duties of the office. Moreover it is a transgression of some established and definite rule
of action, more particularly, unlawful behaviour or gross negligence by a public office. It becomes
grave if it involves any of the additional elements of corruption, wilful intention to violate the law or
to disregard established rules which must be established by substantial evidence.

The record contains nothing to show that the respondents act constituted misconduct. The
passing of the letter to Caretero did not equate to any transgression or unlawful behaviour, for it
was an innocuous act that did not breach any standard, norm or rule pertinent to his office. Neither
could it be regarded as circulation of the letter inasmuch as the letter was handed only to one single
individual who just happened to be curious about the paper the respondent was then holding in his
hands. The handling of the letter occurred in ostensibly innocent circumstances on board the elevator
in which other employees or passengers were on board. If the motive of the respondent was to pass
the letter in order to publicize its contents, he should have made more copies of the letter. But what
was not so, considering that Caretero categorically affirmed in his affidavit about asking the
respondent what he had wanted to do with the letter, to wit: Do you want me to photocopy the
document Sir?, but the respondent had simply replied: HINDI NA SA IYO NA LANG YAN. It is plain,
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then, that intent to cause the widespread dissemination of the letter in order to libel the petitioner
could not be justifiably inferred.

The respondents act could not be classified as pertaining to or having a direct

connection to the performance of his official duties as a litigation lawyer of the GSIS. The
connection was essential to a finding of misconduct, for without the connection the conduct would
not be sanctioned as an administrative offense.

II. NO.

There are two types of preventive suspension of civil service employees charged with offenses
punishable by removal or suspension, to wit: (1) preventive suspension pending investigation, and (2)
preventive suspension pending appeal if the penalty imposed by the disciplining authority is
suspension or dismissal and, after review, the respondent is exonerated.

The respondents preventive suspension was done pending investigation. In this regard, an
employee who is placed under preventive suspension is not a penalty but only a means of enabling
the disciplining authority to conduct an unhampered investigation.

The fact that the charge against the respondent was subsequently declared to lack factual and
legal bases did not, ipso facto, render the preventive suspension without legal basis. (Civil Service
Commission (CSC) Resolution No. 030502)

The formal charge against the respondent was for grave misconduct, an administrative offense
that justifies the imposition of the preventive suspension of the respondent. The preventive
suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or
neglect of duty is authorized by the Civil Service law, and cannot be considered unjustified even if the
charges are ultimately dismissed so as to justify the payment of salaries to the employee concerned.
Moreover, backwages corresponding to the period of suspension of a civil service employee who is
reinstated is proper only if he is found innocent of the charges and the suspension is declared to be
unjustified. Considering that the respondents preventive suspension had legal basis, he was
not entitled to backwages.

III. NO.

The respondent was not strictly bound by the rule on exhaustion of administrative remedies.
His failure to file the motion for reconsideration did not justify the immediate dismissal of the petition
for certiorari, for we have recognized certain exceptional circumstances that excused his non-filing
of the motion for reconsideration. Among the exceptional circumstances are the following, namely:
(1) when there is a violation of due process; (2) when the issue involved is purely a legal question; (3)
when the administrative action is patently illegal and amounts to lack or excess of jurisdiction; (4)
when there is estoppel on the part of the administrative agency concerned; (5) when there is
irreparable injury; (6) when the respondent is a Department Secretary whose acts, as an alter ego of
the President, bears the implied and assumed approval of the latter; (7) when to require exhaustion
of administrative remedies would be unreasonable; (8) when it would amount to a nullification of a
claim;(9) when the subject matter is a private land in land case proceedings;(10) when the rule does
not provide a plain, speedy and adequate remedy; (11) when there are circumstances indicating the
urgency of judicial intervention, and unreasonable delay would greatly prejudice the complainant;
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(12) when no administrative review is provided by law; (13) where the rule of qualified political agency
applies; and (14) when the issue of non-exhaustion of administrative remedies has been rendered
moot.

The matter brought to the CA whether the act complained against the filing of the
formal charge for grave misconduct and the imposition of preventive suspension pending
investigation was a purely legal question due to the factual antecedents of the case not
being in dispute.

ELSIE S. CAUSING v. COMMISSION ON ELECTIONS AND HERNAN D. BIRON, SR.

G.R. No. 199139, September 9, 2014, BERSAMIN, J.

The only personnel movements prohibited by COMELEC Resolution No. 8737 were transfer and
detail. Transfer is defined in the Resolution as "any personnel movement from one government agency
to another or from one department, division, geographical unit or subdivision of a government agency
to another with or without the issuance of an appointment" while Detail as defined in the
Administrative Code of 1987 is the movement of an employee from one agency to another without the
issuance of an appointment. Having acquired technical and legal meanings, transfer and detail must be
construed as such.

Obviously, the movement involving Causing did not equate to either a transfer or a detail within
the contemplation of the law if Mayor Biron only thereby physically transferred her office area from its
old location to the Office of the Mayor "some little steps" away. We cannot accept the petitioners
argument, therefore, that the phrase "any transfer or detail whatsoever" encompassed "any and all kinds
and manner of personnel movement," including the mere change in office location.

Equally material is that Mayor Birons act of transferring the office space of Causing was rooted
in his power of supervision and control over the officials and employees serving in his local government
unit, in order to ensure the faithful discharge of their duties and functions. His explanation that he
transferred Causings work station from her original office to his office in order to closely supervise her
after his office received complaints against her could not be justly ignored. Verily, she thereafter
continued to perform her tasks, and uninterruptedly received her salaries as the Municipal Civil
Registrar even after the transfer to the Office of the Mayor.

FACTS:

Elsie S. Causing was the Municipal Civil Registrar (MCR) of Barotac Nuevo, Iloilo. Mayor
Biron later on issued Memorandum No. 12, Series of 2010, detailing Causing at the Office of the
Municipal Mayor effective upon receipt of the Order due to exigencies of the service so requiring. The
Mayor also issued Office Order No. 13 detailing Catalina V. Belonio (Belonio) to the office of the Local
Civil Registrar to assume the functions and duties as Local Civil Registrar-designate effective upon
receipt of the Order.

In view of the foregoing issuances by Mayor Biron, Causing filed the complaint-affidavit in the
Office of the Regional Election Director claiming that such being made within the election period and
without prior written prior authority from the COMELEC was illegal and violative.

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The Provincial Election Supervisor (PES), recommended the dismissal of the complaint-
affidavit for lack of probable cause. Later on, the COMELEC En Banc affirmed the findings and
recommendation of the PES observing that Mayor Biron did not transfer or detail Causing but only
required her to physically report to the Mayors Office and to perform her functions thereat; and that
he did not strip her of her functions as the Municipal Civil Registrar, and did not deprive her of her
supervisory functions over her staff.

Hence, this petition for certiorari.

ISSUES:

1) Whether or not the relocation of the petitioner by the respondent Mayor during the election
period constituted as a prohibited act under COMELEC Resolution No. 8737 and the Omnibus
Election Code. (NO)
2) Whether or not her reassignment constitute as a constructive dismissal. (NO)

RULING:

1) Mayor Birons acts did not violate the Omnibus Election Code and the COMELEC Resolution

The only personnel movements prohibited by COMELEC Resolution No. 8737 were transfer
and detail. Transfer is defined in the Resolution as "any personnel movement from one government
agency to another or from one department, division, geographical unit or subdivision of a government
agency to another with or without the issuance of an appointment" while Detail as defined in the
Administrative Code of 1987 is the movement of an employee from one agency to another without the
issuance of an appointment. Having acquired technical and legal meanings, transfer and detail must
be construed as such.

Obviously, the movement involving Causing did not equate to either a transfer or a detail
within the contemplation of the law if Mayor Biron only thereby physically transferred her office area
from its old location to the Office of the Mayor "some little steps" away. We cannot accept the
petitioners argument, therefore, that the phrase "any transfer or detail whatsoever" encompassed
"any and all kinds and manner of personnel movement," including the mere change in office location.

Equally material is that Mayor Birons act of transferring the office space of Causing was rooted
in his power of supervision and control over the officials and employees serving in his local
government unit, in order to ensure the faithful discharge of their duties and functions. His
explanation that he transferred Causings work station from her original office to his office in order
to closely supervise her after his office received complaints against her could not be justly ignored.
Verily, she thereafter continued to perform her tasks, and uninterruptedly received her salaries as the
Municipal Civil Registrar even after the transfer to the Office of the Mayor.

The issuance of Office Order No. 13 by Mayor Biron detailing Belonio to the Office of the Local
Civil Registrar was not proof of Mayor Birons "crystal clear intention" to replace and transfer her
during the election period. As the COMELEC En Banc found, Belonio did not receive the order, and
Causing remained as the Municipal Civil Registrar, leaving the detailing of Belonio uncompleted.
Without the actual appointment of Belonio as the Municipal Civil Registrar, it would be unwarranted
to criminally charge Mayor Biron of violating Section 261 of the Omnibus Election Code.
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2. The reassignment of Causing does not constitute as constructive dismissal.

Causing is not stripped of her functions as MCR. She was merely required to physically report
to the Mayors Office and perform her functions as Municipal Civil Registrar therein. Definitely, she
is still the MCR, albeit doing her work physically outside of her usual work station. She is also not
deprived of her supervisory function over the staff as she continues to review their work and signs
documents they prepared. While she may encounter difficulty in performing her duties as a supervisor
as she is not physically near her staff, that by itself, however, does not mean that she has lost
supervision over them. That difficulty, nonetheless, is not tantamount to constructive dismissal.

MARICHU G. EJERA, petitioner, vs. BEAU HENRY L. MERTO and ERWIN VERGARA,
respondents.
G.R. No. 163109 January 22, 2014, FIRST DIVISION, BERSAMIN, J.

A public servant who has an issue against a directive for her re-assignment must exhaust her
available administrative remedies before resorting to judicial action. The non-exhaustion of available
administrative remedies is fatal to the resort to judicial action.

Administrative Law; Reassignment; The reassignment of the petitioner was a personnel and
Civil Service matter to be properly addressed in accordance with the rules and guidelines prescribed by
the Civil Service Commission. Her resort to judicial intervention could not take the place of the grievance
procedure then available to her.The reassignment of the petitioner was a personnel and Civil
Service matter to be properly addressed in accordance with the rules and guidelines prescribed by
the CSC. Her resort to judicial intervention could not take the place of the grievance procedure then
available to her. Her having shrouded her complaint in the RTC with language that presented a legal
issue against the assailed office order of Merto did not excuse her premature resort to judicial action.

Remedial Law; Civil Procedure; Exhaustion of Administrative Remedies; Where the enabling
statute indicates a procedure for administrative review and provides a system of administrative appeal
or reconsideration, therefore, the courts for reasons of law, comity and convenience will not
entertain a case unless the available administrative remedies have been resorted to and the appropriate
authorities have been given an opportunity to act and correct the errors committed in the administrative
forum

Same; Same; Same; It is true that the doctrine of exhaustion of administrative remedies is not
an ironclad rule, but recognizes exceptions.It is true that the doctrine of exhaustion of administrative
remedies is not an ironclad rule, but recognizes exceptions, specifically: (a) where there is estoppel
on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that
will irretrievably prejudice the complainant; (d) where the amount involved is relatively so small as
to make the rule impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) where
the application of the doctrines may cause great and irreparable damage; (h) where the controversial
acts violate due process; (i) where the issue of non-exhaustion of administrative remedies has been
rendered moot; (j) where strong public interest is involved; and (l) in quo warranto proceedings.

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Civil Service Commission (CSC); Jurisdiction; The Civil Service Commission is the constitutional
body charged with the exclusive jurisdiction not only over disciplinary actions against government
officials and employees but also over cases involving personnel actions.The non-exhaustion by the
petitioner had jurisdictional implications. Verily, had the petitioner followed the grievance procedure
under the CSCs Omnibus Rules, her next step would have been to elevate her case to the CSC itself,
the constitutional body charged with the exclusive jurisdiction not only over disciplinary actions
against government officials and employees but also over cases involving personnel actions.

FACTS:

The petitioner held the position of Agricultural Center Chief I in the Office of the Provincial
Agriculturist in Negros Oriental. Her position was equivalent to the position of Senior Agriculturist,
the next-in-rank to the position of Supervising Agriculturist. Upon the retirement of the Supervising
Agriculturist, she applied for that position, but one Daisy Kirit was eventually appointed. She filed a
protest against the appointment of Kirit before the Civil Service Commission (CSC) Regional Office
in Cebu City, but that said office dismissed her protest on May 24, 2000.

Meanwhile, respondent Provincial Agriculturist Beau Henry L. Merto issued Office Order No.
008 (Re: Assignment/Re-assignment of BADC Area Coordinators and Development Team
Members). The petitioner was one of the personnel reassigned under Office Order No. 008. She was
designated therein as the team leader in Lake Balanan and Sandulot in the Municipality of Siaton.

The petitioner filed in the RTC her complaint for final injunction with temporary restraining
order and/or preliminary injunction, and damages, averring that Merto had no power to banish her
to the far-flung areas of Municipality of Siaton through the illegal, whimsical and malicious Office
Order No. 008. RTC dismissed the case and opined that the petitioner should have first gone to the
CSC to challenge the legality of Office Order No. 008 prior to her resort to the courts; and that,
therefore, she had not exhausted all her administrative remedies . CA affirmed the decision of RTC.

ISSUE:

Whether the lower court is correct in dismissing the case on the ground of non-exhaustion of
administrative remedies.

RULING:

Petitioners non-exhaustion of her available administrative remedies was fatal to her

cause.

The reassignment of the petitioner was a personnel and Civil Service matter to be properly
addressed in accordance with the rules and guidelines prescribed by the CSC. Her resort to judicial
intervention could not take the place of the grievance procedure then available to her. Her having
shrouded her complaint in the RTC with language that presented a legal issue against the assailed
office order of Merto did not excuse her premature resort to judicial action.

The petitioner should also not ignore that Merto had issued Office Order No. 008 in his
capacity as Provincial Agriculturist in order to implement the policy of the Provincial Government of
Negros Oriental to provide regular and adequate agricultural extension services to residents of remote
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interior barangays that were economically depressed but with potentials for agricultural
development. In that context, only the Provincial Governor could competently determine the
soundness of Office Order No. 008 or the propriety of its implementation, for the Provincial Governor
had the power to supervise and control programs, projects, services, and activities of the province
pursuant to Section 465 of Republic Act No. 7160 (Local Government Code).

The petitioner contends, however, that her case came under the exceptions to the application
of the rule for the exhaustion of administrative remedies considering that her judicial challenge in the
RTC related to the legality of Office Order No. 008. Still, her immediate resort to the RTC remained
premature, because the legal issues she seemingly raised were admittedly interlaced with factual
issues, like whether or not Merto had issued Office Order No. 008 because of her having attacked
him in her protest against Kirit as the appointee to the position of Supervising Agriculturist, and
whether or not her reassignment constituted banishment from her office in Dumaguete City. She
further averred that the reassignment had been whimsical and indiscriminate, an averment that
surely called for factual basis. The Provincial Governor should have been given a very meaningful
opportunity to resolve the matter and to exhaust all opportunities for its resolution before bringing
the action in court.

The non-observance of the doctrine of exhaustion of administrative remedies resulted in the

complaint having no cause of action.Hence, the RTC and the CA correctly dismissed the case. Had
the petitioner followed the grievance procedure under the CSCs Omnibus Rules, her next step would
have been to elevate her case to the CSC itself, the constitutional body charged with the exclusive
jurisdiction not only over disciplinary actions against government officials and employees but also
over cases involving personnel actions.

ROLANDO GANZON v. FERNANDO ARLOS

G.R. No. 174321, October 22, 2013, BERSAMIN, J.

A government employee who has pointed a gun with his co-worker with the clear intention to
harm the latter and subsequently found guilty of grave misconduct which arose from the same event
may be dismissed from the service even upon the first offense.

FACTS:

The DILG Regional Office in Port San Pedro, Iloilo City held its Christmas party at the office
parking lot. When the Christmas party was about to end in the evening, respondent Fernando Arlos
(Arlos), then the OIC Provincial Director of DILG, left to get some documents from the Office of the
Operations Division located at the second floor of the building. While Arlos was making his way to
the stairs, Ganzon suddenly approached and pulled out a short firearm of unknown caliber from his
waist and with no provocation pointed the firearm at Arlos, angrily shouting.

Arlos parried Ganzons firearm-wielding hand and tried to proceed towards the stairs, but
Ganzon blocked his path, pushed him back, and again pointed the firearm at Arlos chest. Sensing
that Ganzon would shoot him then, Arlos quickly warded off Ganzons firearm-wielding hand. At that
instant, the firearm exploded and the bullet hit the floor. Ganzon again aimed the firearm at Arlos,
prompting the latter to run away as fast as he could. Ganzon followed Arlos, and when they got to the
gate of the building, Ganzon once more pushed him back and pointed the firearm at him.
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After that incident, Arlos went to the DILG office to see the Regional Director upon the latters
instruction. Ganzon, who was then standing near the entrance to the building, shouted to him upon
seeing him enter the gate obviously still referring to the prior incident.

The two incidents impelled Arlos to administratively charge Ganzon with grave misconduct.
The CSC Regional Office finds Ganzon guilty of grave misconduct and meted out the penalty of
dismissal from the service with all its accessory penalties. The CSC Main affirmed the ruling of the
Regional Office. On appeal to the CA, the latter promulgated its assailed decision affirming the ruling
of the CSC Main.

ISSUE:

1) Whether or not Ganzons act of aiming his firearm at Arlos and menacing him with it constitute
grave misconduct (YES)
2) Whether or not the penalty of dismissal is unjust and excessive (NO)

RULING:

1) Ganzons act constitute grave misconduct.

Misconduct is intentional wrongdoing or deliberate violation of a rule of law or standard of

behavior. To constitute an administrative offense, misconduct should relate to or be connected with
the performance of the official functions and duties of a public officer. In grave misconduct, as
distinguished from simple misconduct, the elements of corruption, clear intent to violate the law, or
flagrant disregard of an established rule must be manifest.

Drawing and pointing the loaded firearm at Arlos evinced the intent on the part of Ganzon to
cause some harm upon Arlos on whom he vented his resentment of the poor performance rating he
received. Considering that Ganzon pointed his loaded firearm at Arlos not only once, but four times,
Ganzons menacing acts engendered in the mind of Arlos the well-founded belief that Arlos life could
be in imminent danger. That the firearm exploded when Arlos parried Ganzons firearm-wielding
hand did not help dissipate the belief.

Considering that Ganzon resented the poor performance rating he had received, and his
resentment caused his aggressive confrontation of Arlos, it definitely appears that Ganzons offense
could not be separated from his performance of duty. The fact that the acts of Ganzon were committed
within the premises of the DILG Regional Office strengthens our view that such acts could not but be
connected to Ganzons public employment. Verily, the Court has regarded the commission of
offensive overt acts by public officials and employees within the premises of their public offices to be
deserving of administrative reprobation.

Even if the affair occurred outside of the regular work hours, Ganzons menacing attitude
towards Arlos still had no excuse, particularly as Arlos was his superior in the office hierarchy. It is
almost superfluous to remind all public employees like Ganzon that the law of good manners and
proper decorum was law during as well as outside office hours.

2) The penalty of dismissal is just and not excessive.

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Section 52 of the Revised Uniform Rules on Administrative Cases in the Civil Service provides
that administrative offenses with corresponding penalties are classified into grave, less grave or light,
depending on their gravity or depravity and effects on the government service. The rule is that a grave
misconduct is considered to be a grave offense with the corresponding penalty of dismissal for the
first offense.

In this regard, Section 56 and Section 58 of the Revised Uniform Rules on Administrative Cases
in the Civil Service respectively state that the penalty of dismissal shall result in the permanent
separation of the respondent from the service, with or without prejudice to criminal or civil liability,
and shall carry with it cancellation of eligibility, forfeiture of retirement benefits and the perpetual
disqualification from re-employment in the government service, unless otherwise provided in the
decision.

The Court deems it worthwhile to emphasize as a final word that the imposition of the correct
disciplinary measures upon erring public officials and employees has the primary objective of the
improvement of the public service and the preservation of the publics faith and confidence in the
Government. The punishment of the erring public officials and employees is secondary, but is
nonetheless in accord with the Constitution, which stresses in Section 1 of its Article XI that a public
office is a public trust, and commands that public officers must at all times be accountable to the
people, whom they must serve with utmost responsibility, integrity, loyalty, and efficiency.

DENNIS A.B. FUNA vs. SECRETARY OF JUSTICE ALBERTO C. AGRA

G.R. No. 191644, EN BANC, February 19, 2013, BERSAMIN, J.:*

Section 13, Article VII of the 1987 Constitution expressly prohibits the President, Vice-President,
the Members of the Cabinet, and their deputies or assistants from holding any other office or
employment during their tenure unless otherwise provided in the Constitution. Complementing the
prohibition is Section 7, paragraph (2), Article IX-B of the 1987 Constitution, which bans any appointive
official from holding any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries,
unless otherwise allowed by law or the primary functions of his position.

Administrative Law; To Hold an Office; Words and Phrases; To hold an office means to possess
or to occupy the office, or to be in possession and administration of the office, which implies nothing
less than the actual discharge of the functions and duties of the office.It was of no moment that Agras
designation was in an acting or temporary capacity. The text of Section 13, 1987 Constitution, plainly
indicates that the intent of the Framers of the Constitution was to impose a stricter prohibition on
the President and the Members of his Cabinet in so far as holding other offices or employments in the
Government or in government-owned or government controlled-corporations was concerned. In this
regard, to hold an office means to possess or to occupy the office, or to be in possession and
administration of the office, which implies nothing less than the actual discharge of the functions and
duties of the office. Indeed, in the language of Section 13 itself, 1987 Constitution, the Constitution
makes no reference to the nature of the appointment or designation. The prohibition against dual or
multiple offices being held by one official must be construed as to apply to all appointments or
designations, whether permanent or temporary, for it is without question that the avowed objective
of Section 13, 1987 Constitution, is to prevent the concentration of powers in the Executive
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J. BERSAMIN

Department officials, specifically the President, the Vice-President, the Members of the Cabinet and
their deputies and assistants. To construe differently is to open the veritable floodgates of
circumvention of an important constitutional disqualification of officials in the Executive Department
and of limitations on the Presidents power of appointment in the guise of temporary designations of
Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of government
agencies, instrumentalities, or government-owned or controlled corporations.

Same; Multiple Offices; The only two exceptions against the holding of multiple offices are: (1)
those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice President
to become a member of the Cabinet; and (2) posts occupied by Executive officials specified in Section 13,
Article VII without additional compensation in ex officio capacities as provided by law and as required
by the primary functions of the officials offices.According to Public Interest Center, Inc. v. Elma,
494 SCRA 53 (2006), the only two exceptions against the holding of multiple offices are: (1) those
provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice President to
become a member of the Cabinet; and (2) posts occupied by Executive officials specified in Section 13,
Article VII without additional compensation in ex officio capacities as provided by law and as required
by the primary functions of the officials offices. In this regard, the decision in Public Interest Center,
Inc. v. Elma, 494 SCRA 53 (2006), adverted to the resolution issued on August 1, 1991 in Civil Liberties
Union v. The Executive Secretary, 194 SCRA 317 (1991), whereby the Court held that the phrase the
Members of the Cabinet, and their deputies or assistants found in Section 13, 1987 Constitution,
referred only to the heads of the various executive departments, their undersecretaries and assistant
secretaries, and did not extend to other public officials given the rank of Secretary, Undersecretary or
Assistant Secretary. Hence, in Public Interest Center, Inc. v. Elma, 494 SCRA 53 (2006), the Court
opined that the prohibition under Section 13 did not cover Elma, a Presidential Assistant with the
rank of Undersecretary.

Same; Office of the Solicitor General; The powers and functions of the Office of the Solicitor
General are neither required by the primary functions nor included by the powers of the Department of
Justice, and vice versa.Indeed, the powers and functions of the OSG are neither required by the
primary functions nor included by the powers of the DOJ, and vice versa. The OSG, while attached to
the DOJ, is not a constituent unit of the latter, as, in fact, the Administrative Code of 1987 decrees
that the OSG is independent and autonomous. With the enactment of Republic Act No. 9417, the
Solicitor General is now vested with a cabinet rank, and has the same qualifications for appointment,
rank, prerogatives, salaries, allowances, benefits and privileges as those of the Presiding Justice of the
Court of Appeals. Moreover, the magnitude of the scope of work of the Solicitor General, if added to
the equally demanding tasks of the Secretary of Justice, is obviously too much for any one official to
bear. Apart from the sure peril of political pressure, the concurrent holding of the two positions, even
if they are not entirely incompatible, may affect sound government operations and the proper
performance of duties.

Same; Same; The primary functions of the Office of the Solicitor General are not related or
necessary to the primary functions of the Department of Justice.Clearly, the primary functions of the
Office of the Solicitor General are not related or necessary to the primary functions of the Department
of Justice. Considering that the nature and duties of the two offices are such as to render it improper,
from considerations of public policy, for one person to retain both, an incompatibility between the
offices exists, further warranting the declaration of Agras designation as the Acting Secretary of
Justice, concurrently with his designation as the Acting Solicitor General, to be void for being in
violation of the express provisions of the Constitution.
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Same; Public Officers; De Facto Officers; Words and Phrases; A de facto officer is one who
derives his appointment from one having colorable authority to appoint, if the office is an appointive
office, and whose appointment is valid on its face. He may also be one who is in possession of an office,
and is discharging its duties under color of authority, by which is meant authority derived from an
appointment, however irregular or informal, so that the incumbent is not a mere volunteer.

Same; Same; Same; The Supreme Court holds that all official actions of Agra as a de facto Acting
Secretary of Justice, assuming that was his later designation, were presumed valid, binding and effective
as if he was the officer legally appointed and qualified for the office.In order to be clear, therefore, the
Court holds that all official actions of Agra as a de facto Acting Secretary of Justice, assuming that was
his later designation, were presumed valid, binding and effective as if he was the officer legally
appointed and qualified for the office. This clarification is necessary in order to protect the sanctity
of the dealings by the public with persons whose ostensible authority emanates from the State. Agras
official actions covered by this clarification extend to but are not limited to the promulgation of
resolutions on petitions for review filed in the Department of Justice, and the issuance of department
orders, memoranda and circulars relative to the prosecution of criminal cases.

FACTS:

The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo appointed
Agra as the Acting Secretary of Justice following the resignation of Secretary Agnes VST Devanadera
in order to vie for a congressional seat in Quezon Province; that on March 5, 2010, President Arroyo
designated Agra as the Acting Solicitor General in a concurrent capacity; that on April 7, 2010, the
petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer, commenced this
suit to challenge the constitutionality of Agras concurrent appointments or designations,
claiming it to be prohibited under Section 13, Article VII of the 1987 Constitution.

Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to
holding the two offices concurrently in acting capacities is settled, which is sufficient for purposes of
resolving the constitutional question that petitioner raises herein.

The petitioner submits that the prohibition under Section 13, Article VII of the 1987
Constitution does not distinguish between an appointment or designation of a Member of the Cabinet
in an acting or temporary capacity, on the one hand, and one in a permanent capacity, on the other
hand; and that Acting Secretaries, being nonetheless Members of the Cabinet, are not exempt from
the constitutional ban. He emphasizes that the position of the Solicitor General is not an ex officio
position in relation to the position of the Secretary of Justice, considering that the Office of the
Solicitor General (OSG) is an independent and autonomous office attached to the Department of
Justice (DOJ). He insists that the fact that Agra was extended an appointment as the Acting Solicitor
General shows that he did not occupy that office in an ex officio capacity because an ex officio position
does not require any further warrant or appointment.

Respondents contend, in contrast, that Agras concurrent designations as the Acting Secretary
of Justice and Acting Solicitor General were only in a temporary capacity, the only effect of which was
to confer additional duties to him. Thus, as the Acting Solicitor General and Acting Secretary of
Justice, Agra was not "holding" both offices in the strict constitutional sense. They argue that an
appointment, to be covered by the constitutional prohibition, must be regular and permanent, instead
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J. BERSAMIN

of a mere designation.

Respondents further contend that, even on the assumption that Agras concurrent designation
constituted "holding of multiple offices," his continued service as the Acting Solicitor General was
akin to a hold-over; that upon Agras designation as the Acting Secretary of Justice, his term as the
Acting Solicitor General expired in view of the constitutional prohibition against holding of multiple
offices by the Members of the Cabinet; that under the principle of hold-over, Agra continued his
service as the Acting Solicitor General "until his successor is elected and qualified" to "prevent a hiatus
in the government pending the time when a successor may be chosen and inducted into office;" and
that during his continued service as the Acting Solicitor General, he did not receive any salaries and
emoluments from the OSG after becoming the Acting Secretary of Justice on March 5, 2010.

Respondents point out that the OSGs independence and autonomy are defined by the powers
and functions conferred to that office by law, not by the person appointed to head such office; and
that although the OSG is attached to the DOJ, the DOJs authority, control and supervision over the
OSG are limited only to budgetary purposes.

Petitioner counters that there was no "prevailing special circumstance" that justified the non-
application to Agra of Section 13, Article VII of the 1987 Constitution; that the temporariness of the
appointment or designation is not an excuse to disregard the constitutional ban against holding of
multiple offices by the Members of the Cabinet;16 that Agras invocation of the principle of hold-over
is misplaced for being predicated upon an erroneous presentation of a material fact as to the time of
his designation as the Acting Solicitor General and Acting Secretary of Justice; that Agras concurrent
designations further violated the Administrative Code of 1987 which mandates that the OSG shall be
autonomous and independent.

ISSUE:

WHETHER OR NOT the designation of Agra as the Acting Secretary of Justice, concurrently
with his position of Acting Solicitor General, violates the constitutional prohibition against dual or
multiple offices for the Members of the Cabinet and their deputies and assistants?

RULING:

YES. The designation of Agra as Acting Secretary of Justice concurrently with his position of
Acting Solicitor General was unconstitutional and void for being in violation of the constitutional
prohibition under Section 13, Article VII of the 1987 Constitution.

Unconstitutionality of Agras concurrent designation as Acting Secretary of Justice and

Acting Solicitor General

At the center of the controversy is the correct application of Section 13, Article VII of the 1987
Constitution. A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the
1987 Constitution.

The differentiation of the two constitutional provisions was well stated. While all other
appointive officials in the civil service are allowed to hold other office or employment in the
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government during their tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public officials and employees, while Section 13,
Article VII is meant to be the exception applicable only to the President, the Vice-President, Members
of the Cabinet, their deputies and assistants.

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants
with respect to holding multiple offices or employment in the government during their tenure, the
exception to this prohibition must be read with equal severity. On its face, the language of Section 13,
Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal
negation of the privilege of holding multiple government offices or employment. Verily, wherever the
language used in the constitution is prohibitory, it is to be understood as intended to be a positive
and unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be given
a literal interpretation to refer only to those particular instances cited in the Constitution itself, to
wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII;
and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.

Being designated as the Acting Secretary of Justice concurrently with his position of
Acting Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII,
supra, whose text and spirit were too clear to be differently read. Hence, Agra could not validly
hold any other office or employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.

It was of no moment that Agras designation was in an acting or temporary capacity.

To hold an office means to possess or to occupy the office, or to be in possession and administration
of the office, which implies nothing less than the actual discharge of the functions and duties of the
office. Indeed, in the language of Section 13 itself, supra, the Constitution makes no reference to the
nature of the appointment or designation. The prohibition against dual or multiple offices being held
by one official must be construed as to apply to all appointments or designations, whether permanent
or temporary, for it is without question that the avowed objective of Section 13, supra, is to prevent
the concentration of powers in the Executive Department officials, specifically the President, the Vice-
President, the Members of the Cabinet and their deputies and assistants. To construe differently is to
"open the veritable floodgates of circumvention of an important constitutional disqualification of
officials in the Executive Department and of limitations on the Presidents power of appointment in
the guise of temporary designations of Cabinet Members, undersecretaries and assistant secretaries
as officers-in-charge of government agencies, instrumentalities, or government-owned or controlled
corporations."

The only two exceptions against the holding of multiple offices are: (1) those provided for
under the Constitution, such as Section 3, Article VII, authorizing the Vice President to become a
member of the Cabinet; and (2) posts occupied by Executive officials specified in Section 13, Article
VII without additional compensation in ex officio capacities as provided by law and as required by the
primary functions of the officials offices.

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It is equally remarkable, therefore, that Agras designation as the Acting Secretary of

Justice was not in an ex officio capacity, by which he would have been validly authorized to
concurrently hold the two positions due to the holding of one office being the consequence
of holding the other. Being included in the stricter prohibition embodied in Section 13, supra, Agra
cannot liberally apply in his favor the broad exceptions provided in Section 7, paragraph 2, Article IX-
B of the Constitution ("Unless otherwise allowed by law or the primary functions of his position") to
justify his designation as Acting Secretary of Justice concurrently with his designation as Acting
Solicitor General, or vice versa.

To underscore the obvious, it is not sufficient for Agra to show that his holding of the
other office was "allowed by law or the primary functions of his position." To claim the
exemption of his concurrent designations from the coverage of the stricter prohibition under Section
13, supra, he needed to establish herein that his concurrent designation was expressly allowed by the
Constitution. But, alas, he did not do so.

To be sure, Agras concurrent designations as Acting Secretary of Justice and Acting

Solicitor General did not come within the definition of an ex officio capacity. Had either of his
concurrent designations been in an ex officio capacity in relation to the other, the Court might now
be ruling in his favor.

The term ex officio means "from office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon the individual character, but rather
annexed to the official position." Ex officio likewise denotes an "act done in an official character, or as
a consequence of office, and without any other appointment or authority other than that conferred
by the office." An ex officio member of a board is one who is a member by virtue of his title to a certain
office, and without further warrant or appointment. The ex officio position being actually and in legal
contemplation part of the principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office.

The powers and functions of the OSG are neither required by the primary functions nor
included by the powers of the DOJ, and vice versa. The OSG, while attached to the DOJ, is not a
constituent unit of the latter, as, in fact, the Administrative Code of 1987 decrees sthat the OSG is
independent and autonomous. With the enactment of Republic Act No. 9417, the Solicitor General is
now vested with a cabinet rank, and has the same qualifications for appointment, rank, prerogatives,
salaries, allowances, benefits and privileges as those of the Presiding Justice of the Court of Appeals.

Moreover, the magnitude of the scope of work of the Solicitor General, if added to the equally
demanding tasks of the Secretary of Justice, is obviously too much for any one official to bear. Apart
from the sure peril of political pressure, the concurrent holding of the two positions, even if they are
not entirely incompatible, may affect sound government operations and the proper performance of
duties.

Being head of an executive department is no mean job. It is more than a full-time job, requiring
full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from
a department heads ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy among too many positions of
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J. BERSAMIN

responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be
derived from this concentration of attention, knowledge and expertise, particularly at this stage of
our national and economic development, far outweigh the benefits, if any, that may be gained from a
department head spreading himself too thin and taking in more than what he can handle.

It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was
not covered by the stricter prohibition under Section 13, supra, due to such position being merely
vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless remained covered
by the general prohibition under Section 7, supra. Hence, his concurrent designations were still
subject to the conditions under the latter constitutional provision.

The general rule contained in Article IX-B of the 1987 Constitution permits an
appointive official to hold more than one office only if "allowed by law or by the primary
functions of his position. There is no legal objection to a government official occupying two
government offices and performing the functions of both as long as there is no incompatibility. The
crucial test in determining whether incompatibility exists between two offices was whether one
office is subordinate to the other, in the sense that one office has the right to interfere with
the other.

[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x

Where one office is not subordinate to the other, nor the relations of the one to the other such as are
inconsistent and repugnant, there is not that incompatibility from which the law declares that the
acceptance of the one is the vacation of the other. The force of the word, in its application to this
matter is, that from the nature and relations to each other, of the two places, they ought not to be
held by the same person, from the contrariety and antagonism which would result in the attempt by
one person to faithfully and impartially discharge the duties of one, toward the incumbent of the
other. X x x The offices must subordinate, one [over] the other, and they must, per se, have the right
to interfere, one with the other, before they are incompatible at common law.

While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and
appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. This Court already clarified the scope of the prohibition
provided in Section 13, Article VII of the 1987 Constitution. It specifically identified the persons who
are affected by this prohibition as secretaries, undersecretaries and assistant secretaries; and
categorically excluded public officers who merely have the rank of secretary, undersecretary or
assistant secretary.

Another point of clarification raised by the Solicitor General refers to the persons affected by
the constitutional prohibition. The persons cited in the constitutional provision are the "Members of
the Cabinet, their deputies and assistants." These terms must be given their common and general
acceptation as referring to the heads of the executive departments, their undersecretaries and
assistant secretaries. Public officials given the rank equivalent to a Secretary, Undersecretary, or
Assistant Secretary are not covered by the prohibition, nor is the Solicitor General affected thereby.

It is clear from the foregoing that the strict prohibition under Section 13, Article VII of
the 1987 Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of
them is a secretary, undersecretary, nor an assistant secretary, even if the former may have
the same rank as the latter positions.
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Clearly, the primary functions of the Office of the Solicitor General are not related or necessary
to the primary functions of the Department of Justice. Considering that the nature and duties of the
two offices are such as to render it improper, from considerations of public policy, for one person to
retain both, an incompatibility between the offices exists, further warranting the declaration of Agras
designation as the Acting Secretary of Justice, concurrently with his designation as the Acting Solicitor
General, to be void for being in violation of the express provisions of the Constitution.

Effect of declaration of unconstitutionality of Agras concurrent appointment; the de

facto officer doctrine

In view of the application of the stricter prohibition under Section 13, supra, Agra did not
validly hold the position of Acting Secretary of Justice concurrently with his holding of the position
of Acting Solicitor General. Accordingly, he was not to be considered as a de jure officer for the
entire period of his tenure as the Acting Secretary of Justice. A de jure officer is one who is
deemed, in all respects, legally appointed and qualified and whose term of office has not expired.

That notwithstanding, Agra was a de facto officer during his tenure as Acting Secretary
of Justice. During their tenure in the questioned positions, respondents may be considered de facto
officers and as such entitled to emoluments for actual services rendered. It has been held that "in
cases where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the
office, and may in an appropriate action recover the salary, fees and other compensations attached to
the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that
the public should benefit by the services of an officer de facto and then be freed from all liability to
pay any one for such services. Any per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned positions may therefore be
retained by them.

A de facto officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face. He may also
be one who is in possession of an office, and is discharging its duties under color of authority, by
which is meant authority derived from an appointment, however irregular or informal, so that the
incumbent is not a mere volunteer. Consequently, the acts of the de facto officer are just as valid for
all purposes as those of a de jure officer, in so far as the public or third persons who are interested
therein are concerned.

In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto
Acting Secretary of Justice, assuming that was his later designation, were presumed valid,
binding and effective as if he was the officer legally appointed and qualified for the office.
This clarification is necessary in order to protect the sanctity of the dealings by the public with persons
whose ostensible authority emanates from the State. Agra's official actions covered by this
clarification extend to but are not limited to the promulgation of resolutions on petitions for review
filed in the Department of Justice, and the issuance of department orders, memoranda and circulars
relative to the prosecution of criminal cases.

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TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES,

petitioner, vs. MA. ROSARIO S. MANALANG-DEMIGILLO, respondent.*
G.R. No. 176343 September 18, 2012, EN BANC, BERSAMIN J.

The issuance by the proper disciplining authority of an order of preventive suspension for 90
days of a civil service officer or employee pending investigation of her administrative case is authorized
provided that a formal change is served to her and the charge involves dishonesty, oppression, grave
misconduct, or neglect in the performance of duty, or if there are reasons to believe that she is guilty of
the charge as to warrant her removal from the service. Proof showing that the respondent officer or
employee may unduly influence the witnesses against her or may tamper the documentary evidence on
file at her office is not a prerequisite before she may be preventively suspended.

Administrative Law; Preventive Suspension; Under Section 51 of the Revised Administrative Code
of 1987, the imposition of preventive suspension by the proper disciplining authority is authorized
provided the charge involves dishonesty, oppression, or grave misconduct, or neglect in the performance
of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant
his removal from the service.Under Section 51, Revised Administrative Code of 1987, the imposition
of preventive suspension by the proper disciplining authority is authorized provided the charge
involves dishonesty, oppression, or grave misconduct, or neglect in the performance of duty, or if
there are reasons to believe that the respondent is guilty of charges which would warrant his removal
from the service. Section 51 nowhere states or implies that before a preventive suspension may issue
there must be proof that the subordinate may unduly influence the witnesses against him or may
tamper the documentary evidence on file in her office.

Same; Same; Prerequisites Before an Order of Preventive Suspension Pending an Investigation

May Validly Issue.It is clear from Section 19 of Rule II of the Uniform Rules promulgated by CSC
that before an order of preventive suspension pending an investigation may validly issue, only two
prerequisites need be shown, namely: (1) that the proper disciplining authority has served a formal
charge to the affected officer or employee; and (2) that the charge involves either dishonesty,
oppression, grave misconduct, neglect in the performance of duty, or if there are reasons to believe
that the respondent is guilty of the charges which would warrant her removal from the service. Proof
showing that the subordinate officer or employee may unduly influence the witnesses against her or
may tamper the documentary evidence on file in her office is not among the prerequisites.

Same; Same; Preventing the subordinate officer or employee from influencing the witnesses and
tampering the documentary evidence under her custody are mere purposes for which an order of
preventive suspension may issue.Preventing the subordinate officer or employee from influencing
the witnesses and tampering the documentary evidence under her custody are mere purposes for
which an order of preventive suspension may issue as reflected under paragraph 2 of Section 19, supra.
This is apparent in the phrase for the same purpose found in paragraph 3 of Section 19. A purpose
cannot be considered and understood as a condition. A purpose means reason for which something
is done or exists, while a condition refers to a necessary requirement for something else to happen;
or is a restriction, qualification. The two terms have different meanings and implications, and one
cannot substitute for the other.

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FACTS:

Trade and Investment Development Corporation of the Philippines (TIDCORP) is a wholly

owned government corporation. The Board of Directors of TIDCORP formally charged Maria Rosario
Manalang-Demigillo (Demigillo), then a Senior Vice-President in TIDCORP, with grave misconduct,
conduct prejudicial to the best interest of the service, insubordination, and gross discourtesy in the
course of official duties. Pending the investigation, TIDCORP placed Demigillo under preventive
suspension for 90 days.

Demigillo assailed her preventive suspension in the Civil Service Commission (CSC), which
issued a resolution declaring her preventive suspension to be not in order. The CSC stated that
under Section 19(2), Rule II, of the Uniform Rules on Administrative Cases in the Civil Service
(Uniform Rules), a civil service officer like Demigillo might be preventively suspended by the
disciplining authority only if any of the two grounds were present, to wit: (1) there was a possibility
that the civil service employee might unduly influence or intimidate potential witnesses against him;
or (2) there was a possibility that the civil service employee might tamper the documentary evidence
on file in her office. According to the CSC, TIDCORP did not prove with substantial evidence the
existence of any of such grounds.

ISSUE:

The sole issue concerns the validity of TIDCORPs 90-day preventive suspension of Demigillo.

RULING:

The 90-day preventive suspension order issued against Demigillo was valid.

Under Section 51, Revised Administrative Code of 1987, the imposition of preventive
suspension by the proper disciplining authority is authorized provided the charge involves
dishonesty, oppression, or grave misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which would warrant his removal from the
service. Section 51 nowhere states or implies that before a preventive suspension may issue there must
be proof that the subordinate may unduly influence the witnesses against him or may tamper the
documentary evidence on file in her office.

It is clear from Section 19 of Rule II of the Uniform Rules promulgated by CSC that before an
order of preventive suspension pending an investigation may validly issue, only two prerequisites
need be shown, namely: (1) that the proper disciplining authority has served a formal charge to the
affected officer or employee; and (2) that the charge involves either dishonesty, oppression, grave
misconduct, neglect in the performance of duty, or if there are reasons to believe that the respondent
is guilty of the charges which would warrant her removal from the service. Preventing the subordinate
officer or employee from influencing the witnesses and tampering the documentary evidence under
her custody are mere purposes, not requisites, for which an order of preventive suspension may
issue.

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BIENVENIDO WILLIAM D. LLOREN, petitioner, vs. THE COMMISSION ON ELECTIONS and

ROGELIO PUA, JR., respondent.
G.R. No. 196355 September 18, 2012, EN BANC, BERSAMIN J.

Election Law; Appeals; Under Section 8, of Rule 14 of the Rules in A.M. No. 07-4-15-SC, an
aggrieved party may appeal the decision of the trial court to the COMELEC within five days after
promulgation by filing a notice of appeal in the trial court that rendered the decision, serving a copy of
the notice of appeal on the adverse counsel or on the adverse party if the party is not represented by
counsel.Under Section 8, of Rule 14 of the Rules in A.M. No. 07-4-15-SC, an aggrieved party may
appeal the decision of the trial court to the COMELEC within five days after promulgation by filing a
notice of appeal in the trial court that rendered the decision, serving a copy of the notice of appeal on
the adverse counsel or on the adverse party if the party is not represented by counsel. Section 9, of
Rule 14 of the Rules in A.M. No. 07-4-15-SC prescribes for that purpose an appeal fee of P1,000.00 to
be paid to the trial court rendering the decision simultaneously with the filing of the notice of appeal.

Same; Dismissal of Actions; The non-payment of the motion fee of P300.00 at the time of the
filing of the motion for reconsideration did not warrant the outright denial of the motion for
reconsideration, but might only justify the COMELEC to refuse to take action on the motion for
reconsideration until the fees were paid, or to dismiss the action or proceeding when no full payment of
the fees is ultimately made.The non-payment of the motion fee of P300.00 at the time of the filing
of the motion for reconsideration did not warrant the outright denial of the motion for
reconsideration, but might only justify the COMELEC to refuse to take action on the motion for
reconsideration until the fees were paid, or to dismiss the action or proceeding when no full payment
of the fees is ultimately made. The authority to dismiss is discretionary and permissive, not mandatory
and exclusive, as expressly provided in Section 18, Rule 40 of the 1993 Rules of Procedure itself, to wit:
Section 18. Non-payment of Prescribed Fees.If the fees above prescribed are not paid, the
Commission may refuse to take action thereon until they are paid and may dismiss the action or the
proceeding.

Same; Same; Election Protests; Failure to indicate the total number of precincts in the
municipality in the election protest rendered the protest insufficient in form and substance which
warrants its summary dismissal.As the findings of the RTC show, petitioner did not indicate the
total number of precincts in the municipality in his election protest. The omission rendered the
election protest insufficient in form and content, and warranted its summary dismissal, in accordance
with Section 12, Rule 2 of the Rules in A.M. No. 10-4-1-SC.

FACTS:

Petitioner and respondent Rogelio Pua, Jr. (Pua) were the candidates for Vice-Mayor of the
Municipality of Inopacan, Leyte in the May 10, 2010 Automated National and Local Elections. The
Municipal Board of Canvassers proclaimed Pua as the winning candidate.

Petitioner commenced Election Protest Case in the Regional Trial Court (RTC) which
dismissed the election protest on November 12, 2012 for insufficiency in form and substance and for
failure to pay the required cash deposit. On November 17, 2010, petitioner filed a notice of appeal in
the RTC, and paid the appeal fee of P1,000.00 to the same court. On December 2, 2010, the fifteenth
day from the filing of the notice of appeal, petitioner remitted the appeal fee of P3,200.00 to the
COMELEC Electoral Contests Adjudication Department (ECAD) by postal money order.
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COMELEC First Division dismissed the appeal on the ground of petitioners failure to pay the
appeal fee on time. Petitioner moved for the reconsideration stating that he paid the motion fee of
P300.00 by postal money order. On March 16, 2011, the COMELEC En Banc denied petitioners motion
for reconsideration on the ground that he did not pay the motion fee on time as required by the rules
of the COMELEC.

ISSUES:

The issue of whether the COMELEC committed grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the assailed orders is approached through two questions:

1. the procedural, which concerns the determination of whether or not petitioner timely paid
the appeal fee and motion fee under the COMELEC Rules of Procedure; and
2. the substantive, which delves on whether or not the appeal may still proceed.

RULING:

1. Procedural Question: Petitioner timely perfected his appeal.

The rules on the timely perfection of an appeal in an election case requires two different appeal
fees, one to be paid in the trial court together with the filing of the notice of appeal within five days
from notice of the decision, and the other to be paid in the COMELEC Cash Division within the 15-
day period from the filing of the notice of appeal.

The Court finds that petitioner perfected his appeal of the decision rendered on November 12,
2012 by the RTC. He filed his notice of appeal and paid the P1,000.00 appeal fee to the RTC on
November 17, 2012. Such filing and payment, being done within five days from the promulgation of
the decision, complied with Section 8, Rule 14 of the Rules in A.M. No. 07-4-15-SC. Thereafter, he paid
the appeal fee of P3,200.00 to the COMELEC Cash Division through the ECAD on December 2, 2012.
Such payment, being done on the fifteenth day from his filing of the notice of appeal in the RTC,
complied with Resolution No. 8486.

Yet, in determining whether petitioner had perfected his appeal, the COMELEC First Division
relied on Section 4 of Rule 40 of its 1993 Rules of Procedure, a provision that required an appellant to
pay the appeal fee prescribed by the COMELEC within the period to file the notice of appeal.

The reliance on Section 4 of Rule 40 of the COMELEC 1993 Rules of Procedure was plainly
arbitrary and capricious. The COMELEC First Division thereby totally disregarded Resolution No.
8486, whereby the COMELEC revised Section 4 of Rule 40 of the 1993 Rules of Procedure by expressly
allowing the appellant to pay the Comelec appeal fee of P3,200.00 at the Commissions Cash Division
through the Electoral Contests Adjudication Department (ECAD) or by postal money order payable
to the Commission on Elections through ECAD, within a period of fifteen days (15) from the time of
the filing of the Notice of Appeal with the lower court. In effect, the period of perfecting the appeal
in the COMELEC was extended from the original period of five days counted from promulgation of
the decision by the trial court to a longer period of 15 days reckoned from the filing of the notice of
appeal in the trial court. Accordingly, the order issued by the COMELEC First Division dismissing
the appeal was null and void for being contrary to Resolution No. 8486.
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 POLITICAL LAW
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As to the order by the COMELEC En Banc, the Court finds that the COMELEC En Banc was
capricious and arbitrary in thereby denying petitioners motion for reconsideration on the ground
that he did not simultaneously pay the motion fee of P300.00 prescribed by Section 7(f), Rule 40 of
the 1993 Rules of Procedure.

The non-payment of the motion fee of P300.00 at the time of the filing of the motion for
reconsideration did not warrant the outright denial of the motion for reconsideration, but might only
justify the COMELEC to refuse to take action on the motion for reconsideration until the fees were
paid, or to dismiss the action or proceeding when no full payment of the fees is ultimately made. The
authority to dismiss is discretionary and permissive, not mandatory and exclusive.

2. Substantive Question: Petitioners election protest lacks merit

Nonetheless, the dismissal by the RTC of the election protest case was proper for being in
accord with the Rules in A.M. No. 10-4-1-SC. As the findings of the RTC show, petitioner did not
indicate the total number of precincts in the municipality in his election protest. The omission
rendered the election protest insufficient in form and content, and warranted its summary dismissal,
in accordance with Section 12, Rule 2 of the Rules in A.M. No. 10-4-1-SC.

Furthermore, the RTC found that the cash deposit made by petitioner was insufficient.
Considering that the Court cannot disturb the findings on the insufficiency of petitioners cash deposit
made by the trial court, that finding was another basis for the summary dismissal of the election
protest under Section 12. It must be noted that the summary dismissal of the election protest upon
any of the grounds mentioned in Section 12 is mandatory.

ELECTION LAW

ARSENIO A. AGUSTIN v. COMELEC and SALVADOR S. PILLOS*

G.R. No. 207105, NOVEMBER 10, 2015, BERSAMIN, J., EN BANC

Election Law; There are two (2) remedies available under existing laws to prevent a candidate
from running in an electoral race. One is by petition for disqualification, and the other by petition to
deny due course to or to cancel his certificate of candidacy.A valid CoC arises upon the timely filing
of a persons declaration of his intention to run for public office and his affirmation that he possesses
the eligibility for the position he seeks to assume. The valid CoC renders the person making the
declaration a valid or official candidate. There are two remedies available under existing laws to
prevent a candidate from running in an electoral race. One is by petition for disqualification, and the
other by petition to deny due course to or to cancel his certificate of candidacy.

Same; The denial of due course to or the cancellation of the Certificate of Candidacy (CoC) under
Section 78 of the Omnibus Election Code (OEC) involves a finding not only that a person lacked a
qualification for the office he is vying for but also that such he made a material representation in the
CoC that was false.The denial of due course to or the cancellation of the CoC under Section 78 of
the Omnibus Election Code involves a finding not only that a person lacked a qualification for the
office he is vying for but also that such he made a material representation in the CoC that was false.
The Court has stressed in Mitra v. Commission on Elections, 622 SCRA 744 (2010), that in addition to
materiality there must be a deliberate attempt to mislead, misinform, or hide a fact that would
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J. BERSAMIN

otherwise render the candidate ineligible.

Same; Citizenship; By his Oath of Allegiance and his renunciation of his United States of
America (USA) citizenship, he reverted to the status of an exclusively Filipino citizen.The petitioner
took his Oath of Allegiance on March 9, 2012 and executed his Affidavit of Renunciation on October
2, 2012. By his Oath of Allegiance and his renunciation of his USA citizenship, he reverted to the status
of an exclusively Filipino citizen. On October 5, 2012, the date he filed his CoC he was, therefore,
exclusively a Filipino citizen, rendering him eligible to run for public office. His CoC was valid for all
intents and purposes of the election laws because he did not make therein any material
misrepresentation of his eligibility to run as Mayor of the Municipality of Marcos, Ilocos Norte.

Same; Same; Dual Citizenship; The petitioners continued exercise of his rights as a citizen of
the United States of America (USA) through using his USA passport after the renunciation of his USA
citizenship reverted him to his earlier status as a dual citizen. Such reversion disqualified him from being
elected to public office in the Philippines pursuant to Section 40(d) of the Local Government Code
(LGC).We uphold the declaration by the COMELEC En Banc that the petitioner was ineligible to
run and be voted for as Mayor of the Municipality of Marcos, Ilocos Norte. It is not disputed that on
October 6, 2012, after having renounced his USA citizenship and having already filed his CoC, he
travelled abroad using his USA passport, thereby representing himself as a citizen of the USA. He
continued using his USA passport in his subsequent travels abroad despite having been already issued
his Philippine passport on August 23, 2012. He thereby effectively repudiated his oath of renunciation
on October 6, 2012, the first time he used his USA passport after renouncing his USA citizenship on
October 2, 2012. Consequently, he could be considered an exclusively Filipino citizen only for the four
days from October 2, 2012 until October 6, 2012. The petitioners continued exercise of his rights as a
citizen of the USA through using his USA passport after the renunciation of his USA citizenship
reverted him to his earlier status as a dual citizen. Such reversion disqualified him from being elected
to public office in the Philippines pursuant to Section 40(d) of the Local Government Code.

FACTS:

In 1997, Arsenio A. Agustin (the petitioner) was naturalized as a citizen of the USA. On
October 5, 2012, he filed his certificate of candidacy (CoC) for the position of Mayor of the
Municipality of Marcos, Ilocos Norte to be contested in the May 13, 2013 local elections. As the official
candidate of the Nacionalista Party, he declared in his CoC that he was eligible for the office he was
seeking to be elected to; that he was a natural-born Filipino citizen; and that he had been a resident
of the Municipality of Marcos, Ilocos Norte for 25 years.

On October 10, 2012, Salvador S. Pillos, a rival mayoralty candidate, filed in the COMELEC a
Petition to Deny Due Course and/or to Cancel the Certificate of Candidacy of Arsenio Agustin,
alleging that the petitioner had made a material misrepresentation in his CoC by stating that he had
been a resident of the Municipality of Marcos for 25 years despite having registered as a voter therein
only on May 31, 2012.

The petitioner countered that the one-year requirement referred to residency, not to voter
registration; that residency was not dependent on citizenship, such that his travel to Hawaii for
business purposes did not violate the residency requirement pursuant to prevailing jurisprudence;
and that as regards citizenship, he attached a copy of his Affidavit of Renunciation of U.S./American
Citizenship executed on October 2, 2012.
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On January 28, 2013, the COMELEC Second Division issued its Omnibus resolution in favor of
the petitioner and denied the petition for lack of merit. However, on April 23, 2013, the COMELEC
En Banc issued its assailed resolution cancelling and denying due course to the petitioners CoC,
observing as follows:

Having admitted his dual citizenship, Agustin had the burden of proving through
his evidence that he complied with the statutory requirements imposed upon dual
citizens provided under RA 9225, particularly Section 3 and 5(2) thereof. While
Agustin presented a copy of his Affidavit of Renunciation, he failed to furnish this
Commission a copy of his Oath of Allegiance. Having failed to sufficiently show that
he complied with the provisions of RA 9225, Agustins CoC must be cancelled and/or
denied due course.

On Election Day, May 13, 2013, the name of the petitioner remained in the ballot. He was later
on proclaimed as the duly elected Municipal Mayor of Marcos, Ilocos Norte for obtaining the highest
among the contending parties.

On May 28, 2013, the petitioner thus instituted an action to annul and set aside the adverse
resolution issued on April 23, 2013, alleging grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the COMELEC En Banc.

Meanwhile, on June 18, 2013, the COMELEC En Banc, pointing out that the filing of a motion
for reconsideration of an En Banc resolution was not allowed under Rule 13 of the 1993 COMELEC
Rules of Procedure; and that, accordingly, the April 23, 2013 resolution was deemed final and executory
pursuant to Section 8, paragraph 2 of COMELEC Resolution No. 9523, issued the writ of execution.

On July 16, 2013, the Court required the parties to observe the status quo prevailing before the
issuance of the COMELEC En Banc resolution dated April 23, 2013.

ISSUES:

I. WHETHER OR NOT the petitioner is eligible as a candidate for the position of Mayor of the
Municipality of Marcos, Ilocos Norte.
II. WHETHER OR NOT Pillos is the rightful occupant of the contested elective position.

RULING:

I. NO. The petitioner filed a valid CoC, but the use of his USA passport after his renunciation of
foreign citizenship rendered him disqualified from continuing as a mayoralty candidate.

The Court finds and declares that the petitioner made no material misrepresentation in his
CoC; hence, there is no legal or factual basis for the cancellation of the CoC. Even so, he was
disqualified to run as Mayor of the Municipality of Marcos, Ilocos Norte for being a dual citizen.
With his disqualification having been determined and pronounced by final judgment before the
elections, the votes cast in his favor should not be counted. Accordingly, his rival, respondent Pillos,
should be proclaimed duly elected Mayor for obtaining the highest number of votes in the elections.

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A valid CoC arises upon the timely filing of a persons declaration of his intention to run for
public office and his affirmation that he possesses the eligibility for the position he seeks to assume.
The valid CoC renders the person making the declaration a valid or official candidate.

There are two remedies available under existing laws to prevent a candidate from running in
an electoral race. One is by petition for disqualification, and the other petition to deny due
course to or to cancel his certificate of candidacy.

A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC
can only be grounded on a statement of a material representation in the said certificate that is false.
The petitions also have different effects. While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course
under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.

The denial of due course to or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material representation that is false, which
may relate to the qualifications required of the public office he/she is running for. It is noted that the
candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the
OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications
or eligibility for public office. If the candidate subsequently states a material representation in the
CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel
such certificate.

Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto
proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification
mainly on the fact that a Section 78 petition is filed before proclamation, while a petition for quo
warranto is filed after proclamation of the winning candidate.

The denial of due course to or the cancellation of the CoC under Section 78 of the OEC
involves a finding not only that a person lacked a qualification for the office he is vying for but also
that such he made a material representation in the CoC that was false. The Court has emphasized that
in addition to materiality there must be a deliberate attempt to mislead, misinformation, or hide a
fact that would otherwise render the candidate ineligible. Given the purpose of the requirement, it
must be made with the intention to deceive the electorate as to the would-be candidates
qualifications for public office. Thus, the misrepresentation that Section 78 addresses cannot be the
result of a mere innocuous mistake, and cannot exist in a situation where the intent to deceive is
patently absent, or where no deception on the electorate results. The deliberate character of the
misrepresentation necessarily follows from a consideration of the consequences of any material
falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he cannot serve;
in both cases, he can be prosecuted for violation of the election laws.

A petition for the denial of due course to or cancellation of CoC that falls short of the foregoing
requirements should not be granted.

The petition of Pillos was in the nature of the Section 78 petition to deny due course to or to
cancel the CoC of the petitioner. Yet, the COMELEC En Banc cancelled the petitioners CoC not
because of his failure to meet the residency requirement but because of his failure to sufficiently
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J. BERSAMIN

show that he complied with provisions of RA 9225. In our view, such basis for cancelation was
unwarranted considering that he became eligible to run for public office when he expressly renounced
his USA citizenship, by which he fully complied with the requirements stated in Section 5(2) of RA
No. 9552.

The petitioner took his Oath of Allegiance on March 9, 2012 and executed his Affidavit of
Renunciation on October 2, 2012. By his Oath of Allegiance and his renunciation of his USA
citizenship, he reverted to the status of an exclusively Filipino citizen. On October 5, 2012, the date
he filed his CoC he was, therefore, exclusively a Filipino citizen, rendering him eligible to run for
public office. His CoC was valid for all intents and purposes of the election laws because he did not
make therein any material misrepresentation of his eligibility to run as Mayor.

Nonetheless, we uphold the declaration by the COMELEC En Banc that the petitioner
is ineligible to run and be voted for as Mayor. It is not disputed that on October 6, 2012, after
having renounced his USA citizenship and having already filed his CoC, he travelled abroad using his
USA passport, thereby representing himself as a citizen of the USA. He continued using his USA
passport in his subsequent travels abroad despite having been already issued his Philippine passport
on August 23, 2012. He thereby effectively repudiated his oath of renunciation on October 6, 2012, the
first time he used his USA passport after renouncing his USA citizenship on October 2, 2012.
Consequently, he could be considered an exclusively Filipino citizen only for four days from October
2, 2012 until October 6, 2012.

The petitioners continued exercise of his rights as a citizen of the USA through using his USA
passport after the renunciation of his USA citizenship reverted him to his earlier status a dual citizen.
Such reversion disqualified him from being elected to public office in the Philippines pursuant to
Section 40(d) of the LGC.

A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he

lacks any of the qualifications for elective office. Even if it made no finding that the petitioner
had deliberately attempted to mislead or to misinform as to warrant the cancellation of his
CoC, the COMELEC could still declare him disqualified for not meeting the requisite
eligibility under the LGC.

II. YES. The petitioner was declared disqualified by final judgment before election day; hence,
the votes cast for him should not be counted.

The effect of the petitioners disqualification under the April 23, 2013 resolution depended on
when the disqualification attained finality. The distinction exists because of Section 6 of RA No. 6646
(The Electoral Reforms Law of 1987).

As the effect of Section 6 of RA No. 6646, the law expressly declares that a candidate
disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not
be counted. This is a mandatory provision of law.

Section 6 of Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first sentence
of Section 6. The second is when the disqualification becomes final after the elections, which is the
situation covered in the second sentence of Section 6.
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The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted.

Even if his disqualification did not subvert the validity of his CoC, the petitioner would be
reduced to a noncandidate under the terms of Section 6, supra, should it be shown that the
disqualification attained finality prior to the 2013 elections. The effect was to render the votes cast in
his favor stray, resulting in Pillos being proclaimed the winning candidate.

It is crucial, therefore, to determine with certainty the time when the judgment declaring the
petitioner disqualified from running for the local elective position attained finality.

Although the petitioner filed his Motion for Reconsideration on May 3, 2013, such filing did
not impede the April 23, 2013 resolution from being deemed final and executory because Section 1 (d),
Rule of 13 of the 1993 COMELEC Rules of Procedure expressly disallowed the filing of the motion for
reconsideration. Within the context of Section 13, Rule 18, and Section 3, Rule 37, both of the 1993
COMELEC Ruled of Procedure, the April 23, 2013 resolution became final and executory as of May 4,
2013 upon the lapse of five days from its promulgation without a restraining order being issued by the
Supreme Court.

Under the circumstances, the finality of the petitioners disqualification pursuant to the
April 23, 2013 resolution prior to the May 13, 2013 elections rendered him a noncandidate, and
the votes cast for him should not have been counted. Pillos, being the qualified candidate
obtaining the highest number of votes, should be proclaimed duly elected as Mayor of the
Municipaity of Marcos, Ilocos Norte in the 2013 elections.

NATIONAL HOUSING AUTHORITY v. ERNESTO ROXAS

G.R. No. 171953, OCTOBER 21, 2015, BERSMAIN, J., FIRST DIVISION

The National Housing Authority (NHA), a government-owned and controlled corporation

created and existing under PD No. 757, may sue and be sued. However, no court should issue a writ of
execution upon any monetary judgment rendered against the NHA unless such monetary judgment
is first submitted to and passed upon by the Commission on Audit (COA).

Administrative Agencies; National Housing Authority; Under Section 6(i) of Presidential Decree
(PD) No. 757, which was its charter, the National Housing Authority (NHA) could sue and be sued.
The mantle of the States immunity from suit did not extend to the NHA despite its being a
government-owned and -controlled corporation. Under Section 6(i) of Presidential Decree No. 757,
which was its charter, the NHA could sue and be sued. As such, the NHA was not immune from the
suit of Roxas.

Same; Same; Jurisdiction; Section 12 of Presidential Decree (PD) No. 757 has authorized the
National Housing Authority (NHA) to determine, establish and maintain the most feasible and effective
program for the management or disposition of specific housing or resettlement projects undertaken by
[it], and [u]nless otherwise decided by the Board, completed housing or resettlement projects shall be
managed and administered by [it].Section 12 of Presidential Decree No. 757 has authorized the NHA
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to determine, establish and maintain the most feasible and effective program for the management or
disposition of specific housing or resettlement projects undertaken by [it], and [u]nless otherwise
decided by the Board, completed housing or resettlement projects shall be managed and administered
by [it]. The execution of the contract to sell by the NHA conformably with the main relief under the
judgment would be in the ordinary course of the management or disposition of the Dagat-
dagatan Development Project undertaken by the NHA. In other words, the NHA possessed the legal
competence and authority to directly afford the main relief without Roxas needing to first submit to
the COA the contract to sell for review and approval. To maintain otherwise is to unconstitutionally
grant to the COA the power of judicial review in respect of the decision of a court of law.

Same; Same; Same; Section 26 of Presidential Decree (PD) No. 1445 specifically vested in the
Commission on Audit (COA) the power, authority and duty to examine, audit and settle all debts and
claims of any sort due from or owing to the Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned and -controlled corporations with original charters.
Settling or paying off the secondary relief for the attorneys fees of P30,000.00, being a monetary
obligation of the NHA, would not be in the usual course of the activities of the NHA under its charter.
That such relief was the consequence of the suit that granted the main relief did not matter. Pursuant
to Section 26 of Presidential Decree No. 1445, Roxas should first bring it to the COA prior to its
enforcement against the NHA. Indeed, Section 26 specifically vested in the COA the power, authority
and duty to examine, audit and settle all debts and claims of any sort due from or owing to the
Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned
and -controlled corporations with original charters.

Same; Commission on Audit; Jurisdiction; The audit jurisdiction of the Commission on Audit
(COA) extends to all government-owned or -controlled corporations, their subsidiaries, and other self-
governing boards, commissions, or agencies of the Government, as well as to all nongovernmental
entities subsidized by the Government, or funded by donations through the Government, or required to
pay levies or government share, or for which the Government has put up a counterpart fund, or those
partly funded by the Government.As the text of the legal provision plainly shows, the audit
jurisdiction of the COA extends to all government-owned or -controlled corporations, their
subsidiaries, and other self-governing boards, commissions, or agencies of the Government, as well
as to all nongovernmental entities subsidized by the Government, or funded by donations through
the Government, or required to pay levies or government share, or for which the Government has put
up a counterpart fund, or those partly funded by the Government. There is no distinction as to the
class of claims. Ubi lex non distinguish nec nos distinguere debemos. Indeed, a general term or phrase
should not be reduced into parts and one part distinguished from the other so as to justify its exclusion
from the operation of the law. In other words, there should be no distinction in the application of a
statute where none is indicated. Corollary to this rule is the principle that where the law does not
make any exception, the courts may not exempt something therefrom, unless there is compelling
reason to the contrary.

Immunity from Suit; The universal rule remains to be that the State, although it gives its consent
to be sued either by general or special law, may limit the claimants action only up to the completion of
proceedings anterior to the stage of execution.There is no question that the NHA could sue or be
sued, and thus could be held liable under the judgment rendered against it. But the universal rule
remains to be that the State, although it gives its consent to be sued either by general or special law,
may limit the claimants action only up to the completion of proceedings anterior to the stage of
execution. In other words, the power of the court ends when the judgment is rendered because
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government funds and property may not be seized pursuant to writs of execution or writs of
garnishment to satisfy such judgments. The functions and public services of the State cannot be
allowed to be paralyzed or disrupted by the diversion of public fund from their legitimate and specific
objects, and as appropriated by law. The rule is based on obvious considerations of public policy.
Indeed, the disbursements of public funds must be covered by the corresponding appropriation as
required by law.

FACTS:

The NHA is charged, among others, with the development of the Dagat-dagatan Development
Project (project) situated in Navotas, Metro Manila. Roxas applied for commercial lots in the project
for the use of his business of buying and selling gravel, sand and cement products. The NHA approved
his application and issued the order of payment respecting the lots. Roxas completed his payment for
the subject lots.

In the meanwhile, the NHA conducted a final subdivision project survey, causing the increase
in the area of the subject lots from 176 to 320 square meters. The NHA informed Roxas about the
increase in the area of the subject lots, and approved the award of the additional area of 144 square
meters to him at P3,500/square meter. Although manifesting his interest in acquiring the additional
area, he appealed for the reduction of the price to P1,500.00/ square meter, pointing out that Lot 5
and Lot 6 were a substitution unilaterally imposed by the NHA that resulted in the increase of 144
square meters based on the technical description, and that although he desired to purchase the
increased area, the purchase must be in accordance with the terms and conditions contained in the
order of payment and notice of award issued to him. After the NHA rejected his appeal, he
commenced in the RTC the action for specific performance and damages.

The RTC rendered judgment against NHA. This was affirmed by the CA. The NHA insists that
the judgment of the RTC did not lie against it because its submission to the litigation did not
necessarily imply that the Government had thereby given its consent to liability; and that the money
judgment awarded to Roxas could not be recovered by motion for execution but should have been firs
filed in the COA.

ISSUES:

I. WHETHER OR NOT NHA, a GOCC, can sue and be sued.

II. WHETHER OR NOT a writ of execution upon any monetary judgment against NHA may be
directly issued by the court.

RULING:

I. YES.

First of all, the mantle of the States immunity from suit did not extend to the NHA despite its
being a GOCC. Under Section 6(i) of PD No. 757 which was its charter, the NHA could sue and
be sued. As such, the NHA was not immune from the suit of Roxas.

And secondly, for purposes of the implementation of the writ of execution, it is necessary to
distinguish between, on the one hand, the main relief adjudicated in the judgment of July 15, 1994, which
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was the decree of specific performance as to the right of Roxas to acquire the subject lots at P1,500.00/
square meter as stated in the original agreement between the parties, and, on the other, the secondary
relief for the attorneys fees of P30,000.00 to be paid by the NHA to Roxas.

Section 12 of Presidential Decree No. 757 has authorized the NHA to determine, establish and
maintain the most feasible and effective program for the management or disposition of specific
housing or resettlement projects undertaken by it, and unless otherwise decided by the Board,
completed housing or resettlement projects shall be managed and administered by it. The
execution of the contract to sell by the NHA conformably with the main relief under the
judgment would be in the ordinary course of the management or disposition of the Dagat-
dagatan Development Project undertaken by the NHA. In other words, the NHA possessed the
legal competence and authority to directly afford the main relief without Roxas needing to first submit
to the COA the contract to sell for review and approval. To maintain otherwise is to unconstitutionally
grant to the COA the power of judicial review in respect of the decision of a court of law.

II. NO.

However, settling or paying off the secondary relief for the attorneys fees of P30,000.00, being
a monetary obligation of the NHA, would not be in the usual course of the activities of the NHA under
its charter. That such relief was the consequence of the suit that granted the main relief did not
matter. Pursuant to Section 26 of Presidential Decree No. 1445, Roxas should first bring it to the COA
prior to its enforcement against the NHA. Indeed, Section 26 specifically vested in the COA the power,
authority and duty to examine, audit and settle all debts and claims of any sort due from or owing
to the Government, or any of its subdivisions, agencies, or instrumentalities, including government-
owned and -controlled corporations with original charters.

As the text of the legal provision plainly shows, the audit jurisdiction of the COA extends to
all government-owned or -controlled corporations, their subsidiaries, and other self-governing
boards, commissions, or agencies of the Government, as well as to all nongovernmental entities
subsidized by the Government, or funded by donations through the Government, or required to pay
levies or government share, or for which the Government has put up a counterpart fund, or those
partly funded by the Government. There is no distinction as to the class of claims. Ubi lex non
distinguish nec nos distinguere debemos. Indeed, a general term or phrase should not be reduced into
parts and one part distinguished from the other so as to justify its exclusion from the operation of the
law. In other words, there should be no distinction in the application of a statute where none is
indicated. Corollary to this rule is the principle that where the law does not make any exception, the
courts may not exempt something therefrom, unless there is compelling reason to the contrary.

There is no question that the NHA could sue or be sued, and thus could be held liable under
the judgment rendered against it. But the universal rule remains to be that the State, although it gives
its consent to be sued either by general or special law, may limit the claimants action only up to the
completion of proceedings anterior to the stage of execution. In other words, the power of the court
ends when the judgment is rendered because government funds and property may not be seized
pursuant to writs of execution or writs of garnishment to satisfy such judgments. The functions and
public services of the State cannot be allowed to be paralyzed or disrupted by the diversion of public
fund from their legitimate and specific objects, and as appropriated by law. The rule is based on
obvious considerations of public policy. Indeed, the disbursements of public funds must be covered
by the corresponding appropriation as required by law.
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MAYOR EMMANUEL L. MALIKSI, petitioner, vs. COMMISSION ON ELECTIONS and HOMER

T. SAQUILAYAN, respondents.
G.R. No. 203302 April 11, 2013, EN BANC, BERSAMIN J.

Election Law; Automated Election System; Electronic Documents; The picture images of the
ballots are electronic documents that are regarded as the equivalents of the original official ballots
themselves.The picture images of the ballots are electronic documents that are regarded as the
equivalents of the original official ballots themselves. In Vinzons-Chato v. House of Representatives
Electoral Tribunal, 689 SCRA 107 (2013), the Court held that the picture images of the ballots, as
scanned and recorded by the PCOS, are likewise official ballots that faithfully capture in electronic
form the votes cast by the voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts
thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be
used for purposes of revision of votes in an electoral protest. That the two documentsthe official
ballot and its picture imageare considered original documents simply means that both of them
are given equal probative weight. In short, when either is presented as evidence, one is not considered
as weightier than the other.

Same; Same; Same; Despite the equal probative weight accorded to the official ballots and the
printouts of their picture images, the rules for the revision of ballots adopted for their respective
proceedings still consider the official ballots to be the primary or best evidence of the voters will.But
this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to
quickly and unilaterally resort to the printouts of the picture images of the ballots in the proceedings
had before them without notice to the parties. Despite the equal probative weight accorded to the
official ballots and the printouts of their picture images, the rules for the revision of ballots adopted
for their respective proceedings still consider the official ballots to be the primary or best evidence of
the voters will. In that regard, the picture images of the ballots are to be used only when it is first
shown that the official ballots are lost or their integrity has been compromised.

Same; Due Process; Due process of law does not only require notice of the decryption, printing,
and recount proceedings to the parties, but also demands an opportunity to be present at such
proceedings or to be represented therein.Due process of law does not only require notice of the
decryption, printing, and recount proceedings to the parties, but also demands an opportunity to be
present at such proceedings or to be represented therein. Maliksi correctly contends that the orders
of the First Division simply required Saquilayan to post and augment his cash deposit. The orders did
not state the time, date, and venue of the decryption and recount proceedings. Clearly, the First
Division had no intention of giving the parties the opportunity to witness its proceedings.

FACTS:

During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the
winner for the position of Mayor of Imus, Cavite. Maliksi, the candidate who garnered the second
highest number of votes, brought an election protest in the Regional Trial Court (RTC) in Imus, Cavite
alleging that there were irregularities in the counting of votes in 209 clustered precincts.
Subsequently, the RTC held a revision of the votes, and, based on the results of the revision, declared
Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease and desist from
performing the functions of said office. Saquilayan appealed to the COMELEC. In the meanwhile, the
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RTC granted Maliksis motion for execution pending appeal, and Maliksi was then installed as Mayor.

In resolving the appeal, the COMELEC First Division, without giving notice to the parties,
decided to recount the ballots through the use of the printouts of the ballot images from the CF cards.
Thus, it issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount necessary
to defray the expenses for the decryption and printing of the ballot images.

On August 15, 2012, the First Division issued a resolution nullifying the RTCs decision and
declaring Saquilayan as the duly elected Mayor.

Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due
process because he had not been notified of the decryption proceedings. He argued that the resort to
the printouts of the ballot images, which were secondary evidence, had been unwarranted because
there was no proof that the integrity of the paper ballots had not been preserved. COMELEC En Banc
resolved to deny Maliksis motion for reconsideration.

ISSUE:

Whether the First Division of the COMELEC denied to him the right to due process by failing
to give due notice on the decryption and printing of the ballot images.

RULING:

Maliksi was denied his right to due process. Consequently, the Court annuls the recount
proceedings conducted by the First Division with the use of the printouts of the ballot images.

At the outset that the First Division should not have conducted the assailed recount
proceedings because it was then exercising appellate jurisdiction as to which no existing rule of
procedure allowed it to conduct a recount in the first instance. The recount proceedings authorized
under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by the
COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election
protests involving elective regional (the autonomous regions), provincial and city officials.

The picture images of the ballots are electronic documents that are regarded as the equivalents
of the original official ballots themselves. That the two documentsthe official ballot and its picture
imageare considered original documents simply means that both of them are given equal
probative weight. In short, when either is presented as evidence, one is not considered as weightier
than the other.

But this juridical reality does not authorize the courts, the COMELEC, and the Electoral
Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots in the
proceedings had before them without notice to the parties. Despite the equal probative weight
accorded to the official ballots and the printouts of their picture images, the rules for the revision of
ballots adopted for their respective proceedings still consider the official ballots to be the primary or
best evidence of the voters will. In that regard, the picture images of the ballots are to be used only
when it is first shown that the official ballots are lost or their integrity has been compromised.

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Rules further require that the decryption of the images stored in the CF cards and the printing
of the decrypted images take place during the revision or recount proceedings. There is a good reason
for thus fixing where and by whom the decryption and the printing should be conducted. It is during
the revision or recount conducted by the Revision/Recount Committee when the parties are allowed
to be represented, with their representatives witnessing the proceedings and timely raising their
objections in the course of the proceedings. Moreover, whenever the Revision/Recount Committee
makes any determination that the ballots have been tampered and have become unreliable, the
parties are immediately made aware of such determination.

When, as in the present case, it was not the Revision/Recount Committee or the RTC
exercising original jurisdiction over the protest that made the finding that the ballots had been
tampered, but the First Division in the exercise of its appellate jurisdiction, the parties should have
been given a formal notice thereof.

Maliksi was not immediately made aware of that crucial finding because the First Division did
not even issue any written resolution stating its reasons for ordering the printing of the picture
images. Due process of law does not only require notice of the decryption, printing, and recount
proceedings to the parties, but also demands an opportunity to be present at such proceedings or to
be represented therein. Maliksi correctly contends that the orders of the First Division simply required
Saquilayan to post and augment his cash deposit. The orders did not state the time, date, and venue
of the decryption and recount proceedings. Clearly, the First Division had no intention of giving the
parties the opportunity to witness its proceedings.

DOUGLAS R. CAGAS, petitioner, vs. THE COMMISSION ON ELECTIONS, AND CLAUDE P.

BAUTISTA, respondents.
G.R. No. 194139 January 24, 2012, EN BANC, BERSAMIN J.

A party aggrieved by an interlocutory order issued by a Division of the Commission on Elections

(COMELEC) in an election protest may not directly assail the order in this Court through a special civil
action for certiorari. The remedy is to seek the review of the interlocutory order during the appeal of the
decision of the Division in due course.

Election Law; Commission on Elections; Certiorari; The Court has no power to review on
certiorari an interlocutory order or even a final resolution issued by a Division of the COMELEC.The
governing provision is Section 7, Article IX of the 1987 Constitution, which provides: Section 7. Each
Commission shall decide by a majority vote of all its Members any case or matter brought before it
within sixty days from the date of its submission for decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum
required by the rules of the Commission or by the Commission itself. Unless otherwise provided by
this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
This provision, although it confers on the Court the power to review any decision, order or ruling of
the COMELEC, limits such power to a final decision or resolution of the COMELEC en banc, and does
not extend to an interlocutory order issued by a Division of the COMELEC. Otherwise stated, the
Court has no power to review on certiorari an interlocutory order or even a final resolution issued by
a Division of the COMELEC.

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Same; Same; Constitutional Law; The 1987 Constitution vested in the COMELEC broad powers
involving not only the enforcement and administration of all laws and regulations relative to the conduct
of elections but also the resolution and determination of election controversies.The 1987 Constitution
vested in the COMELEC broad powers involving not only the enforcement and administration of all
laws and regulations relative to the conduct of elections but also the resolution and determination of
election controversies. The breadth of such powers encompasses the authority to determine the
sufficiency of allegations contained in every election protest and to decide based on such allegations
whether to admit the protest and proceed with the hearing or to outrightly dismiss the protest in
accordance with Section 9, Rule 6 of COMELEC Resolution No. 8804.

FACTS:

The petitioner and respondent Claude P. Bautista (Bautista) contested the position of
Governor of the Province of Davao del Sur in the May 10, 2010 automated national and local elections.
The fast transmission of the results led to the completion by May 14, 2010 of the canvassing of votes
cast for Governor of Davao del Sur, and the petitioner was proclaimed the winner.

Alleging fraud, anomalies, irregularities, vote-buying and violations of election laws, rules and
resolutions, Bautista filed an electoral protest. In his answer, the petitioner averred as his special
affirmative defenses that Bautista did not make the requisite cash deposit on time; and that Bautista
did not render a detailed specification of the acts or omissions complained of. COMELEC First
Division issued an order denying the special affirmative defenses of the petitioner.

The petitioner moved to reconsider insisting that COMELEC Resolution No. 8804 had
introduced the requirement for the detailed specification to prevent shotgun fishing expeditions
by losing candidates and that Bautistas protest did not meet the said new requirement. The
COMELEC First Division issued an order denying the petitioners motion for reconsideration.

The petitioner filed a petition for certiorari directly to the Supreme Court to assail the orders
of COMELEC FIRST DIVISION in denying his special affirmative defenses and motion for
reconsideration.

The petitioner adds that with the Court having noted the reliability and accuracy of the PCOS
machines and consolidation/canvassing system (CCS) computers in Roque, Jr. v. Commission on
Elections, Bautistas election protest assailing the system and procedure of counting and canvassing
of votes cast in an automated system of elections should be immediately dismissed.

ISSUES:

1. Whether the Court can take cognizance of the petition for certiorari.
2. Whether the ruling in Roque, Jr. v. Commission preclude the filing of an election protest to
challenge the outcome of an election undertaken in an automated system of elections.

RULING:

1. The Court has no jurisdiction to take cognizance of the petition for certiorari assailing the
denial by the COMELEC First Division of the special affirmative defenses of the petitioner. The
proper remedy is for the petitioner to wait for the COMELEC First Division to first decide the
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protest on its merits, and if the result should aggrieve him, to appeal the denial of his special
affirmative defenses to the COMELEC en banc along with the other errors committed by the
Division upon the merits.

Section 7, Article IX of the 1987 Constitution, although confers on the Court the power to
review any decision, order or ruling of the COMELEC, limits such power to a final decision or
resolution of the COMELEC en banc, and does not extend to an interlocutory order issued by
a Division of the COMELEC. Otherwise stated, the Court has no power to review on certiorari an
interlocutory order or even a final resolution issued by a Division of the COMELEC.

It is true that there may be an exception to the general rule, as the Court conceded in Kho v.
Commission on Elections. In that case, the protestant assailed the order of the COMELEC First
Division admitting an answer with counter-protest belatedly filed in an election protest by filing a
petition for certiorari directly in this Court on the ground that the order constituted grave abuse of
discretion on the part of the COMELEC First Division. The Court granted the petition and nullified
the assailed order for being issued without jurisdiction. Under the exception, therefore, the Court may
take cognizance of a petition for certiorari under Rule 64 to review an interlocutory order issued by a
Division of the COMELEC on the ground of the issuance being made without jurisdiction or in excess
of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it
does not appear to be specifically provided under the COMELEC Rules of Procedure that the matter
is one that the COMELEC en banc may sit and consider, or a Division is not authorized to act, or the
members of the Division unanimously vote to refer to the COMELEC en banc. Of necessity, the
aggrieved party can directly resort to the Court because the COMELEC en banc is not the proper
forum in which the matter concerning the assailed interlocutory order can be reviewed.

However, the Kho v. Commission on Elections exception has no application herein, because
the COMELEC First Division had the competence to determine the lack of detailed specifications of
the acts or omissions complained of as required by Rule 6, Section 7 of COMELEC Resolution No.
8804, and whether such lack called for the outright dismissal of the protest. For sure, the 1987
Constitution vested in the COMELEC broad powers involving not only the enforcement and
administration of all laws and regulations relative to the conduct of elections but also the resolution
and determination of election controversies. The breadth of such powers encompasses the authority
to determine the sufficiency of allegations contained in every election protest and to decide based on
such allegations whether to admit the protest and proceed with the hearing or to outrightly dismiss
the protest in accordance with Section 9, Rule 6 of COMELEC Resolution No. 8804.

2. Roque, Jr. v. Commission on Elections does not preclude the filing of an election protest to
challenge the outcome of an election undertaken in an automated system of elections. Instead, the
Court only ruled there that the system and procedure implemented by the COMELEC in
evaluating the PCOS machines and CCS computers met the minimum system requirements
prescribed in Section 7 of Republic Act No. 8436. The Court did not guarantee the efficiency and
integrity of the automated system of elections.

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RICARDO C. DUCO v. COMMISSION ON ELECTIONS (1st Division) and NARCISO B.

AVELINO
G.R. No. 183366, 19 August 2009, EN BANC (Bersamin, J.)

Sec. 9 (a), Rule 22 of the COMELEC Rules of Procedure states that an appeal may be
dismissed for failure of the appellant to pay the correct appeal fee.

Alleging that the results of the 2007 Elections for the position of Punong Barangay of
Ibabao, Loay, Bohol were spurious and fraudulent, Narciso Avelino, initiated an election protest
with the Municipal Circuit Trial Court (MCTC) against Ricardo Duco, the proclaimed Barangay
Chairman. The MCTC ruled in favor of Avelino. On January 25, 2008, Duco appealed and paid a
total of P1,400.00 as appeal fees however the COMELEC dismissed the appeal holding that Duco
failed to perfect his appeal on time due to non-payment of the prescribed appeal fee. According
to the COMELEC, Section 3, Rule 40 of the COMELEC Rules of Procedure mandates the payment
of appeal fee in the amount of P3,000.00 and Section 9(a), Rule 22 of the same Rules provides
that failure to pay the correct appeal fee is a ground for the dismissal of the appeal. Ducos motion
for reconsideration was likewise dismissed prompting Duco to file a petition for certiorari against
COMELEC.

ISSUE:

Whether or not COMELEC gravely abused its discretion when it strictly applied the
COMELEC Rules of Procedure relating to payment of appeal fees thereby resulting to the
dismissal of the appeal of Duco.

RULING:

NO. Under the COMELEC Rules of Procedure, the notice of appeal must be filed within
five days after the promulgation of the decision. In filing the appeal, the appellant is required to
pay the appeal fees imposed by Sec. 3, Rule 40, as amended by COMELEC Resolution No. 02-
0130, namely:

(1) the amount of P3,000.00 as appeal fee; (2) the amount of P50.00 as legal research fee; and (3)
the amount of P150.00 as bailiffs fee. Pursuant to Sec. 4, Rule 40, of the COMELEC Rules of
Procedure, the fees "shall be paid to, and deposited with, the Cash Division of the Commission
within the period to file the notice of appeal."

Duco timely filed his notice of appeal on January 25, 2008, that is, within five days after
the promulgation of the MCTC decision on January 22, 2008. On the same day, he paid
P1,400.00 as appeal fee to the Clerk of Court of the MCTC. His payment was, however, short by
P1,800.00, based on Sec. 3, Rule 40 of the COMELEC Rules of Procedure, as amended by Resolution
No. 02-0130. Moreover, he paid the appeal fee to the MCTC cashier, contrary to the mandate of
Sec. 4, Rule 40 of the COMELEC Rules of Procedure that the payment be made to the Cash
Division of the COMELEC.

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The dismissal of the appeal was, therefore, in accordance with Sec. 9 (a), Rule 22 of the
COMELEC Rules of Procedure, which states that the appeal may be dismissed for failure of the
appellant to pay the correct appeal fee.

The payment of the deficiency beyond the five-day reglementary period did not cure the
defect, because the date of the payment of the appeal fee is deemed the actual date of the filing
of the notice of appeal. Accordingly, his appeal, filed already beyond the five-day reglementary
period, rendered the decision of the MCTC final and immutable.

Still, the petitioner contends that the COMELEC should have liberally applied its
procedural rules in order not to override substantial justice however; the SC previously ruled that
the payment of the full amount of docket fee within the period to appeal is a sine qua non
requirement for the perfection of an appeal. Such payment is not a mere technicality of law or
procedure, but an essential requirement, without which the decision or final order appealed
from becomes final and executory, as if no appeal was filed. The bare invocation of "interest of
substantial justice" is not a magic wand that will automatically compel this Court to suspend
procedural rules. Procedural rule are not to be belittled or dismissed simply because their non-
observance may have resulted in prejudice to a partys substantive rights. Like all rules, they are
required to be followed except only for the most persuasive of reasons when they may be relaxed
to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in
not complying with the procedure prescribed. The Court reiterates that rules of procedure
especially those prescribing the time within which certain acts must be done, have oft been held
as absolutely indispensable to the prevention of needless delays and to the orderly and speedy
discharge of business. xxx

Having determined that the petitioners appeal was properly dismissed, the COMELEC
did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction.

ROBERT P. GUZMAN v. COMMISSION ON ELECTIONS, MAYOR RANDOLPH S. TING and

SALVACION GARCIA
G.R. No. 182380, 28 August 2009, EN BANC (Bersamin, J.)

The purchase of the lots purportedly to be utilized as cemetery by the City Government of
Tuguegarao cannot by any stretch of imagination be considered as public works, hence it could not
fall within the proscription as mandated under the aforementioned section of the Omnibus Election
Code.

Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above
and that under subparagraph (b) above. Consequently, whether or not the treasury warrant in
question was intended for public works was even of no moment in determining if the legal provision
was violated.

By virtue of a Resolution passed by the Sangguniang Panlungsod of Tuguegarao City,

City Mayor Ting acquired two parcels of land for use as a public cemetery of the City and

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consequently City Treasurer Salvacion Garcia issued and released Treasury Warrant as payment
thereof. Alleging that this transaction was in violation of Section 261, paragraphs (v) and (w), of
the Omnibus Election Code, i.e., the prohibition to construct public works and to release,
disburse and expend public funds within the election ban, Guzman filed a complaint with the Office
of the Provincial Election Supervisor of Cagayan Province against the City Mayor and Tresurer.

The Acting Provincial Election Supervisor of Cagayan recommended the dismissal of the
complaint and this was decision was adopted by the COMELEC en banc holding that the
acquisition of the two parcels of land for a public cemetery was not considered as within the term
public works; and that, consequently, the issuance of Treasury Warrant was not for public works
and was thus in violation of Section 261 (w) of the Omnibus Election Code.

ISSUES:

1. Whether or not the acquisition of lots during the period of the election ban was covered
by the term public works as to be in violation of Section 261 (v) of the Omnibus Election
Code; and
2. Whether or not the issuance of Treasury Warrant No. 0001534514 during the period of the
election ban was in violation of Section 261 (w) of the Omnibus Election Code.

RULING:

1. NO. The acquisition of lots 5860 and 5881 during the period of the election ban is not
considered as "public works" in violation of sec. 261 (v) of the Omnibus Election Code. To be liable
under this provision, four essential elements must concur and they are:

a. A public official or employee releases, disburses, or expends any public funds;

b. The release, disbursement or expenditure of such funds must be within forty-
five days before regular election;
c. The release, disbursement or expenditure of said public funds is for any and all
kinds of public works; and
d. The release, disbursement or expenditure of the public funds should not
cover any exceptions of Section 261 (v).

Applying the foregoing as guideline, it is clear that what is prohibited by law is the release,
disbursement or expenditure of public funds for any and all kinds of public works. Public works
is defined as fixed works constructed for public use or enjoyment especially when financed and
owned by the government. From this definition, the purchase of the lots purportedly to be utilized
as cemetery by the City Government of Tuguegarao cannot by any stretch of imagination be
considered as public works, hence it could not fall within the proscription as mandated under
the aforementioned section of the Omnibus Election Code. Since the purchase of the lots is not
within the contemplation of the word public works, the third of the elements stated in the foregoing
guideline is not present in this case. Hence since not all the elements concurred, the respondents
are not liable for violation of Section 261 (v) of the Omnibus Election Code.

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The term public works as used in Section 261 (v) of the Omnibus Election Code is properly
construed to refer to any building or structure on land or to structures built by the Government
for public use and paid for by public funds. Public works are clearly works, whether of construction
or adaptation undertaken and carried out by the national, state, or municipal authorities, designed
to subserve some purpose of public necessity, use or convenience.

2. YES. The issuance of the treasury warrant during the period of the election ban violated
section 261 (w), Omnibus Election Code.

Section 261(w) of the Omnibus Election Code is violated in either of two ways: (a) by
any person who, within 45 days preceding a regular election and 30 days before a special election,
undertakes the construction of any public works except those enumerated in the preceding
paragraph; or (b) by any person who issues, uses or avails of treasury warrants or any device
undertaking future delivery of money, goods or other things of value chargeable against public
funds within 45 days preceding a regular election and 30 days before a special election.

Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above
and that under subparagraph (b) above. For purposes of the prohibition, the acts are separate
and distinct, considering that Section 261(w) uses the disjunctive or to separate subparagraphs
(a) and (b). Consequently, whether or not the treasury warrant in question was intended for
public works was even of no moment in determining if the legal provision was violated.

ISMUNLATIP H. SUHURI v. THE HONORABLE COMMISSION ON ELECTIONS, THE

MUNICIPAL BOARD OF CANVASSERS OF PATIKUL, SULU AND KABIR E. HAYUDINI
G.R. No. 181869, 2 October 2009, EN BANC (Bersamin, J.)

Not every question bearing on or arising from the elections may constitute a ground for a
pre- proclamation controversy. Section 243 of the Omnibus Election Code enumerates the scope
of a pre- proclamation controversy and the enumeration is restrictive and exclusive.

The Municipal Board of Canvassers (MBC) of Patikul, Sulu had earlier ruled against
Ismunlatip H. Suhuris plea for the exclusion of 25 election returns from the canvass of votes
cast for the 2007 mayoralty race in Patikul, Sulu and then proclaimed Kabir E. Hayudini as the
duly- elected Mayor. Appealing to the Commission on Elections (COMELEC), Suhuri insisted on
the invalidity of the proclamation because of the existing pre-proclamation controversy
involving the exclusion of the 25 election returns. He asserted that the 25 election returns were: 1.
obviously manufactured; 2. tampered with or falsified; 3. prepared under duress; and 4.
characterized by statistical improbability.

The COMELEC, Second Division, had sustained Suhuris appeal and nullified Hayudinis
proclamation, but the COMELEC En Banc reversed the Second Division and declared valid the
proclamation of Hayudini. Thus, Suhuri filed this certiorari petition against the COMELEC en
banc.

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ISSUE:

Whether or not the exclusion of certain election returns from the canvass due to allegations
of irregularities and statistical improbability made by a candidate are proper grounds for a pre-
proclamation controversy by which to annul the proclamation of his rival as duly-elected.

RULING:

NO. A pre-proclamation controversy, according to Section 1, Article XX of the Omnibus

Election Code, refers to any question pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any registered political party or coalition
of parties before the board or directly with the Commission, or any matter raised under Sections
233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation
of the election returns.

Not every question bearing on or arising from the elections may constitute a ground for
a pre-proclamation controversy. Section 243 of the Omnibus Election Code enumerates the scope
of a pre-proclamation controversy. The enumeration is restrictive and exclusive. Resultantly, the
petition for a pre-proclamation controversy must fail in the absence of any clear showing or proof
that the election returns canvassed are incomplete or contain material defects (Section 234,
Omnibus Election Code); or appear to have been tampered with, falsified or prepared under duress
(Section 235, Omnibus Election Code); or contain discrepancies in the votes credited to any
candidate, the difference of which affects the result of the election (Section 236, Omnibus Election
Code).

To be noted, too, is that in a pre-proclamation controversy, the COMELEC is restricted to

an examination of the election returns and is without jurisdiction to go beyond or behind the
election returns and to investigate election irregularities. For as long as the election returns
appear to be authentic and duly accomplished on their faces, the Board of Canvassers cannot look
beyond or behind the election returns in order to verify allegations of irregularities in the casting
or counting of votes.

Suhuri submits that the 25 challenged election returns were defective for being
manufactured, tampered with or falsified, and for statistical improbability. Unfortunately for
Suhuri, the cited irregularities and omissions could not be the bases for granting his petition for
the exclusion of the 25 election returns in a pre-proclamation controversy.

Firstly, the defects cited by Suhuri were mere irregularities or formal defects that did not
warrant the exclusion of the affected election returns. Indeed, the mere attendance or presence
of the formal defects did not establish the commission of palpable irregularities in the election
returns. These irregularities did not necessarily affect the authenticity and genuineness of the
subject election returns as to warrant their exclusion from the canvassing, being but defects in form
insufficient to support the conclusion that these had been tampered with or spurious.

Secondly, the MBC corrected the defects before the canvass of the election returns upon
finding the cause of the defects to be satisfactorily explained by the members of the Board of

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Election Tellers.

Thirdly, the allegation of a statistical improbability reflected in the election returns lacks
substance and merit. Lagumbay v. Commission expounded on the doctrine of statistical
improbability and the doctrines effect on the power of the COMELEC to reject the results
reflected in the election returns when such returns showed prima facie that they did not reflect
the true and valid reports of regular voting. Under Lagumbay, therefore, the doctrine of statistical
improbability is applied only where the unique uniformity of tally of all the votes cast in favor of
all the candidates belonging to one party and the systematic blanking of all the candidates of all
the opposing parties appear in the election return. The doctrine has no application where there
is neither uniformity of tallies nor systematic blanking of the candidates of one party. Thus, the
bare fact that a candidate for public office received no votes in one or two precincts, standing
alone and without more, cannot adequately support a finding that the subject election returns
are statistically improbable. Verily, a zero vote for a particular candidate in the election returns
is but one strand in the web of circumstantial evidence that the electoral returns were prepared
under duress, force and intimidation.

Fourthly, Suhuri contends that threat, violence, duress and intimidation were attendant
in the preparation of election returns of the 25 contested precincts to which he presented several
affidavits. Yet, the affidavits, because they referred to incidents that had occurred at the various
precincts during the voting, did not substantiate Suhuris allegation of duress, threats, coercion,
and intimidation during the preparation or making of the election returns.

Fifthly, BEI member Jamasali narrated in her affidavit her having personally witnessed
fraud committed during the elections. Even assuming that the fraud she thereby exposed
constituted an irregularity in the conduct of the elections, the incident, being isolated, did not
warrant the exclusion of all the 25 election returns, but only of the return for the precinct where
the fraud had occurred. However, this exclusion would not alter the overall result for the mayoralty
contest in Patikul, Sulu, considering that said precinct had only 189 registered voters.

Lastly, Police Inspector Panisans election report, albeit official, would not justify the
exclusion of the returns from the precincts clustered in the Anuling Elementary School for being
hearsay thus, unreliable and had no value for purposes of Suhuris petition-appeal. It would not
be trite to emphasize that the results of an election should not be annulled based on hearsay
evidence.

MAYOR ABRAHAM N. TOLENTINO v. COMMISSION ON ELECTIONS, et al.

G.R. Nos. 187958, 187961-62, 7 April 2010, EN BANC (Bersamin, J.)

The COMELEC Division in resolving election cases is given wide latitude to adopt means
necessary for the immediate determination of the issues owing to its duty to promote free, orderly
and honest elections.

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These consolidated cases assail several orders of the Second Division (Division) of
the Commission on Election (COMELEC) relative to its revision of ballots under Section 6, Rule 20
of its Rules of Procedure in the protests on the results of the local elections in 2007 in Tagaytay
City.

In the May 14, 2007 elections, Abraham N. Tolentino and Celso P. De Castro were
proclaimed as the duly elected Mayor and Vice-Mayor, respectively, of Tagaytay City. The private
respondents, Jocelyn Ricardo , Arnel Taruc, Marlene Catan, Maria Theresa Mendoza Costa, Fidela
Rofols Castillo, Dominador Bassi, Roberto Malabanan Hernandez, Nerissa Manzano, Leonidez
Maglabe Hernandez, Tagumpay Reyes, and Elino Fajardo (Ricardo, et al.), all of whom ran for
the elective local offices, contested the election results in 116 ballot boxes by filing three separate
election protests against the proclaimed winning candidates for Mayor, Vice-Mayor and Members
of the Sanggunian Panlungsod.

After finding the protests sufficient in form and substance, the Division required the City
Treasurer of Tagaytay City to inventory the protested ballot boxes and to turn them over to the
Election Officer of Tagaytay City for delivery and submission to the COMELECs Electoral
Contests Adjudication Department (ECAD) in Manila. However, the delivery and submission took
place only on December 17, 2008 due to the moves of Tolentino and De Castro of taking turns to
suspend the transmittal of the ballot boxes to ECAD. Further delay occurred because 44 of the 116
contested ballot boxes became involved in the election protest of candidate Aquilino L. Pimentel
III against Senator Juan Miguel F. Zubiri pending in the Senate Electoral Tribunal (SET).

Of the 116 ballot boxes, 44 ballot boxes were delivered to the SET for being simultaneously
involved in SET Case No. 001-07; 72 ballot boxes were delivered to the ECAD; that of the 44 ballot
boxes delivered to the SET, 16 were set aside with appropriate remarks No metal seal outside
or Metal seal not properly locked; and that out of the 72 ballot boxes delivered to the ECAD, 24
were set aside with the remarks No metal seal outside, or Metal seal not properly locked, or 2
padlocks only, as certified by the Election Officer.

Upon receipt of the 72 ballot boxes, the Division ordered the constitution of four Revision
Committees, for the committees to convene and commence the revision of the 72 ballot boxes
in such a way that whenever a ballot box was opened, its contents should be revised for all of the
three protest cases before opening the next ballot box. The SET had meanwhile agreed to
accommodate the Divisions request to conduct the revision proceedings in the SETs premises.
The Division then issued an order formally requesting the SET to allow the revision to proceed
within its premises.

As a result of the order, De Castro filed a verified omnibus motion requesting the Division
to formulate first the mechanics, guidelines and procedure for the simultaneous revision of the
ballots for the three distinct positions protested, and to defer the revision proceedings until after
all pending incidents had been resolved. The Division denied the motion. Tolentino, for his part
contends that the Division should first resolve the issue of the inclusion or exclusion of the
protested ballot boxes, considering that the verification, investigation and examination of their
condition had already been terminated by the Election Officer of Tagaytay City; that citing Rosal
v. Commission on Elections, he insists that the COMELEC should provide a reasonable procedure
in view of a vital threshold issue of whether the ballots found in the ballot boxes during the
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revision proceedings were the same ballots that were cast and counted in the elections; and that
the assailed issuances totally overhauled, amended, and altered the final and executory ruling of
January 12, 2009 that deferred any revision proceedings until all the protested ballot boxes were all
in the custody of the COMELEC.

ISSUE:

Whether the COMELEC Division can proceed with the revision.

RULING:

YES. In regular election contests, the general averment of fraud or irregularities in the
counting of votes justifies the examination of the ballots and recounting of votes. The protests
involved herein assailed the authenticity of the election returns and the veracity of the counting
of the ballots. In that regard, the ballots themselves are the best evidence.

The synchronized revision of ballots by the SET and the Division is allowed under Section
3 of COMELEC Resolution No. 2812, which provides:

Section 3. The Tribunals, the Commission and the Courts shall

coordinate and make arrangement with each other so as not to delay or
interrupt the revision of ballots being conducted. The synchronization of
revision of ballots shall be such that the expeditious disposition of the
respective protest cases shall be the primary concern.

According to Mendoza v. Commission on Elections, the COMELEC does not lose jurisdiction
over the provincial election contest by reason of the transmittal of the provincial ballot boxes
and other election materials to the SET, because its jurisdiction over provincial election contest
exists side by side with the jurisdiction of the SET, with each tribunal being supreme in its
respective areas of concern, with neither being higher than the other in terms of precedence; hence,
the jurisdiction of one must yield to the other.

Furthermore, under Section 11, Rule 20 of the COMELEC Rules of Procedure, one of the
most indispensable informations that should appear in the revision report relates to the conditions
of the ballot boxes. Any defects in the security locks or seals of the set-aside ballot
boxes, as predetermined by the examining Election Officer, could not yet satisfy the requirement
of the rule. For one, the COMELEC was not bound by the report simply because the defects still
needed to be confirmed during the process of actual revision. Moreover, the presumption that the
ballots reflected the intent of the voters, as expressly recognized in Section 6(c)(2), Rule 13 of A.M.
No. 07- 4-15- SC, should not be done away with solely on the basis of the report of the City Election
Officer, by which said officer complied with a requirement set primarily for the transmittal of the
ballot boxes involved. Rosal, which A.M. No. 07-4-15- SC complements, demands more than such
a report in order to overcome the presumption. More than such report, there should be a full
blown trial in which all the parties concerned should be allowed the opportunity to present their
own evidence, to raise their objections, and to pose their claims before reaching a finding of
ballot box tampering. Tolentino should accept the legal impossibility for the Division to rule on
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the issue of inclusion or exclusion of the set-aside ballot boxes except after the revision process.
The foregoing guidelines were inapplicable, however, considering that the proceedings were still
in the hearing stage. This explains why the Division deemed the determination of the physical
conditions of the ballot boxes as a necessary measure for its final determination of whether or
not to give probative value to the ballots contained in the set-aside ballot boxes. The Division had
still to reach the deliberative stage of the protests, when it would decide based on the evidence
presented during trial. Before then, deciding on the propriety of relying on the results of the
revision of ballots instead of the election returns did not yet arise.

The supplemental arguments of Tolentino allege a violation of his right to due process
by the non-observance of the cardinal rules of due process in administrative adjudications and
by the piece-meal resolution of the pending incidents. Tolentinos gripe was unwarranted.
He was not denied procedural due process. The Division had required him to provide the names
of his revisors whose tasks included the raising of objections, the claiming votes for him, or the
contesting of the votes in favor of his opponent. He has neither alleged being deprived of this
opportunity, nor indicated any situation in which his revisors were denied access to the revision
proceedings. He could not also insist that the COMELEC did not consider his legal and factual
arguments; besides, he could still raise them in his memorandum should he chose to. During the
revision stage, he should raise all objections, present his evidence and witnesses, and file his
memorandum before the case would be submitted for resolution.

As to the issue of providing rules, contrary to De Castros submission, the Division set
the ground rule for the revision of the contested ballots by laying down the procedure for the
simultaneous revision of the contested ballots for all the three election protests.

Paragraph 5 of the January 6, 2009 order distinctly stated that the revision of ballots in
the above-entitled cases be conducted in such a way that when a ballot box is opened, its contents
shall be revised in all three (3) cases before proceeding to the next ballot box considering that
the same precincts are contested in all three (3) cases. That procedure was ideal under the
obtaining circumstances, given that the same precincts were involved in all the three cases.
Also, the procedure was the practical and most expeditious manner of recording the observations
in the minutes of the proceedings, the segregation according to vote per candidate, and the
validation and registration of all objections or contests on the votes and claims on the same. All
objections and claims of each partys revisors would later on be collated on a per case basis and
submitted to the Chairperson of each Revision Committee to aid in the preparation of the revision
report for the precincts or clusters of precincts assigned to such committee. In an election
protest, the electoral tribunal has an imperative duty to promptly ascertain by all means within
its command the candidates the electorate have chosen. It bears stressing that in the exercise of
the plenitude of its powers to protect the integrity of the elections, the COMELEC should not
and must not be straitjacketed by procedural rules in resolving election disputes. Thus, the
Divisions adoption of measures that especially respond to or address unique situations, like these
cases, was incidental to the COMELECs general authority to adopt all the means to effect its
powers and exercise its jurisdiction. Moreover, the pleadings of Tolentino even showed that the
ground rules and guidelines for the revision of ballots were issued to the parties a day before
the revision proceedings. Thus, neither petitioner could validly complain about not having been
duly informed of the manner of revision, in light of the directive contained in paragraph 4 of
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the January 6, 2009 order that the parties should be briefed on the ground rules for the revision
of ballots before the commencement of the revision.

MINERVA GOMEZ-CASTILLO v. COMMISSION ON ELECTIONS and STRIKE B. REVILLA

G.R. No. 187231, 22 June 2010, EN BANC (Bersamin, J.)

The filing of the protest in the RTC in Bacoor, Cavite amounted only to a wrong choice of
venue. Hence, the dismissal of the protest constituted plain error, considering that her wrong
choice did not affect the jurisdiction of the RTC.

Castillo and Revilla ran for Municipal Mayor of Bacoor, Cavite. After the Municipal Board
of Canvassers proclaimed Revilla as the elected Municipal Mayor of Bacoor, Cavite, Castillo filed an
Election Protest Ad Cautelam in the Regional Trial Court (RTC).

Revilla sought the dismissal of the election protest, alleging that it was filed in the wrong
Branch of the RTC. He pointed out that Supreme Court Administrative Order (SCAO) No. 54-
2007 designated Branch 22 of the RTC in Imus, Cavite and Branch 88 of the RTC in Cavite City to
hear, try and decide election contests involving municipal officials in Cavite; and that contrary
to SCAO No. 54-2007, Castillo filed his protest in the RTC in Bacoor, Cavite, which was not the
proper court.

Castillo further insists that Section 12 of Rule 2 of the COMELEC Rules of Procedure
provides that assignment of cases to the specially designated courts should be done exclusively
by raffle conducted by the executive judge or by the judges designated by the Supreme Court; and
that her protest was thus duly raffled to the RTC in Bacoor, Cavite, considering that SCAO 54-
2007 should be construed as a permissive rule that cannot supersede the general rule that
jurisdiction over election contests is vested in the RTC.

ISSUES:

1. Whether Castillos filing of protest before RTC in Bacoor, Cavite affected the jurisdiction of
RTC.
2. Whether or not the error is enough to warrant the reversal of its order of dismissal
despite its having attained finality.

RULING:

1. NO. Castillos filing her protest in the RTC in Bacoor, Cavite amounted only to a wrong
choice of venue. Hence, the dismissal of the protest constituted plain error, considering
that her wrong choice did not affect the jurisdiction of the RTC. What Branch 19 should
have done under the circumstances was to transfer the protest to Branch 22 of the RTC
in Imus, Cavite, which was the proper venue. Such transfer was proper, whether she as
the protestant sought it or not, given that the determination of the will of the electorate
of Bacoor, Cavite according to the process set forth by law was of the highest concern of
our institutions, particularly of the courts.
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2. NO. The aggrieved party may appeal the decision of the COMELEC within five days after
promulgation. However in this case, Castillo filed her notice of appeal only eight days
after her receipt of the decision. Her appeal was properly dismissed for being too late.

LOCAL GOVERNMENTS

METROPOLITAN MANILA DEVELOPMENT AUTHORITY v. TRACKWORKS RAIL

TRANSIT ADVERTISING, VENDING AND PROMOTIONS, INC.
G.R. No. 179554, 16 December 2009, FIRST DIVISION (Bersamin, J.)

MMDA simply had no power on its own to dismantle, remove, or destroy the billboards,
signages and other advertising media installed on the MRT3 structure by Trackworks. Nothing in
Republic Act No. 7924 granted MMDA police power, let alone legislative power.

Pursuant to Republic Act No. 6957 (Build, Operate and Transfer Law), the Government,
through the DOTC, entered into a build-lease-transfer agreement (BLT agreement) with Metro
Rail Transit Corporation, Limited (MRTC) wherein MRTC undertook to build MRT3 subject to
the subsequent transfer of ownership to the Government after the lapse of 25 years.

The BLT agreement provides that the MRTC could build and develop commercial premises
in the MRT3 structures, or obtain advertising income therefrom. Later, Trackworks Rail Transit
Advertising, Vending & Promotions, Inc. (Trackworks) entered into a contract for advertising
services with MRTC and by virtue of this, Trackworks installed commercial billboards, signages
and other advertizing media in the different parts of the MRT3.

Thereafter, MMDA, invoking the provisions of MMDA Regulation No. 96-009 which
prohibits posting, installation and display of any kind or form of billboards, signs, posters,
streamers, in any part of the road, requested Trackworks to dismantle the billboards, signages
and other advertizing media however Trackworks refused. Consequently, MMDA proceeded to
dismantle Trackworks billboards and similar forms of advertisement.

Trackworks filed an injunction suit against MMDA in the RTC in Pasig City which issued
a TRO in favor of Trackworks. Later, the RTC permanently enjoining MMDA from dismantling,
removing or destroying the billboards, signages and other advertizing media installed by
Trackworks and this was affirmed by the CA when MMDA appealed. The CA ultimately held
that MMDA had no power to dismantle, remove or destroy Trackworks billboards, signages and
other advertizing media.

ISSUE:

Whether or not the Metropolitan Manila Development Authority (MMDA) could

unilaterally dismantle the billboards, signages and other advertizing media in the structures of
the Metro Rail Transit 3 (MRT3) installed by Trackworks by virtue of its existing contract with
the owner of the MRT3.

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RULING:

NO. Considering that MRTC remained to be the owner of the MRT3 during the time
material to this case, and until this date, MRTCs entering into the contract for advertising services
with Trackworks was a valid exercise of ownership by the former. In fact, in Metropolitan Manila
Development Authority v. Trackworks Rail Transit Advertising, Vending & Promotions, Inc., this
Court expressly recognized Trackworks right to install the billboards, signages and other
advertising media pursuant to said contract. The latters right should, therefore, be respected.

It is futile for MMDA to simply invoke its legal mandate to justify the dismantling of
Trackworks billboards, signages and other advertising media. MMDA simply had no power on
its own to dismantle, remove, or destroy the billboards, signages and other advertising media
installed on the MRT3 structure by Trackworks. MMDAs powers were limited to the
formulation, coordination, regulation, implementation, preparation, management, monitoring,
setting of policies, installing a system, and administration. Nothing in Republic Act No. 7924
granted MMDA police power, let alone legislative power.

The MMDA is, as termed in the charter itself, a "development authority". It is an agency
created for the purpose of laying down policies and coordinating with the various national
government agencies, peoples organizations, non-governmental organizations and the private
sector for the efficient and expeditious delivery of basic services in the vast metropolitan area.
All its functions are administrative in nature and these are actually summed up in the charter itself.

The Court also agrees with the CAs ruling that MMDA Regulation No. 96-009 and MMC
Memorandum Circular No. 88-09 did not apply to Trackworks billboards, signages and other
advertising media. The prohibition against posting, installation and display of billboards, signages
and other advertising media applied only to public areas, but MRT3, being private property
pursuant to the BLT agreement between the Government and MRTC, was not one of the areas as
to which the prohibition applied. Moreover, MMC Memorandum Circular No. 88-09 did not
apply to Trackworks billboards, signages and other advertising media in MRT3, because it did
not specifically cover MRT3, and because it was issued a year prior to the construction of MRT3
on the center island of EDSA. Clearly, MMC Memorandum Circular No. 88-09 could not have
included MRT3 in its prohibition.

LEAGUE OF CITIES OF THE PHILIPPINES, et al. v.

COMMISSION ON ELECTIONS, et al.
GR. No. 176951, 177499, 178056, 12 April 2011, EN BANC (BERSAMIN, J.)

The 16 cities covered by the Cityhood Laws not only had conversion bills pending during
th
the 11 Congress, but have also complied with the requirements of the LGC prescribed prior to its
amendment by R.A. No. 9009. Congress undeniably gave these cities all the considerations that
justice and fair play demanded. Hence, the Court should do no less by stamping its imprimatur
to the clear and unmistakable legislative intent and by duly recognizing the certain collective wisdom
of Congress.

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Following the previous decision rendering the Cityhood laws constitutional, now, the
petitioners League of Cities anchor their Ad Cautelam Motion for Reconsideration upon the
primordial ground that the Court could no longer modify, alter, or amend its judgment declaring
the Cityhood Laws unconstitutional due to such judgment having long become final and
executory. They submit that the Cityhood Laws violated Section 6 and Section 10 of Article X
of the Constitution, as well as the Equal Protection Clause.

Nonetheless, for a better understanding of this decision a brief backdrop of the established
facts were illuminating. During the 11th Congress, 57 bills seeking the conversion of municipalities
into component cities were filed before the House of Representatives. However, Congress acted
only on 33 bills. It did not act on bills converting 24 other municipalities into cities. During the
12th Congress, R.A. No. 9009 became effective revising Section 450 of the Local Government Code.
It increased the income requirement to qualify for conversion into a city from P20 million annual
income to P100 million locally-generated income. In the 13th Congress, 16 of the 24 municipalities
filed, through their respective sponsors, individual cityhood bills. Each of the cityhood bills
contained a common provision exempting the particular municipality from the 100 million income
requirement imposed by R.A. No. 9009.

ISSUE:

Whether or not the Cityhood Laws converting 16 municipalities into cities are
constitutional albeit not in compliance with the income requirement under section 405 of the
LGC as amended by R.A. 9009.

RULING:

YES. Congress clearly intended that the local government units covered by the Cityhood
Laws be exempted from the coverage of R.A. No. 9009. Thus, as mentioned by the Supreme
Court, we should not ever lose sight of the fact that the 16 cities covered by the Cityhood Laws
not only had conversion bills pending during the 11th Congress, but have also complied with the
requirements of the Local Government Code prescribed prior to its amendment by RA No.
9009. Congress undeniably gave these cities all the considerations that justice and fair play
demanded. Hence, this Court should do no less by stamping its imprimatur to the clear and
unmistakable legislative intent and by duly recognizing the certain collective wisdom of Congress.

The Court stressed that Congress clearly intended that the local government units covered
by the Cityhood Laws be exempted from the coverage of RA 9009, which imposes a higher
income requirement of PhP100 million for the creation of cities.

The Court reiterated that while RA 9009 was being deliberated upon, the Congress was
well aware of the pendency of conversion bills of several municipalities, including those covered
by the Cityhood Laws. It pointed out that RA 9009 took effect on June 30, 2001, when the 12th
Congress was incipient. By reason of the clear legislative intent to exempt the municipalities
covered by the conversion bills pending during the 11th Congress, the House of Representatives

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adopted Joint Resolution No. 29 entitled Joint Resolution to Exempt Certain Municipalities Embodied
in Bills Filed in Congress before June 30, 2001 from the coverage of Republic Act No. 9009. However,
the Senate failed to act on the said Joint Resolution. Even so, the House readopted Joint
Resolution No. 29 as Joint Resolution No. 1 during the 12th Congress, and forwarded the same for
approval to the Senate, which again failed to prove it. Eventually, the conversion bills of
respondents were individually filed in the Lower House and were all unanimously and favorably
voted upon. When forwarded to the Senate, the bills were also unanimously approved. The acts
of both Chambers of Congress show that the exemption clauses ultimately incorporated in the
Cityhood Laws are but the express articulations of the clear legislative intent to exempt the
respondents, without exception, from the coverage of R.A. No. 9009. Thereby, R.A. No. 9009, and,
by necessity, the LGC, were amended, not by repeal but by way of the express exemptions being
embodied in the exemption clauses.

The Court further held that the imposition of the income requirement of P100 million
from local sources under RA 9009 was arbitrary. As indicated in the Resolution of February 15,
2011, fifty-nine (59) existing cities had failed as of 2006 to post an average annual income of P100
million based on the figures contained in the certification dated December 5, 2008 by the Bureau
of Local Government. The large number of existing cities, virtually 50% of them, still unable to
comply with the P100 million threshold income five years after R.A. No. 9009 took effect renders
it fallacious and probably unwarranted for the petitioners to claim that the P100 million income
requirement is not difficult to comply with. We pointed out that the previous income
requirement of P20 million was definitely not insufficient to provide the essential government
facilities, services, and special functions vis--vis the population of a component city. We also
stressed that the increased income requirement of P100 million was not the only conclusive
indicator for any municipality to survive and remain viable as a component city. These
observations were unerringly reflected in the respective incomes of the fifty-nine (59) members
of the League of Cities that have still failed, remarkably enough, to be compliant with the new
requirement of the P100 million threshold income five years after R.A. No. 9009 became law.

Undoubtedly, the imposition of the income requirement of P100 million from local sources
under R.A. No. 9009 was arbitrary. When the sponsor of the law chose the specific figure of P100
million, no research or empirical data buttressed the figure. Nor was there proof that the proposal
took into account the after-effects that were likely to arise. As already mentioned, even the danger
the passage of R.A. No. 9009 sought to prevent might soon become a reality. While the Constitution
mandates that the creation of local government units must comply with the criteria laid down in
the LGC, it cannot be justified to insist that the Constitution must have to yield to every
amendment to the LGC despite such amendment imminently producing effects contrary to the
original thrusts of the LGC to promote autonomy, decentralization, countryside development, and
the concomitant national growth.

LEAGUE OF CITIES OF THE PHILIPPINES, et al. v. COMMISSION ON ELECTIONS, et al.

GR. NOs. 176951, 177499, 178056, 28 JUNE 2011, EN BANC (BERSAMIN, J.)

Accordingly, the finality of the resolutions upholding the constitutionality of the 16

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J. BERSAMIN

Cityhood Laws now absolutely warrants the granting of respondents Motion for Entry of Judgment.

This is a motion for reconsideration from the resolution dated 12 April 2011. Nonetheless,
as its prayer for relief shows, the Motion for Reconsideration seeks the reconsideration, reversal,
or setting aside of the resolution of April 12, 2011. In turn, the resolution of April 12, 2011 denied
the petitioners Ad Cautelam Motion for Reconsideration (of the Decision dated 15
February

RULING:

NO. The Motion for Reconsideration, being a second motion for reconsideration, cannot
be entertained. As to that, Section 2 of Rule 51 of the Rules of Court is unqualified. The Court has
firmly held that a second motion for reconsideration is a prohibited pleading, and only for
extraordinarily persuasive reasons and only after an express leave has been first obtained may a
second motion for reconsideration be entertained. A second motion for reconsideration can only
be entertained before the ruling sought to be reconsidered becomes final by operation of law or by
the Courts declaration. In the Division, a vote of three Members shall be required to elevate a
second motion for reconsideration to the Court En Banc.

Further, the contention that the Court had earlier entertained and granted the respondents
own second motion for reconsideration has no merit. There is no similarity between then and
now, however, for the Court en banc itself unanimously declared in the resolution of June 2,
2009 that the respondents second motion for reconsideration was "no longer a prohibited
pleading. No similar declaration favors the petitioners Motion for Reconsideration.

Finally, considering that the petitioners Motion for Reconsideration merely rehashes the
issues previously put forward, particularly in the Ad Cautelam Motion for Reconsideration, the
Court having already passed upon such issues with finality, finds no need to discuss the issues
again to avoid repetition and redundancy. Accordingly, the finality of the resolutions
upholding the constitutionality of the 16 Cityhood Laws now absolutely warrants the granting of
respondents Motion for Entry of Judgment.

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