Flores vs. Drilon GR No.

104732 June 2, 1993

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P.
REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227,1 otherwise known as the "Bases Conversion and Development Act of 1992,"
under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the
Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction
and temporary restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other
operational expenses attached to the office . . . ."2 Paragraph (d) reads —

(d) Chairman administrator — The President shall appoint a professional manager as administrator of the Subic Authority with a
compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman
of the Board and who shall serve as the chief executive officer of the Subic Authority: Provided, however, That for the first year of
its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the
Filipino Civilian Employees Association in U.S. Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-
above quoted in italics infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public
officer or position during his tenure,"3 because the City Mayor of Olongapo City is an elective official and the subject posts are public
offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint",4since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject
posts;5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of
new position, promotion, or giving salary increases. — During the period of forty-five days before a regular election and thirty days
before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether
provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The
Commission shall not grant the authority sought unless it is satisfied that the position to be filled is essential to the proper
functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That
notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment
or hiring in violation of this provision shall be null and void. (2) Any government official who promotes, or gives any increase of
salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled
corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April
1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the first
year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective
officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person, so that a public officer or
employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public
office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties
Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of
Agrarian Reform, G.R. No. 83815,6 ". . . . should be allowed to attend to his duties and responsibilities without the distraction of
other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too
many positions of responsibility, which may result in haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official
will work for his appointment in an executive position in government, and thus neglect his constituents . . . ."7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to
other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the
constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec.
7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher
interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if
so allowed by law or by the primary functions of his office.8 But, the contention is fallacious. Section 94 of the LGC is not
determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law
of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its
validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his
office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed
by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception
to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized
in the Constitution itself, e.g., the President as head of the economic and planning agency;9 the Vice-President, who may be
appointed Member of the Cabinet; 10 and, a member of Congress who may be designated ex officio member of the Judicial and Bar
Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without
reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus —

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with
respect to elective officials, because in the case of appointive officials, there may be a law that will allow them to hold other
positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be certain situations where
the law should allow them to hold some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective
officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted
circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where we stated that the prohibition against the holding of any
other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their
tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the
primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving
any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex
officio or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be
appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of
Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the
word "appointed" and, instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but
they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have
been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that
"if the Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative
choice." 15 The Senator took a view that the constitutional proscription against appointment of elective officials may have been
sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him
to the post. Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be
appointive, thus nibbling in the bud the argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the
constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the argument that if no
elective official may be appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive
double compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In
any case, the Vice-President for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may
receive the compensation attached to the cabinet position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in
the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no
choice under the law but to appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to
discharge the duties of some office or trust," 17 or "[t]he selection or designation of a person, by the person or persons having
authority therefor, to fill an office or public function and discharge the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of
an individual who is to exercise the functions of a given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury,
J., 20 "the choice of a person to fill an office constitutes the essence of his appointment," 21and Mr. Justice Malcolm adds that an
"[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod ng
Maynila v. Intermediate Appellate Court 23 we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely
according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and
eligibilities. It is a prerogative of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to
appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a
fundamental component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the
choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment
necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress
may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively
eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its
operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the
incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising
his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power
at all and goes against the very nature itself of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e.,
he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only
one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may
however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit
for appointment. The deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the service, but if he is prohibited
from being appointed within the term for which he was elected, we may be depriving the government of the needed expertise of
an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other
government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On
the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto
cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the
Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the
Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the
sense that incumbent national legislators lose their elective posts only after they have been appointed to another government
office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of
losing the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not directly related
with forfeiture of office. ". . . . The effect is quite different where it is expressly provided by law that a person holding one office
shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second
office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render
his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945)
or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or statutes declare that persons
holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the
prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second
is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief
Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be
considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice,
will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . .
under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power
in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or
defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional
law, before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec.,
213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have been
received by respondent Gordon pursuant to his appointment may be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said respondent made pursuant thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor deliberations of
S.B. 1648, precursor of R.A. 7227, when he articulated —

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this Authority that we are
creating; (much) as I, myself, would like to because I know the capacity, integrity, industry and dedication of Mayor Gordon; (much)
as we would like to give him this terrific, burdensome and heavy responsibility, we cannot do it because of the constitutional
prohibition which is very clear. It says: "No elective official shall be appointed or designated to another position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst
the raging of the waves." 30 One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or
whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions or occasional infatuations of
the people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency,
personal ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its
operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief executive
officer of the Subic Authority," is declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of
Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief
Executive Officer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as officer de
facto of SBMA are hereby UPHELD.

SO ORDERED.
SSS Employee Association vs. CA GR No. 85279 July 28, 1998

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 85279 July 28, 1989

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

Vicente T. Ocampo & Associates for petitioners.

CORTES, J:

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

The antecedents are as follows:

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

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

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

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

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

The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue
the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or
the National Labor Relations Commission, since the case involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service
laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the
NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.

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

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

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

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

These shall be discussed and resolved seriatim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

.SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject
of negotiations between duly recognized employees' organizations and appropriate government authorities.
The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to
wit:

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

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

II

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

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

This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as
amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike
the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor
disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute,
resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate.

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

III

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

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

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

SO ORDERED.

Santos vs. Yatco GR No. 16133 November 6, 1959