CONSTITUTIONAL COMMISSIONS FULL TEXT Chairman accorded him a fresh term of seven (7) years paramount public interest;
s paramount public interest; the constitutional issue raised
1.
EN BANC
G.R. No. 192791 April 24, 2012
DENNIS A. B. FUNA, Petitioner,
vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO
A. VILLAR, Respondent.
DECISION
VELASCO, JR., J.:
In this Petition for Certiorari and Prohibition under Rule 65,
Dennis A. B. Funa challenges the constitutionality of the
appointment of Reynaldo A. Villar as Chairman of the
Commission on Audit and accordingly prays that a judgment
issue "declaring the unconstitutionality" of the appointment.
The facts of the case are as follows:
On February 15, 2001, President Gloria Macapagal-Arroyo
(President Macapagal-Arroyo) appointed Guillermo N.
Carague (Carague) as Chairman of the Commission on
Audit (COA) for a term of seven (7) years, pursuant to the
1987 Constitution.1 Carague’s term of office started on
February 2, 2001 to end on February 2, 2008.
Meanwhile, on February 7, 2004, President Macapagal-
Arroyo appointed Reynaldo A. Villar (Villar) as the third
member of the COA for a term of seven (7) years starting
February 2, 2004 until February 2, 2011.
Following the retirement of Carague on February 2, 2008
and during the fourth year of Villar as COA Commissioner,
Villar was designated as Acting Chairman of COA from
February 4, 2008 to April 14, 2008. Subsequently, on April
18, 2008, Villar was nominated and appointed as Chairman
of the COA. Shortly thereafter, on June 11, 2008, the
Commission on Appointments confirmed his appointment.
He was to serve as Chairman of COA, as expressly
indicated in the appointment papers, until the expiration of
the original term of his office as COA Commissioner or on
February 2, 2011. Challenged in this recourse, Villar, in an
obvious bid to lend color of title to his hold on the
chairmanship, insists that his appointment as COA
which is yet to lapse. He would argue, in fine, that his term
of office, as such chairman, is up to February 2, 2015, or 7
years reckoned from February 2, 2008 when he was
appointed to that position.
Meanwhile, Evelyn R. San Buenaventura (San
Buenaventura) was appointed as COA Commissioner to
serve the unexpired term of Villar as Commissioner or up to
February 2, 2011.
Before the Court could resolve this petition, Villar, via a
letter dated February 22, 2011 addressed to President
Benigno S. Aquino III, signified his intention to step down
from office upon the appointment of his replacement. True
to his word, Villar vacated his position when President
Benigno Simeon Aquino III named Ma. Gracia Pulido-Tan
(Chairman Tan) COA Chairman. This development has
rendered this petition and the main issue tendered therein
moot and academic.
case is considered moot and academic when its purpose
has become stale,2 or when it ceases to present a justiciable
controversy owing to the onset of supervening events,3 so
that a resolution of the case or a declaration on the issue
would be of no practical value or use.4 In such instance,
there is no actual substantial relief which a petitioner would
be entitled to, and which will anyway be negated by the
dismissal of the basic petition.5 As a general rule, it is not
within Our charge and function to act upon and decide a
moot case. However, in David v. Macapagal-Arroyo,6 We
acknowledged and accepted certain exceptions to the issue
of mootness, thus:
The "moot and academic" principle is not a magical formula
that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the
Constitution, second, the exceptional character of the
situation and the paramount public interest is involved, third,
when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the
public, and fourth, the case is capable of repetition yet
evading review.
Although deemed moot due to the intervening appointment
of Chairman Tan and the resignation of Villar, We consider
the instant case as falling within the requirements for review
of a moot and academic case, since it asserts at least four
exceptions to the mootness rule discussed in David,
namely: there is a grave violation of the Constitution; the
case involves a situation of exceptional character and is of
requires the formulation of controlling principles to guide the
bench, the bar and the public; and the case is capable of
repetition yet evading review.7 The situation presently
obtaining is definitely of such exceptional nature as to
necessarily call for the promulgation of principles that will
henceforth "guide the bench, the bar and the public" should
like circumstance arise. Confusion in similar future
situations would be smoothed out if the contentious issues
advanced in the instant case are resolved straightaway and
settled definitely. There are times when although the
dispute has disappeared, as in this case, it nevertheless
cries out to be addressed. To borrow from Javier v.
Pacificador,8 "Justice demands that we act then, not only for
the vindication of the outraged right, though gone, but also
for the guidance of and as a restraint in the future."
Both procedural and substantive issues are raised in this
proceeding. The procedural aspect comes down to the
question of whether or not the following requisites for the
exercise of judicial review of an executive act obtain in this
petition, viz: (1) there must be an actual case or justiciable
controversy before the court; (2) the question before it must
be ripe for adjudication; (3) the person challenging the act
must be a proper party; and (4) the issue of constitutionality
must be raised at the earliest opportunity and must be the
very litis mota of the case.9
To Villar, all the requisites have not been met, it being
alleged in particular that petitioner, suing as a taxpayer and
citizen, lacks the necessary standing to challenge his
appointment.10 On the other hand, the Office of the Solicitor
General (OSG), while recognizing the validity of Villar’s
appointment for the period ending February 11, 2011, has
expressed the view that petitioner should have had filed a
petition for declaratory relief or quo warranto under Rule 63
or Rule 66, respectively, of the Rules of Court instead of
certiorari under Rule 65.
Villar’s posture on the absence of some of the mandatory
requisites for the exercise by the Court of its power of
judicial review must fail. As a general rule, a petitioner must
have the necessary personality or standing (locus standi)
before a court will recognize the issues presented. In
Integrated Bar of the Philippines v. Zamora, We defined
locus standi as:
x x x a personal and substantial interest in the case such
that the party has sustained or will sustain a direct injury as
a result of the governmental act that is being challenged.
The term "interest" means a material interest, an interest in
issue affected by the decree, as distinguished from mere
1
interest in the question involved, or a mere incidental
interest. The gist of the question of standing is whether a
party alleges "such personal stake in the outcome of the
controversy as to assure the concrete adverseness which
sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional
questions."11
To have legal standing, therefore, a suitor must show that
he has sustained or will sustain a "direct injury" as a result
of a government action, or have a "material interest" in the
issue affected by the challenged official act.12 However, the
Court has time and again acted liberally on the locus standi
requirements and has accorded certain individuals, not
otherwise directly injured, or with material interest affected,
by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. 13 The
rule on locus standi is after all a mere procedural
technicality in relation to which the Court, in a catena of
cases involving a subject of transcendental import, has
waived, or relaxed, thus allowing non-traditional plaintiffs,
such as concerned citizens, taxpayers, voters or legislators,
to sue in the public interest, albeit they may not have been
personally injured by the operation of a law or any other
government act.14 In David, the Court laid out the bare
minimum norm before the so-called "non-traditional suitors"
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax
measure is unconstitutional;
2.) For voters, there must be a showing of obvious
interest in the validity of the election law in
question;
3.) For concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be settled
early; and
4.) For legislators, there must be a claim that the
official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental importance, since
it obviously has "far-reaching implications," and there is a
need to promulgate rules that will guide the bench, bar, and
the public in future analogous cases. We, thus, assume a
liberal stance and allow petitioner to institute the instant
petition.
Anent the aforestated posture of the OSG, there is no
serious disagreement as to the propriety of the availment of
certiorari as a medium to inquire on whether the assailed
appointment of respondent Villar as COA Chairman
infringed the constitution or was infected with grave abuse
of discretion. For under the expanded concept of judicial
review under the 1987 Constitution, the corrective hand of
certiorari may be invoked not only "to settle actual
controversies involving rights which are legally demandable
and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."15 "Grave abuse of
discretion" denotes:
such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, in other words, where
the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined or to
act in contemplation of law.16
We find the remedy of certiorari applicable to the instant
case in view of the allegation that then President
Macapagal-Arroyo exercised her appointing power in a
manner constituting grave abuse of discretion.
This brings Us to the pivotal substantive issue of whether or
not Villar’s appointment as COA Chairman, while sitting in
that body and after having served for four (4) years of his
seven (7) year term as COA commissioner, is valid in light
of the term limitations imposed under, and the
circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of
the Constitution, which reads:
(2) The Chairman and Commissioners [on Audit] shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one
commissioner for five years, and the other commissioner for
three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired portion of the term
of the predecessor. In no case shall any member be
appointed or designated in a temporary or acting capacity.
(Emphasis added.)17
And if valid, for how long can he serve?
At once clear from a perusal of the aforequoted provision
are the defined restricting features in the matter of the
composition of COA and the appointment of its members
(commissioners and chairman) designed to safeguard the
independence and impartiality of the commission as a body
and that of its individual members.18 These are, first, the
rotational plan or the staggering term in the commission
membership, such that the appointment of commission
members subsequent to the original set appointed after the
effectivity of the 1987 Constitution shall occur every two
years; second, the maximum but a fixed term-limit of seven
(7) years for all commission members whose appointments
came about by reason of the expiration of term save the
aforementioned first set of appointees and those made to fill
up vacancies resulting from certain causes; third, the
prohibition against reappointment of commission members
who served the full term of seven years or of members first
appointed under the Constitution who served their
respective terms of office; fourth, the limitation of the term of
a member to the unexpired portion of the term of the
predecessor; and fifth, the proscription against temporary
appointment or designation.
To elucidate on the mechanics of and the adverted
limitations on the matter of COA-member appointments with
fixed but staggered terms of office, the Court lays down the
following postulates deducible from pertinent constitutional
provisions, as construed by the Court:
1. The terms of office and appointments of the first set
of commissioners, or the seven, five and three-year
termers referred to in Sec. 1(2), Art. IX(D) of the
Constitution, had already expired. Hence, their
respective terms of office find relevancy for the most
part only in understanding the operation of the rotational
plan. In Gaminde v. Commission on Audit,19 the Court
described how the smooth functioning of the rotational
system contemplated in said and like provisions
covering the two other independent commissions is
achieved thru the staggering of terms:
x x x [T]he terms of the first Chairmen and
Commissioners of the Constitutional Commissions
under the 1987 Constitution must start on a common
date [February 02, 1987, when the 1987 Constitution
was ratified] irrespective of the variations in the dates of
appointments and qualifications of the appointees in
order that the expiration of the first terms of seven, five
and three years should lead to the regular recurrence of
the two-year interval between the expiration of the
terms.
x x x In case of a belated appointment, the interval
between the start of the terms and the actual
2
appointment shall be counted against the
appointee.20 (Italization in the original; emphasis added.)
Early on, in Republic v. Imperial,21 the Court
wrote of two conditions, "both indispensable to
[the] workability" of the rotational plan. These
conditions may be described as follows: (a) that
the terms of the first batch of commissioners
should start on a common date; and (b) that any
vacancy due to death, resignation or disability
before the expiration of the term should be filled
only for the unexpired balance of the term.
Otherwise, Imperial continued, "the regularity of
the intervals between appointments would be
destroyed." There appears to be near unanimity
as to the purpose/s of the rotational system, as
originally conceived, i.e., to place in the
commission a new appointee at a fixed interval
(every two years presently), thus preventing a
four-year administration appointing more than
one permanent and regular commissioner,22 or
to borrow from Commissioner Monsod of the
1986 CONCOM, "to prevent one person (the
President of the Philippines) from dominating the
commissions."23 It has been declared too that the
rotational plan ensures continuity in, and, as
indicated earlier, secure the independence of,
the commissions as a body.24
2. An appointment to any vacancy in COA, which
arose from an expiration of a term, after the first
chairman and commissioners appointed under the
1987 Constitution have bowed out, shall, by
express constitutional fiat, be for a term of seven
(7) years, save when the appointment is to fill up a
vacancy for the corresponding unserved term of
an outgoing member. In that case, the
appointment shall only be for the unexpired
portion of the departing commissioner’s term of
office. There can only be an unexpired portion
when, as a direct result of his demise, disability,
resignation or impeachment, as the case may be,
a sitting member is unable to complete his term of
office.25 To repeat, should the vacancy arise out of
the expiration of the term of the incumbent, then
there is technically no unexpired portion to speak
of. The vacancy is for a new and complete seven-
year term and, ergo, the appointment thereto shall
in all instances be for a maximum seven (7) years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution
prohibits the "reappointment" of a member of COA
after his appointment for seven (7) years. Writing
for the Court in Nacionalista Party v. De Vera, 26 a
case involving the promotion of then COMELEC
Commissioner De Vera to the position of
chairman, then Chief Justice Manuel Moran called
attention to the fact that the prohibition against
"reappointment" comes as a continuation of the
requirement that the commissioners––referring to
members of the COMELEC under the 1935
Constitution––shall hold office for a term of nine
(9) years. This sentence formulation imports,
notes Chief Justice Moran, that reappointment is
not an absolute prohibition.
4. The adverted system of regular rotation or the
staggering of appointments and terms in the
membership for all three constitutional
commissions, namely the COA, Commission on
Elections (COMELEC) and Civil Service
Commission (CSC) found in the 1987 Constitution
was patterned after the amended 1935
Constitution for the appointment of the members
of COMELEC27 with this difference: the 1935
version entailed a regular interval of vacancy
every three (3) years, instead of the present two
(2) years and there was no express provision on
appointment to any vacancy being limited to the
unexpired portion of the his predecessor’s term.
The model 1935 provision reads:
Section 1. There shall be an independent Commission on
Elections composed of a Chairman and two other members
to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a
term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold
office for nine years, another for six years and the third for
three years. x x x
Petitioner now asseverates the view that Sec. 1(2), Art.
IX(D) of the 1987 Constitution proscribes reappointment of
any kind within the commission, the point being that a
second appointment, be it for the same position
(commissioner to another position of commissioner) or
upgraded position (commissioner to chairperson) is a
prohibited reappointment and is a nullity ab initio. Attention
is drawn in this regard to the Court’s disposition in Matibag
v. Benipayo.28
Villar’s promotional appointment, so it is argued, is void from
the start, constituting as it did a reappointment enjoined by
the Constitution, since it actually needed another
appointment to a different office and requiring another
confirmation by the Commission on Appointments.
Central to the adjudication of the instant petition is the
correct meaning to be given to Sec. 1(2), Article IX(D) of the
Constitution on the ban against reappointment in relation to
the appointment issued to respondent Villar to the position
of COA Chairman.
Without question, the parties have presented two (2)
contrasting and conflicting positions. Petitioner contends
that Villar’s appointment is proscribed by the constitutional
ban on reappointment under the aforecited constitutional
provision. On the other hand, respondent Villar initially
asserted that his appointment as COA Chairman is valid up
to February 2, 2015 pursuant to the same provision.
The Court finds petitioner’s position bereft of merit. The flaw
lies in regarding the word "reappointment" as, in context,
embracing any and all species of appointment.
The rule is that if a statute or constitutional provision is
clear, plain and free from ambiguity, it must be given its
literal meaning and applied without attempted
interpretation.29 This is known as the plain meaning rule
enunciated by the maxim verba legis non est recedendum,
or from the words of a statute there should be no
departure.30
The primary source whence to ascertain constitutional intent
or purpose is the language of the provision itself.31 If
possible, the words in the Constitution must be given their
ordinary meaning, save where technical terms are
employed. J.M. Tuason & Co., Inc. v. Land Tenure
Administration illustrates the verbal legis rule in this wise:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in
which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer’s document, it
being essential for the rule of law to obtain that it should
ever be present in the people’s consciousness, its language
as much as possible should be understood in the sense
they have in common use. What it says according to the text
of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they
3
say. Thus there are cases where the need for construction
is reduced to a minimum.32 (Emphasis supplied.)
Let us dissect and examine closely the provision in
question:
(2) The Chairman and Commissioners [on Audit] shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one
commissioner for five years, and the other commissioner for
three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired portion of the term
of the predecessor. x x x (Emphasis added.)
The first sentence is unequivocal enough. The COA
Chairman shall be appointed by the President for a term of
seven years, and if he has served the full term, then he can
no longer be reappointed or extended another appointment.
In the same vein, a Commissioner who was appointed for a
term of seven years who likewise served the full term is
barred from being reappointed. In short, once the Chairman
or Commissioner shall have served the full term of seven
years, then he can no longer be reappointed to either the
position of Chairman or Commissioner. The obvious intent
of the framers is to prevent the president from "dominating"
the Commission by allowing him to appoint an additional or
two more commissioners.
The same purpose obtains in the second sentence of Sec.
1(2). The Constitutional Convention barred reappointment to
be extended to commissioner-members first appointed
under the 1987 Constitution to prevent the President from
controlling the commission. Thus, the first Chairman
appointed under the 1987 Constitution who served the full
term of seven years can no longer be extended a
reappointment. Neither can the Commissioners first
appointed for the terms of five years and three years be
eligible for reappointment. This is the plain meaning
attached to the second sentence of Sec. 1(2), Article IX(D).
On the other hand, the provision, on its face, does not
prohibit a promotional appointment from commissioner to
chairman as long as the commissioner has not served the
full term of seven years, further qualified by the third
sentence of Sec. 1(2), Article IX (D) that "the appointment to
any vacancy shall be only for the unexpired portion of the
term of the predecessor." In addition, such promotional
appointment to the position of Chairman must conform to
the rotational plan or the staggering of terms in the
commission membership such that the aggregate of the
service of the Commissioner in said position and the term to
which he will be appointed to the position of Chairman must
not exceed seven years so as not to disrupt the rotational
system in the commission prescribed by Sec. 1(2), Art.
IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that
explicitly precludes a promotional appointment from
Commissioner to Chairman, provided it is made under the
aforestated circumstances or conditions.
It may be argued that there is doubt or ambiguity on
whether Sec. 1(2), Art. IX(D), as couched, allows a
promotional appointment from Commissioner to Chairman.
Even if We concede the existence of an ambiguity, the
outcome will remain the same. J.M. Tuason & Co.,
Inc.33 teaches that in case of doubt as to the import and
react of a constitutional provision, resort should be made to
extraneous aids of construction, such as debates and
proceedings of the Constitutional Convention, to shed light
on and ascertain the intent of the framers or the purpose of
the provision being construed.
The understanding of the Convention as to what was meant
by the terms of the constitutional provision which was the
subject of the deliberation goes a long way toward
explaining the understanding of the people when they
ratified it. The Court applied this principle in Civil Liberties
Union v. Executive Secretary:
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration.
Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to
be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the
condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to
effect that purpose.34 (Emphasis added.)
And again in Nitafan v. Commissioner on Internal Revenue:
x x x The ascertainment of that intent is but in keeping with
the fundamental principle of constitutional construction that
the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task
in constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also be
safely assumed that the people in ratifying the Constitution
were guided mainly by the explanation offered by the
framers.35 (Emphasis added.)
Much weight and due respect must be accorded to the
intent of the framers of the Constitution in interpreting its
provisions.
Far from prohibiting reappointment of any kind, including a
situation where a commissioner is upgraded to the position
of chairman, the 1987 Constitution in fact unequivocally
allows promotional appointment, but subject to defined
parameters. The ensuing exchanges during the
deliberations of the 1986 Constitutional Commission
(CONCOM) on a draft proposal of what would eventually be
Sec. 1(2), Art. IX(D) of the present Constitution amply
support the thesis that a promotional appointment is allowed
provided no one may be in the COA for an aggregate
threshold period of 7 years:
MS. AQUINO: In the same paragraph, I would propose an
amendment x x x. Between x x x the sentence which begins
with "In no case," insert THE APPOINTEE SHALL IN NO
CASE SERVE AN AGGREGATE PERIOD OF MORE
THAN SEVEN YEARS. I was thinking that this may
approximate the situation wherein a commissioner is first
appointed as chairman. I am willing to withdraw that
amendment if there is a representation on the part of the
Committee that there is an implicit intention to prohibit a
term that in the aggregate will exceed more than seven
years. If that is the intention, I am willing to withdraw my
amendment.
MR. MONSOD: If the [Gentlewoman] will read the whole
Article, she will notice that there is no reappointment of any
kind and, therefore, as a whole there is no way somebody
can serve for more than seven years. The purpose of the
last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting
capacities.
MS. AQUINO. Yes. Reappointment is fine; that is accounted
for. But I was thinking of a situation wherein a commissioner
is upgraded to a position of chairman. But if this provision is
intended to cover that kind of situation, then I am willing to
withdraw my amendment.
MR. MONSOD. It is covered.
4
MR. FOZ. There is a provision on line 29 precisely to cover
that situation. It states: "Appointment to any vacancy shall
be only for the unexpired portion of the predecessor." In
other words, if there is upgrading of position from
commissioner to chairman, the appointee can serve only the
unexpired portion of the term of the predecessor.
MS. AQUINO: But we have to be very specific x x x
because it might shorten the term because he serves only
the unexpired portion of the term of the predecessor.
MR. FOZ: He takes it at his own risk. He knows that he will
only have to serve the unexpired portion of the term of the
predecessor. (Emphasis added.)36
The phrase "upgrading of position" found in the underscored
portion unmistakably shows that Sec. 1(2), Art. IX(D) of the
1987 Constitution, for all its caveat against reappointment,
does not per se preclude, in any and all cases, the
promotional appointment or upgrade of a commissioner to
chairman, subject to this proviso: the appointee’s tenure in
office does not exceed 7 years in all. Indeed, such
appointment does not contextually come within the
restricting phrase "without reappointment" twice written in
that section. Delegate Foz even cautioned, as a matter of
fact, that a sitting commissioner accepting a promotional
appointment to fill up an unexpired portion pertaining to the
higher office does so at the risk of shortening his original
term. To illustrate the Foz’s concern: assume that Carague
left COA for reasons other than the expiration of his
threshold 7-year term and Villar accepted an appointment to
fill up the vacancy. In this situation, the latter can only stay
at the COA and served the unexpired portion of Carague’s
unexpired term as departing COA Chairman, even if, in the
process, his (Villar’s) own 7-year term as COA
commissioner has not yet come to an end. In this
illustration, the inviolable regularity of the intervals between
appointments in the COA is preserved.
Moreover, jurisprudence tells us that the word
"reappointment" means a second appointment to one and
the same office.37 As Justice Arsenio Dizon (Justice Dizon)
aptly observed in his dissent in Visarra v. Miraflor,38 the
constitutional prohibition against the reappointment of a
commissioner refers to his second appointment to the same
office after holding it for nine years.39 As Justice Dizon
observed, "[T]he occupant of an office obviously needs no
such second appointment unless, for some valid cause,
such as the expiration of his term or resignation, he had
ceased to be the legal occupant thereof." 40 The inevitable
implication of Justice Dizon’s cogent observation is that a
promotion from commissioner to chairman, albeit entailing a
second appointment, involves a different office and, hence,
not, in the strict legal viewpoint, a reappointment. Stated a
bit differently, "reappointment" refers to a movement to one
and the same office. Necessarily, a movement to a different
position within the commission (from Commissioner to
Chairman) would constitute an appointment, or a second
appointment, to be precise, but not reappointment.
A similar opinion was expressed in the same Visarra case
by the concurring Justice Angelo Bautista, although he
expressly alluded to a promotional appointment as not
being a prohibited appointment under Art. X of the 1935
Constitution.
Petitioner’s invocation of Matibag as additional argument to
contest the constitutionality of Villar’s elevation to the COA
chairmanship is inapposite. In Matibag, then President
Macapagal-Arroyo appointed, ad interim, Alfredo Benipayo
as COMELEC Chairman and Resurreccion Borra and
Florentino Tuason as Commissioners, each for a term of
office of seven (7) years. All three immediately took their
oath of, and assumed, office. These appointments were
twice renewed because the Commission on Appointments
failed to act on the first two ad interim appointments. Via a
petition for prohibition, some disgruntled COMELEC officials
assail as infirm the appointments of Benipayo, et al.
Matibag lists (4) four situations where the prohibition on
reappointment would arise, or to be specific, where the
proviso "[t]he Chairman and the Commissioners shall be
appointed x x x for a term of seven years without
reappointment" shall apply. Justice Antonio T. Carpio
declares in his dissent that Villar’s appointment falls under a
combination of two of the four situations.
Conceding for the nonce the correctness of the premises
depicted in the situations referred to in Matibag, that case is
of doubtful applicability to the instant petition. Not only is it
cast against a different milieu, but the lis mota of the case,
as expressly declared in the main opinion, "is the very
constitutional issue raised by petitioner."41 And what is/are
this/these issue/s? Only two defined issues in Matibag are
relevant, viz: (1) the nature of an ad interim appointment
and subsumed thereto the effect of a by-passed ad interim
appointment; and (2) the constitutionality of renewals of ad
interim appointments. The opinion defined these issues in
the following wise: "Petitioner [Matibag] filed the instant
petition questioning the appointment and the right to remain
in office of Benipayo, Borra and Tuason as Chairman and
Commissioners of the COMELEC, respectively. Petitioner
claims that the ad interim appointments of Benipayo, et al.
violate the constitutional provisions on the independence of
COMELEC, as well as on the prohibitions on temporary
appointments and reappointments of its Chairman and
members." As may distinctly be noted, an upgrade or
promotion was not in issue in Matibag.
We shall briefly address the four adverted situations
outlined in Matibag, in which, as there urged, the uniform
proviso on no reappointment––after a member of any of the
three constitutional commissions is appointed for a term of
seven (7) years––shall apply. Matibag made the following
formulation:
The first situation is where an ad interim appointee after
confirmation by the Commission on Appointments serves
his full 7-year term. Such person cannot be reappointed
whether as a member or as chairman because he will then
be actually serving more than seven (7) years.
The second situation is where the appointee, after
confirmation, serves part of his term and then resigns before
his seven-year term of office ends. Such person cannot be
reappointed whether as a member or as chair to a vacancy
arising from retirement because a reappointment will result
in the appointee serving more than seven years.
The third situation is where the appointee is confirmed to
serve the unexpired portion of someone who died or
resigned, and the appointee completes the unexpired term.
Such person cannot be reappointed whether as a member
or as chair to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more
than seven (7) years.
The fourth situation is where the appointee has previously
served a term of less than seven (7) years, and a vacancy
arises from death or resignation. Even if it will not result in
his serving more than seven years, a reappointment of such
person to serve an unexpired term is also prohibited
because his situation will be similar to those appointed
under the second sentence of Sec. 1(20), Art. IX-C of the
Constitution [referring to the first set of appointees (the 5
and 3 year termers) whose term of office are less than 7
years but are barred from being reappointed under any
situation]."42 (Words in brackets and emphasis supplied.)
The situations just described constitute an obiter dictum,
hence without the force of adjudication, for the
corresponding formulation of the four situations was not in
any way necessary to resolve any of the determinative
issues specifically defined in Matibag. An opinion entirely
unnecessary for the decision of the case or one expressed
5
upon a point not necessarily involved in the determination of
the case is an obiter.43
There can be no serious objection to the scenarios depicted
in the first, second and third situations, both hewing with the
proposition that no one can stay in any of the three
independent commissions for an aggregate period of more
than seven (7) years. The fourth situation, however, does
not commend itself for concurrence inasmuch as it is
basically predicated on the postulate that reappointment, as
earlier herein defined, of any kind is prohibited under any
and all circumstances. To reiterate, the word
"reappointment" means a second appointment to one and
the same office; and Sec. 1(2), Art. IX(D) of the 1987
Constitution and similar provisions do not peremptorily
prohibit the promotional appointment of a commissioner to
chairman, provided the new appointee’s tenure in both
capacities does not exceed seven (7) years in all. The
statements in Matibag enunciating the ban on
reappointment in the aforecited fourth situation, perforce,
must be abandoned, for, indeed, a promotional appointment
from the position of Commissioner to that of Chairman is
constitutionally permissible and not barred by Sec. 1(2), Art.
IX (D) of the Constitution.
One of the aims behind the prohibition on reappointment,
petitioner urges, is to ensure and preserve the
independence of COA and its members,44 citing what the
dissenting Justice J.B.L Reyes wrote in Visarra, that once
appointed and confirmed, the commissioners should be free
to act as their conscience demands, without fear of
retaliation or hope or reward. Pursued to its logical
conclusion, petitioner’s thesis is that a COA member may
no longer act with independence if he or she can be
rewarded with a promotion or appointment, for then he or
she will do the bidding of the appointing authority in the
hope of being promoted or reappointed.
The unstated reason behind Justice J.B.L. Reyes’ counsel
is that independence is really a matter of choice. Without
taking anything away from the gem imparted by the eminent
jurist, what Chief Justice Moran said on the subject of
independence is just as logically sound and perhaps even
more compelling, as follows:
A Commissioner, hopeful of reappointment may strive to do
good. Whereas, without that hope or other hope of material
reward, his enthusiasm may decline as the end of his term
approaches and he may even lean to abuses if there is no
higher restrain in his moral character. Moral character is no
doubt the most effective safeguard of independence. With
moral integrity, a commissioner will be independent with or
without the possibility of reappointment.45
The Court is likewise unable to sustain Villar’s proposition
that his promotional appointment as COA Chairman gave
him a completely fresh 7-year term––from February 2008 to
February 2015––given his four (4)-year tenure as COA
commissioner devalues all the past pronouncements made
by this Court, starting in De Vera, then Imperial, Visarra,
and finally Matibag. While there had been divergence of
opinion as to the import of the word "reappointment," there
has been unanimity on the dictum that in no case can one
be a COA member, either as chairman or commissioner, or
a mix of both positions, for an aggregate term of more than
7 years. A contrary view would allow a circumvention of the
aggregate 7-year service limitation and would be
constitutionally offensive as it would wreak havoc to the
spirit of the rotational system of succession. Imperial,
passing upon the rotational system as it applied to the then
organizational set-up of the COMELEC, stated:
The provision that of the first three commissioners
appointed "one shall hold office for 9 years, another for 6
years and the third for 3 years," when taken together with
the prescribed term of office for 9 years without
reappointment, evinces a deliberate plan to have a regular
rotation or cycle in the membership of the commission, by
having subsequent members appointable only once every
three years.46
To be sure, Villar’s appointment as COA Chairman partakes
of a promotional appointment which, under appropriate
setting, would be outside the purview of the constitutional
reappointment ban in Sec 1(2), Art. IX(D) of the
Constitution. Nonetheless, such appointment, even for the
term appearing in the underlying appointment paper, ought
still to be struck down as unconstitutional for the reason as
shall be explained.
Consider:
In a mandatory tone, the aforecited constitutional provision
decrees that the appointment of a COA member shall be for
a fixed 7-year term if the vacancy results from the expiration
of the term of the predecessor. We reproduce in its pertinent
part the provision referred to:
(2) The Chairman and Commissioners [on Audit] shall be
appointed x x x for a term of seven years without
reappointment. x x x Appointment to any vacancy shall be
only for the unexpired portion of the term of the
predecessor. x x x
Accordingly, the promotional appointment as COA
Chairman of Villar for a stated fixed term of less than seven
(7) years is void for violating a clear, but mandatory
constitutional prescription. There can be no denying that the
vacancy in the position of COA chairman when Carague
stepped down in February 2, 2008 resulted from the
expiration of his 7-year term. Hence, the appointment to the
vacancy thus created ought to have been one for seven (7)
years in line with the verbal legis approach47 of interpreting
the Constitution. It is to be understood, however, following
Gaminde, that in case of a belated appointment, the interval
between the start of the term and the actual appointment
shall be counted against the 7-year term of the appointee.
Posing, however, as an insurmountable barrier to a full 7-
year appointment for Villar is the rule against one serving
the commission for an aggregate term of more than seven
(7) years.
Where the Constitution or, for that matter, a statute, has
fixed the term of office of a public official, the appointing
authority is without authority to specify in the appointment a
term shorter or longer than what the law provides. If the
vacancy calls for a full seven-year appointment, the
President is without discretion to extend a promotional
appointment for more or for less than seven (7) years.
There is no in between. He or she cannot split terms. It is
not within the power of the appointing authority to override
the positive provision of the Constitution which dictates that
the term of office of members of constitutional bodies shall
be seven (7) years.48 A contrary reasoning "would make the
term of office to depend upon the pleasure or caprice of the
[appointing authority] and not upon the will [of the framers of
the Constitution] of the legislature as expressed in plain and
undoubted language in the law."49
In net effect, then President Macapagal-Arroyo could not
have had, under any circumstance, validly appointed Villar
as COA Chairman, for a full 7-year appointment, as the
Constitution decrees, was not legally feasible in light of the
7-year aggregate rule. Villar had already served 4 years of
his 7-year term as COA Commissioner. A shorter term,
however, to comply with said rule would also be invalid as
the corresponding appointment would effectively breach the
clear purpose of the Constitution of giving to every
appointee so appointed subsequent to the first set of
commissioners, a fixed term of office of 7 years. To
recapitulate, a COA commissioner like respondent Villar
who serves for a period less than seven (7) years cannot be
appointed as chairman when such position became vacant
as a result of the expiration of the 7-year term of the
predecessor (Carague). Such appointment to a full term is
not valid and constitutional, as the appointee will be allowed
6
to serve more than seven (7) years under the constitutional
ban.
On the other hand, a commissioner who resigned before
serving his 7- year term can be extended an appointment to
the position of chairman for the unexpired period of the term
of the latter, provided the aggregate of the period he served
as commissioner and the period he will serve as chairman
will not exceed seven (7) years. This situation will only
obtain when the chairman leaves the office by reason of
death, disability, resignation or impeachment. Let us
consider, in the concrete, the situation of then Chairman
Carague and his successor, Villar. Carague was appointed
COA Chairman effective February 2, 2001 for a term of
seven (7) years, or up to February 2, 2008. Villar was
appointed as Commissioner on February 2, 2004 with a 7-
year term to end on February 2, 2011. If Carague for some
reason vacated the chairmanship in 2007, then Villar can
resign as commissioner in the same year and later be
appointed as chairman to serve only up to February 2,
2008, the end of the unexpired portion of Carague’s term. In
this hypothetical scenario, Villar’s appointment to the
position of chairman is valid and constitutional as the
aggregate periods of his two (2) appointments will only be
five (5) years which neither distorts the rotational scheme
nor violates the rule that the sum total of said appointments
shall not exceed seven (7) years. Villar would, however,
forfeit two (2) years of his original seven (7)-year term as
Commissioner, since, by accepting an upgraded
appointment to Carague’s position, he agreed to serve the
unexpired portion of the term of the predecessor. As
illustrated earlier, following Mr. Foz’s line, if there is an
upgrading of position from commissioner to chairman, the
appointee takes the risk of cutting short his original term,
knowing pretty well before hand that he will serve only the
unexpired portion of the term of his predecessor, the
outgoing COA chairman.
In the extreme hypothetical situation that Villar vacates the
position of chairman for causes other than the expiration of
the original term of Carague, the President can only appoint
the successor of Villar for the unexpired portion of the
Carague term in line with Sec. 1(2), Art. IX(D) of the
Constitution. Upon the expiration of the original 7-year term
of Carague, the President can appoint a new chairman for a
term of seven (7) full years.
In his separate dissent, my esteemed colleague, Mr. Justice
Mendoza, takes strong exception to the view that the
promotional appointment of a sitting commissioner is
plausible only when he is appointed to the position of
chairman for the unexpired portion of the term of said official
who leaves the office by reason of any the following
reasons: death, disability, resignation or impeachment, not
when the vacancy arises out as a result of the expiration of
the 7-year term of the past chairman. There is nothing in the
Constitution, so Justice Mendoza counters, that restricts the
promotion of an incumbent commissioner to the
chairmanship only in instances where the tenure of his
predecessor was cut short by any of the four events referred
to. As earlier explained, the majority view springs from the
interplay of the following premises: The explicit command of
the Constitution is that the "Chairman and the
Commissioners shall be appointed by the President x x x for
a term of seven years [and] appointment to any vacancy
shall be only for the unexpired portion of the term of the
predecessor." To repeat, the President has two and only
two options on term appointments. Either he extends an
appointment for a full 7-year term when the vacancy results
from the expiration of term, or for a shorter period
corresponding to the unexpired term of the predecessor
when the vacancy occurs by reason of death, physical
disability, resignation or impeachment. If the vacancy calls
for a full seven-year appointment, the Chief Executive is
barred from extending a promotional appointment for less
than seven years. Else, the President can trifle with terms of
office fixed by the Constitution.
Justice Mendoza likewise invites attention to an instance in
history when a commissioner had been promoted chairman
after the expiration of the term of his predecessor, referring
specifically to the appointment of then COMELEC
Commissioner Gaudencio Garcia to succeed Jose P. Carag
after the expiration of the latter’s term in 1959 as COMELEC
chairman. Such appointment to the position of chairman is
not constitutionally permissible under the 1987 Constitution
because of the policy and intent of its framers that a COA
member who has served his full term of seven (7) years or
even for a shorter period can no longer be extended
another appointment to the position of chairman for a full
term of seven (7) years. As revealed in the deliberations of
the Constitutional Commission that crafted the 1987
Constitution, a member of COA who also served as a
commissioner for less than seven (7) years in said position
cannot be appointed to the position of chairman for a full
term of seven (7) years since the aggregate will exceed
seven (7) years. Thus, the adverted Garcia appointment in
1959 made under the 1935 Constitution cannot be used as
a precedent to an appointment of such nature under the
1987 Constitution. The dissent further notes that the
upgrading remained uncontested. In this regard, suffice it to
state that the promotion in question was either legal or it
was not. If it were not, no amount of repetitive practices
would clear it of invalidating taint.
Lastly, Villar’s appointment as chairman ending February 2,
2011 which Justice Mendoza considers as valid is likewise
unconstitutional, as it will destroy the rationale and policy
behind the rotational system or the staggering of
appointments and terms in COA as prescribed in the
Constitution. It disturbs in a way the staggered rotational
system of appointment under Sec. 1(2), Art. IX(D) of the
1987 Constitution. Consider: If Villar’s term as COA
chairman up to February 2, 2011 is viewed as valid and
constitutional as espoused by my esteemed colleague, then
two vacancies have simultaneously occurred and two (2)
COA members going out of office at once, opening positions
for two (2) appointables on that date as Commissioner San
Buenaventura’s term also expired on that day. This is
precisely one of the mischiefs the staggering of terms and
the regular intervals appointments seek to address. Note
that San Buenaventura was specifically appointed to
succeed Villar as commissioner, meaning she merely
occupied the position vacated by her predecessor whose
term as such commissioner expired on February 2, 2011.
The result is what the framers of the Constitution doubtless
sought to avoid, a sitting President with a 6-year term of
office, like President Benigno C. Aquino III, appointing all or
at least two (2) members of the three-man Commission
during his term. He appointed Ma. Gracia Pulido-Tan as
Chairman for the term ending February 2, 2015 upon the
relinquishment of the post by respondent Villar, and Heidi
Mendoza was appointed Commissioner for a 7-year term
ending February 2, 2018 to replace San Buenaventura. If
Justice Mendoza’s version is adopted, then situations like
the one which obtains in the Commission will definitely be
replicated in gross breach of the Constitution and in clear
contravention of the intent of its framers. Presidents in the
future can easily control the Commission depriving it of its
independence and impartiality.
To sum up, the Court restates its ruling on Sec. 1(2), Art.
IX(D) of the Constitution, viz:
1. The appointment of members of any of the
three constitutional commissions, after the
expiration of the uneven terms of office of the first
set of commissioners, shall always be for a fixed
term of seven (7) years; an appointment for a
lesser period is void and unconstitutional.
The appointing authority cannot validly shorten the
full term of seven (7) years in case of the
expiration of the term as this will result in the
distortion of the rotational system prescribed by
the Constitution.
7
 2. Appointments to vacancies resulting from
certain causes (death, resignation, disability or
impeachment) shall only be for the unexpired
portion of the term of the predecessor, but such
appointments cannot be less than the unexpired
portion as this will likewise disrupt the staggering
of terms laid down under Sec. 1(2), Art. IX(D).
3. Members of the Commission, e.g. COA,
COMELEC or CSC, who were appointed for a full
term of seven years and who served the entire
period, are barred from reappointment to any
position in the Commission. Corollarily, the first
appointees in the Commission under the
Constitution are also covered by the prohibition
against reappointment.
4. A commissioner who resigns after serving in the
Commission for less than seven years is eligible
for an appointment to the position of Chairman for
the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the
ban on reappointment, provided that the
aggregate period of the length of service as
commissioner and the unexpired period of the
term of the predecessor will not exceed seven (7)
years and provided further that the vacancy in the
position of Chairman resulted from death,
resignation, disability or removal by impeachment.
The Court clarifies that "reappointment" found in
Sec. 1(2), Art. IX(D) means a movement to one
and the same office (Commissioner to
Commissioner or Chairman to Chairman). On the
other hand, an appointment involving a movement
to a different position or office (Commissioner to
Chairman) would constitute a new appointment
and, hence, not, in the strict legal sense, a
reappointment barred under the Constitution.
5. Any member of the Commission cannot be
appointed or designated in a temporary or acting
capacity.
WHEREFORE the petition is PARTLY GRANTED. The
appointment of then Commissioner Reynaldo A. Villar to the
position of Chairman of the Commission on Audit to replace
Guillermo N. Carague, whose term of office as such
chairman has expired, is hereby declared
UNCONSTITUTIONAL for violation of Sec. 1(2), Art. IX(D)
of the Constitution.
SO ORDERED.
PRESBITERO J. VELASCO JR.
Associate Justice
WE CONCUR:
2.
EN BANC
G.R. No. 191672 November 25, 2014
DENNIS A. B. FUNA, Petitioner,
vs.
THE CHAIRMAN, CIVIL SERVICE COMMISSION,
FRANCISCO T. DUQUE III, EXECUTIVE SECRETARY
LEANDRO R. MENDOZA, OFFICE OF THE
PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
The independence of the Civil Service Commission (CSC) is
explicitly mandated under Section 1,1 Article IX-A of the
1987 Constitution. Additionally, Section 2, 2 Article IX-A of
the 1987 Constitution prohibits its Members, during their
tenure, from holding any other office or employment.
These constitutional provisions3 are central to this special
civil action for certiorari and prohibition brought to assail the
designation of Hon. Francisco T. Duque III, Chairman of the
CSC, as a member of the Board of Directors or Trustees in
an ex officio capacity of the (a) Government Service
Insurance System (GSIS); (b) Philippine Health Insurance
Corporation (PHILHEALTH), (c) the Employees
Compensation Commission (ECC), and (d) the Home
Development Mutual Fund (HDMF).
Antecedents
On January 11, 2010, then President Gloria Macapagal-
Arroyo appointed Duque as Chairman of the CSC. The
Commission on Appointments confirmed Duque’s
appointment on February 3, 2010.
On February 22, 2010,President Arroyo issued Executive
Order No. 864 (EO 864), whose complete text is quoted as
follows:
EXECUTIVE ORDER NO. 864
INCLUSION OF THE CHAIRMAN OF THE CIVIL SERVICE
COMMISSION IN THE BOARD OF
TRUSTEES/DIRECTORS OF THE GOVERNMENT
SERVICE INSURANCE SYSTEM, PHILIPPINE HEALTH
INSURANCE CORPORATION, EMPLOYEES’
COMPENSATION COMMISSION AND THE HOME
DEVELOPMENT MUTUAL FUND
WHEREAS, Section 2 (1), Article IX-B of the 1987
Philippine Constitution provides that the civil service
embraces all branches, subdivisions, instrumentalities, and
agencies of the Government, including government-owned
or controlled corporations with original charters;
WHEREAS, Section 3, Article IX-B of the 1987 Constitution
mandates, among others, that the Civil Service Commission
(CSC), as the central personnel agency of the government,
shall establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service, and shall
strengthen the merit and rewards system, integrate all
human resources development programs for all levels and
ranks, and institutionalize a management climate conducive
to public accountability; WHEREAS, Section 14, Chapter 3,
Title I-A, Book V of the Administrative Code of 1987
(Executive Order No. 292) expressly states that the
Chairman of the CSC shall bea member of the Board of
Directors or of other governing bodies of government
entities whose functions affect the career development,
employment, status, rights, privileges, and welfare of
government officials and employees, such as the
Government Service Insurance System, Foreign Service
Board, Foreign Trade Service Board, National Board for
Teachers, and such other similar boards as may be created
by law;
WHEREAS, Presidential Decree No. 1 dated September 24,
1972, explicitly empowers the President of the Republic of
the Philippines to reorganize the entire Executive Branch of
the National Government, as a vital and priority measure to
effect the desired changes and reforms in the social,
economic and political structure of the country;
WHEREAS, Section 18 (a), ArticleIV of Republic Act No.
7875 (An Act Instituting a National Health Insurance
Program For All Filipinos and Establishing the Philippine
8
Health Insurance Corporation For The Purpose) or
otherwise known as the "National Health Insurance Act of
1995", Section 42 (G) of Republic Act No. 8291 (An Act
Amending Presidential Decree No. 1146, as amended,
Expanding and Increasing the Coverage of Benefits of the
Government Service Insurance System, Instituting Reforms
Therein and For Other Purposes) or otherwise known as
"The Government Service Insurance System Act of 1997,
Article 176, Chapter 3 of Presidential Decree No. 626
(Employees’ Compensation and State Insurance Fund), and
Presidential Decree No. 1530 (Instituting a System of
Voluntary Contributions for Housing Purpose[s]) or
otherwise known as the "Pag-ibig Fund" reveal that while
the Chairman of the CSC is not included in the list of those
who could sit as a member of the Board of Directors of the
Philhealth or of the Board of Trustees of the GSIS, ECC and
the Pag-ibig Fund, said laws did not expressly repeal
Section 14, Chapter 3, Title I-A, Book V of the
Administrative Code of 1987 and Presidential Decree No. 1;
WHEREAS, it is settled that repeals by implication are not
favored as laws are presumed to be passed with
deliberation and full knowledge of all laws existing on the
subject;
WHEREAS, a scrutiny of the mandated functions and duties
of the Board of Trustees of the GSIS, ECC and HDMF and
the Board of Directors of the PhilHealth shows that the
same are all geared towards the advancement of the
welfare of government officials and employees, which
functions fall within the province of the CSC;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO,
President of the Republic of the Philippines, by virtue of the
powers vested in me by law, do hereby order and direct:
Section 1. The Chairman of the Civil Service Commission
shall sit as an Ex-Officio member of the Board of Trustees
of the Government Service Insurance System, Employees’
Compensation Commission and the Home Development
Mutual Fund and the Board of Directors of the Philippine
Health Insurance Corporation pursuant to Section 14,
Chapter 3, Title I-A, Book V of Executive Order No. 292
(Administrative Code of 1987).
Section 2. This Executive Order shall take effect
immediately.
Done in the City of Manila, this 22nd day of February, in the
year of Our Lord, Two Thousand and Ten.4
Pursuant to EO 864, Duque was designated as a member
of the Board of Directors or Trustees of the following
government-owned or government- controlled corporations
(GOCCs): (a) GSIS; (b) PHILHEALTH;(c) ECC; and (d)
HDMF.
On April 8, 2010, petitioner Dennis A.B. Funa, in his
capacity as taxpayer, concerned citizen and lawyer, filed the
instant petition challenging the constitutionality of EO 864,
as well as Section 14, Chapter 3, Title I-A, Book V of
Executive Order No. 292 (EO 292), otherwise known as The
Administrative Code of 1987, and the designation of Duque
as a member of the Board of Directors or Trustees of the
GSIS, PHIC, ECC and HDMF for being clear violations of
Section 1 and Section 2, Article IX-A of the 1987
Constitution.
The Case
The Court is confronted with the proper interpretation of
Section 1 and Section 2, Article IX-A of the 1987
Constitution and Section 14, Chapter 3, Title I-A, Book V of
EO 292 to ascertain the constitutionality of the designation
of Duque, in an ex officio capacity, as Director or Trustee of
the GSIS, PHIC, ECC and HDMF.
Petitioner asserts that EO 864 and Section 14, Chapter 3,
Title I-A, Book V of EO 292 violate the independence of the
CSC, which was constitutionally created to be protected
from outside influences and political pressures due to the
significance of its government functions. 5 He further asserts
that such independence is violated by the fact that the CSC
is not a part of the Executive Branch of Government while
the concerned GOCCs are considered instrumentalities of
the Executive Branch of the Government.6 In this situation,
the President may exercise his power of control over the
CSC considering that the GOCCs in which Duque sits as
Board member are attached to the Executive Department. 7
Petitioner argues that Section 14, Chapter 3, Title I-A, Book
V of EO 292 unduly and unconstitutionally expands the role
of the CSC, which is primarily centered on personnel-related
concerns involving government workers, to include
insurance, housing and health matters of employees in the
government service.8 He observes that the independence of
the CSC will not be compromised if these matters are
instead addressed by entering into a memorandum of
agreement or by issuing joint circulars with the concerned
agencies, rather than allowing a member of the CSC to sit
as a member of the governing Boards of these agencies. 9
Petitioner notes that the charters of the GSIS,
PHILHEALTH, ECC and HDMF do not mention that the
CSC Chairman sits as a member of their governing Boards
in an ex officiocapacity.10 Such being the case, the
President may not amend the charters, which are enacted
by Congress, by the mere issuance of an executive order. 11
Petitioner posits that EO 864 and Section 14, Chapter 3,
Title I-A, Book V of EO 292 violate the prohibition imposed
upon members of constitutional commissions from holding
any other office or employment.12 A conflict of interest may
arise in the event that a Board decision of the GSIS,
PHILHEALTH, ECC and HDMF concerning personnel-
related matters is elevated to the CSC considering that such
GOCCs have original charters, and their employees are
governed by CSC laws, rules and regulations. 13
In their Comment, respondents maintain that Duque’s
membership in the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF is constitutional. They
explain that EO 864 and Section 14, Chapter 3, Title IA,
Book V of EO 292 preserve the independence of the CSC
considering that GOCCs with original charters such as the
GSIS, PHILHEALTH, ECC and HDMF are excluded from
the supervision and control that secretaries and heads
exercise over the departments to which these GOCCs are
attached.14 Ultimately, these GOCCs are exempted from the
executive control of the President.15
As to the matter of conflict of interest, respondents point out
that Duque is just one member of the CSC, or of the Boards
of the GSIS, PHILHEALTH, ECC and HDMF, such that
matters resolved by these bodies may be resolved with or
without Duque’s participation.16 Respondents submit that
the prohibition against holding any other office or
employment under Section 2, Article IX-A of the 1987
Constitution does not cover positions held without additional
compensation in ex officio capacities. Relying on the
pronouncement in Civil Liberties Union v. Executive
Secretary,17 they assert that since the 1987 Constitution,
which provides a stricter prohibition against the holding of
multiple offices by executive officials, allows them to hold
positions in ex officio capacities, the same rule is applicable
to members of the Constitutional Commissions. 18 Moreover,
the mandatory tenor of Section 14, Chapter 3, Title I-A,
Book V of EO 292 clearly indicates that the CSC
Chairman’s membership in the governing bodies mentioned
therein merely imposes additional duties and functions as
an incident and necessary consequence of his appointment
as CSC Chairman.19
Respondents insist that EO 864 and Section 14, Chapter 3,
Title I-A, Book V of EO 292, as well as the charters of the
GSIS, PHILHEALTH, ECC and HDMF, are consistent with
each other. While the charters of these GOCCs do not
9
provide that CSC Chairman shall be a member of their
respective governing Boards, there islikewise no prohibition
mentioned under said charters.20 EO 864, issued in
conformity with Section 14, Chapter 3, Title I-A, Book V of
EO 292, could not have impliedly amended the charters of
the GSIS, PHILHEALTH, ECC and HDMF because the
former relates to the law on the CSC while the latter involve
the creation and incorporation of the respective
GOCCs.21 As their subject matters differ from each other,
the enactment of the subsequent law is not deemed to
repeal or amend the charters of the GOCCs, being
considered prior laws.22
Issue
Does the designation of Duque as member of the Board of
Directors or Trustees of the GSIS, PHILHEALTH, ECC and
HDMF, in an ex officio capacity, impair the independence of
the CSC and violate the constitutional prohibition against
the holding of dual or multiple offices for the Members of the
Constitutional Commissions?
Our Ruling
The Court partially grants the petition. The Court upholds
the constitutionality of Section 14, Chapter 3, Title I-A, Book
V of EO 292, but declares unconstitutional EO 864 and the
designation of Duque in an ex officio capacity as a member
of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF.
1.
Requisites of judicial review
Like almost all powers conferred by the Constitution, the
power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act
must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis motaof the case. 23
Here, the Office of the Solicitor General (OSG) only
disputes the locus standi of petitioner who has filed this suit
in his capacity as taxpayer, concerned citizen and
lawyer.24 In view of the earlier dispositions by the Court in
similar public law cases initiated by petitioner, we again
affirm his locus standito bring a suit of this nature. In Funa v.
Agra,25 the Court has recently held:
x x x [T]he locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer to bring a suit ofthis nature
has already been settled in his favor in rulings by the Court
on several other public law litigations he brought. In Funa v.
Villar, for one, the Court has held:
To have legal standing, therefore, a suitor must show that
he has sustained or will sustain a "direct injury" as a result
of a government action, or have a "material interest" in the
issue affected by the challenged official act. However, the
Court has time and again acted liberally on the locus standi
requirements and has accorded certain individuals, not
otherwise directly injured, or with material interest affected,
by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The
rule on locus standi is after all a mere procedural
technicality in relation to which the Court, in a catena of
cases involving a subject of transcendental import, has
waived, or relaxed, thus allowing non-traditional plaintiffs,
such as concerned citizens, taxpayers, voters or legislators,
to sue in the public interest, albeit they may not have been
personally injured by the operation of a law or any other
government act. In David, the Court laid out the bare
minimum norm before the so-called "non-traditional suitors"
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure
is unconstitutional;
2.) For voters, there must be a showing of obvious
interest in the validity of the election law in question;
3.) For concerned citizens, there must be a showing
that the issues raised are of transcendental
importance which must be settled early; and
4.) For legislators, there must be a claim that the
official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental importance, since
it obviously has "far-reaching implications," and there is a
need to promulgate rules that will guide the bench, bar, and
the public in future analogous cases. We, thus, assume a
liberal stance and allow petitioner to institute the instant
petition.20 (Bold emphasis supplied)
In Funa v. Ermita, the Court recognized the locus standi of
the petitioner as a taxpayer, a concerned citizen and a
lawyer because the issue raised therein involved a subject
of transcendental importance whose resolution was
necessary to promulgate rules to guide the Bench, Bar, and
the public in similar cases.
The Court notes, however, that during the pendency of this
petition, Duque’s designation as Director or Trustee of the
GSIS, PHILHEALTH, ECC and PHIC could have terminated
or been rendered invalid by the enactment of Republic Act
No. 10149,26 thus causing this petition and the main issue
tendered herein moot and academic. Pertinent provisions of
Republic Act No.10149, which took effect on June 6, 2011,
state:
SEC. 13. Number of Directors/Trustees.—The present
number of Directors/Trustees provided in the charter of the
GOCCs shall be maintained.
SEC. 14. Ex Officio Alternates.—The ex officio members of
the GOCC may designate their respective alternates who
shall be the officials next-in-rank to them and whose acts
shall be considered the acts of their principals.
SEC. 15. Appointment of the Board of Directors/Trustees of
GOCCs.—An Appointive Director shall be appointed by the
President of the Philippines from a shortlist prepared by the
GCG.
The GCG shall formulate its rules and criteria in the
selection and nomination of prospective appointees and
shall cause the creation of search committees to achieve
the same. All nominees included in the list submitted by the
GCG to the President shall meet the Fit and Proper Rule as
defined un this Act and such other qualifications which the
GCG may determine taking into consideration the unique
requirements of each GOCC. The GCG shall ensure that
the shortlist shall exceed by at least fifty percent (50%) of
the number of directors /trustees tobe appointed. In the
event that the President does not see fit to appoint any of
the nominees included in the shortlist, the President shall
ask the GCG to submit additional nominees.
xxxx
SEC. 17. Term of Office.—Any provision in the charters of
each GOCC to the contrary notwithstanding, the term of
office of each Appointive Director shall be for one(1) year,
unless sooner removed for cause: Provided, however,That
the Appointive Director shall continue to hold office until the
10
successor is appointed. An Appointive Director may be
nominated by the GCG for reappointment by the President
only if one obtains a performance score of above average
or its equivalent or higher in the immediately preceding year
of tenure as Appointive Director based on the performance
criteria for Appointive Directors for the GOCC.
Appointed to any vacancy shall be only for the unexpired
term of the predecessor. The appointment of a director to fill
such vacancy shall be in accordance with the manner
provided in Section 15 of this Act.
Any provision of law to the contrary notwithstanding, all
incumbent CEOs and appointive members of the Board of
GOCCs shall, upon approval of this Act, have a term of
office until June 30, 2011, unless sooner replaced by the
President: Provided, however, That the incumbent CEOs
and appointive members of the Board shall continue in
office until the successor have been appointed by the
President.
A moot and academic case is one thatceases to present a
justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or
value.27
2.
Unconstitutionality of Duque’sdesignation as member
of the governing boards of the GSIS, PHIC, ECC and HDMF
Nonetheless, this Court has exercised its power of judicial
review in cases otherwise rendered moot and academic by
supervening events on the basis of certain recognized
exceptions, namely: (1) there is a grave violation of the
Constitution; (2) the case involves a situation of exceptional
character and is of paramount public interest; (3) the
constitutional issue raised requires the formulation of
controlling principles to guide the Bench, the Bar and the
public; and (4) the case is capable of repetition yet evading
review.28
The situation now obtaining definitely falls under the
requirements for the review of a moot and academic case.
For the guidance of and as a restraint upon the future, 29 the
Court will not abstain from exercising its power of judicial
review, the cessation of the controversy notwithstanding.
We proceed to resolve the substantive issue concerning the
constitutionality of Duque’s ex officio designation as
member of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF.
The underlying principle for the resolution of the present
controversy rests on the correct application of Section 1 and
Section 2, Article IX-A of the 1987 Constitution, which
provide: Section 1. The Constitutional Commissions, which
shall be independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on Audit.
Section 2. No Member of a Constitutional Commission shall,
during his tenure, hold any other office or employment.
Neither shall he engage in the practice of any profession or
in the active management or control of any business which
in any way may be affected by the functions of his office,
nor shall he be financially interested, directly or indirectly, in
any contract with, or in any franchise or privilege granted by
the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled
corporations or their subsidiaries. Section 1, Article IX-A of
the 1987 Constitution expressly describes all the
Constitutional Commissions as "independent."Although their
respective functions are essentially executive in nature, they
are not under the control of the President of the Philippines
in the discharge of such functions. Each of the
Constitutional Commissions conducts its own proceedings
under the applicable laws and its own rules and in the
exercise of its own discretion. Its decisions, orders and
rulings are subject only to review on certiorariby the Court
as provided by Section 7, Article IX-A of the 1987
Constitution.30 To safeguard the independence of these
Commissions, the 1987 Constitution, among
others,31 imposes under Section 2, Article IX-A of the
Constitution certain inhibitions and disqualifications upon
the Chairmen and members to strengthen their integrity, to
wit:
(a) Holding any other office or employment during their
tenure;
(b) Engaging in the practice of any profession;
(c) Engaging in the active management or control of any
business which in any way may be affected by the
functions of his office; and
(d) Being financially interested, directly or indirectly, in
any contract with, or in any franchise or privilege
granted by the Government, any of its subdivisions,
agencies or instrumentalities, including government-
owned or – controlled corporations or their
subsidiaries.32
The issue herein involves the first disqualification
abovementioned, which is the disqualification from holding
any other office or employment during Duque’s tenure as
Chairman of the CSC. The Court finds it imperative to
interpret this disqualification in relation to Section 7,
paragraph (2), Article IX-B of the Constitution and the
Court’s pronouncement in Civil Liberties Union v. Executive
Secretary.
Section 7, paragraph (2),Article IX-B reads:
Section 7. x x x
Unless otherwise allowed by law or 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.
In Funa v. Ermita,33 where petitioner challenged the
concurrent appointment of Elena H. Bautista as
Undersecretary of the Department of Transportation and
Communication and as Officer-in-Charge of the Maritime
Industry Authority, the Court reiterated the pronouncement
in Civil Liberties Union v.The Executive Secretary on the
intent of the Framers on the foregoing provision of the 1987
Constitution, to wit:
Thus, while all other appointive officials in the civil service
are allowed to hold other office or employment in the
government during their tenure when such is allowed by law
orby 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.
xxxx
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
11
intended to bea 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.34
Being an appointive public official who does not occupy a
Cabinet position (i.e., President, the Vice-President,
Members of the Cabinet, their deputies and assistants),
Duque was thus covered by the general rule enunciated
under Section 7, paragraph (2), Article IX-B. He can hold
any other office or employment in the Government during
his tenure if such holding is allowed by law or by the primary
functions of his position.
Respondents insist that Duque’s ex officio designation as
member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF is allowed by the primary
functions of his position as the CSC Chairman. To support
this claim, they cite Section 14, Chapter 3, Title I-A, Book V
of EO 292, to wit:
Section 14. Membership of the Chairman in Boards.—The
Chairman shall be a member of the Board of Directors or of
other governing bodies of government entities whose
functions affect the career development, employment
status, rights, privileges, and welfare of government officials
and employees, such as the Government Service Insurance
System, Foreign Service Board, Foreign Trade Service
Board, National Board for Teachers, and such other similar
boards as may be created by law.
As to the meaning of ex officio, the Court has decreed in
Civil Liberties Union v. Executive Secretary that –
x x x x The term ex officiomeans "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. x x x
xxxx
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. x x x35
Section 3, Article IX-B of the 1987 Constitution describes
the CSC as the central personnel agency of the government
and is principally mandated to establish a career service
and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil
service; to strengthen the merit and rewards system; to
integrate all human resources development programs for all
levels and ranks; and to institutionalize a management
climate conducive to public accountability. Its specific
powers and functions are as follows:
(1) Administer and enforce the constitutional and statutory
provisions on the merit system for all levels and ranks in
the Civil Service;
(2) Prescribe, amend and enforce rules and regulations
for carrying into effect the provisions of the Civil Service
Law and other pertinent laws;
(3) Promulgate policies, standards and guidelines for the
Civil Service and adopt plans and programs to promote
economical, efficient and effective personnel
administration in the government;
(4) Formulate policies and regulations for the
administration, maintenance and implementation of
position classification and compensation and set
standards for the establishment, allocation and
reallocation of pay scales, classes and positions;
(5) Render opinion and rulings on all personnel and other
Civil Service matters which shall be binding on all heads
of departments, offices and agencies and which may be
brought to the Supreme Court on certiorari;
(6) Appoint and discipline its officials and employees in
accordance with law and exercise control and supervision
over the activities of the Commission;
(7) Control, supervise and coordinate Civil Service
examinations. Any entity or official in government may be
called upon by the Commission to assist in the
preparation and conduct of said examinations including
security, use of buildings and facilities as well as
personnel and
transportation of examination materials which shall be
exempt from inspection regulations;
(8) Prescribe all forms for Civil Service examinations,
appointments, reports and such other forms as may be
required by law, rules and regulations;
(9) Declare positions in the Civil Service as may properly
be primarily confidential, highly technical or policy
determining;
(10) Formulate, administer and evaluate programs
relative to the development and retention of qualified and
competent work force in the public service;
(11) Hear and decide administrative cases instituted by or
brought before it directly or on appeal, including contested
appointments, and review decisions and actions of its
offices and of the agencies attached to it. Officials and
employees who fail to comply with such decisions, orders,
or rulings shall be liable for contempt of the Commission.
Its decisions, orders, or rulings shall be final and
executory. Such decisions, orders, or rulings may be
brought to the Supreme Court on certiorari by the
aggrieved party within thirty (30) daysfrom receipt of a
copy thereof;
(12) Issue subpoena and subpoena duces tecum for the
production of documents and records pertinent to
investigation and inquiries conducted by it in accordance
withits authority conferred by the Constitution and
pertinent laws;
(13) Advise the President on all matters involving
personnel management in the government service and
submit to the President an annual report on the personnel
programs;
(14) Take appropriate action on all appointments and
other personnel matters in the Civil Service including
extension of Service beyond retirement age;
(15) Inspect and audit the personnel actions and
programs of the departments, agencies, bureaus, offices,
local government units and other instrumentalities of the
government including government-owned or controlled
12
 corporations; conduct periodic review of the decisions and
actions of offices or officials to whom authority has been
delegated by the Commission as well as the conduct of
the officials and the employees in these offices and apply
appropriate sanctions when necessary;
(16) Delegate authority for the performance of any
functions to departments, agencies and offices where
such functions may be effectively performed;
(17) Administer the retirement program for government
officials and employees, and accredit government
services and evaluate qualifications for retirement;
(18) Keep and maintain personnel records of all officials
and employees in the Civil Service; and
(19) Perform all functions properly belonging to a central
personnel agency and such other functions as may be
provided by law.36
On the other hand, enumerated below are the specific
duties and responsibilities of the CSC Chairman, namely:
(1) Direct all operations of the Commission;
(2) Establish procedures for the effective
operations of the Commission;
(3) Transmit to the President rules and
regulations, and other guidelines adopted by the
Chairman which require Presidential attention
including annual and other periodic reports;
(4) Issue appointments to, and enforce decisions
on administrative discipline involving officials and
employees of the Commission;
(5) Delegate authority for the performance of any
function to officials and employees of the
Commission;
(6) Approve and submit the annual and
supplemental budget of the Commission; and
(7) Perform such other functionsas may be
provided by law.37
Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear
that the CSC Chairman’s membership in a governing body
is dependent on the condition that the functions of the
government entity where he will sit as its Board member
must affect the career development, employment status,
rights, privileges, and welfare of government officials and
employees. Based on this, the Court finds no irregularity in
Section 14, Chapter 3, Title I-A, Book V of EO 292 because
matters affecting the career development, rights and welfare
of government employees are among the primary functions
of the CSC and are consequently exercised through its
Chairman. The CSC Chairman’s membership therein must,
therefore, be considered to be derived from his position as
such. Accordingly, the constitutionality of Section 14,
Chapter 3, Title I-A, Book V of EO 292 is upheld.
However, there is a need to determine further whether
Duque’s designation as Board member of the GSIS,
PHILHEALTH, ECC and HDMF is in accordance with the
1987 Constitution and the condition laid down in Section 14,
Chapter 3, Title I-A, Book V of EO 292. It is necessary for
this purpose to examine the functions of these government
entities under their respective charters, to wit:
The GSIS Charter, Republic Act No. 8291
SECTION 41. Powers and Functions of the GSIS. — The
GSIS shall exercise the following powers and functions:
(a) to formulate, adopt, amend and/or rescind such rules
and regulations as may be necessary to carry out the
provisions and purposes of this Act, as well as the
effective exercise of the powers and functions, and the
discharge of duties and responsibilities of the GSIS, its
officers and employees;
(b) to adopt or approve the annual and supplemental
budget of receipts and expenditures including salaries
and allowances of the GSIS personnel; to authorize
such capital and operating expenditures and
disbursements of the GSIS as may be necessary and
proper for the effective management and operation of
the GSIS;
(c) to invest the funds of the GSIS, directly or indirectly,
in accordance with the provisions of this Act;
(d) to acquire, utilize or dispose of, in any manner
recognized by law, real or personal property in the
Philippines or elsewhere necessary to carry out the
purposes of this Act;
(e) to conduct continuing actuarialand statistical studies
and valuations to determine the financial condition of the
GSIS and taking into consideration such studies and
valuations and the limitations herein provided, re-adjust
the benefits, contributions, premium rates, interest rates
or the allocation or re-allocation of the funds to the
contingencies covered;
(f) to have the power of succession;
(g) to sue and be sued;
(h) to enter into, make, perform and carry out contracts
of every kind and description with any person, firm or
association or corporation, domestic or foreign;
(i) to carry on any other lawful business whatsoever in
pursuance of, or in connection with the provisions of this
Act;
(j) to have one or more offices in and outside of the
Philippines, and to conduct its business and exercise its
powers throughout and in any part of the Republic of the
Philippines and/or in any or all foreign countries, states
and territories: Provided, That the GSIS shall maintain a
branch office in every province where there exists a
minimum of fifteen thousand (15,000) membership; (k)
to borrow funds from any source, private or government,
foreign or domestic, only as an incident in the
securitization of housing mortgages of the GSIS and on
account of its receivables from any government or
private entity;
(l) to invest, own or otherwise participate in equity in any
establishment, firm or entity;
(m) to approve appointments in the GSIS except
appointments to positions which are policy determining,
primarily confidential or highly technical in nature
according to the Civil Service rules and regulations:
Provided, That all positions in the GSIS shall be
governed by a compensation and position classification
system and qualifications standards approved bythe
GSIS Board of Trustees based on a comprehensive job
analysis and audit of actual duties and responsibilities:
Provided, further, That the compensation plan shall be
comparable with the prevailing compensation plans in
the private sector and shall be subject to the periodic
review by the Board no more than once every four (4)
years without prejudice to yearly merit reviews or
increases based on productivity and profitability;
13
(n) to design and adopt an Early Retirement Incentive
Plan (ERIP) and/or financial assistance for the purpose
of retirement for its own personnel;
(o) to fix and periodically review and adjust the rates of
interest and other terms and conditions for loans and
credits extended to members or other persons, whether
natural or juridical;
(p) to enter into agreement with the Social Security
System or any other entity, enterprise, corporation or
partnership for the benefit of members transferring from
one system to another subject to the provision of
Republic Act No. 7699, otherwise known as the
Portability Law;
(q) to be able to float proper instrument to liquefy long-
term maturity by pooling funds for short-term secondary
market;
(r) to submit annually, not later thanJune 30, a
publicreport to the President of the Philippines and the
Congress of the Philippines regarding its activities in the
administration and enforcement of this Act during the
preceding year including information and
recommendations on broad policies for the development
and perfection of the programs of the GSIS;
(s) to maintain a provident fund, which consists of
contributions made by both the GSIS and its officials
and employees and their earnings, for the payment of
benefits to such officials and employees or their heirs
under such terms and conditions as it may prescribe;
(t) to approve and adopt guidelines affecting
investments, insurance coverage of government
properties, settlement of claims, disposition of acquired
assets, privatization or expansion of subsidiaries,
development of housing projects, increased benefit and
loan packages to members, and the enforcement of the
provisions of this Act;
(u) any provision of law to the contrary notwithstanding,
to authorize the payment of extra remuneration to the
officials and employees directly involved in the collection
and/or remittance of contributions, loan repayments,
and other monies due to the GSIS at such rates and
under such conditions as itmay adopt. Provided, That
the best interest of the GSIS shall be observed thereby;
(v) to determine, fix and impose interest upon unpaid
premiums due from employers and employees;
(w) to ensure the collection or recovery of all
indebtedness, liabilities and/or accountabilities,
includingunpaid premiums or contributions in favor of
the GSISarising from any cause or source whatsoever,
due from all obligors, whether public or private. The
Board shall demand payment or settlement of the
obligations referred to herein within thirty (30) days from
the date the obligation becomes due, and in the event of
failure or refusal of the obligor or debtor to comply with
the demand, to initiate or institute the necessary or
proper actions or suits, criminal, civil or administrative or
otherwise, before the courts, tribunals, commissions,
boards, or bodies of proper jurisdiction within thirty (30)
days reckoned from the expiry dateof the period fixed in
the demand within which to pay or settle the account;
(x) to design and implement programs that will promote
and mobilize savings and provide additional resources
for social security expansion and at the same time
afford individual members appropriate returns on their
savings/investments. The programs shall be so
designed as to spur socio-economic take-off and
maintain continued growth; and
(y) to exercise such powers and perform such other acts
as may be necessary, useful, incidental or auxiliary to
carry out the provisions of this Act, or to attain the
purposesand objectives of this Act.
The PHILHEALTH Charter, Republic Act No. 7875
SEC. 16. Powers and Functions – The Corporation shall
have the following powers and functions:
(a) to administer the National Health Insurance Program;
(b) to formulate and promulgate policies for the sound
administration of the Program;
(c) to set standards, rules, and regulations necessary to
ensure quality of care, appropriate utilization of services, fund
viability, member satisfaction, and overall accomplishment of
Program objectives;
(d) to formulate and implement guidelines on contributions
and benefits; portability of benefits, cost containment and
quality assurance; and health care provider
arrangements,payment, methods, and referral systems;
(e) to establish branch offices as mandated in Article V of this
Act;
(f) to receive and manage grants, donations, and other forms
of assistance;
(g) to sue and be sued in court;
(h) to acquire property, real and personal, which may be
necessary or expedient for the attainment of the purposes of
this Act;
(i) to collect, deposit, invest, administer, and disburse the
National Health Insurance Fund in accordance with the
provisions of this Act;
(j) to negotiate and enter into contracts with health care
institutions, professionals, and other persons, juridical or
natural, regarding the pricing, payment mechanisms, design
and implementation of administrative and operating systems
and procedures, financing, and delivery of health services;
(k) to authorize Local Health Insurance Offices to negotiate
and enter into contracts in the name and on behalf of the
Corporation with any accredited government or private sector
health provider organization, including but not limited to
health maintenance organizations, cooperatives and medical
foundations, for the provision ofat least the minimum package
of personal health services prescribed by the Corporation;
(l) to determine requirements and issue guidelines for the
accreditation of health care providers for the Program in
accordance with this Act;
(m) to supervise the provision of health benefits with the
power to inspect medical and financial records of health
careproviders and patients who are participants in or
members of the Program, and the power to enter and inspect
accredited health care institutions, subject to the rules and
regulations to be promulgated by the Corporation;
(n) to organize its office, fix the compensation of and appoint
personnel as may be deemed necessary and upon the
recommendation of the president of the Corporation;
(o) to submit to the President of the Philippines and to both
Houses of Congress its Annual Report which shall contain the
status of the National Health Insurance Fund, its total
disbursements, reserves, average costing to beneficiaries,
any request for additional appropriation, and other data
pertinent to the implementation of the Program and publish a
synopsis of such report in two (2) newspapers of general
circulation;
14
 (p) to keep records of the operations of the Corporation and
investments of the National Health Insurance Fund; and
(q) to perform such other acts as it may deem appropriate for
the attainment of the objectives of the Corporation and for the
proper enforcement of the provisions of this Act
The HDMF Charter, Republic Act No. 9679
SEC. 13. Powers and Functions of the Fund.– The Fund
shall have the powers and functions specified in this Act
and the usual corporate powers:
(a) To formulate, adopt, amend and/or rescind such rules and
regulations as may be necessary to carry out the provisions and
purposes of this Act, as well as the effective exercise of the
powers and functions, and the discharge of duties and
responsibilities of the Fund, its officers and employees;
(b) To adopt or approve the annual and supplemental budget of
receipts and expenditures including salaries and allowances of the
Fund personnel, to authorize such capital and operating
expenditures and disbursements of the Fund as may be
necessary and proper for the effective management and operation
of the Fund;
(c) To submit annually to the President of the Philippines not later
than March 15, a report of its activities and the state of the Fund
during the preceding year, including information and
recommendations for the development and improvement thereof;
(d) To invest not less than seventy percent (70%) of its investible
funds to housing, in accordance with this Act;
(e) To acquire, utilize, or dispose of, in any manner recognized by
law, real or personal properties to carry out the purposes of this
Act;
(f) To set up its own accounting and computer systems; to
conduct continuing actuarial and statistical studies and valuations
to determine the financial viability of the Fund and its project; to
require reports, compilations and analysis of statistical and
economic data, as well as make such other studies and surveys
asmay be needed for the proper administration and development
of the Fund;
(g) To have the power of succession; to sue and be sued; to adopt
and use a corporate seal;
(h) To enter into and carry out contracts of every kind and
description with any person, firm or association or corporation,
domestic or foreign;
(i) To borrow funds from any source, private or government,
foreign or domestic;
(j) To invest, own or otherwise participate in equity in any
establishment, or entity; to form, organize, invest in or establish
and maintain a subsidiary or subsidiaries in relation to any of its
purposes;
(k) To approve appointments in the Fund except appointments to
positions which are policy determining, primarily confidential or
highly technical in nature according to the civil service rules and
regulations: Provided, That all positions in the Fund shall be
governed by a compensation and position classification system
and qualification standards approved by the Fund's Board of
Trustees based on a comprehensive job analysis, wage
compensation study and audit of actual duties and responsibilities:
Provided, further, That the compensation plan shall be
comparable with prevailing compensation plans in the private
sector and shall be subject to the periodic review of the Board no
more than once everyfour (4) years without prejudice to yearly
merit reviews or increases based on productivity and profitability.
The Fund shall, therefore, be exempt from any laws, rules and
regulations on salaries and compensations;
(l) To maintain a provident fund, which shall consist of
contributions made by both the Fund and its officers and
employees and their earnings, for the payment ofbenefits to such
officials and employees or their heirs under such terms and
conditions as it may prescribe;
(m)To design and adopt an early retirement incentive plan (ERIP)
for its own personnel;
(n) To establish field offices and to conduct its business and
exercise its powers in these places; (o) To approve restructuring
proposalfor the payment of due but unremitted contributions and
unpaid loan amortizations under such terms and conditions as the
Board ofTrustees may prescribe;
(p) To determine, fix and impose interest and penalties upon
unpaid contributions due from employers and employees;
(q) To ensure the collection and recovery of all indebtedness,
liabilities and/or accountabilities, including unpaid contributions in
favor of the Fund arising from any cause or source or whatsoever,
due from all obligors, whether public or private; to demand
payment of the obligations referred to herein, and in the event of
failure or refusal of the obligor or debtor to comply with the
demand, to initiate or institute the necessary or proper actions or
suits, criminal, civil, administrative, or otherwise, before the courts,
tribunals, commissions, boards or bodies of proper jurisdiction:
Provided, however, That the Fund may compromise or release, in
whole or in part, any interest, penalty or civil liability to the Fund in
connection with the collection of contributions and the lending
operations of the Fund, under such terms and conditions as
prescribed by the Board of Trustees: Provided, further, That the
Board may, upon recommendation of the Chief Executive Officer,
deputize any member of the Fund's legal staff to act as special
sheriff in foreclosure cases, in the sale or attachment of the
debtor's properties, and in the enforcement ofcourt writs and
processes in cases involving the Fund. The special sheriff of the
Fund shall make a report to the proper court after any action taken
by him, which shall treat such action as if it were an act of its own
sheriffs in all respects;
(r) To design and implement other programs that will further
promote and mobilize savings and provide additional resources
for the mutual benefit of the members with appropriate returns on
the savings/investments. The program shall be so designed as to
spur socioeconomic take-off and maintain continued growth;
(s) To conduct continuing actuarialand statistical studies and
valuations to determine the financial condition of the Fund and
taking into consideration such studies and valuations and the
limitations herein provided, readjust the benefits, contributions,
interest rates of the allocation or reallocation of the funds to the
contingencies covered; and
(t) To exercise such powers and perform such acts as may be
necessary, useful, incidental or auxiliary to carry out the
provisions of this Act.
The ECC Charter, Presidential Decree No. 626
ART. 177. Powers and duties. - The Commission shall have
the following powers and duties:
(a) To assess and fix a rate of contribution from all employers;
(b) To determine the rate of contribution payable by an employer
whose records show a high frequency of work accidents or
occupational disease due to failure by the said employer to observe
adequate safety measures;
(c) To approve rules and regulations governing the processing of
claims and the settlement of disputes arising therefrom as
prescribed by the System;
(d) To initiate policies and programs toward adequate occupational
health and safety and accident prevention in the working
environment, rehabilitation other than those provided for under Art.
190 hereof, and other related programs and activities, and to
appropriate funds therefor. (As amended by Sec. 3, P.D. 1368).
(e) To make the necessary actuarial studies and calculations
concerning the grant of constant help and income benefits for
permanent disability or death, and the rationalization of the benefits
for permanent disability and death under the Title with benefits
payable by the System for similar contingencies; Provided; That the
Commission may upgrade benefits and add new ones subject
toapproval of the President; and Provided, Further, That the
actuarial stabilityof the State Insurance Fund shall be guaranteed;
Provided, Finally, that such increases in benefits shall not require
any increases in contribution, except as provided for in paragraph
(b) hereof. (As amended by Sec. 3, P.D. 1641).
(f) To appoint the personnel of its staff, subject to civil service law
and rules, but exempt from WAPCO law and regulations;
(g) To adopt annually a budget of expenditures of the Commission
and its staff chargeable against the State Insurance Fund: Provided,
that the SSS and GSIS shall advance on a quarterly basis the
15
 remittances of allotment of the loading fund for this Commission's
operational expenses based on its annual budget as duly approved
by the Ministry of Budget and Management. (As amended by Sec. 3,
P.D. 1921).
(h) To have the power to administeroath and affirmation, and to
issue subpoena and subpoena duces tecum in connection with any
question or issue arising from appealed cases under this Title.
(i) To sue and be sued in court;
(j) To acquire property, real or personal, which may be necessary or
expedient for the attainment of the purposes of this Title;
(k) To enter into agreements or contracts for such services or aid as
may be needed for the proper, efficient and stable administration of
the program;
(l) To perform such other acts as it may deem appropriate for the
attainment of the purposes of the Commission and proper
enforcement of the provisions of thisTitle. (As amended by Sec. 18,
P.D.850). (Emphasis supplied.)
The GSIS, PHILHEALTH, ECC and HDMF are vested by
their respective charters with various powers and functions
to carry out the purposes for which they were created. While
powers and functions associated with appointments,
compensation and benefits affect the career development,
employment status, rights, privileges, and welfare of
government officials and employees, the GSIS,
PHILHEALTH, ECC and HDMF are also tasked to perform
other corporate powers and functions that are not
personnel-related. All of these powers and functions,
whether personnel-related or not, are carried out and
exercised by the respective Boards of the GSIS,
PHILHEALTH, ECC and HDMF. Hence, when the CSC
Chairman sits as a member of the governing Boards of the
GSIS, PHILHEALTH, ECC and HDMF, he may exercise
these powers and functions, which are not anymore derived
from his position as CSC Chairman, such as imposing
intereston unpaid or unremitted contributions, 38 issuing
guidelines for the accreditation of health care providers, 39 or
approving restructuring proposals in the payment of unpaid
loan amortizations.40 The Court also notes that Duque’s
designation as member of the governing Boards of the
GSIS, PHILHEALTH, ECC and HDMF entitles him to
receive per diem,41 a form of additional compensation that is
disallowed by the concept of an ex officioposition by virtue
of its clear contravention of the proscription set by Section
2, Article IX-A of the 1987 Constitution. This situation goes
against the principle behind an ex officio position, and must,
therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple
offices, Duque’s designation as member of the governing
Boards of the GSIS, PHILHEALTH, ECC and HDMF impairs
the independence of the CSC. Under Section 17,42Article VII
of the Constitution, the President exercises control over all
government offices in the Executive Branch. An office that is
legally not under the control of the President is not part of
the Executive Branch.43 The Court has aptly explained in
Rufino v. Endriga:44
Every government office, entity, or agency must fall under
the Executive, Legislative, or Judicial branches, or must
belong to one of the independent constitutional bodies,
ormust be a quasi-judicial body or local government unit.
Otherwise, such government office, entity, or agency has no
legal and constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial
branches of government.1âwphi1 The CCP is also not one
of the independent constitutional bodies. Neither is the CCP
a quasi-judicial body nor a local government unit. Thus, the
CCP must fall underthe Executive branch. Under the
Revised Administrative Code of 1987, any agency "not
placed by law or order creating them under any specific
department" falls "under the Office of the President."
Since the President exercises control over "all the executive
departments, bureaus, and offices," the President
necessarily exercises control over the CCP which is an
office in the Executive branch. In mandating that the
President "shall have control of all executive . . . offices," x x
x Section 17, Article VII of the 1987 Constitution does not
exempt any executive office — oneperforming executive
functions outside of the independent constitutional bodies
— from the President’s power of control. There is no dispute
that the CCP performs executive, and not legislative,
judicial, or quasi-judicial functions.
The President’s power of control applies to the acts or
decisions of all officers in the Executive branch. This is true
whether such officers are appointed by the President or by
heads of departments, agencies, commissions, or boards.
The power of control means the power to revise or reverse
the acts or decisions of a subordinate officer involving the
exercise of discretion.
In short, the President sits at the apex of the Executive
branch, and exercises "control of all the executive
departments, bureaus, and offices." There can be no
instance under the Constitution where an officer of the
Executive branch is outside the control of the President. The
Executive branch is unitary since there is only one President
vested with executive power exercising control over the
entire Executive branch. Any office in the Executive branch
that is not under the control of the President is a lost
command whose existence is withoutany legal or
constitutional basis. (Emphasis supplied)
As provided in their respective charters, PHILHEALTH and
ECC have the status of a government corporation and are
deemed attached to the Department of Health45 and the
Department of Labor,46 respectively. On the other hand, the
GSIS and HDMF fall under the Office of the
President.47 The corporate powers of the GSIS,
PHILHEALTH, ECC and HDMF are exercised through their
governing Boards, members of which are all appointed by
the President of the Philippines. Undoubtedly, the GSIS,
PHILHEALTH, ECC and HDMF and the members of their
respective governing Boards are under the control of the
President. As such, the CSC Chairman cannot be a
member of a government entity that is under the control of
the President without impairing the independence vested in
the CSC by the 1987 Constitution.
3.
Effect of declaration of unconstitutionality
of Duque’s designation as member of the
governing Boards of theGSIS, PHILHEALTH,
ECC and HDMF - The De FactoOfficer Doctrine
In view of the application of the prohibition under Section 2,
Article IX-A of the 1987 Constitution, Duque did not validly
hold office as Director or Trustee of the GSIS,
PHILHEALTH, ECC and HDMF concurrently with his
position of CSC Chairman. Accordingly, he was not to be
considered as a de jure officer while he served his term as
Director or Trustee of these GOCCs. A de jure officer is one
who is deemed, in all respects, legally appointed and
qualified and whose term of office has not expired. 48
That notwithstanding, Duque was a de facto officer during
his tenure as a Director or Trustee of the GSIS,
PHILHEALTH, ECC and HDMF. In Civil Liberties Union v.
Executive Secretary,49 the Court has said:
During their tenure in the questioned positions, respondents
may be considered de facto officers and as such entitled to
emoluments for actual services rendered. Ithas 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
16
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, ifthe office is an
appointive office, and whose appointment is valid on its
face.50 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.51 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.52
In order to be clear, therefore, the Court holds that all official
actions of Duque as a Director or Trustee of the GSIS,
PHILHEAL TH, ECC and HDMF, were presumed valid,
binding and effective as if he was the officer legally
appointed and qualified for the office.53 This clarification is
necessary in order to protect the sanctity and integrity of the
dealings by the public with persons whose ostensible
authority emanates from the State. Duque's official actions
covered by this clarification extend but are not limited to the
issuance of Board resolutions and memoranda approving
appointments to positions in the concerned GOCCs,
promulgation of policies and guidelines on compensation
and employee benefits, and adoption of programs to carry
out the corporate powers of the GSIS, PHILHEAL TH, ECC
and HDMF.
WHEREFORE, the petition is PARTIALLY GRANTED. The
Court UPHOLDS THE CONSTITUTIONALITY of Section
14, Chapter 3, Title I-A, Book V of Executive Order No. 292;
ANNULS AND VOIDS Executive Order No. 864 dated
February 22, 2010 and the designation of Hon. Francisco T.
Duque III as a Member of the Board of Directors/Trustees of
the Government Service Insurance System; Philippine
Health Insurance Corporation; Employees Compensation
Commission; and Home Development Mutual Fund in an ex
officio capacity in relation to his appointment as Chairman of
the Civil Service Commission for being
UNCONSTITUTIONAL AND VIOLATIVE of Sections 1 and
2, Article IX-A of the 1987 Constitution; and DECLARES
that Hon. Francisco T. Duque III was a de facto officer
during his tenure as Director/Trustee of the Government
Service Insurance System; Philippine Health Insurance
Corporation; Employees Compensation Commission; and
Home Development Mutual Fund.
No pronouncement on costs of suit.
SO ORDERED.
3.
EN BANC
G. R. No. 180989 February 7, 2012
GUALBERTO J. DELA LLANA, Petitioner,
vs.
THE CHAIRPERSON, COMMISSION ON AUDIT, THE
EXECUTIVE SECRETARY and THE NATIONAL
TREASURER, Respondents.
DECISION
SERENO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of
Court with a prayer for the issuance of a temporary
restraining order pursuant to Section 7, Article IX-D of the
1987 Constitution, seeking to annul and set aside
Commission on Audit (COA) Circular No. 89-299, which
lifted its system of pre-audit of government financial
transactions.
Statement of the Facts and the Case
On 26 October 1982, the COA issued Circular No. 82-195,
lifting the system of pre-audit of government financial
transactions, albeit with certain exceptions. The circular
affirmed the state policy that all resources of the
government shall be managed, expended or utilized in
accordance with law and regulations, and safeguarded
against loss or wastage through illegal or improper
disposition, with a view to ensuring efficiency, economy and
effectiveness in the operations of government. Further, the
circular emphasized that the responsibility to ensure faithful
adherence to the policy rested directly with the chief or head
of the government agency concerned. The circular was also
designed to further facilitate or expedite government
transactions without impairing their integrity.
After the change in administration due to the February 1986
revolution, grave irregularities and anomalies in the
government’s financial transactions were uncovered.
Hence, on 31 March 1986, the COA issued Circular No. 86-
257, which reinstated the pre-audit of selected government
transactions. The selective pre-audit was perceived to be an
effective, although temporary, remedy against the said
anomalies.
With the normalization of the political system and the
stabilization of government operations, the COA saw it fit to
issue Circular No. 89-299, which again lifted the pre-audit of
government transactions of national government agencies
(NGAs) and government-owned or -controlled corporations
(GOCCs). The rationale for the circular was, first, to reaffirm
the concept that fiscal responsibility resides in management
as embodied in the Government Auditing Code of the
Philippines; and, second, to contribute to accelerating the
delivery of public services and improving government
operations by curbing undue bureaucratic red tape and
ensuring facilitation of government transactions, while
continuing to preserve and protect the integrity of these
transactions. Concomitant to the lifting of the pre-audit of
government transactions of NGAs and GOCCs, Circular No.
89-299 mandated the installation, implementation and
monitoring of an adequate internal control system, which
would be the direct responsibility of the government agency
head.
Circular No. 89-299 further provided that the pre-audit
activities retained by the COA as therein outlined shall no
longer be a pre-requisite to the implementation or
prosecution of projects and the payment of claims. The
COA aimed to henceforth focus its efforts on the post-audit
of financial accounts and transactions, as well as on the
assessment and evaluation of the adequacy and effectivity
of the agency’s fiscal control process. However, the circular
did not include the financial transactions of local
government units (LGUs) in its coverage.
The COA later issued Circular No. 94-006 on 17 February
1994 and Circular No. 95-006 on 18 May 1995. Both
circulars clarified and expanded the total lifting of pre-audit
activities on all financial transactions of NGAs, GOCCs, and
LGUs. The remaining audit activities performed by COA
auditors would no longer be pre-requisites to the
implementation or prosecution of projects, perfection of
contracts, payment of claims, and/or approval of
applications filed with the agencies. 1
17
It also issued COA Circular No. 89-299, as amended by
Circular No. 89-299A, which in Section 3.2 provides:
3.2 Whenever circumstances warrant, however, such as
where the internal control system of a government agency is
inadequate, This Commission may reinstitute pre-audit or
adopt such other control measures, including temporary or
special pre-audit, as are necessary and appropriate to
protect the funds and property of the agency.
On 18 May 2009, COA issued Circular No. 2009-002, which
reinstituted the selective pre-audit of government
transactions in view of the rising incidents of irregular,
illegal, wasteful and anomalous disbursements of huge
amounts of public funds and disposals of public property.
Two years later, or on 22 July 2011, COA issued Circular
No. 2011-002, which lifted the pre-audit of government
transactions implemented by Circular No. 2009-002. In its
assessment, subsequent developments had shown
heightened vigilance of government agencies in
safeguarding their resources.
In the interregnum, on 3 May 2006, petitioner dela Llana
wrote to the COA regarding the recommendation of the
Senate Committee on Agriculture and Food that the
Department of Agriculture set up an internal pre-audit
service. On 18 July 2006, the COA replied to petitioner,
informing him of the prior issuance of Circular No. 89-
299.2 The 18 July 2006 reply of the COA further emphasized
the required observance of Administrative Order No. 278
dated 8 June 1992, which directed the strengthening of
internal control systems of government offices through the
installation of an internal audit service (IAS).
On 15 January 2008, petitioner filed this Petition for
Certiorari under Rule 65. He alleges that the pre-audit duty
on the part of the COA cannot be lifted by a mere circular,
considering that pre-audit is a constitutional mandate
enshrined in Section 2 of Article IX-D of the 1987
Constitution.3 He further claims that, because of the lack of
pre-audit by COA, serious irregularities in government
transactions have been committed, such as the ₱728-million
fertilizer fund scam, irregularities in the ₱550-million call
center laboratory project of the Commission on Higher
Education, and many others.
On 22 February 2008, public respondents filed their
Comment4 on the Petition. They argue therein that the
Petition must be dismissed, as it is not proper for a petition
for certiorari, considering that (1) there is no allegation
showing that the COA exercised judicial or quasi-judicial
functions when it promulgated Circular No. 89-299; and (2)
there is no convincing explanation showing how the
promulgation of the circular was done with grave abuse of
discretion. Further, the Petition is allegedly defective in
form, in that there is no discussion of material dates as to
when petitioner received a copy of the circular; there is no
factual background of the case; and petitioner failed to
attach a certified true copy of the circular. In any case,
public respondents aver that the circular is valid, as the
COA has the power under the 1987 Constitution to
promulgate it.
On 9 May 2008, petitioner filed his Reply5 to the Comment.
On 17 June 2008, this Court resolved to require the parties
to submit their respective memoranda. On 12 September
2008, public respondents submitted their Memorandum. 6 On
15 September 2008, Amethya dela Llana-Koval, daughter of
petitioner, manifested to the Court his demise on 8 July
2008 and moved that she be allowed to continue with the
Petition and substitute for him. Her motion for substitution
was granted by this Court in a Resolution dated 7 October
2008. On 5 January 2009, petitioner, substituted by his
daughter,7 filed his Memorandum.8
The main issue for our resolution in this Petition is whether
or not petitioner is entitled to the extraordinary writ of
certiorari.
Procedural Issues
Technical Defects of the Petition
Public respondents correctly allege that petitioner failed to
attach a certified true copy of the assailed Order, and that
the Petition lacked a statement of material dates. In view,
however, of the serious matters dealt with in this Petition,
this Court opts to tackle the merits thereof with least regard
to technicalities. A perusal of the Petition shows that the
factual background of the case, although brief, has been
sufficiently alleged by petitioner.
Standing
This Petition has been filed as a taxpayer’s suit.
A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public funds
from taxation have been disbursed in alleged contravention
of the law or the Constitution.9 Petitioner claims that the
issuance of Circular No. 89-299 has led to the dissipation of
public funds through numerous irregularities in government
financial transactions. These transactions have allegedly
been left unchecked by the lifting of the pre-audit performed
by COA, which, petitioner argues, is its Constitutional duty.
Thus, petitioner has standing to file this suit as a taxpayer,
since he would be adversely affected by the illegal use of
public money.
Propriety of Certiorari
Public respondents aver that a petition for certiorari is not
proper in this case, as there is no indication that the writ is
directed against a tribunal, a board, or an officer exercising
judicial or quasi-judicial functions, as required in certiorari
proceedings.10 Conversely, petitioner for his part claims that
certiorari is proper under Section 7, Article IX-A of the 1987
Constitution, which provides in part:
Section 7. x x x. 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.
Petitioner is correct in that decisions and orders of the COA
are reviewable by the court via a petition for certiorari.
However, these refer to decisions and orders which were
rendered by the COA in its quasi-judicial capacity. Circular
No. 89-299 was promulgated by the COA under its quasi-
legislative or rule-making powers. Hence, Circular No. 89-
299 is not reviewable by certiorari.
Neither is a petition for prohibition appropriate in this case.
A petition for prohibition is filed against any tribunal,
corporation, board, or person — whether exercising judicial,
quasi-judicial, or ministerial functions — who has acted
without or in excess of jurisdiction or with grave abuse of
discretion, and the petitioner prays that judgment be
rendered, commanding the respondent to desist from further
proceeding in the action or matter specified in the
petition.11 However, prohibition only lies against judicial or
ministerial functions, but not against legislative or quasi-
legislative functions.12
Nonetheless, this Court has in the past seen fit to step in
and resolve petitions despite their being the subject of an
improper remedy, in view of the public importance of the
issues raised therein.13 In this case, petitioner avers that the
conduct of pre-audit by the COA could have prevented the
occurrence of the numerous alleged irregularities in
government transactions that involved substantial amounts
of public money. This is a serious allegation of a grave
18
deficiency in observing a constitutional duty if proven
correct.
This Court can use its authority to set aside errors of
practice or technicalities of procedure, including the
aforementioned technical defects of the Petition, and
resolve the merits of a case with such serious allegations of
constitutional breach. Rules of procedure were promulgated
to provide guidelines for the orderly administration of justice,
not to shackle the hand that dispenses it.14
Substantive Issues
The 1987 Constitution has made the COA the guardian of
public funds, vesting it with broad powers over all accounts
pertaining to government revenues and expenditures and
the use of public funds and property, including the exclusive
authority to define the scope of its audit and examination; to
establish the techniques and methods for the review; and to
promulgate accounting and auditing rules and
regulations.15 Its exercise of its general audit power is
among the constitutional mechanisms that give life to the
check and balance system inherent in our form of
government.16
Petitioner claims that the constitutional duty of COA
includes the duty to conduct pre-audit.1âwphi1 A pre-audit
is an examination of financial transactions before their
consumption or payment.17 It seeks to determine whether
the following conditions are present: (1) the proposed
expenditure complies with an appropriation law or other
specific statutory authority; (2) sufficient funds are available
for the purpose; (3) the proposed expenditure is not
unreasonable or extravagant, and the unexpended balance
of appropriations to which it will be charged is sufficient to
cover the entire amount of the expenditure; and (4) the
transaction is approved by the proper authority and the
claim is duly supported by authentic underlying
evidence.18 It could, among others, identify government
agency transactions that are suspicious on their face prior to
their implementation and prior to the disbursement of funds.
Petitioner anchors his argument on Section 2 of Article IX-D
of the 1987 Constitution, which reads as follows:
Section 2.
1. The Commission on Audit shall have the power,
authority, and duty to examine, audit, and settle all
accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or
held in trust by, or pertaining to, the Government, or any
of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations
with original charters, and on a post- audit basis:
a. constitutional bodies, commissions and offices
that have been granted fiscal autonomy under this
Constitution;
b. autonomous state colleges and universities;
c. other government-owned or controlled
corporations and their subsidiaries; and
d. such non-governmental entities receiving
subsidy or equity, directly or indirectly, from or
through the Government, which are required by
law or the granting institution to submit to such
audit as a condition of subsidy or equity. However,
where the internal control system of the audited
agencies is inadequate, the Commission may
adopt such measures, including temporary or
special pre-audit, as are necessary and
appropriate to correct the deficiencies. It shall
keep the general accounts of the Government
and, for such period as may be provided by law,
preserve the vouchers and other supporting
papers pertaining thereto.
2. The Commission shall have exclusive authority,
subject to the limitations in this Article, to define the
scope of its audit and examination, establish the
techniques and methods required therefor, and
promulgate accounting and auditing rules and
regulations, including those for the prevention and
disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures or uses of
government funds and properties. (Emphasis supplied)
He claims that under the first paragraph quoted above,
government transactions must undergo a pre-audit, which is
a COA duty that cannot be lifted by a mere circular.
We find for public respondents.
Petitioner’s allegations find no support in the aforequoted
Constitutional provision. There is nothing in the said
provision that requires the COA to conduct a pre-audit of all
government transactions and for all government agencies.
The only clear reference to a pre-audit requirement is found
in Section 2, paragraph 1, which provides that a post-audit
is mandated for certain government or private entities with
state subsidy or equity and only when the internal control
system of an audited entity is inadequate. In such a
situation, the COA may adopt measures, including a
temporary or special pre-audit, to correct the deficiencies.
Hence, the conduct of a pre-audit is not a mandatory duty
that this Court may compel the COA to perform. This
discretion on its part is in line with the constitutional
pronouncement that the COA has the exclusive authority to
define the scope of its audit and examination. When the
language of the law is clear and explicit, there is no room for
interpretation, only application.19 Neither can the scope of
the provision be unduly enlarged by this Court.
WHEREFORE, premises considered, the Petition is
DISMISSED.
SO ORDERED.
MARIA LOURDES P. A. SERENO
4. EN BANC
G.R. No. 179370 November 19, 2009
EUGENIO S. CAPABLANCA, Petitioner,
vs.
CIVIL SERVICE COMMISSION,* Respondent.
DECISION
DEL CASTILLO, J.:
Uniformed members of the Philippine National Police (PNP)
are considered employees of the National Government, and
all personnel of the PNP are subject to civil service laws and
regulations.1 Petitioner cannot evade liability under the
pretense that another agency has primary jurisdiction over
him. Settled is the rule that jurisdiction is conferred only by
the Constitution or the law.2 When it clearly declares that a
subject matter falls within the jurisdiction of a tribunal, the
party involved in the controversy must bow and submit
himself to the tribunal on which jurisdiction is conferred.
Factual Antecedents
19
On October 3, 1996, the PNP-Regional Office 10 appointed
petitioner Eugenio S. Capablanca into the PNP service with
the rank of Police Officer 1 (PO1) with a temporary
status3 and was assigned at the PNP Station in Butuan City.
On November 29, 1998, petitioner took the PNP Entrance
Examination conducted by the National Police Commission
(NAPOLCOM)4 and passed the same. On July 28, 2000, he
took the Career Service Professional Examination-
Computer Assisted Test (CSP-CAT) given by the Civil
Service Commission (CSC)5 and likewise passed the same.
Thereafter, or on October 3, 2000, the Regional Director of
Police Regional Office XIII conferred upon petitioner the
permanent status as PO1.6
Proceedings before the Civil Service Commission
On October 15, 2001, the CSC Caraga Regional Office XIII
(CSC Caraga) through its Regional Director Lourdes
Clavite-Vidal informed PO1 Capablanca about certain
alleged irregularities relative to the CSP-CAT which he took
on July 28, 2000. According to the CSC, the "person in the
picture pasted in the Picture Seat Plan (PS-P) is different
from the person whose picture is attached in the Personal
Data Sheet (PDS)" and that the signature appearing in the
PS-P was different from the signature affixed to the
PDS.7 The CSC further informed petitioner that such
findings of alleged examination irregularities constituted the
offense of dishonesty if prima facie evidence was
established.
A Preliminary Investigation was scheduled on November 16,
2001;8 petitioner failed to appear but was represented by
counsel who moved to dismiss the proceedings. He argued
that it is the NAPOLCOM which has sole authority to
conduct entrance and promotional examinations for police
officers to the exclusion of the CSC, pursuant to Civil
Service Commission v. Court of Appeals.9 Thus, the CSP-
CAT conducted on July 28, 2000 was void. Moreover, he
alleged that the administrative discipline over police officers
falls under the jurisdiction of the PNP and/or NAPOLCOM.10
In an Order11 dated November 16, 2001, the CSC Caraga
held that there was no dispute that it was the NAPOLCOM
which had the sole authority to conduct the entrance and
promotional examinations of police officers. However, since
petitioner submitted a CSC Career Service Professional
eligibility and not a NAPOLCOM eligibility to support his
appointment on a permanent status, then the CSC had
jurisdiction to conduct the preliminary investigation.
The dispositive portion of the CSC Order dated November
16, 2001, reads:
WHEREFORE, the Motion to Dismiss filed by Atty. Poculan,
for his client, Eugenio S. Capablanca is hereby DENIED for
lack of merit. Accordingly, Capablanca is directed to submit
his counter-affidavit within five (5) days from receipt
hereof.12
Proceedings before the Regional Trial Court
To prevent the CSC Caraga from further proceeding with
the conduct of the administrative investigation, PO1
Capablanca filed on January 16, 2002 a Petition13 for
prohibition and injunction with a prayer for the issuance of a
temporary restraining order and writ of preliminary injunction
with the Regional Trial Court of Butuan. The said court
issued a 20-day temporary restraining order and set the
case for summary hearing on February 8, 2002 to resolve
the application for preliminary injunction. 14
Instead of filing its Answer, the CSC Caraga moved to
dismiss the case,15 arguing inter alia that: a) PO1
Capablanca failed to exhaust administrative remedies by
appealing before the CSC Central Office instead of filing a
petition before the trial court; b) PO1 Capablanca’s reliance
on Civil Service Commission v. Court of Appeals 16 was
misplaced because what he took was a career service
professional examination and not a police entrance
examination; and c) the CSC was not stripped of its original
disciplinary jurisdiction over all cases involving civil service
examination anomalies.1avvphi1
In its March 8, 2002 Resolution,17 the trial court denied
CSC’s Motion to Dismiss for lack of merit. It held that the
CSC had no jurisdiction to conduct the preliminary
investigation, much less to prosecute PO1 Capablanca. The
dispositive portion of the Resolution, reads:
WHEREFORE, in view of all the foregoing, respondent’s
motion to dismiss is denied for lack of merit. As a
consequence and for want of jurisdiction, herein
respondent, its Regional Director, Region 13 Caraga, or its
officers, attorneys’ agents, or any person acting for and its
behalf, is hereby ordered to finally, permanently and
perpetually desist, cease and stop from proceeding or
conducting any administrative investigation against the
petitioner Eugenio S. Capablanca.
No pronouncement as to costs.
IT IS SO ORDERED.18
Proceedings before the Court of Appeals
Its Motion for Reconsideration19 unheeded,20 the CSC
Caraga filed a Petition
for Certiorari21 before the Court of Appeals praying for the
nullification of the Resolution of the trial court, and at the
same time insisting on its jurisdictional power to prosecute
the administrative case involving dishonesty and that PO1
Capablanca failed to exhaust administrative remedies.
In his Comment,22 the petitioner contended that there was
no need to exhaust administrative remedies because the
proceeding before the CSC was an absolute nullity, and that
it was the NAPOLCOM, the People’s Law Enforcement
Board (PLEB), or PNP which had primary jurisdiction over
the alleged irregularities in the CSP-CAT. He alleged that
the case involved a purely legal issue and that he would
suffer irreparable injury if he should still await the outcome
of the administrative action before the CSC Central Office.
PO1 Capablanca stressed that the July 28, 2000 CSP-CAT
was ineffectual as far as he was concerned, because it was
in the nature of a promotional examination for policemen
and was solely within the province of NAPOLCOM.
On March 22, 2006, the Court of Appeals rendered its
Decision23 granting CSC’s petition. The Court of Appeals
found that PO1 Capablanca prematurely resorted to court
intervention when the remedy of appeal to the CSC Central
Office was available. Upholding the jurisdiction of the CSC
Caraga, the appellate court declared that the subject of the
latter’s preliminary investigation was not with respect to PO1
Capablanca’s acts in the conduct of his duties as a police
officer, but with respect to the authenticity of the documents
he submitted before the CSC Caraga in support of his
application for permanent status as well as the veracity of its
contents. It held that pursuant to the CSC's constitutional
duty to protect the integrity of the civil service system, it
acted within its authority to investigate irregularities or
anomalies involving civil service examinations, and to
ascertain whether a prospective civil service appointee is
qualified in accordance with all the legal requirements.
Hence, this petition.
Petitioner’s Arguments
Petitioner PO1 Capablanca assigns the following errors:
1
THE HONORABLE COURT OF APPEALS, WITH DUE
RESPECT, GRAVELY ERRED IN DECLARING THAT
20
RESPONDENT CSC HAS JURISDICTION AND
DISCIPLINARY AUTHORITY OVER HEREIN
PETITIONER, A MEMBER OF THE PHILIPPINE
NATIONAL POLICE.
1-A
GRANTING THAT IT HAS, THE HONORABLE COURT OF
APPEALS GRAVELY ERRED IN NOT DECLARING THAT
IT HAS ONLY APPELLATE JURISDICTION OVER THE
CASE AND IT IS THE NATIONAL POLICE COMMISSION
(NAPOLCOM) WHICH HAS THE JURISDICTION TO
CONDUCT INITIATORY INVESTIGATION OF THE CASE,
AS HELD IN THE CASE OF MIRALLES VS. GO, G.R. NO.
139943, JANUARY 18, 2001.
II
THE HONORABLE COURT OF APPEALS, WITH DUE
RESPECT GRAVELY ERRED IN DECLARING THAT
HEREIN PETITIONER FAILED TO EXHAUST
ADMINISTRATIVE REMEDIES.24
Respondent’s Arguments
The CSC, through the Office of the Solicitor General (OSG)
argues that in pursuing a case against one who undermines
the integrity of the CSC examinations, the CSC Caraga was
only acting within its mandated powers and duties. The
OSG clarifies that the PNP does not have exclusive
jurisdiction over disciplinary cases. Rather, its jurisdiction
over such cases is concurrent with that of the CSC. It also
argues that Civil Service Commission v. Court of
Appeals25 is irrelevant to petitioner's situation because the
ruling therein does not affect the authority of the CSC to
conduct the CSP examination and to investigate
examination anomalies. Lastly, the OSG contends that
petitioner should not have directly resorted to court action,
because the CSC proper could still review the decisions and
actions of the CSC Caraga.26
Issue
The case at bar boils down to the issue of whether the CSC
Caraga has jurisdiction to conduct the preliminary
investigation of a possible administrative case of dishonesty
against PO1 Capablanca for alleged CSP examination
irregularity.
Our Ruling
The petition lacks merit.
The CSC, as the central personnel agency of the
Government, is mandated to establish a career service, to
strengthen the merit and rewards system, and to adopt
measures to promote morale, efficiency and integrity in the
civil service.27 The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
government, including government-owned or controlled
corporations with original charters.28 Specifically, Section 91
of Republic Act (RA) No. 6975 (1990) or the "Department of
Interior and Local Government Act of 1990" provides that
the "Civil Service Law and its implementing rules and
regulations shall apply to all personnel of the Department,"
to which herein petitioner belongs.
Section 12 of Executive Order (EO) No. 292 or the
"Administrative Code of 1987," enumerates the powers and
functions of the CSC, to wit:
SEC. 12. Powers and Functions. - The Commission shall
have the following powers and functions:
(1) Administer and enforce the constitutional and statutory
provisions on the merit system for all levels and ranks in the
Civil Service;
xxxx
(7) Control, supervise and coordinate Civil Service
examinations. x x x
xxxx
(11) Hear and decide administrative cases instituted by or
brought before it directly or on appeal, including contested
appointments, and review decisions and actions of its
offices and of the agencies attached to it. x x x
In addition, Section 28, Rule XIV of the Omnibus Civil
Service Rules and Regulations specifically confers upon the
CSC the authority to take cognizance over any irregularities
or anomalies connected with the examinations, thus:
Sec. 28. The Commission shall have original disciplinary
jurisdiction over all its officials and employees and over all
cases involving civil service examination anomalies or
irregularities.
To carry out this mandate, the CSC issued Resolution No.
991936, or the Uniform Rules on Administrative Cases in
the Civil Service, empowering its Regional Offices to take
cognizance of cases involving CSC examination anomalies:
SECTION 6. Jurisdiction of Civil Service Regional Offices. -
The Civil Service Commission Regional Offices shall have
jurisdiction over the following cases:
A. Disciplinary
1. Complaints initiated by, or brought before, the Civil
Service Commission Regional Offices provided that the
alleged acts or omissions were committed within the
jurisdiction of the Regional Office, including Civil Service
examination anomalies or irregularities and the persons
complained of are employees of agencies, local or national,
within said geographical areas;
xxxx
Based on the foregoing, it is clear that the CSC acted within
its jurisdiction when it initiated the conduct of a preliminary
investigation on the alleged civil service examination
irregularity committed by the petitioner.
However, petitioner contends that a citizen who has
complaints against a police officer should bring his
complaint before the following, citing Section 41 of RA
6975,29 to wit:
(a) x x x x
(1) Chiefs of police, where the offense is punishable by
withholding of privileges, restriction to specified limits,
suspension or forfeiture of salary, or any combination
thereof for a period not exceeding fifteen (15) days;
(2) Mayors of cities or municipalities, where the offense
is punishable by withholding of privileges, restriction to
specified limits, suspension or forfeiture of salary, or any
combination thereof, for a period of not less than sixteen
(16) days but not exceeding thirty (30) days;
(3) People's Law Enforcement Board, as created under
Section 43 hereof, where the offense is punishable by
withholding of privileges, restriction to specified limits,
suspension or forfeiture of salary, or any combination
thereof, for a period exceeding thirty (30) days; or by
dismissal.
21
xxxx
(c) Exclusive Jurisdiction. - A complaint or a charge filed
against a PNP member shall be heard and decided
exclusively by the disciplining authority who has acquired
original jurisdiction over the case and notwithstanding the
existence of concurrent jurisdiction as regards the offense:
Provided, That offenses which carry higher penalties
referred to a disciplining authority shall be referred to the
appropriate authority which has jurisdiction over the offense.
Based on the foregoing, petitioner avers that the CSC does
not have the authority to conduct an initiatory investigation
of the case, but it only has appellate jurisdiction to review
the decision of any of the disciplining authorities above
mentioned. Petitioner anchors his argument on the following
provisions of EO 292 stating that the heads of departments,
agencies, offices or bureaus should first commence
disciplinary proceedings against their subordinates before
their decisions can be reviewed by the CSC:
Section 47, Book V of EO 292:
Disciplinary Jurisdiction. - (1) The Commission shall decide upon
appeal all administrative disciplinary cases involving the imposition
of a penalty of suspension for more than thirty days, or fine in an
amount exceeding thirty days' salary, demotion in rank or salary or
transfer, removal or dismissal from office x x x
(2) The Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities shall have jurisdiction to
investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Their decisions shall
be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days' salary. In
case the decision rendered by a bureau or office head is appealable
to the Commission, the same may be initially appealed to the
department and finally to the Commission and pending appeal, the
same shall be executory except when the penalty is removal, in
which case the same shall be executory only after confirmation by
the Secretary concerned.
Section 48, Book V of EO 292:
Procedure in Administrative Cases Against Non-Presidential
Appointees. - (1) Administrative proceedings may be
commenced against a subordinate officer or employee by
the Secretary or head of office of equivalent rank, or head of
local government, or chiefs of agencies, or regional
directors, or upon sworn, written complaint of any other
person.
We are not persuaded. It has already been settled in Cruz v.
Civil Service Commission30 that the appellate power of the
CSC will only apply when the subject of the administrative
cases filed against erring employees is in connection with
the duties and functions of their office, and not in cases
where the acts of complainant arose from cheating in the
civil service examinations. Thus:
Petitioner’s invocation of the law is misplaced. The provision
is applicable to instances where administrative cases are
filed against erring employees in connection with their duties
and functions of the office. This is, however, not the
scenario contemplated in the case at bar. It must be noted
that the acts complained of arose from a cheating caused
by the petitioners in the Civil Service (Subprofessional)
examination. The examinations were under the direct
control and supervision of the Civil Service Commission.
The culprits are government employees over whom the Civil
Service Commission undeniably has jurisdiction. x x x
Moreover, in Civil Service Commission v. Albao,31 we
rejected the contention that the CSC, under the aforestated
Sections 47 and 48 of Book V of EO 292, only has appellate
disciplinary jurisdiction on charges of dishonesty and
falsification of documents in connection with an appointment
to a permanent position in the government service. We
enunciated, thus:
Pursuant to Section 47 (1), (2) and Section 48 above, it is
the Vice President of the Philippines, as head of office, who
is vested with jurisdiction to commence disciplinary action
against respondent Albao.
Nevertheless, this Court does not agree that petitioner is
helpless to act directly and motu proprio, on the alleged acts
of dishonesty and falsification of official document
committed by respondent in connection with his
appointment to a permanent position in the Office of the
Vice President.
It is true that Section 47 (2), Title I (A), Book V of EO No.
292 gives the heads of government offices
original disciplinary jurisdiction over their own subordinates.
Their decisions shall be final in case the penalty imposed is
suspension for not more than thirty days or fine in an
amount not exceeding thirty days’ salary. It is only when the
penalty imposed exceeds the aforementioned penalties that
an appeal may be brought before the Civil Service
Commission which has appellate jurisdiction over the same
in accordance with Section 47 (1) Title I(A), Book V of EO
No. 292, thus:
SEC. 47. Disciplinary Jurisdiction. – (1) The Commission
shall decide upon appeal all administrative disciplinary
cases involving the imposition of a penalty of suspension for
more than thirty days, or fine in an amount exceeding thirty
days’ salary, demotion in rank or salary or transfer, removal
or dismissal from office. x x x
The present case, however, partakes of an act by petitioner
to protect the integrity of the civil service system, and does
not fall under the provision on disciplinary actions under
Sec. 47. It falls under the provisions of Sec. 12, par. 11, on
administrative cases instituted by it directly. This is an
integral part of its duty, authority and power to administer
the civil service system and protect its integrity, as provided
in Article IX-B, Sec. 3 of the Constitution, by removing from
its list of eligibles those who falsified their qualifications.
This is to be distinguished from ordinary proceedings
intended to discipline a bona fide member of the system, for
acts or omissions that constitute violations of the law or the
rules of the service. (Emphasis Ours)
Incidentally, it must be mentioned at this juncture that
citizen’s complaints before the PLEB under RA 6975 pertain
to complaints lodged by private citizens against erring PNP
members for the redress of an injury, damage or
disturbance caused by the latter's illegal or irregular acts, an
example being that of a policeman who takes fish from the
market without paying for it.32 Clearly, the PLEB has no
jurisdiction concerning matters involving the integrity of the
civil service system.
Finally, petitioner’s reliance on Civil Service Commission v.
Court of Appeals,33 is misplaced. In said case, the
NAPOLCOM assailed Item 3 of CSC Resolution No. 96-
5487, which provides:
3. Appointees to Police Officer and Senior Police Officer
positions in the Philippine National Police must have passed
any of the following examinations:
a) PNP Entrance Examination;
b) Police Officer 3rd Class Examination; and
c) CSC Police Officer Entrance Examination.
The NAPOLCOM took exception to this provision,
particularly letter (c), arguing that the requirement of taking
a CSC Police Officer Entrance Examination is only
applicable to entrance in the first-level position in the PNP,
i.e., the rank of PO1.34 NAPOLCOM stressed that what
would entitle a police officer to the appropriate eligibility for
his promotion in the PNP are the promotional examinations
22
conducted by the NAPOLCOM, and not the CSC Police
Officer Entrance Examination.
The Court of Appeals found in favor of the NAPOLCOM and
held that the CSC, by issuing Item 3 of CSC Resolution No.
96-5487 encroached on the exclusive power of
NAPOLCOM under RA 697535 to administer promotional
examinations for policemen and to impose qualification
standards for promotion of PNP personnel to the ranks of
PO2 up to Senior Police Officers 1-4. Thus:
Admittedly, the CSC is mandated to conduct the qualifying
entrance examination (CSC Police Officer Entrance
Examination) for Police Officer 1. However, when the CSC
prescribes the same examination for appointment of Senior
Police Officer (SPO) under the questioned Item 3, it in effect
imposes an examination for promotion (appointment) of a
policeman to PO2 up to other higher ranks up to SP04.
Thus Item 3 encompasses examinations for the positions of
Police Officer as well as that of Senior Police Officer,
meaning examination not only for appointment to PO1 but
promotion to PO2 and PO3 up to the four SPO ranks. 36
The Court of Appeals thus ordered the CSC to desist from
conducting any promotional examination for Police Officers
and Senior Police Officers.
In a Minute Resolution dated September 25, 2001 in G.R.
No. 141732, we affirmed the Court of Appeals thereby
sustaining the authority of the NAPOLCOM to administer
promotional examinations for policemen.
It must be stressed however that the subject matter in the
above cited case was the conduct of promotional
examination for policemen. On the contrary, the issue in the
instant case is the jurisdiction of the CSC with regard to
anomalies or irregularities in the CSP-CAT, which is a totally
different matter.
In fine, we find that CSC Caraga acted within its powers
when it instituted the conduct of a preliminary investigation
against herein petitioner. In view of the foregoing, we need
not anymore attend to the issue of the doctrine of
exhaustion of administrative remedies.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
5. SECOND DIVISION
G.R. No. 132177 July 19, 2001
JUDGE JOSE F. CAOIBES, JR., petitioner,
vs.
THE HONORABLE OMBUDSMAN and JUDGE
FLORENTINO M. ALUMBRES, respondents.
BUENA, J.:
Petitioner Jose F. Caoibes, Jr., Presiding Judge of Branch
253 of the Regional Trial Court of Las Piñas City, seeks the
review of the following orders of the Office of the
Ombudsman: (1) the Order dated August 22, 1997 denying
the ex-parte motion to refer to the Supreme Court filed by
petitioner; and (2) the Order dated December 22, 1997
denying petitioner’s motion for reconsideration and directing
petitioner to file his counter-affidavit and other controverting
evidences.
On May 23, 1997, respondent Florentino M. Alumbres,
Presiding Judge of Branch 255 of the Regional Trial Court
of Las Pinas City, filed before the Office of the Ombudsman,
a Criminal Complaint1 for physical injuries, malicious
mischief for the destruction of complainant’s eyeglasses,
and assault upon a person in authority. Respondent alleged
therein that on May 20, 1997, at the hallway on the third
floor of the Hall of Justice, Las Pinas City, he requested
petitioner to return the executive table he borrowed from
respondent; that petitioner did not answer so respondent
reiterated his request but before he could finish talking,
petitioner blurted "Tarantado ito ah," and boxed him at his
right eyebrow and left lower jaw so that the right lens of his
eyeglasses was thrown away, rendering his eyeglasses
unserviceable; and that respondent had the incident
blottered with the Las Piñas Police Station. He prayed that
criminal charges be filed before the Sandiganbayan against
the petitioner.
On June 13, 1997, respondent Judge lodged another
Complaint2 against petitioner, this time and administrative
case with the Supreme Court, docketed as Adm. Case No.
97-387-RTJ, praying for the dismissal of petitioner from the
judiciary on the ground of grave misconduct or conduct
unbecoming a judicial officer. Said complaint is based on
the same facts as those in the complaint filed earlier with
the office of the Ombudsman.
In the Order3 dated June 25, 1997, the Office of the
Ombudsman required petitioner to file a counter-affidavit
within ten (10) days from receipt thereof. Instead of filing a
counter-affidavit, petitioner filed on July 7, 1997 and "Ex-
Parte Motion for Referral to the Honorable Supreme
Court,"4 praying that the Office of the Ombudsman hold its
investigation of Case No. OMB-0-97-0903 in abeyance, and
refer the same to the Supreme Court which, through the
Office of the Court Administrator, is already investigating
what transpired on May 20, 1997. Petitioner contended that
the Supreme Court, not the Office of the Ombudsman, has
the authority to make a preliminary determination of the
respective culpability of petitioner and respondent Judge
who, both being members of the bench, are under its
exclusive supervision and control.
On August 22, 197, the Office of the Ombudsman issued an
Order5 denying the motion for referral to the Supreme Court.
Invoking Section 15 (1) of Republic Act No. 6770, the Office
of the Ombudsman held that it is within its jurisdiction to
investigate the criminal charges of respondent Judge
against petitioner.
Petitioner moved for reconsideration6 of the foregoing order,
maintaining that the Office of the Ombudsman should either
refer Case No. OMB-0-97-0903 to the Supreme Court for
preliminary evaluation, or await the latter’s resolution of
Adm. Case No. 97-387-RTJ which involves the same
parties and subject matter. Otherwise, petitioner argues, the
absurd situation may result wherein the Office of the
Ombudsman files criminal charges against petitioner who,
on the other hand, is declared without fault by the Supreme
Court.
In the Order7 dated December 22, 1997, the Office of the
Ombudsman denied the motion for reconsideration and
required petitioner to submit a counter-affidavit within an
inextendible period of five (5) days from receipt thereof.
Hence, petitioner filed this petition for certiorari, asking for
the reversal of the assailed Orders dated August 22, 1997
and December 22, 1997 of the Office of the Ombudsman
and the issuance of a writ of injunction or temporary
restraining order, directing the Office of the Ombudsman to
refrain from taking further action in the implementation of
the challenged orders.
The issue in this case is whether or not the Office of the
Ombudsman should defer action on case No. OMB-0-97-
0903 pending resolution of Adm. Case No. 97-387-RTJ.
23
The issue is not novel. In Maceda vs. Vasquez,8 this Court
resolved in the affirmative the issue of whether or not the
Ombudsman must defer action on a criminal complaint
against a judge, or a court employee where the same arises
from their administrative duties, and refer the same to this
Court for determination whether said judge or court
employee had acted within the scope of their administrative
duties.
Invoking Section 15 of R.A. 6770, the Office of the
Ombudsman refuses to refrain from taking cognizance of
Case NO. OMB-0-97-0903 in favor of this Court on the
ground that, allegedly, the accusations therein against
petitioner constitute simple criminal charges falling within
the parameters of its constitutional power and duty to
investigate and prosecute any act or omission of any public
officer or employee which appears to be illegal, unjust,
improper or inefficient.
Section 15 (1) of R.A. 6770 grants, among others, the
following powers and duties to the Office of the
Ombudsman:
person in authority filed by respondent Judge against
petitioner. This conclusion seems to be reinforced by
Section 16 of R.A. 6770 which states that the powers of the
Office of the Ombudsman apply to all kinds of malfeasance,
misfeasance and nonfeasance committed by public officers
and employees during their tenure or office.
The Office of the Solicitor General in its Manifestations, in
Lieu of Comment, correctly opined and we quote:
"xxx the grant of the aforequoted powers to the Office of
the Ombudsman is not tantamount to giving it exclusive
authority thereon. In fact, Section 15 (1) of R.A. 6770,
which is relied upon by the Office of the Ombudsman in
its assailed order, provides that it has primary, not
exclusive, jurisdiction over graft and corruption cases
and felonies committed by public officers in relation to
their office. Moreover, it was held in Sanchez vs.
Demetriou, 227 SCRA 627 [1993], that the
Ombudsman’s power under Section 15 (1) of R.A. 6770
is not an exclusive authority but rather a shared or
concurrent authority in respect of the offense charged."9
This is a dangerous policy which impinges, as it does, on
judicial independence.
Maceda is emphatic that by virtue of its constitutional power
of administrative supervision over all courts and court
personnel, from the Presiding Justice of the Court of
Appeals down to the lowest municipal trial court clerk, it is
only the Supreme Court that can oversee the judges’ and
court personnel’s compliance with all laws, and take the
proper administrative action against them if they commit any
violation thereof. No other branch of government may
intrude into this power, without running afoul of the doctrine
of separation of powers.
WHEREFORE, the petition for certiorari is
hereby GRANTED. The Ombudsman is hereby directed to
dismiss the complaint filed by respondent Judge Florentino
M. Alumbres and to refer the same to this Court for
appropriate action.1âwphi1.nêt
SO ORDERED.

"(1) Investigate and prosecute on its own, or on
complaint by 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. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise
of this primary jurisdiction, it may takeover, at any stage,
from any investigatory agency of Government, the
investigation of such cases;
"(2) Direct, upon complaint or at its own instance, any
officer or employee of the Government, or of any
subdivision, agency or instrumentality thereof, as well as
any government-owned or controlled corporations with
original charter, to perform and expedite any act or duty
required by law, or to stop, prevent and correct any
abuse or impropriety in the performance of duties;
"(3) Direct the officer concerned to take appropriate
action against a public officer or employee at fault or
who neglects to perform an act or discharge a duty
required by law, and recommend his removal,
suspension, demotion, fine, censure or prosecution, and
ensure compliance therewith, or enforce its disciplinary
authority as provided in Section 21 of this Act..."
The foregoing provisions supply the legal basis for the
Ombudsman in maintaining its jurisdiction over the charges
of physical injuries, malicious mischief and assault upon a
It appears that the present case involves two members of
the judiciary who were entangled in a fight within court
premises over a piece of office furniture. Under Section 6,
Article VIII of the Constitution, it is the Supreme Court which
is vested with exclusive administrative supervision over all
courts and its personnel. Prescinding from this premise, the
Ombudsman cannot determine for itself and by itself
whether a criminal complaint against a judge, or court
employee, involves an administrative matter. The
Ombudsman is duty bound to have all cases against judges
and court personnel filed before it, referred to the Supreme
Court for determination as to whether and administrative
aspect is involved therein. This rule should hold true
regardless of whether an administrative case based on the
act subject of the complaint before the Ombudsman is
already pending with the Court. For, aside from the fact that
the Ombudsman would not know of this matter unless he is
informed of it, he should give due respect for and
recognition of the administrative authority of the Court,
because in determining whether an administrative matter is
involved, the Court passes upon not only administrative
liabilities but also other administrative concerns, as is clearly
conveyed in the case of Maceda vs. Vasquez.10
The Ombudsman cannot dictate to, and bind the Court, to
its findings that a case before it does or does not have
administrative implications. To do so is to deprive the Court
of the exercise of its administrative prerogatives and to
arrogate unto itself a power not constitutionally sanctioned.
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