COMMON PROVISIONS

Funa v. Chairman CSC

GR 191672
November 25, 2014
FACTS
Petitioner asserts that EO 864 and Section 14, Chapter 3,
Title I-A, Book V of EO 292, which states that the
chairman of the CSC will be part of the Board of Directors
of other governing bodies, violates 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
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?
HELD

The Court upheld the constitutionality of Section 14,

Chapter 3, Title I-A, Book V of EO 292, but declared EO
864 unconstitutional 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.
Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear
that the CSC Chairmans 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 Chairmans 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, Duques designation as member of the
governing Boards of the GSIS, PHILHEALTH, ECC and
HDMF impairs the independence of the CSC because 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 without any legal or
constitutional basis.
Gualberto J. Dela Llana v. The Chairperson,
Commission on Audit, GR 180989, 07 February 2012.
(decisions and orders of the COA reviewable by the
court via a petition for certiorari refer to the COAs
quasi-judicial capacity not its quasi-legislative or
rule-making powers)

RULING

FACTS

Petitioner Gualberto Dela Llana, as a taxpayer,

wrote to the Commission on Audit (COA) regarding
the recommendation of the Senate Committee on
Agriculture and Food that the Department of
Agriculture set up an internal pre-audit service.
The COA replied to Dela Llana informing him of the
prior issuance of Circular No. 89-299 which
provides that whenever the circumstances warrant,
the COA may reinstitute pre-audit or adopt such
other control measures as necessary and
appropriate to protect the funds and property of an
agency.
Dela Llana filed a petition for certiorari alleging that
the pre-audit duty on the part of the COA cannot
be lifted by a mere circular, considering that the
pre- audit is a constitutional mandate enshrined in
Section 2 of Article IX-D of the 1987 Constitution.

WON the petition for certiorari filed by Dela

Llana is proper

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 quasijudicial 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.

Diocese of Bacolod v. COMELEC (supra. Art 2, Sec.

26)
THE DIOCESE OF BACOLOD, REPRESENTED BY
THE MOST REV. BISHOP VICENTE M. NAVARRA and
THE BISHOP HIMSELF IN HIS PERSONAL
CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION
OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.
G.R. No. 205728 | January 21, 2015 | LEONEN | EN
BANC
FACTS

ISSUE/S

On February 21, 2013, petitioners posted 2

tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each
tarpaulin was approximately six feet (6') by ten feet
(10') in size.
o They were posted on the front walls of the
cathedral within public view. The first
tarpaulin contains the message "IBASURA
RH Law" referring to the Reproductive
Health Law of 2012 or Republic Act No.
10354.
o The second tarpaulin is the subject of the
present case. This tarpaulin contains the
heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team
Buhay" with a check mark, or "(Pro-RH)
Team Patay" with an "X" mark.
o The electoral candidates were classified
according to their vote on the adoption of
Republic Act No. 10354, otherwise known
as the RH Law.
TEAM PATAY
TEAM BUHAY
COMELEC through Majarucon as Election Officer
of Bacolod City conceded that the tarpaulin was
neither sponsored nor paid for by any candidate.
Diocese also conceded that the tarpaulin contains
names of candidates for the 2013 elections, but
not of politicians who helped in the passage of the
RH Law but were not candidates for that election.
Majarucon as Election Officer of Bacolod City
Notice to Remove Campaign Materials addressed

to petitioner Most Rev. Bishop Vicente M. Navarra.

The election officer ordered the tarpaulins removal
within 3 days from receipt for being oversized.
COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2) by three feet (3).
Petitioner Bishop contends that (1) he be given a
definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this
opinion and the availment of legal remedies, the
tarpaulin be allowed to remain.
COMELEC Law Department issued a letter
ordering the immediate removal of the tarpaulin;
otherwise, it will be constrained to file an election
offense against petitioners.
Concerned about the imminent threat of
prosecution for their exercise of free speech,
petitioners initiated this case praying that:
o (1) the petition be given due course;
o (2) a temporary restraining order (TRO)
and/or a writ of preliminary injunction be
issued restraining respondents from further
proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and
o (3) after notice and hearing, a decision be
rendered declaring the questioned orders of
respondents as unconstitutional and void,
and permanently restraining respondents
from enforcing them or any other similar
order.

ISSUES

Whether the notice/order by Election Officer

Majarucon and the order by the COMELEC Law
Department are considered a) judgments, b) final orders,
c) resolutions of the COMELEC which would warrant a
review of this court via Rule 65 Petition? Yes.
A. Whether petitioners violated the hierarchy of
courts doctrine and jurisprudential rules
governing appeals from COMELEC decisions;
B. Assuming arguendo that the aforementioned
orders are not considered judgments/final
orders/resolutions of the COMELEC, whether
there are exceptional circumstances which would
allow this court to take cognizance of the case

HELD
WHEREFORE, the instant petition is GRANTED.
The temporary restraining order previously issued is
hereby made permanent. The act of the COMELEC in
issuing the assailed notice dated February 22, 2013 and
letter dated February 27, 2013 is declared
unconstitutional.
RATIO
MAIN ISSUE FOR THIS ARTICLE: Jurisdiction of SC
over COMELEC cases
Respondents (EO Majarucon and COMELEC) ask
that this petition be dismissed on the ground that
the notice and letter are not final orders, decisions,
rulings, or judgments of the COMELEC En Banc

issued in the exercise of its adjudicatory powers,

reviewable via Rule 64 of the Rules of Court.
o Rule 64 is not the exclusive remedy for all
acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a
grave abuse of discretion resulting in the
ouster of jurisdiction. As a special civil
action, there must also be a showing that
there be no plain, speedy, and adequate
remedy in the ordinary course of the law.
Respondents contend that the assailed notice and
letter are not subject to review by this court, whose
power to review is "limited only to final decisions,
rulings and orders of the COMELEC En Banc
rendered in the exercise of its adjudicatory or
quasi-judicial power."
o Respondents claim that the assailed notice
and letter are reviewable only by COMELEC
itself pursuant to Article IX-C, Section 2(3)
of the Constitution on COMELECs power to
decide all questions affecting elections.
Respondents invoke the cases of Ambil, Jr.
v. COMELEC, Repol v. COMELEC, Soriano,
Jr. v. COMELEC, Blanco v. COMELEC, and
Cayetano v. COMELEC, to illustrate how
judicial intervention is limited to final
decisions, orders, rulings and judgments of
the COMELEC En Banc.
Ambil, Jr. v. COMELEC (The General Rule)
This decision must be a final decision or
resolution of the Comelec en banc, not of a
division, certainly not an interlocutory order of a
division

o The Supreme Court has no power to

review via certiorari, an interlocutory
order or even a final resolution of a
Division of the Commission on Elections
Repol v. COMELEC (Exceptions to the General
Rule)
o This Court, however, has ruled in the past
that this procedural requirement [of filing a
motion for reconsideration] may be glossed
over if:
1) It will prevent the miscarriage of
justice;
2) The issue involves a principle of
social justice;
3) The issue involves the protection
of labor;
4) The decision or resolution sought
to be set aside is a nullity; or
5) The need for relief is extremely
urgent and certiorari is the only
adequate and speedy remedy
available.
In the present case, petitioners are not candidates
seeking for public office. Their petition is filed to
assert their fundamental right to expression.
All these cases cited by respondents pertained to
COMELECs exercise of its adjudicatory or quasijudicial power.
When it issued the notice and letter, the
COMELEC was allegedly enforcing election laws.

OTHER ISSUES:

Rule 65, grave abuse of discretion, and limitations on

political speech
The main subject of this case is an alleged
constitutional violation: the infringement on speech
and the "chilling effect" caused by respondent
COMELECs notice and letter.
Jurisdiction of this court over the subject matter is
determined from the allegations in the petition.
Subject matter jurisdiction is defined as the
authority "to hear and determine cases of the
general class to which the proceedings in question
belong and is conferred by the sovereign authority
which organizes the court and defines its powers.
Political speech is motivated by the desire to be
heard and understood, to move people to action. It
is concerned with the sovereign right to change the
contours of power whether through the election of
representatives in a republican government or the
revision of the basic text of the Constitution.
We evaluate restrictions on freedom of expression
from their effects. We protect both speech and
medium because the quality of this freedom in
practice will define the quality of deliberation in our
democratic society.
COMELECs notice and letter affect preferred
speech.
o Under the conditions in which it was issued
and in view of the novelty of this case, it
could result in a "chilling effect" that would
affect other citizens who want their voices
heard on issues during the elections
o Other citizens who wish to express their
views regarding the election and other

related issues may choose not to, for fear of

reprisal or sanction by the COMELEC
o Rule 65 is also the procedural platform
for raising grave abuse of discretion.
Respondents relied on its constitutional mandate
to decide all questions affecting elections. Article
IX-C, Section 2(3) of the Constitution, provides:
o Sec. 2. The Commission on Elections shall
exercise the following powers and functions:
o (3) Decide, except those involving the right
to vote, all questions affecting elections,
including determination of the number and
location of polling places, appointment of
election officials and inspectors, and
registration of voters.

o Respondents reliance on this provision is

misplaced.
We are confronted with the question as to whether
the COMELEC had any jurisdiction at all with its
acts threatening imminent criminal action
effectively abridging meaningful political speech.
The use of the word "affecting" in this provision
cannot be interpreted to mean that COMELEC has
the exclusive power to decide any and all
questions that arise during elections. COMELECs
constitutional competencies during elections
should not operate to divest this court of its own
jurisdiction.
Article VIII, Section 5(1) of the Constitution. This
provision provides for this courts original
jurisdiction over petitions for certiorari and

prohibition. This should be read alongside the

expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
breach of the fundamental right of expression by
COMELEC is grave abuse of discretion
It will, thus, be manifest injustice if the court
does not take jurisdiction over this case.

Hierarchy of courts
This brings us to the issue of whether petitioners
violated the doctrine of hierarchy of courts in
directly filing their petition before this court.
Necessity of the application of the hierarchy of
courts:
o The Court must enjoin the observance of
the policy on the hierarchy of courts, and
now affirms that the policy is not to be
ignored without serious consequences. The
strictness of the policy is designed to shield
the Court from having to deal with causes
that are also well within the competence of
the lower courts, and thus leave time to the
Court to deal with the more fundamental
and more essential tasks that the
Constitution has assigned to it. The Court
may act on petitions for the extraordinary
writs
of
certiorari,
prohibition
and
mandamus only when absolutely necessary
or when serious and important reasons exist
to justify an exception to the policy.
o Supreme Courts role to interpret the
Constitution and act in order to protect
constitutional rights when these become

exigent should not be emasculated by the

doctrine in respect of the hierarchy of
courts. That has never been the purpose of
such doctrine.
o Doctrine of hierarchy of courts is not an
iron-clad
rule. This
court
has
"full
discretionary power to take cognizance and
assume jurisdiction [over] special civil
actions for certiorari . . .filed directly with it
for exceptionally compelling reasons or if
warranted by the nature of the issues clearly
and specifically raised in the petition.
Exceptions to strict implementation of HoC:
First, a direct resort to this court is allowed
when there are genuine issues of
constitutionality that must be addressed at
the most immediate time. A direct resort to
this court includes availing of the remedies of
certiorari
and
prohibition
toassail
the
constitutionality of actions of both legislative
and executive branches of the government
o expression in the present case, but also
of others in future similar cases. The
case before this court involves an active
effort on the part of the electorate to
reform the political landscape. This has
become a rare occasion when private
citizens actively engage the public in
political discourse.
Second exception is when the issues
involved are of transcendental importance.
Third, cases of first impression warrant a
direct resort to this court

Fourth, the constitutional issues raise dare

better decided by this court
Fifth, the time element presented in this
case cannot be ignored.
Sixth, the filed petition reviews the act of a
constitutional organ
o COMELEC is a constitutional body. In
Albano v. Arranz, cited by petitioners,
this court held that "[i]t is easy to realize
the chaos that would ensue if the Court
of First Instance of each and every
province were [to] arrogate itself the
power to disregard, suspend, or
contradict any order of the Commission
on Elections: that constitutional body
would
be
speedily
reduced
to
impotence."
o if petitioners sought to annul the actions
of
COMELEC
through
pursuing
remedies with the lower courts, any
ruling on their part would not have been
binding for other citizens whom
respondents may place in the same
situation
Seventh, petitioners rightly claim that they
had no other plain, speedy, and adequate
remedy in the ordinary course of law that
could free them from the injurious effects of
respondents acts in violation of their right
to freedom of expression.
Eighth, the petition includes questions that
are "dictated by public welfare and the
advancement of public policy, or demanded

by the broader interest of justice, or the

orders complained of were found to be
patent nullities, or the appeal was
considered as clearly an inappropriate
remedy.
Exhaustion of administrative remedies
Despite the alleged non-exhaustion of
administrative remedies, it is clear that the
controversy is already ripe for adjudication.
Ripeness is the "prerequisite that something
had by then been accomplished or performed
by either branch [or in this case, organ of
government] before a court may come into the
picture."
Political speech enjoys preferred protection
within our constitutional order. In Chavez v.
Gonzales, Justice Carpio in a separate opinion
emphasized: "[i]f ever there is a hierarchy of
protected expressions, political expression
would occupy the highest rank, and among
different kinds of political expression, the
subject of fair and honest elections would be at
the
top." Sovereignty
resides
in
the
people.109 Political speech is a direct exercise
of the sovereignty. The principle of exhaustion
of administrative remedies yields in order to
protect this fundamental right.
Time and again, we have held that this court
"has the power to relax or suspend the rules or
to except a case from their operation when
compelling reasons so warrant, or when the
purpose of justice requires it, [and when] [w]hat

constitutes [as] good and sufficient cause that

will merit suspension of the rules is
discretionary upon the court".
Fortune Life and General Insurance v. COA 748
SCRA 286
Section 7. Each Commission shall decide by a majority
vote of all its Members, any case or matter brought before
it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules
of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any
decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy
thereof.
Facts:
Respondent Provincial Government of Antique (LGU) and
the petitioner executed a memorandum of agreement
concerning the life insurance coverage of qualified
barangay secretaries, treasurers and tanod, the former
obligating P4,393,593.60 for the premium payment, and
subsequently submitting the corresponding disbursement
voucher to COA-Antique for pre-audit. The latter office
disallowed the payment for lack of legal basis under

Republic Act No. 7160 (Local Government Code).

Respondent LGU appealed but its appeal was denied.

Issue:
WON the fresh period rule applies on Rule 64?
Held:

Consequently, the petitioner filed its petition for money

claim in the COA. On November 15, 2012, the COA
issued its decision denying the petition, holding that under
Section 447 and Section 458 of the Local Government
Code only municipal or city governments are expressly
vested with the power to secure group insurance
coverage for barangay workers; and noting the LGUs
failure to comply with the requirement of publication under
Section 21 of Republic Act No. 9184 (Government
Procurement Reform Act).
The petitioner received a copy of the COA decision on
December 14, 2012, and filed its motion for
reconsideration on January 14, 2013. However, the COA
denied the motion,9 the denial being received by the
petitioner on July 14, 2014.
Hence, the petitioner filed the petition for certiorari on
August 12, 2014, but the petition for certiorari was
dismissed as earlier stated through the resolution
promulgated on August 19, 2014 for (a) the late filing of
the petition; (b) the non-submission of the proof of service
and verified declaration; and (c) the failure to show grave
abuse
of
discretion
on
the
part
of
the
respondents.cralawred

No.
Ratio:
There is no parity between the petition for review under
Rule 42 and the petition for certiorari under Rule 64.
As to the nature of the procedures, Rule 42 governs an
appeal from the judgment or final order rendered by the
Regional Trial Court in the exercise of its appellate
jurisdiction. Such appeal is on a question of fact, or of
law, or of mixed question of fact and law, and is given due
course only upon a prima facie showing that the Regional
Trial Court committed an error of fact or law warranting
the reversal or modification of the challenged judgment or
final order.17 In contrast, the petition for certiorari under
Rule 64 is similar to the petition for certiorari under Rule
65, and assails a judgment or final order of the
Commission on Elections (COMELEC), or the
Commission on Audit (COA). The petition is not designed
to correct only errors of jurisdiction, not errors of
judgment.18 Questions of fact cannot be raised except to
determine whether the COMELEC or the COA were guilty
of grave abuse of discretion amounting to lack or excess
of jurisdiction.

The reglementary periods under Rule 42 and Rule 64 are

different. In the former, the aggrieved party is allowed 15
days to file the petition for review from receipt of the
assailed decision or final order, or from receipt of the
denial of a motion for new trial or reconsideration.19 In
the latter, the petition is filed within 30 days from notice of
the judgment or final order or resolution sought to be
reviewed. The filing of a motion for new trial or
reconsideration, if allowed under the procedural rules of
the Commission concerned, interrupts the period; hence,
should the motion be denied, the aggrieved party may file
the petition within the remaining period, which shall not be
less than five days in any event, reckoned from the notice
of denial.
The petitioner filed its motion for reconsideration on
January 14, 2013, which was 31 days after receiving the
assailed decision of the COA on December 14, 2012.21
Pursuant to Section 3 of Rule 64, it had only five days
from receipt of the denial of its motion for reconsideration
to file the petition. Considering that it received the notice
of the denial on July 14, 2014, it had only until July 19,
2014 to file the petition. However, it filed the petition on
August 13, 2014, which was 25 days too late.
Rules of procedure may be relaxed only to relieve a
litigant of an injustice that is not commensurate with the
degree of his thoughtlessness in not complying with the

prescribed procedure.24 Absent this reason for liberality,

the petition cannot be allowed to prosper.
Querubin V. Comelec
FACTS:

On October 27, 2014, the COMELEC en banc,

through its Resolution No. 14-0715, released the
bidding
documents
for
the
Two-Stage
Competitive Bidding for the Lease of Election
Management System (EMS) and Precinct-Based
Optical Mark Reader (OMR) or Optical Scan
(OP-SCAN) System. Thus,
The
joint
venture
of
Smartmatic-TIM
Corporation (SMTC), Smartmatic International
Holding
B.V.,
and
Jarltech
International
Corporation (collectively referred to as Smartmatic
JV) responded to the call and submitted bid for
the project on the scheduled date.
During the opening of the bids, Smartmatic JV,
in a sworn certification, informed the BAC that
one of its partner corporations, SMTC, has a
pending application with the Securities and
Exchange Commission (SEC) to amend its Articles
of Incorporation (AOI)
Upon evaluation of the submittals, the BAC,
through its Resolution No. 1 dated December 15,
2014, declared Smartmatic JV and Indra eligible to
participate in the second stage of the bidding
process.

After the conduct of post-qualification, the BAC,

through Resolution No. 9 dated May 5, 2015,
disqualified Smartmatic JV on two grounds, viz:
Failure to submit valid AOI; and the demo unit
failed to meet the technical requirement that the
system shall be capable of writing all data/files,
audit
log,
statistics
and
ballot
images
simultaneously in at least two (2) data storages.
Aggrieved, Smartmatic JV filed a Protest, seeking
permission to conduct
another
technical
demonstration of its SAES 1800 plus OMR
(OMR+), the OMR Smartmatic JV presented
during the public bidding before the COMELEC
en banc.
The COMELEC GRANTED the petition of the
SMARTMATIC and declared as the lowest
calculated Bid.

ISSUE:
WHETHER OR NOT THE SUPREME COURT HAS
THE RIGHT AND DUTY TO ENTERTAIN THIS PETITION
HELD
Yes.
The COMELEC included, that may be brought directly to
the Supreme Court on certiorari is not all-encompassing,
and that it only relates to those rendered in the
commissions exercise of adjudicatory or quasi-judicial
powers. In the case of the COMELEC, this would limit the

provisions coverage to the decisions, orders, or rulings

issued pursuant to its authority to be the sole judge
of generally all controversies and contests relating to
the elections, returns, and qualifications of elective
offices.

CIVIL SERVICE COMMISSION

Gaminde v. COA, GR 140335, December 13, 2000*
THELMA
P.
GAMINDE, petitioner,
vs.
COMMISSION ON AUDIT and/or Hon. CELSO D.
GANGAN, Hon. RAUL C. FLORES and EMMANUEL M.
DALMAN, respondents.
G.R. No. 140335 | December 13, 2000 | PARDO | EN
BANC

FACTS

On June 11, 1993, President Ramos appointed

petitioner Thelma P. Gaminde as, ad interim,
Commissioner of the Civil Service Commission.
She assumed office on June 22, 1993, after taking
an oath of office.
On September 07, 1993, the Commission on
Appointment, Congress of the Philippines
confirmed the appointment stating in her
appointment paper that her term will expire on
February 2, 1999.
Petitioner sought clarification from the Office of the
President as to the expiry date of her term of
office. In reply, the Chief Presidential Legal
Counsel opined that petitioners term of office
would expire on February 02, 2000, not on
February 02, 1999. And so Gaminde remained in
office after February 2, 1999.
Chairman Corazon Alma G. de Leon wrote to COA
asking if Gaminde and her co-terminous staff will

be paid their salaries notwithstanding that their

appointments had expired on February 2, 1999.
COA General Counsel issued an opinion that "the
term of Commissioner Gaminde has expired on
February 02, 1999 as stated in her appointment
Consequently, CSC Resident Auditor Flovitas U.
Felipe issued notice of disallowance No. 99-002101 (99).
Petitioner appealed to the COA en banc. COA
dismissed the appeal affirming the disallowance in
reference to her appointment paper further stating
that the Commission is bereft of power to
recognize an extension of her term, not even with
the implied acquiescence of the Office of the
President.

ISSUE
Whether the term of office Atty. Gaminde expired
on February 02, 1999, as stated in the
appointment paper, or on February 02, 2000, as
claimed by her? February 02, 1999
HELD
WHEREFORE, we adjudge that the term of
office of Ms. Thelma P. Gaminde as
Commissioner, Civil Service Commission,
under an appointment extended to her by
President Fidel V. Ramos on June 11, 1993,
expired on February 02, 1999.
However, she served as de facto officer in good
faith until February 02, 2000, and thus entitled to
receive her salary and other emoluments for actual

service rendered. Consequently, the Commission

on Audit erred in disallowing in audit such salary
and other emoluments, including that of her coterminous staff.
ACCORDINGLY, we REVERSE the decisions of
the Commission on Audit insofar as they disallow
the salaries and emoluments of Commissioner
Thelma P. Gaminde and her coterminous staff
during her tenure as de facto officer from February
02, 1999, until February 02, 2000.
RATIO

The 1973 Constitution introduced the first system

of a regular rotation or cycle in the membership
of the Civil Service Commission. The provision
on the 1973 Constitution reads:
o x x x The Chairman and the Commissioners
shall be appointed by the Prime Minister for
a
term
of
seven
years
without
reappointment. Of the Commissioners first
appointed, one shall hold office for seven
years, another for five years, and the third
for three years. Appointment to any
vacancy shall be only for the unexpired
portion of the term of the predecessor.

Rotational Plan
In Republic vs. Imperial, it says that the operation
of the rotational plan requires two conditions,
both indispensable to its workability:

o (1) that the terms of the first three (3)

Commissioners should start on a common
date, and,
o (2) that any vacancy due to death,
resignation or disability before the
expiration of the term should only be
filled only for the unexpired balance of
the term.
Term vs. Tenure
In the law of public officers, there is a settled
distinction between "term" and "tenure." "[T]he
term of an office must be distinguished from the
tenure of the incumbent.
o The term means the time during which the
officer may claim to hold office as of right,
and fixes the interval after which the several
incumbents shall succeed one another.
o The tenure represents the term during
which the incumbent actually holds the
office.
The term of office is not affected by the hold-over.
The tenure may be shorter than the term for
reasons within or beyond the power of the
incumbent."

The transitory provisions do not affect the term of

office fixed in Article IX, providing for a seven-fivethree year rotational interval for the first appointees
under this Constitution. (1986-1987 Transition
period and effect of the 1987 Consti) What it
contemplates is tenure not term of the incumbent

Chairmen and Members of the Constitutional

Commissions.
Clearly, the transitory provisions mean that the
incumbent members of the Constitutional
Commissions shall continue in office for one year
after the ratification of this Constitution under their
existing appointments at the discretion of the
appointing power, who may cut short their tenure
by: (1) their removal from office for cause; (2) their
becoming incapacitated to discharge the duties of
their office, or (3) their appointment to a new term
thereunder, all of which events may occur before
the end of the one year period after the effectivity
of the Constitution.
Gamindes situation is similar to previous CSC
chair appointments.
o Patricia Sto. Tomas: On March 02, 1988,
the Commission on Appointments confirmed
the nomination. She assumed office on
March 04, 1988. Her term ended on
February 02, 1994. She served as de
facto Chairman until March 04, 1995.
o Alma G. De Leon: regular seven-year
term. This term must be deemed to start on
February 02, 1994, immediately succeeding
her predecessor, whose term started on the
common date of the terms of office of the
first appointees under the 1987 Constitution.
She assumed office on March 22, 1995, for
a term expiring February 02, 2001.
o Atty. Samilo Barlongay: Commissioner
Five-year term. February 02, 1987 to
February 02, 1992. On January 30, 1988,

the President nominated Atty. Samilo N.

Barlongay Commissioner, Civil Service
Commission. On February 17, 1988, the
Commission on Appointments, Congress of
the
Philippines,
confirmed
the
nomination. He assumed office on March
04, 1988. His term ended on February 02,
1992. He served as de facto Commissioner
until March 04, 1993.
o Thelma Gaminde: Atty. Thelma P. Gaminde
Commissioner, Civil Service Commission,
for a term expiring February 02, 1999. This
terminal date is specified in her appointment
paper. On September 07, 1993, the
Commission on Appointments confirmed the
appointment. She accepted the appointment
and assumed office on June 22, 1993.She
is bound by the term of the appointment she
accepted, expiring February 02, 1999.
In this connection, the letter dated April 07,
1998, of Deputy Executive Secretary Renato C.
Corona clarifying that her term would expire on
February 02, 2000, was in error. What was
submitted to the Commission on Appointments
was a nomination for a term expiring on
February 02, 1999. Thus, the term of her
successor must be deemed to start on
February 02, 1999, and expire on February 02,
2006.

Illustration:

o Ereeta 2nd appointee Feb. 02, 1990

to Dec. 12, 1991 to Feb. 02,
1997 Feb. 02, 1997
o Erestain, Jr. 3rd appointee Feb. 02,
1997
to Feb.
11,
1997
to
(incumbent) Feb. 02, 2004 Feb. 02,
2004

The line of succession, terms of office and

tenure of the Chairman and members of the Civil
Service Commission may be outlined as follows:
Chairman Term Tenure
(7-year original)
o Sto. Tomas 1st appointee Feb. 02,
1987 to Mar. 04, 1988 to Feb. 02,
1994 [March 08, 1995 (de facto)]
o De Leon 2nd appointee Feb. 02, 1994
to March
22,
1995
to
(incumbent) Feb. 02, 2001 Feb. 02,
2001
o - 3rd appointee Feb. 02, 2001 to Feb.
02, 2008
nd
2 Member Term Tenure
(5-year original)
o Barlongay 1st appointee Feb. 02,
1987 to March 04, 1988 to Feb. 02,
1992 [March 04, 1993 (de facto) ]
o Gaminde
2nd appointee Feb.
02,
1992 to June 11, 1993 to Feb. 02,
1999 [ Feb. 02, 2000 (de facto) ]
o Valmores 3rd appointee Feb. 02, 1999
to Sept. 08, 2000 to
(incumbent) Feb.
02,
2006 Feb. 02, 2006
rd
3 Member Term Tenure
(3-year original)
o Yango - 1st appointee Feb. 02, 1987
to May 30, 1988 to
Feb. 02, 1990 [May 31, 1991
(de facto) ]

We see the regular interval of vacancy

every two (2) years, namely, February 02, 1994,
for the first Chairman, February 02, 1992, for the
first five-year term Commissioner, and February
02, 1990, for the first three-year term
Commissioner.
Their successors must also maintain the
two year interval, namely: February 02, 2001, for
Chairman, February 02, 1999, for Commissioner
Thelma P. Gaminde, and February 02, 1997, for
Commissioner Ramon P. Ereeta, Jr.
MWSS v. Hernandez 143 SCRA 602 [1986] (GOCCs
with charter and created by special law)
FACTS:
Metropolitan Waterworks and Sewerage System (MWSS)
was haled before the Arbitration Branch of the NLRC on
charges of willfull failure to pay wage differentials,
allowances and other monetary benefits to its contractual
employees numbering 2,500 or so.., MWSS assessed
that it is a GOCC and therefore NLRC has no jurisdiction
over the case. The LA made the observation that if the

employees are regular employees of MWSS, they are

governed by the Civil Service however, complainants are
not a regular employee of the MWSS, but one of a hired
workers or employees for limited period, that is upon
completion of the project for which they were hired, they
can be removed by the respondent, because there is no
more work or the contract has already been terminated.
The LA ruled that the Civil Service Decree applies to
employees in government corporations in all matters
except "monetary claims"; as regards the latter, it is the
Labor Code that govern.

only disputes between the MWSS and its regular

employees that are beyond the jurisdiction of the NLRC,
not those between it and its "non-regular or contractual"
employees, is sophistical. There is no legal or logical
justification for such a distinction.

ISSUE:

(par 1; GOCCs without charter created under

corporation code)

WON employees of the MWSS are covered by the Labor

Code or by laws and regulations governing the civil
service

Facts:

HELD:
Republic Act No. 6234 created it as a "government
corporation to be known as the Metropolitan Waterworks
and Sewerage System. Employment in the MWSS is
governed not by the Labor Code but by the civil service
law, rules and regulations; and controversies arising from
or connected with that employment are not cognizable by
the NLRC. The argument of the Labor Arbiter that it is

BLISS DEVELOPMENT CORPORATION EMPLOYEES

UNION
V
HON.
PURA
FERRER
CALLEJA
&
BLISS
DEVELOPMENT CORPORATION

- On October 10, 1986, petitioner, a duly registered labor

union, filed with the Department of Labor, NCR Region,
a petition for certification election of private respondent
Bliss Development Corporation (BDC)
- Department of Labor dismissed the petition for lack of
jurisdiction stating that the majority of BDCs stocks
is owned by the Human Settlement Development
Corporation (HSDC), a wholly-owned government
corporation, and therefore BDC is a government-owned
corporaiton

- As a GOCC, the employees are not governed by the

Labor Code but subject to the coverage of the Civil
Service law, rules and regulations
- BDCs employees therefore, are prohibited to join
or form labor organizations.
- Petitioner then filed an appeal with the Bureau of
Labor Relations
In the meantime, on June 1, 1987, President Aquino
issued EO No. 180, extending to government employees
the right to organize and bargain collectively. Section 1 &
7 of said Order provide:
Sec. 1.
This Executive Order applies to all
employees
of
all
branches,
subdivisions,
instrumentalities, and agencies of the government,
including government-owned or controlled corporations
with original charters. . . . (Emphasis supplied)
Sec. 7.
Government employees' organizations shall
register with the Civil Service Commission and the
Department of Labor and Employment. The application
shall be filed with the Bureau of Labor Relations of the
Department which shall process the same in accordance
with the provisions of the Labor Code of the Philippines,
as amended. Applications may also be filed with the
Regional Offices of the Department of Labor and

Employment which shall immediately transmit the said

applications to the Bureau of Labor Relations within three
(3) days from receipt hereof.
- On August 7, 1987, Director Pura Ferrer-Calleja of the
Bureau of Labor Relations issued an order dismissing
the appeal.
- Calleja held that with the issuance of EO No. 180,
government employees are now given the right to
organize and bargain collectively, and must apply with
the Civil Service Commission pursuant to Section 7 of
EO No. 180
- Petition dismissed, without prejudice to its refiling after
petitioner is granted registration.
- Petitioner assailed the decision of Cellja and sought to
annul the decision on the following ground:
1) The director abused her discretion amounting to lack
of jurisdiction when she ordered petitioner to register
under SECTION 7 of EO No. 180, WHICH DOES
NOT COVER PETITIONER. EO No. 180 only applies
to GOCCs with ORIGINAL CHARTERS
The case was brought to the Supreme Court.
ISSUE:
WON BDC falls under EO No. 180?

HELD:
No.
RATIO:
The SC held that Section 1 of Executive Order No. 180
expressly limits its application to only governmentowned or controlled corporations with original
charters. Hence, public respondent's order dated August
7, 1987 requiring petitioner to register in accordance with
Section 7 of executive Order No. 180 is without legal
basis.
- A corporation is created by operation of law. It acquires
a judicial personality either by special law or a general
law. The general law under which a private corporation
may be formed or organized is the Corporation Code.

Respondent committed grave abuse of discretion in

ordering petition to register under Section 7, of EO No.
180 as a precondition for filing a petition for certification
election.
Petition GRANTED. The order of Director Calleja is SET
ASIDE.
TORRES V. DE LEON
Facts:
The Philippine National Red Cross (PNRC) Internal
Auditing Office conducted an audit of its funds and
accounts of the PNRC General Santos City Chapter.
From the period of November 6, 2002 to March 14, 2006,
the report submitted to the respondent, Alma G. De Leon,
that there was a technical shortage incurred in the
amount of P4,306,574.23 by the petitioner who is the
Chapter Administrator of PNRC, General Santos Chapter.

- On the other hand, a government corporation is

normally created by special law, referred to often as
a charter.
The court held that BDC is a GOCC created under the
Corporation law. It is without a charter, governed by the
Labor Code and not by the Civil Service Law, hence EO
No. 180 does not apply to it.

De Leon, in a memorandum, formally charged Torres with

grave misconduct for violating the PNRC Policies on
Oversubscription, Remittances and Disbursement of
Funds. After the investigation case was completed, De
Leon issued another memorandum against Torres
regarding the penalties od one month suspension and
transfer to the National Headquarters

Torres appealed to the Board of Governors of the PNRC

and furnished a copy to the PNRC. Respondent and CSC
both denied the appeal, and the latter imposed the
penalty of dismissal of service. Torres questioned the
jurisdiction of CSC because the PNRC is not a
government owned and controlled corporation.

Issues:
Whether or not the CSC has Appellate jurisdiction over
the case? YES

Held:
Looking into the nature of the PNRC, there is nothing like
it in terms of it structure, but also in terms of history,
public service, and official status making its structure sui
generis. National Societies, such as the PNRC act as
auxiliaries of public authorities in their own countries in
the humanitarian field and provide a range of services
including disaster relief and health and social programs
and acts under the obligations of the Geneva
Conventions. The PNRC must have must have an
autonomous status to carry out its humanitarian in a
neutral and impartial matter. Its independence does not
necessarily mean it must be under the Corporation Code

since it is regulated by the by the international

humanitarian law. Its sui generis in character requires the
court to approach controversies in a case-to-case basis.
Since what was involved here is the enforcement of labor
laws and penal statutes, the PNRC can be treated as a
GOCC. Thus, having jurisdiction over the PNRC, the CSC
had the authority to modify the penalty and order the
dismissal of Torres from service. Moreover, the CSC has
appellate jurisdiction on administrative cases involving the
imposition of a penalty of suspension for more than 30
days or fine in amount exceeding thirty days salary.
SAMSON v. CA (RL)
G.R. No. L-43182 | November 25, 1986 | ALAMPAY, J.
Petitioners: MARCIAL F. SAMSON, City Mayor of
Caloocan City, THE CITY TREASURER, THE CITY
AUDITOR, both of Caloocan City, and HERMOGENES
LIWAG
Respondents: THE HONORABLE COURT OF
APPEALS, CFI-RIZAL and FELICIANO C. TALENS
SUMMARY: AO 3 was issued by the then Mayor Samson
of Caloocan City, summarily terminating the services of
the Feliciano C. Talens, who held the position of Assistant
Secretary to the Mayor, on the ground of "lack and loss of
confidence" and appointing in place of the latter
Hermogenes Liwag. The sole issue to be resolved in this
case is the legality of such AO. Cited in support of the
challenged AO is section 5(f) of the Civil Service Act of
1959, as amended. This provision declares the position of
secretaries to city mayors non-competitive and this was
interpreted by herein petitioner Mayor as to include the

position of Assistant Secretary to the Mayor. The SC held

that as a general rule, position in all branches,
subdivisions
and
instrumentalities
of
the
governmentalities of the government, including those in
GOCCs, belong to the competitive service. The only
exceptions are those expressly declared by law to be in
the non-competitive service and those which are policydetermining, primarily confidential or highly technical in
nature. Under the rules of StatCon, exceptions must be
construed strictly and when an enumeration is provided
for, it should exclude those not expressly mentioned.
Asst. Secretaries are not among those expressly declared
as non-competitive. Furthermore, it is the nature of the
functions which ultimately determines whether such
position is policy-determining, primarily confidential or
highly technical. It is not the powers and duties exercised
and discharged by the Assistant Secretary. Contrary to
Petitioners arguments that it falls under the general term
secretaries in Sec. 5(f), an assistant merely helps, aids
or serves in a subordinate capacity to the person who is
actually clothed with all the duties and responsibilities of
"secretary." The functions strictly attributable to a
"secretary" and which would repose on such person the
trust and confidence of the employer, is not automatically
vested or transferred to an "assistant secretary," because
the latter simply assists or aids the former in the
accomplishment of his duties.
FACTS:

In a resolution dated October 29, 1982, the SC

granted the motion of the widow of Feliciano
Talens to substitute the heirs of private respondent

Feliciano C. Talens in place of respondent, in view

of the latter's death on August 28, 1982.
There is no dispute as to the factual antecedents
of this case.
Feliciano C. Talens, a civil service eligible, was
appointed on March 16, 1970 by then City Mayor
Macario Asistio of Caloocan City, as Assistant
Secretary to the Mayor.
o His appointment was attested to as a
permanent one under Section 24(b) of RA
2260, as amended by the Commissioner of
Civil Service.
o He performed the duties of Assistant
Secretary to the Mayor and even twice
received increases in salary.
On January 11, 1972, City Mayor Marcial F.
Samson, successor of Mayor Asistio, furnished
Talens with AO 3 stating that, pursuant to Sec. 5(f)
of the Civil Service Law, he has been terminated
as Asst. Secretary to the Mayor for lack and loss of
confidence, given that such position is noncompetitive and that inherent in the nature of such
position to be primarily and highly confidential.
Talens, acknowledging receipt of said order,
demurred on the ground Sec. 5(f) of the Civil
Service Law, which specifies as non-competitive
only the positions of "secretaries of provincial city
and municipal boards and councils."
o He asked that the AO be recalled as he was
permanently appointed to a classified
position in the city government and that in
accordance with Section 32, his position as
Assistant Secretary to the Mayor was not

covered by the Civil Service Law; thus, he

can be removed only for cause and after
due process has been observed.
On January 17, 1972, Mayor Samson declined to
recall the AO for the same reasons stated in the
AO.
Talens filed a petition for certiorari, prohibition,
mandamus and quo warranto with the CFI of
Caloocan on January 21, 1972 in order to annul
the disputed AO, to enjoin the petitioner mayor,
treasurer and auditor from enforcing the same, and
to compel all the said public officials to pay to
private respondent the salaries and emoluments
due to him as Assistant Secretary to the Mayor.
o He also sought the ouster from the disputed
position of Hermogenes Liwag, one of the
petitioners herein, who was appointed by
Mayor Samson as Assistant Secretary.
CFI ruled for Talens
CA affirmed CFI decision.
Hence the petition.
According to petitioners, the only issue which this
Court has to resolve is the legality of the
termination of Talens' services. They contend that
the termination of his services is authorized by
Section 5(f) of the Civil Service Acy which declares
the position of Secretaries of City Mayors as
belonging to the non-competitive service. Further,
they aver that termination of the services of Talens
is justified by the fact that the disputed position is
inherently and primarily highly confidential in
nature.

ISSUE:
WON AO 3 is validNO.
HELD:
CA decision AFFIRMED.
RATIO:

Section 5 of RA No. 2260, as amended by RA

6040 provides that "That non-competitive service
shall be composed of positions expressly
declared by law to be in the non-competitive
service and those which are policydetermining, primarily confidential or highly
technical in nature" and continues with an
enumeration of specific officers and employees
embraced within the scope of non-competitive
service.
o Among those included in the enumeration
are heads of departments created in
charters of cities and secretaries of
provincial governors, city mayors and
municipal mayors.
Although the position of assistant secretary to
the city mayor is not among those therein
expressly declared, petitioners argue that an
assistant secretary is also a secretary, and thus
comprised within the general term "secretaries" as
provided for in Section 5(f).
The SC disagreed.

As may be noted, the general purpose of the Civil

Service Law (RA 2260) is "to insure and promote
the constitutional mandate regarding appointment
only according to merit and fitness, and to provide
within the public service a progressive system of
personal administration to insure the maintenance
of an honest and efficient progressive and
courteous civil service in the Philippines."
As a general rule, position in all branches,
subdivisions
and
instrumentalities
of
the
governmentalities of the government, including
those in GOCCs, belong to the competitive
service.
o The only exceptions are those expressly
declared by law to be in the noncompetitive service and those which are
policy-determining, primarily confidential
or highly technical in nature.
Under the rules of statutory construction,
exceptions, as a general rule, should be strictly,
but reasonably construed and all doubts
should be resolved in favor of the general
provisions rather than the exception.
o Where a statute enumerates the subjects
or things on which it is to operate, it is to
be construed as excluding from its
effects all those not expressly mentioned
(Martin, Statutory Construction, 1979 ed., p.
71 citing Dave's Place vs. Liquor Control
Comm., 269 N.W., p, 504).
The exceptions provided for in Section 5 should be
strictly construed.

o It follows then that on this general governing

principle, the position of assistant
secretary to the City Mayor of Caloocan
City should be considered as not
belonging
to
the
non-competitive
service.
The parties agreed that the nature of the
functions ultimately determines whether such
position is
policy-determining,
primarily
confidential or highly technical.
o It is not the powers and duties exercised
and discharged by the Assistant Secretary
to the Mayor as may be delegated and
assigned by the Mayor that makes the
position of Assistant Secretary primarily
confidential.
o While duties possibly involving confidential
matters are sometimes handled by the
Assistant Secretary to the Mayor, this does
not necessarily transform the nature of the
position itself as one that is primarily and
highly confidential.
It should be stressed that the position of
Secretary to the Mayor and that of Assistant
Secretary to the Mayor are two separate and
distinct positions.
o While both individuals may be called
"secretary," one is certainly of a higher
category and rank than the other with the
added distinction that a Secretary must
enjoy the confidence of the Mayor.
o However, the position of Assistant Secretary
need not carry the requisites attaching to

the primarily confidential position of the

actual Secretary to the Mayor.
Moreover, if it was the intention of Congress to
include the Assistant Secretaries within the
purview of Section 5(f) of R.A. No. 2260, the law
could have been easily worded "secretaries
and their assistance."
Further, the SC disagreed with petitioners
contention that an Asst. Secretary is also a
secretary included in the general term under Sec.
5(f).
o An "assistant" merely helps, aids or serves
in a subordinate capacity to the person who
is actually clothed with all the duties and
responsibilities of "secretary."
o The functions strictly attributable to a
"secretary" and which would repose on such
person the trust and confidence of the
employer, is not automatically vested or
transferred to an "assistant secretary,"
because the latter simply assists or aids the
former in the accomplishment of his duties.
The rulings of this Court in De Los Santos vs.
Mallare and Besa vs. PNB invoked by the
petitioners do not provide support to petitioners'
case.
o The case of De los Santos vs. Mallare,
relates to a quo warranto proceeding,
questioning the legality of the appointment
of the respondent therein to the office of the
City Engineer for the City of Baguio which
petitioner De los Santos was then
occupying. Said position was in fact

declared to be neither primarily confidential,

policy-determining, nor highly technical and
petitioner therein was adjudged to be
entitled to remain in office and the
respondent's appointment was declared
ineffective.
o Neither would the other case of Besa vs.
PNB find any application to the instant case
because the position therein involved was
that of Chief Legal Counsel which, by its
very nature, was rightfully ruled to be both
impressed with a highly technical aspect
and confidential character.
o The facts and circumstances in the present
case and even the principal issue involved
in the case at bar are distinctly different
from the cases cited by petitioners.
Further, in Ingles vs. Mutuc, the SC held that the
fact that they, at times, handle 'confidential matters'
does not suffice to characterize their 'positions' as
primarily confidential. Indeed, it is admitted that
plaintiffs, likewise, handle 'other routine matters,'
and it has not even been shown that their work is,
at least, principally confidential.

WHEREFORE, the decision appealed from is hereby

AFFIRMED but considering the notice of death given to
this Court of the death of the herein private respondent
Feliciano C. Talens, on August 28, 1982 (Rollo, p. 184),
the dispositive portion of the subject decision of the trial
court in Civil Case No. C-2308, is hereby MODIFIED, to
now read as follows:

IN
VIEW
OF
ALL
THE
FOREGOING
CONSIDERATIONS, the Court hereby renders
judgment in favor of Petitioner Feliciano C. Talens,
and against the Respondents, and Declaring
Administrative Order No. 3, dated January 10,
1972, of Respondent City Mayor Marcial F.
Samson, null and void;
Ordering Respondents, except private respondent
Hermogenes Liwag, to pay Petitioner Feliciano C.
Talens, all the salaries and emoluments
appurtenant to and due to the latter as Assistant
Secretary to the Mayor of Caloocan City, but for a
limited period of three years. Without costs.

Grino VS. CSC

FACTS
Grino terminated the services of Arandela and all the
legal officers due to a loss of trust and confidence.
ISSUE
WON confidentiality is necessary for the position of
provincial attorney and other legal officers of the
governor.

courts decided that the Cadiente case is applicable here

by virtue of Republic Act No. 5185. Bothe provincial
attorney and legal officer serve as the legal adviser and
legal officer for the civil cases of the provinces and the
city that they work for. Their services are precisely
categorized by law to be trusted services. The lack
thereof does not remove or dismiss them rather it is when
their tenure ends. It can be viewed as an expiration of
tenure which is what happened between Grino and
Arandela. Thus, there being no removal or dismissal,
there was no violation of a constitutional provision that no
officer or employee in the civil service shall be suspended
or dismissed except for a cause as provided by lay
(Article XII-B, Section 1 (3) , 1973 constitution).
CSC v. Salas 274 SCRA 414 [1997] (nature of duties
determinative of the confidentiality of position)*
CIVIL SERVICE COMMISSION and PHILIPPINE
AMUSEMENT
AND
GAMING
CORPORATION, petitioners,
vs.
RAFAEL M. SALAS, respondent.
G.R. No. 123708 | June 19, 1997 | REGALADO | EN
BANC

HELD
First the courts determined the nature of the positions
held by the provincial attorney and its subordinates.
Based on Cadiente VS. Santos, their position is indeed
one which is primarily confidential in nature. Next, the

The present petition for review on certiorari seeks

to nullify the decision of the Court of Appeals, dated
September 14, 1995, in CA-G.R. SP No. 38319 which set
aside Resolution No. 92-1283 of the Civil Service

Commission (CSC) and ordered the reinstatement of

herein private respondent Rafael M. Salas with full back
wages for having been illegally dismissed by the
Philippine Amusement and Gaming Corporation
(PAGCOR), but without prejudice to the filing of
administrative charges against him if warranted.

FACTS

On October 7, 1989, respondent Salas was

appointed by the PAGCOR Chairman as Internal
Security Staff (ISS) member and assigned to the
casino at the Manila Pavilion Hotel.
However, his employment was terminated by the
Board of Directors of PAGCOR on December 3,
1991, allegedly for loss of confidence, after a
covert investigation conducted by the Intelligence
Division of PAGCOR.
o The summary of intelligence information
claimed that respondent was allegedly
engaged in proxy betting as detailed in the
affidavits purportedly executed by two
customers of PAGCOR who claimed that
they were used as gunners on different
occasions by respondent.
o The two polygraph tests taken by the latter
also yielded corroborative and unfavorable
results. Salas submitted a letter of appeal to
the Chairman and the Board of Directors of
PAGCOR, requesting reinvestigation of the
case since he was not given an opportunity
to be heard, but the same was denied.

CSC issued Resolution No. 92-1283 which

affirmed the decision of the Merit Systems
Protection Board (MPSB).
Court of Appeals rendered its questioned decision
with the finding that herein respondent Salas is not
a confidential employee; hence he may not be
dismissed on the ground of loss of confidence.
Petitioners (CSC) aver that respondent Salas, as a
member of the Internal Security Staff of PAGCOR,
is a confidential employee for several reasons:
o Presidential Decree No. 1869 which created
the Philippine Amusement and Gaming
Corporation expressly provides under
Section 16 thereof that all employees of the
casinos and related services shall be
classified as confidential appointees;
o The Supreme Court has classified PAGCOR
employees as confidential appointees
o CSC Resolution No. 91-830, dated July 11,
1991, has declared employees in casinos
and related services as confidential
appointees by operation of law;
o Based on his functions as a member of the
ISS, private respondent occupies a
confidential position.
Furthermore, he was not dismissed from the
service but, instead, his term of office had
expired. They additionally contend that the Court of
Appeals erred in applying the "proximity rule"
because even if Salas occupied one of the lowest
rungs in the organizational ladder of PAGCOR, he
performed the functions of one of the most
sensitive positions in the corporation.

Section 16(e) of Republic Act No. 2260 (Civil

Service Act of 1959), which was then in force when
Presidential Decree No. 1869 creating the
Philippine Amusement and Gaming Corporation
was passed, provided that "upon recommendation
of the Commissioner, the President may declare a
position
as
policy-determining,
primarily
confidential, or highly technical in nature." It
appears that Section 16 of Presidential Decree No.
1869 was predicated thereon, with the text thereof
providing as follows:

On the other hand, respondent Salas argues that it

is the actual nature of an employee's functions,
and not his designation or title, which determines
whether or not a position is primarily confidential,
and that while Presidential Decree No. 1869 may
have declared all PAGCOR employees to be
confidential
appointees,
such
executive
pronouncement may be considered as a mere
initial determination of the classification of
positions which is not conclusive in case of conflict,
in light of the ruling enunciated in Tria vs. Sto.
Tomas, et al.

o "All positions in the corporation, whether

technical, administrative, professional or
managerial are exempt from the provisions
of the Civil Service Law, rules and
regulations, and shall be governed only by
the personnel management policies set by
the Board of Directors. All employees of the
casinos and related services shall be
classified as 'confidential' appointees."

ISSUE
Whether the position of Salas in PAGCOR is a
confidential position such that the loss of
confidence could be the basis for his dismissal?
No.

HELD
WHEREFORE, the impugned judgment of
respondent Court of Appeals is hereby
AFFIRMED in toto.

RATIO

Section 2, Rule XX of the Revised Civil Service

Rules, promulgated pursuant to the provisions of

When Republic Act No. 2260 was enacted on June

19, 1959, Section 5 thereof provided that "the noncompetitive or unclassified service shall be
composed of positions expressly declared by law
to be in the non-competitive or unclassified service
or those which are policy-determining, primarily
confidential, or highly technical in nature." In the
case of Piero, et al. vs. Hechanova, et al., the
Court obliged with a short discourse there on how
the phrase "in nature" came to find its way into the
law, thus:
o "The change from the original wording of the

bill (expressly declared by law x x x to be

policy-determining, etc.) to that finally
approved and enacted ('or which are policydetermining, etc. in nature') came about
because of the observations of Senator
Taada, that as originally worded the
proposed bill gave Congress power to
declare by fiat of law a certain position as
primarily confidential or policy-determining,
which should not be the case. The Senator
urged that since the Constitution speaks of
positions which are 'primarily confidential,
policy-determining, or highly technical in
nature', it is not within the power of
Congress to declare what positions are
primarily confidential or policy-determining.
'It is the nature alone of the position that
determines whether it is policydetermining or primarily confidential.'
Hence, the Senator further observed, the
matter should be left to the 'proper
implementation of the laws, depending
upon the nature of the position to be
filled', and if the position is 'highly
confidential' then the President and the
Civil
Service
Commissioner
must
implement the law.
Hence the dictum that, at least since the
enactment of the Civil Service Act of 1959, it is the
nature of the position which finally determines
whether a position is primarily confidential, policydetermining or highly technical. And the court in
the aforecited case explicitly decreed that

executive pronouncements, such as Presidential

Decree No. 1869, can be no more than initial
determinations that are not conclusive in case of
conflict
Who determines the confidentiality of the
position:
o Initial decision is made by the legislative
body or by the executive department, but
the final decision is done by the court. The
Supreme Court has constantly held that
whether or not a position is policydetermining, primarily confidential or highly
technical, it is determined not by the title but
by the nature of the task that is entrusted to
it. For instance, we might have a case
where a position is created requiring that
the holder of that position should be a
member of the Bar and the law classifies
this position as highly technical. However,
the Supreme Court has said before that a
position which requires mere membership in
the Bar is not a highly technical
position. Since the term 'highly technical'
means something beyond the ordinary
requirements of the profession, it is always
a question of fact.
Effect of a declaration that a position is policydetermining, primarily confidential or highly
technical as an exception is to take it away from
the usual rules and provisions of the Civil Service
Law and to place it in a class by itself so that it can
avail itself of certain privileges not available to the

ordinary run of government employees and

officers.
All it says is that there are certain positions which
should not be determined by competitive
examination. There are other ways of determining
merit
and
fitness
than
competitive
examination. This is not a denial of the
requirement of merit and fitness
It must be stressed further that these positions are
covered by security of tenure, although they are
considered non-competitive only in the sense that
appointees thereto do not have to undergo
competitive examinations for purposes of
determining merit and fitness.
Piero doctrine continues to be applicable up to the
present and is hereby maintained. Such being the
case, the submission that PAGCOR employees
have been declared confidential appointees by
operation of law under the bare authority of CSC
Resolution No. 91-830 must be rejected.
The facts of which are substantially similar to the
case at bar, involving as it did employees
occupying positions in various capacities in the
Port Patrol Division of the Bureau of Customs. The
Court there held that the mere fact that the
members of the Port Patrol Division are part of the
Customs police force is not in itself a sufficient
indication that their positions are primarily
confidential
Source of confidentiality: (Confidence as
primary reason for the existence of the
position)

o "As previously pointed out, there are no

proven facts to show that there is any
such close intimacy and trust between
the appointing power and the appellees
as would support a finding that
confidence was the primary reason for
the existence of the positions held by them
or for their appointment thereto. Certainly, it
is extremely improbable that the service
demands any such closed trust and intimate
relation between the appointing official and,
not one or two members alone but the
entire Customs patrol (Harbor Police) force,
so that every member thereof can be said
to hold 'primarily confidential' posts

SALAS DOES NOT ENJOY CLOSE INTIMACY

WITH THE APPOINTING AUTHORITY OF
PAGCOR . As an Internal Security Staff member,
private respondent routinely
a. performs duty assignments at the gaming
and/or non-gaming areas to prevent
irregularities,
misbehavior,
illegal
transactions and other anomalous activities
among the employees and customers,
b. reports unusual incidents and related
observations/information in accordance with
established
procedures
for
infractions/mistakes committed on the table
and in other areas;
c. coordinates with CCTV and/or external
security as necessary for the prevention,

documentation or suppression of any

unwanted incidents at the gaming and nongaming areas;
d. acts as witness/representative of Security
Department during chips inventory, refills,
yields, card shuffling and final shuffling;
e. performs escort functions during the
delivery of table capital boxes, refills and
shoe boxes to the respective tables, or
during transfer of yields to Treasury.
While it may be said that honesty and integrity
are primary considerations in his appointment
as a member of the ISS, his position does not
involve "such close intimacy" between him
and the appointing authority, that is, the
Chairman of PAGCOR, as would ensure
"freedom from misgivings of betrayals of
personal trust.
Although appointed by the Chairman, ISS
members do not directly report to the Office of the
Chairman in the performance of their official
duties. An ISS member is subject to the control
and supervision of an Area Supervisor who, in turn,
only implements the directives of the Branch Chief
Security Officer. The latter is himself answerable to
the
Chairman
and
the
Board
of
Directors. Obviously, as the lowest in the chain of
command, private respondent does not enjoy that
"primarily close intimacy" which characterizes a
confidential employee.

Achacoso v. Macaraig 195 SCRA 235 [1991]

(temporary appointments)
Section 2.
1. The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
Government,
including
government-owned
or
controlled corporations with original charters.
2. Appointments in the civil service shall be made only
according to merit and fitness to be determined, as far
as practicable, and, except to positions which are
policy-determining, primarily confidential, or highly
technical, by competitive examination.
3. No officer or employee of the civil service shall be
removed or suspended except for cause provided by
law.
4. No officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering or
partisan political campaign.
5. The right to self-organization shall not be denied to
government employees.
6. Temporary employees of the Government shall be
given such protection as may be provided by law.
Facts:

Tomas D. Achacoso was appointed Administrator

of
the
Philippine
Overseas
Employment
Administration. He assumed office on October 27,
1987.

On January 2, 1990 the President addressed a

request
to
all
Department
Heads,
Undersecretaries, Assistant Secretaries, Bureau
Heads, and other government officials to file a
courtesy resignation.

On April 10, 1990 the Secretary of Labor

requested him to turn over his office to the Deputy
Administrator as officer-in-charge.

He protested his replacement and declared he was

not surrendering his office because his resignation
was not voluntary but filed only in obedience to the
Presidents directive. On the same date,
respondent Jose N. Sarmiento was appointed
Administrator of the POEA, vice the petitioner.

Achacoso was informed thereof the following day

and was again asked to vacate his office. He filed
a motion for reconsideration but this was denied.
He then came to this Court for relief. The petitioner
invokes security of tenure against his claimed
removal without legal cause. Achacoso contends
that he is a member of the Career Service of the
Civil Service and so enjoys security of tenure,

which is one of the characteristics of the Career

Service as distinguished from the Non-Career
Service.

His argument is that in view of the security of

tenure enjoyed by the above-named officials, it
was beyond the prerogatives of the President to
require them to submit courtesy resignations. Such
courtesy resignations, even if filed, should be
disregarded for having been submitted under
duress, as otherwise the President would have
the power to remove career officials at pleasure,
even for capricious reasons

The respondents assert he is not entitled to the

guaranty because he is not a career official (the
petitioner did not possess the necessary
qualifications
when
he
was
appointed
Administrator of the POEA in 1987).

Issue:

WON Achacoso is protected by the security of

tenure clause?

Held:

NO.

Ratio:

It is settled that a permanent appointment can be

issued only "to a person who meets all the
requirements for the position to which he is being
appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore,
his appointment could be regarded only as
temporary. And being so, it could be withdrawn at
will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.

A permanent appointment can be issued only to a

person who meets all the requirements for the
position to which he is being appointed, including
the appropriate eligibility prescribed.

The mere fact that a position belongs to the Career

Service does not automatically confer security of
tenure on its occupant even if he does not possess
the required qualifications. A person who does not
have the requisite qualifications for the position
cannot be appointed to it in the first place or, only
as an exception to the rule, may be appointed to it
merely in an acting capacity in the absence of
appropriate eligibles.

The purpose of an acting or temporary

appointment is to prevent a hiatus in the discharge
of official functions by authorizing a person to
discharge the same pending the selection of a
permanent or another appointee.

The person named in an acting capacity accepts

the position under the condition that he shall
surrender the office once he is called upon to do
so by the appointing authority.

In these circumstances, the acting appointee is

separated by a method of terminating official
relations known in the law of public officers as
expiration of the term. His term is understood at
the outset as without any fixity and enduring at the
pleasure of the appointing authority. When
required to relinquish his office, he cannot
complain that he is being removed in violation of
his security of tenure because removal imports the
separation of the incumbent before the expiration
of his term. This is allowed by the Constitution only
when it is for cause as provided by law. The acting
appointee is separated precisely because his term
has expired. Expiration of the term is not covered
by the constitutional provision on security of
tenure.

Santiago VS CSC
FACTS
Tanada promoted Santiago as Customs Collector III
JOSE argued the he was supposed to be the one
promoted because he was next-in-rank.

March 17, 1987 Santiago was replaced by Jose due to

the latters appeal to the Board.
ISSUE
WON the Board abused its jurisdiction when it revoked
santiagos promotion and appointed Jose as the new
Customs Collector III
HELD
The power to appoint is a matter of discretion. As
explained in the Taduran vs CSC, the next-in-rank is only
entitled to preference appointment but this does not
assure him of the position. Rather, if there is no one
qualified or if the positions has been left vacant, then the
next-in-rank shall take over.
To apply the next-in-rank as mandatory rule would impose
a strict and narrow formula which would greatly limit the
appointing power contrary to the policy of the law that
among those qualified and eligible, the appointing
authority is granted discretion and prerogative of choice
of the one he deems fit for appointment.
The Commission is only meant to check the eligibility of
the appointed members and if he does posses the
required qualification he is then approved. No other
criterion is permitted by law to be employed by the
Commission.
G.R. No. L-17287

June 30, 1965

JAIME
HERNANDEZ,
Secretary
of
Finance,
ELEUTERIO CAPAPAS, Commissioner of Customs,
JAMES H. KEEFE, Acting Director of Security, and
JUAN C. PAJO Executive Secretary, petitioners,
vs.
EPIFANIO T. VILLEGAS and the HON. COURT OF
APPEALS, respondents.
FACTS

On 1 November 1955, Epifanio Villegas was

appointed Director for Security (DS) of the Bureau
of Customs. He was sent to the US to study
enforcement techniques and custom practices.
When he returned in 1957, he was temporarily
detailed to the Arrastre Service while a certain
James Keefe was designated Acting Director for
Security. Villegas continued to receive salary of
DS.
On 9 January 1958, Secretary of Finance Jaime
Hernandez (petitioner) proposed to the President
the permanent appointment of Villegas as Arrastre
Superintendent. [APPROVED] by Executive
Secretary. Court of Appeals noted and observed
this as a promotion for Keefe to DS and a
demotion for respondent Villegas.
Villegas didnt know of his appointment February
1958. On 3 March 1958, he served notices that he
would resume his office as DS and to disapprove
the appointment of Keefe. [FAILED]

Villegas then filed action for quo warranto in the

CFI of Manila. judgment in favor of Villegas with
right to collect backpay.
Then, petitioners appealed to the SC arguing that
the position of DS, which has functions related to
security, is primarily confidential, thus, effecting
that position to be excluded from the merit system
and allowing their dismissal at pleasure of officers.

ISSUES:

W/N the office of DS in the Bureau of Customs, is

a primarily confidential position?
W/N the DS can be transferred to another position
without cause?

HELD

The Court held that whether or not it is a

confidential position is immaterial in this case.
No. the DS cannot be transferred to another
position without cause.

Briones v. Osmea 104 PHIL. 588 [1958] (abolition

in good faith)

Even assuming the position is confidential, it is still

subject to the Constitutional provision that No
officer or employee in the Civil Service shall be
removed or suspended except for cause. (Phil.
Const., Art. XII, sec. 4) phrasing of this provision
provides for no exception

Concepcion G. Briones is a first grade civil service

eligible, she was appointed as Clerk-Stenographer in the
Office of the City Treasurer of Cebu and was transferred
to the Office of the City Mayor, in the same capacity as
Clerk-Stenographer, but with permanent status. Petitioner
Faustino O. Rosagaran is a second grade civil service
eligible and was employed in the Office of the City Mayor
of Cebu and was promoted to Administrative Officer. On
February 20, 1956, the City Mayor, approved Ordinance

RATIO

o *Note* in the 1987 Constitution however, it

has the exception of provided by law
(1987 Constitution, Art IX B, sec. 2 (3))
It is to be understood that officials and employees
holding primarily confidential positions continue
only for so long as confidence in them endures.
The termination of their official relation can be
justified on the ground of loss of confidence
because in that case their cessation from office
involves no removal but merely the expiration of
the term of office. The point is, as long as
confidence in them endures, the incumbent is
entitled to continue in office.
o In this case, respondent Villegas did not do
anything to warrant loss of confidence.
Therefore, he is entitled to resume his office
as Director for Security.

FACTS

No. 192, abolishing 15 positions in the City Mayor's office

and 17 positions in the Office of the Municipal Board, or a
total of 32 positions in both offices. Among the positions
abolished in the Office of the City Mayor were those
occupied by petitioners.
ISSUE
WON the abolition of the positions is void.
HELD
YES
The reason given for the abolition of the positions is
untrue, and constitutes a mere subterfuge for the removal
without cause of the said appellees, in violation of Civil
Service tenures as provided by the Constitution. A decent
respect for the Civil Service provisions of our Constitution
dictates that civil service eligibles, who have rendered
long and honorable services, should not be sacrificed in
favor of non-eligibles given positions of recent creation,
nor should be left at the mercy of political changes.

It is evident that the mayor could not legally remove the

petitioner without cause, for being a member of the Civil
Service, his tenure of office is protected by Section 4,
Article XII of the Constitution, which says: 'No officer or
employee in the Civil Service shall be removed or
suspended except for cause as provided by law.' The

Committee on Civil Service of the Constitutional

Convention, in recommending said provision said:
. . . . The merit system will be ineffective if no safeguards
are placed around the separation and removal of the
public employees. The Committees' report requires that
removal shall be made only for cause' and in the manner
provided by law. This means that there should be bona
fide reasons and action may be taken only after the
employee shall have been given a fair hearing. This
affords to public employees reasonable security of tenure.
(Aruego, the Framing of the Philippine Constitution, 1949
Ed., p. 567)

This Court has always upheld these salutary principle. in

Gacho, et al., vs. Osmea, etc. et al., 94 Phil., 208, we
ruled that while abolition of the office does not imply
removal of the incumbent. For an abolition to be valid: (1)
done in good faith, (2) must not be for personal or political
reasons, and (3) does not violate the law (Briones
v.Osmena)
ALEJO SANTOS
V
HON. NICASIO YATCO
Art IX, Section 2 (4):
No officer or employee in the civil service shall engage,
directly or indirectly, in any electioneering or partisan
political campaign.

FACTS:
- Alejo SANTOS is the Secretary of National Defense.
Before an election, he was campaigning for Governor
Tomas Martin, candidate of the Nacionalista Party in
the Province of Bulacan.
- A case was filed against SANTOS for his supposed
partisan political activity in violation of the Civil Service
Act of 1959,
- The act prohibits all officers and employees in the civil
service, "whether in the competitive or classified, or
non-competitive or unclassified service," from engaging
directly or indirectly in partisan political activities or
taking part in any election except to vote.
- Judge YATCO ruled that the Secretary of National
Defense is embraced within the civil service who are
prohibited to take part in partisan political activities. A
preliminary injunction was issued by him restraining the
secretary of National Defense to campaign. The case
was appealed to the Supreme Court by the Office of
the Solicitor General.
ISSUE:

WON Cabinet members/department secretaries are

covered in the Constitutional prohibition against partisan
political activity
HELD:
NO
Ratio:
- The ban does not extend to those officers and
employees outside of the civil service such as
members of the Cabinet.
-

The Secretary of National Defense is not embraced

within the terms: "officers and employees in the
civil service" (as disclosed in the proceedings in the
Constitutional Convention wherein the attempt of
Delegate Mumar to include the heads of executive
departments within the civil service was rejected) who
are prohibited to take part in partisan political activities.

- Cabinet Members serve at the behest and pleasure of

the President. As such, their positions are essentially
political.
- Although such campaigning is may be seen as
improper (because of SANTOS supposed deleterious
influence upon the members of the Armed Forces, who

are administratively subordinated to the Secretary of

National Defense, and who are often called upon by
the Commission on Election to aid in the conduct of
orderly and impartial elections), it is not considered as
illegal. Injunction set aside.
GSIS vs. KAPISANAN

the service. KAPISANAN then filed a Petition for

Prohibition before the CA, on the grounds that:
1.
Members should not be made to explain why they
supported their unions cause
2.
Petitioner Garcia blatantly disregarded Civil
Service Reso No. 021316 otherwise known as the
Guidelines for Prohibited Mass Action

FACTS
A four day concerted demonstration, rallies and en masse
walkout was held in front of the GSIS main building in
Pasay City. The mass action participants were GSIS
personnel, among them are members of the herein
KAPISANAN, a public sector union of GSIS rank and file
employees. Said mass action targets the herein petitioner
GARCIA and his management style.
On October 10, 2004 the manager of the GSIS
Investigating Unit issued a Memo directing 131 union and
non-union members to show cause why they should not
be charged administratively for participating in the rally.
KAPISANANs
counsel,
Atty.
Molina
sought
reconsideration of the said memo on the ground that the
subject employees resumed work in obedience of the
return to work issued.
However, the plea of reconsideration was denied by the
filing, on October 25 2004, of the administrative charges
against some 110 KAPISANAN members for grave
misconduct and conduct prejudicial to the best interest of

Pending resolution of the petition for prohibition of the CA,

the GSIS Management proceeded with the investigation
of the admin cases which resolved 207 out of 278 cases,
resulting to the exoneration of 20 respondent-employees,
reprimand of 182 and suspension of 5.
On June 16 2005, the CA rendered the herein ASSAILED
decision holding that Garcias filing of admin charges
against 361 of KAPISANANs members is TANTAMOUNT
to GRAVE ABUSE OF DISCRETION which may be the
proper subject of the writ of prohibition. Unable to accept
the
above
ruling,
petitioner
GARCIA
sought
reconsideration, which was denied. Hence this petition.
ISSUE
Whether or not the right of public sector to form unions or
associations include right to strike?
HELD
No. Employees in the public service may not engage in
strikes or in concerted and unauthorized stoppage of

work. The right of government employees to organize is

limited to the formation of unions or associations, without
including the right to strike. Fact remains that the erring
employees, instead of exploring non-crippling activities
during their free time, had taken a disruptive approach to
attain whatever it was they were specifically after. As
events evolved, they assembled in front of the GSIS main
office building during office hours and staged rallies and
protests, and even tried to convince others to join their
cause, thus provoking work stoppage and servicedelivery disruption, the very evil sought to be forestalled
by the prohibition against strikes by government
personnel.
To say that there was no work disruption or that the
delivery of services remained at the usual level of
efficiency at the GSIS main office during those four (4)
days of massive walkouts and wholesale absences would
be to understate things. And to place the erring
employees beyond the reach of administrative
accountability would be to trivialize the civil service rules,
not to mention the compelling spirit of professionalism
exacted of civil servants by the Code of Conduct and
Ethical Standards for Public Officials and Employees.
Relevant also is CSC Resolution No. 021316 which
provides rules on prohibited concerted mass actions in
the public sector.
It should be stressed right off that the civil service
encompasses all branches and agencies of the
Government, including government-owned or controlled
corporations (GOCCs) with original charters, like the
GSIS, or those created by special law. As such,

employees of covered GOCCs are part of the civil service

system and are subject to circulars, rules and regulations
issued by the Civil Service Commission (CSC) on
discipline, attendance and general terms/conditions of
employment, inclusive of matters involving selforganization, strikes, demonstrations and like concerted
actions. In fact, policies established on public sector
unionism and rules issued on mass action have been
noted and cited by the Court in at least a case.
Gloria v. CA
G.R. No. 119903 | August 15, 2000
HON. RICARDO T. GLORIA, in his capacity as
SECRETARY, AND DIRECTOR NILO L. ROSAS in his
capacity as REGIONAL DIRECTOR, DEPARTMENT OF
EDUCATION, CULTURE AND SPORTS, petitioners, vs.
HON. COURT OF APPEALS AND DR. BIENVENIDO A.
ICASIANO, respondents.
Purisima, J.:
Summary: Icasiano was assigned as school division
superintendent but was later reassigned as vocational
schools superintendent (which according to petitioners is
only until a new superintendent is appointed). He
questioned his reassignment arguing that it wasnt
temporary. CA agreed with himthe tenor of the
recommendation memo which stated that his
reassignment will "best fit his qualifications and
experience" being "an expert in vocational and technical
education seems indefinite. SC affirmed CA. Agreed with
the finding of the CA that the reassignment wasnt
temporary and this violates security of tenure. The mantle

of the security of tenure extends not only to employees

removed without cause but also to cases of unconsented
transfers which are tantamount to illegal removals. While
a temporary transfer or assignment of personnel is
permissible even without the employees prior consent, it
cannot be done when the transfer is a preliminary step
toward his removal, or is a scheme to lure him away from
his permanent position, or designed to indirectly terminate
his service, or force his resignation. Such a transfer would
in effect circumvent the provision which safeguards the
tenure of office of those who are in the Civil Service

Facts:

CASE: Petition for review on certiorari to question

decision of CA.
June 29, 1989: respondent ICASIANO was appointed
as school division superintendent, Division of City
School, QC.
Oct 10, 1994: petitioner Sec GLORIA recommended
to the President to reassign ICASIANO as vocational
school superintendent of the MIST (Marikina
Institute of Science and Technology) to fill up the
vacuum created by the retirement of its
superintendent.
o President approved and a copy of this
approved recommendation for reassignment
was transmitted to ICASIANO
o NOTE: it is contended by the petitioners that
the reassignment was only temporary lasting
only until new appointment of new
superintendent.

Oct 14, 1994: other petitioner Dir ROSAS informed

ICASIANO of his reassignment effective October 17,
1994
o ICASIANO requested GLORIA to reconsider
but this was denied by the latter. ICASIANO
then prepared a letter to the President asking
for reconsideration (copy furnished to the
DECS) but subsequently changed his mind and
refrained from filing in with the PREZ.
o NOTE: he contends that the reassignment is
not temporary.
Oct 19, 1994: petition filed in CA
o CA issued TRO then on 28 March 1995 issued
the assailed decision:
o WHEREFORE, for lack of a period or any
indication that it is only temporary, the
reassignment of the petitioner from Schools
Division Superintendent, Division of City
Schools, Quezon City, to Vocational Schools
Superintendent of the Marikina Institute of
Science and Technology pursuant to the
Memorandum of Secretary Ricardo T. Gloria to
the President of the Philippines dated 10
October 1994, is hereby declared to be
violative of petitioners right to security of
tenure, and the respondents are hereby
prohibited from implementing the same.

Issue(s):
Whether the reassignment is violative of security of
tenure

the (reassigned) job, being an expert in the

field.

Held:
Denied, CA decision affirmed.
Ratio:
Argument of Petitioner:
1. Petitioners contend that the doctrine in Bentain vs.
Court of Appeals that "a reassignment that is indefinite
and results in a reduction in rank, status and salary, is
in effect, a constructive removal from the service" -does not apply in the present case for the
reassignment in question was merely temporary,
lasting only until the appointment of a new Vocational
School Superintendent of MIST.
SC disagrees:
2. After a careful study, the Court upholds the finding of
the respondent court that the reassignment of
petitioner to MIST "appears to be indefinite".
a. The same can be inferred from the
Memorandum of Secretary Gloria for President
Fidel V. Ramos to the effect that the
reassignment of private respondent will "best fit
his qualifications and experience" being "an
expert in vocational and technical education."
b. It can thus be gleaned that subject
reassignment is more than temporary as the
private respondent has been described as fit for

c. Besides, there is nothing in the said

Memorandum to show that the reassignment of
private respondent is temporary or would only
last until a permanent replacement is found as
no period is specified or fixed; which fact
evinces an intention on the part of petitioners to
reassign private respondent with no definite
period or duration.
d. Such feature of the reassignment in question is
definitely violative of the security of tenure of
the private respondent.
3. Security of tenure is a fundamental and
constitutionally guaranteed feature of our civil service.
The mantle of its protection extends not only to
employees removed without cause but also to cases
of unconsented transfers which are tantamount to
illegal removals
a. While a temporary transfer or assignment of
personnel is permissible even without the
employees prior consent, it cannot be done
when the transfer is a preliminary step toward
his removal, or is a scheme to lure him away
from his permanent position, or designed to
indirectly terminate his service, or force his
resignation.
b. Such a transfer would in effect circumvent the

provision which safeguards the tenure of office

of those who are in the Civil Service

appoint all other officers of the Government

whose appointments are not otherwise
provided for by law, and those whom he
may be authorized by law to appoint"
it was congress that appointed
Gordon

4. Having found the reassignment of private respondent

to the MIST to be violative of his security of tenure, the
order for his reassignment to the MIST cannot be
countenanced.
NOTE: SC did not attach or quote the whole
recommendation memo, just the ones I used here.

ISSUE/S:

Flores v. Drilon GR 104732, June 22, 1993 (SBMA

Chair and the Mayor of Olongapo City)

Whether there is legislative encroachment on

the appointing authority of the President.

RULING:
FACTS:

constitutionality of Sec. 13, par. (d) of RA 7227

Bases Conversion and Development Act of
1992
o "to prevent useless and unnecessary
expenditures of public funds by way of
salaries and other operational expenses
attached to the office
SEC 13 (D) infringes on the following constitutional
and statutory provisions:
o Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective
official shall be eligible for appointment or
designation in any capacity to any public
officer or position during his tenure,"
o Sec. 16, Art. VII, of the Constitution, which
provides that "[t]he President shall . . . .

YES
o

o
o
o

although Section 13(d) itself vests in the

President the power to appoint the
Chairman of SBMA, he really has no choice
but to appoint the Mayor of Olongapo City.
The power of choice is the heart of the
power to appoint.
Appointment involves an exercise of
discretion of whom to appoint.
Hence, when Congress clothes the
President with the power to appoint an
officer, it cannot at the same time limit
the choice of the President to only one
candidate.
Such enactment effectively eliminates the
discretion of the appointing power to choose

and constitutes an irregular restriction on

the power of appointment.
While it may be viewed that the proviso
merely sets the qualifications of the
officer during the first year of operations
of SBMA, i.e., he must be the Mayor of
Olongapo City, it is manifestly an abuse
of congressional authority to prescribe
qualifications where only one, and no
other, can qualify.
Since the ineligibility of an elective
official for appointment remains all
throughout his tenure or during his
incumbency, he may however resign first
from his elective post to cast off the
constitutionally-attached disqualification
before he may be considered fit for
appointment.
Consequently, as long as he is an
incumbent, an elective official remains
ineligible for appointment to another
public office.

(d) Chairman administrator The President shall

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

appointed as the chairman and chief executive officer

of the Subic Authority (emphasis supplied).
Sadueste v. Municipality of Surigao 72 PHIL. 482
[1941] (specific authority from law to review
additional compensation)
ZACARIAS
DE
SADUESTE, plaintiff-appellant,
vs.
THE
MUNICIPALITY
OF
SURIGAO, defendantappellee.
G.R. No. L-47380 | June 27, 1941 | MORAN | EN BANC
FACTS

Zacarias Sadueste is a district engineer of the

Province of Surigao. He was designated by the
Director of Public Works as sanitary and
waterworks engineer pursuant to the provisions of
Sec 1916 of the Revised Administrative Code,
approved by the provincial board of Surigao.
He had an additional compensation of not more
than P60 a month payable from the income of the
waterworks system under his supervision.
He rendered services from January 1, 1936 to
March 30, 1939 but was not provided with the
necessary appropriation in the aggregate sum of
P2,338.06
Thus, he instituted an action for its recovery with
claim for damages in the amount of P300.
The trial court dismissed the complaint holding that
the provision of law (Sec 1916 of the Rev. Adm.
Code, as amended by Acts Nos. 3257 and 3978)

authorizing such additional compensation has

been repealed by Section 17 of Act No. 4187,
otherwise known as the General Appropriation Act
for 1936.
ISSUE
Whether or not the trial court erred in dismissing
petitioners claim for additional compensation? No.

There being no law by which the appellant

is specifically authorized to receive additional
compensation for his services as Sanitary and
Waterworks Engineer, his claim therefor must fail.

The authority granted in the last paragraph of

section 1916 of the Revised Administrative Code is
a general authority given to all district engineers.
The authority required by the Constitution to
receive double or additional compensation is a
specific authority given to a particular employee
or officer of the Government because of peculiar or
exceptional reasons warranting the payment of
extra or additional compensation.

The purpose of the Constitution is to prohibit,

generally, payment of additional or double
compensation except in individual instances where
such appears to be not only just but necessary.

HELD
Judgment is affirmed, with costs against appellant.
RATIO

Section 1916 of the Administrative Code provided

for the additional compensation for a district
engineer. This has been repealed by Section 17 of
Act No. 4187 or the General Appropriation Act
which abolishes additional compensation for full
time officer or employee of the government. But, it
was contended that section 17 of Act No. 4187 is
unconstitutional, it being offensive to Article 3 of
the Jones Law.
However, it is not even necessary to pass upon the
constitutional question raised because Article XI,
Section 3, of then Philippine Constitution (now Art
IX-B, Sec 8) provides that "no officer or employee
of the Government shall receive additional or
double
compensation
unless specifically authorized by law."

COMMISSION ON ELECTIONS

which device or service requires the use in any degree of

legal knowledge or skill." (111 ALR 23)
Facts:

*Cayetano v. Monsod 201 SCRA 210 [1991]

(meaning of practice of law)*
C. COMMISSION ON ELECTIONS
Section 1.
1. There shall be a Commission on Elections composed
of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age, holders
of a college degree, and must not have been candidates
for any elective positions in the immediately preceding
elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who
have been engaged in the practice of law for at least ten
years.
Doctrine:
Practice of law means any activity, in or out of
court, which requires the application of law, legal
procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally, to
practice law is to give notice or render any kind of service,

Respondent, Christian Monsod, was nominated by

President Corazon C. Aquino to the position of chairman
of the COMELEC. Petitioner, Renato Cayetano, opposed
the nomination because allegedly Monsod does not
posses the required qualification of having been engaged
in the practice of law for at least ten years.
On June 5, 1991, the Commission on
Appointments confirmed the nomination of Monsod as
Chairman of the COMELEC. On June 18, 1991, he took
his oath of office. On the same day, he assumed office as
Chairman of the COMELEC.
Challenging the validity
of the confirmation by the Commission on Appointments
of Monsod's nomination, petitioner as a citizen and
taxpayer, filed the instant petition for certiorari and
Prohibition praying that said confirmation and the
consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.
Issue:
WON Atty. Monsod possesses the qualification of
having been engaged in the practice of law for ten years.
Held:
Yes.

Ratio:
This Court in the case of Philippine Lawyers
Association v.Agrava, (105 Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of
cases or litigation in court; it embraces the preparation of
pleadings and other papers incident to actions and
special proceedings, the management of such actions
and proceedings on behalf of clients before judges and
courts, and in addition, conveying. In general, all advice
to clients, and all action taken for them in matters
connected with the law incorporation services,
assessment and condemnation services contemplating
an appearance before a judicial body, the foreclosure of a
mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings
in attachment, and in matters of estate and guardianship
have been held to constitute law practice, as do the
preparation and drafting of legal instruments, where the
work done involves the determination by the trained legal
mind of the legal effect of facts and conditions. (5 Am. Jr.
p. 262, 263). (Emphasis supplied)
**Atienza VS COMELEC**
Facts:
On March 2, 2016, Atienza hosted an election which
replaced all of LPs ruling body. The March 2 elections

was deemed invalid due to noncompliance with the

Salonga Constitution.
Then, Roxas was elected as the new LP president when
59 NECO members out of the 87 qualified to vote were in
attendance. However, Atienza contested that the quorum
was not reached based on the 60th anniversary souvenir
program. Roxas attested that the list was prior to the
2007 elections. After the elections events occurred that
changed the composition of the party. Thus the list was
considered an inappropriate basis for the qualified
members to vote.
Furthermore, other members that sided with Atienza were
deemed resigned due to the invalid election they help on
March 2, 2006.
COMELEC ruled that Roxas was the valid new Valid
President and that the 60th Anniversary Souvenir
Program was an invalid basis for the qualified members.
It also ruled that the issue concerning the current status
of Atienza as a LP member was beyond its jurisdiction
since the matter was an internal matter which the party
should resolve on its own.
Issue:
1.
WON COMELEC gravely abused its discretion
when it upheld the NECO membership that elected Roxas
as LP president.

2.
WON COMELEC gravely abused its discretion
when it resolved the issue concerning the validity of the
NECO meeting without first resolving the issue
concerning the expulsion of Atienza et al. from the party.

G.R. No. 199082 | September 18, 2012 | PERALTA | EN

BANC

Held:

The Comelec issued Resolution No. 9266 approving the

creation of a joint committee with the Department of
Justice (DOJ), which shall conduct preliminary
investigation on the alleged election offenses and
anomalies committed during the 2004 and 2007 elections.

1.
Using the 60th Anniversary souvenir program in
prior cases did not make it binding to the case at bar
since the part had already undergone changes in their
composition after the 2007 elections. Furthermore, the
NECO was validly convened in accordance with the
amended LP Constitution.
2. The Court decided that the expulsion of Atienza was
not the main issue of the case but rather the validity of the
NECO assembly that elected Roxas. Even if objections
were raised, during the election proper, by the faction of
Atienza, the court held that since the NECO composition
was already deemed valid, it can be said that said
objections were voted against by the majority.
JOSE MIGUEL T. ARROYO,
Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON
ELECTIONS; HON. LEILA DE LIMA, in her capacity as
Secretary of the Department of Justice; HON. SIXTO
BRILLANTES, .JR., in his capacity as Chairperson of
the Commission on Elections; and the JOINT DOJCOMELEC
PRELIMINARY
INVESTIGATION
COMMITTEE and FACT-FINDING TEAM, Respondents.

Facts:

The Comelec and the DOJ issued Joint Order No. 0012011 creating and constituting a Joint Committee and
Fact-Finding Team on the 2004 and 2007 National
Elections electoral fraud and manipulation cases
composed of officials from the DOJ and the Comelec. In
its initial report, the Fact-Finding Team concluded that
manipulation of the results in the May 14, 2007 senatorial
elections in the provinces of North and South Cotabato
and Maguindanao were indeed perpetrated. The FactFinding Team recommended that herein petitioners Gloria
Macapagal-Arroyo, et al. be subjected to preliminary
investigation for electoral sabotage.
After the preliminary investigation, the COMELEC en
banc adopted a resolution ordering that information/s for
the crime of electoral sabotage be filed against Arroyo, et
al. while that the charges against Jose Miguel Arroyo,
among others, should be dismissed for insufficiency of
evidence.

Consequently, petitioners assail the validity of the

creation of COMELEC-DOJ Joint Panel and of Joint
Order No. 001-2011 before the Supreme Court.
Issue:
Whether the creation of COMELEC-DOJ Joint Panel is
valid? Yes.
Held:
WHEREFORE, premises considered, the petitions and
supplemental petitions are DISMISSED. Comelec
Resolution No. 9266 dated August 2, 2011, Joint Order
No. 001-2011 dated August 15, 2011, and the FactFinding Teams Initial Report dated October 20, 2011, are
declared VALID.
In view of the constitutionality of the Joint Panel and the
proceedings having been conducted in accordance with
Rule 112 of the Rules on Criminal Procedure and Rule 34
of the Comelec Rules of Procedure, the conduct of the
preliminary investigation is hereby declared VALID.
Ratio:
Section 2, Article IX-C of the 1987 Constitution
enumerates the powers and functions of the Comelec.
The grant to the Comelec of the power to investigate and
prosecute election offenses as an adjunct to the
enforcement and administration of all election laws is
intended to enable the Comelec to effectively insure to

the people the free, orderly, and honest conduct of

elections. The constitutional grant of prosecutorial power
in the Comelec was reflected in Section 265 of Batas
Pambansa Blg. 881, otherwise known as the Omnibus
Election Code.
Under the above provision of law, the power to conduct
preliminary investigation is vested exclusively with the
Comelec. The latter, however, was given by the same
provision of law the authority to avail itself of the
assistance of other prosecuting arms of the government.
Thus, under the Omnibus Election Code, while the
exclusive jurisdiction to conduct preliminary investigation
had been lodged with the Comelec, the prosecutors had
been conducting preliminary investigations pursuant to
the continuing delegated authority given by the Comelec.
Thus, Comelec Resolution No. 9266, approving the
creation of the Joint Committee and Fact-Finding Team,
should be viewed not as an abdication of the
constitutional bodys independence but as a means to
fulfill its duty of ensuring the prompt investigation and
prosecution of election offenses as an adjunct of its
mandate of ensuring a free, orderly, honest, peaceful and
credible elections.

COMMISSION ON AUDIT

SALVADOR M. MISON, in his capacity as

Commissioner
of
Customs,
petitioner,
vs.
COMMISSION ON AUDIT, CHAN CHIU, and CHEUNG I,
respondents.
G.R. No. 91429 | July 13, 1990 | NARVASA | EN BANC
Facts:

In Customs Case No. 813, Mison, in his capacity

as Commissioner of Customs, declared illegal the seizure
by elements of the Philippine Navy of the M/V "Hyojin
Maru", a vessel of Japanese registry. So he ordered the
release of the vessel and its cargo to the claimants, Chan
Chiu On and Cheung I. However, the vessel was not
released because it sank while in the custody of the
Bureau of Customs and could not be salvaged because
of lack of funds.

Chan Chiu On and Cheung I then filed a claim with

the COA for the payment of the value for the vessel. Mr.
Rogelio B. Espiritu, Manager, Technical Service Office of
the COA, acting by authority of the Acting Chairman,
denied the claim through Decision No. 77-142. Claimants
counsel, Atty. Juan David, moved for reconsideration.

Acting COA Chairman Francisco S. Tantuico,

denied the motion on the ground that the reglementary
period of 30 days from the date of receipt of the Decision
has already lapsed and thus, the Decision had already
become final and executory.

Mr. David replied that the Decision was void

because it was rendered only by the Manager, Technical
Service Office of the COA, and "not (by) the Acting
Chairman, much less . . . the Commission on Audit." As
specifically provided by Section 2, Article XII-D of the
(1973) Constitution, the matter could validly be acted
upon only by "the Commission on Audit duly constituted,
by the appointment and qualification of its Chairman and
two Commissioners.

In a 4th Indorsement addressed to the Auditor,

Bureau of Customs, Chairman Eufemio C. Domingo,
acting "FOR THE COMMISSION," reconsidered the
Decision of Acting Commissioner of Audit Tantuico, supra.
granting the instant claim subject to the usual auditing
and accounting requirements.

Mison sought clarification of "the legal implication

of the 4th Indorsement. The response was a letter entitled
"COA Decision No. 992," signed by "the full complement
of three (3) members of the Commission on Audit." It
pointed that the earlier decision cannot be recognized by
the present Commission because it was signed merely by
the then Manager of the Technical Service Office who
was not acting for the Commission but only for the then
Acting Chairman. And therefore held that the 4th
Indorsement should be "deemed for all legal intents and
purposes as the final decision on the matter . . .


The petitioner filed a motion for reconsideration.
The motion was denied by letter entitled "COA Decision
No. 1053," also signed by the Chairman and the two (2)
Members of the Commission.

Petitioner seasonably filed a petition for certiorari

to nullify said COA Decisions No. 992 and 1053, pursuant
to Section 7, Article IX of the 1987 Constitution.
Issue:
Whether or not Decision No. 77-142 by Mr. Espiritu and
COA decisions reversing the former were proper? No.

Held:
WHEREFORE, the petition is DISMISSED for lack of
merit, without pronouncement as to costs. SO
ORDERED.
Ratio:

The "Espiritu decision" was void ab initio. As

manager of the COA Technical Service Office, Mr. Espiritu
obviously had no power whatever to render and
promulgate a decision of or for the Commission. Even the
Chairman, alone, had not that power because, as clearly
stated in the Constitution, the power was lodged in the
Commission on Audit, "composed of a Chairman and two
Commissioners.

It was the Commission, as a collegial body, which

had the jurisdiction to "(d)ecide any case brought before it
within sixty days from the date of its submission for
resolution," subject to review by the Supreme Court on
certiorari.

Hence, the adoption or ratification of the Espiritu

Decision by the Acting COA Chairman was
inconsequential. Ratification cannot validate an act void
ab initio because it was done absolutely without authority.
The act has to be done anew by the person or entity duly
endowed with authority to do so.

Moreover, even conceding the contrary, no proper

ratification or validation could have been effected by the
Acting Chairman since he was not the Commission, and
he himself had no power to decide any case brought
before the Commission because, again, the power is
lodged only in the Commission itself, as a collegial body.

It must be made clear that the Espiritu Decision

was not merely "technically invalid," as the petitioner
describes it. It was substantively void ab initio rendered
without jurisdiction. It had an essential inherent defect
that could not be cured or waived.
BLUE BAR COCONUT PHILIPPINES ET AL
v.

HON. FRANCISCO S. TANTUICO, Acting Chairman of

the Commission on Audit

only on February 26, 1975 that the reduced governing

board of PCA (now only 7) qualified under PD623.

Facts:

The Acting Chairman of COA initiated a special

audit of coconut and end-user companies (petitioners are
end-user companies, thus, levy collectors and remitters;
all copra exporters, oil millers and desiccators are endusers) with regard to their CCSF collections and the
subsidies they received.

PD276 was then issued establishing a coconut

stabilization fund. Under this PD, the PCA was authorized
to implement a stabilization scheme for coconut-based
consumer goods.
The proceeds from the levy will then be deposited
with the PNB or other govt bank in the account of the
Coconut Consumers Stabilization Fund (CCSF) which is
a separate trust fund that does not form part of the
general fund of the govt.
This fund will be used to subside the sale of
coconut based product at a price set by the Price Control
Council.
On December 1974, Marcos issued PD 623 which
reduced the number of members of PCAs board from 11
to 7.
On Jan 8, 1975, PCAs board issued a resolution
reducing the rate of levy of copra. This was made
effective on jan11. Then on Jan 29, 1975, the same board
of PCA issued a resolution deferring the collection of the
CCSF levies from the desiccated coconut industry for a
period not exceeding 6 months. Note however that it was

The result of such audit was that Blue Bar et al

were short on levies they remitted and overpaid their
subsidies.
Blue Bar et al allege that the deficient levy and
overpaid subsidy finding of the COA was based on the
fact that the latter refused to recognize the validity of the
resolutions issued by the PCA board in January 1975
(resolutions issued by the board before they qualified).
After some negotiations, COA agreed that PCA
may release the subsidy payments of the petitioners
provided a bond equal to the aggregate amount of the
disputed claims must be posted.
As a result of the initial findings of the Performance
Audit Office, respondent Acting COA Chairman directed
the Chairman, the administrator, and the Military
Supervisor of the PCA and the Manager of the Coconut
Consumers Stabilization Fund to collect the short levies
and overpaid subsidies, and to apply subsidy claims to

the settlement of short levies should the petitioners fail to

remit the amount due.

subsidies in trust may be examined or audited in their

handling of said funds by govt auditors.

ISSUE:

It is of no importance that the petitioner, or even

other groups part of the PCA, are private corporations
because it is made plain in Article IXD that groups being
funded by the government are still subject to auditing by
the COA.

WON the COA has authority to audit petitioners?

HELD:
YES
RATIO:
In the case at bar, the petitioners have failed to
show that acts were done withgrave abuse of discretion
amounting to lack of jurisdiction. Case dismissed
Petitioners contend that they are outside the ambit
of COAs audit power. Allegedly, such power is confined to
GOCCs.
However, note that Sec 2(1) of Article IX-D of the
Consti provides that, The Commission on Audit shall
have the power, authority, and duty to examine, audit, and
settle all accounts... 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 such audit as a condition of
subsidy or equity.
Thus, the Consti expressly establishes the rule
private entities who handle government funds or

**Philippine Operation Inc. vs. Auditor General**

Facts:
The petitioner herein, Philippine Operations, Inc.,
entered into a barter agreement with the Bureau of
Prisons whereby it agreed to deliver to the Bureau a
sawmill, complete, with a diesel fuel engine, a stop saw
edge and log turner, etc., and two LCMs in good running
condition, in exchange for 350,000 board feet of sawed
lumber. The barter agreement did not state the value
thereof. The Bureau of Prisons failed to fulfill their
obligation such as there was no belting for the main saw;
there was one carriage frame broken; one head block
was without hook and doe; there was no steel rope cable
for carriage drive; and all other important parts of the
machine were worn out and rusty and needing
overhauling. And so, POI filed a claim with the Auditor
General. The Director of Prisons offered to deliver the first
installments of lumber but the petitioner rejected because
it had already came too late. The petitioner then

demanded a cash payment of P70,000 plus damages of

P35,000.
Upon the presentation of the claim with the Auditor
General, the latter sought the opinion of the Secretary of
Justice, held that inasmuch as the contract entered into
was one of barter, pure and simple, and not one of
purchase and sale, and as no money consideration ever
entered the minds of the parties at the time of the
agreement, the demand of the petitioner for P70,000
should be denied, and that instead in view of the
willingness of the Bureau of Prisons to perform its part of
the obligation, the contract be carried out by the
immediate delivery of the 350,000 board feet of lumber
stipulated in the agreement. On the basis of this opinion,
the Auditor General denied the petitioners claim, and the
latter thereafter appealed to this Court.
Issue:
Whether or not the Auditor General has jurisdiction
over such claims?

process. But no law authorizes Treasury officials to allow

and pass in accounts a number not the result of
numerical computation upon a subject within the
operation of a mutual part of contract. On the other hand,
claims for unliquidated damages require for their
settlement the application of the qualities of judgment and
discretion. The results to be reached in such cases can in
no just sense be called an account and are not committed
by law to the control and decision of treasury accounting
officers.
An examination of the provisions of the
Constitution fails to disclose any power vested in or
granted to the Auditor General to consider claims. All that
is vested in the Auditor General is the settlement of
accounts. "Accounts," because of the absence of any
reasons to the contrary, must be deemed to have the
same meaning as accounts under the laws in force before
the approval of the Constitution. The Constitution does
not grant the Auditor General the right to consider claims.

Held:

**ICNA vs. Republic (AJG)**

No. The court ruled that the Auditor General did

not have jurisdiction over POIs claim because such claim
was unliquidated. The power of the treasury over the
settlement of accounts has always been distinguished
from their power over claims. An account is something,
which may be adjusted and liquidated by an arithmetical

G.R. No. L-27515 | September 5, 1967 | Bengzon, J.P.,

J.
Plaintiff-Appellant: Insurance Company of North
America (ICNA)

Defendant-Appellees: Republic of the Philippines, Bureau

of Customs, United States Lines Company and/or Luzon
Stevedoring Corporation
Main Doctrine! Power to Act on a Specific Debt Claim

Appellant would however next take issue with the

statement in the Mobil case that plaintiff therein should
have filed its claim thru the Auditor General, it being for
money, under the provisions of Commonwealth Act 327. It
is now urged that the claims for money that may be filed
with the Auditor General under said law, in relation to Act
No. 3083, are only those accounts subject to liquidation
by an arithmetical computation and only where the liability
of the Government is not in issue. Appellant cites
Compaia General de Tabacos v. French.

The principle recognized in Compania General,

was that a money claim for damages the amount of which
cannot be readily determined from vouchers, reports or
other means within reach of accounting officers, but calls
for the application of judgment and discretion upon the
measure of damages, is not within the competence of the
Auditor General to decide.
o
In the present case, the amount of the claim is
already fixed and is readily determinable from the bills of
lading and other shipping papers. Accordingly, such claim
should be addressed to the Auditor General.

Neither did Compania General hold that where the

liability of the Government is in issue, the claim cannot be
filed with the Auditor General. It is precisely for the Auditor
General to determine whether the claim is tenable or not,
and if not, to deny the same.

The real issue in said Tabacalera case was

whether the Auditor General (then Insular Auditor) may
offset against a specific, liquidated and undisputed debt
of the Government, an unliquidated claim for damages in
favor of the Government against the creditor; and the
ruling stated that he may not.
o
Such ruling does not apply to bar a case, like the
present, where no question of offset is involved, but
simply that of allowing or disallowing a specific and
liquidated claim against the Government.
o
Rather, it in effect sustains the power of the Auditor
General to take cognizance of such a claim, for if the
same be found in order and allowable, the amount
recoverable is fixed and liquidated, as determined or
readily determinable from papers and invoices available
to him, instead of being subject to his discretion, as would
be the case in an unliquidated claim for damages.


IMPT: Stated otherwise, where the existence of a
specific and fixed debt is the issue, the Auditor General
has power to act on the claim; but when not only the
existence but also the amount of an unfixed and
undetermined debt is involved, said official has no
competence to consider such a claim. The present case
is of the first kind, the assertion of the existence of a
specific and fixed indebtedness on the part of the
Government. It should therefore be lodged with the
Auditor General.

However, when not only the existence but also the

amount of an unfixed and undetermined debt is involved,
and the amount of which cannot be readily determined
from vouchers, reports or other means within reach of
accounting officers, but calls for the application of
judgment and discretion upon the measure of damages,
is not within the competence of the Auditor General to
decide.
Facts:

Summary:
ICNA filed before CFI Manila an action for recovery
of a liquidated amount of 86,081.30, the amount of the
value of shipments of 82 cartons of goods allegedly lost in
the custody of either of the defendants. One of the
defendants is the Bureau of Customs, an agency of the
Republic of the Philippines. RP and BoC moved to
dismiss the complaint claiming immunity from suit. CFI
Manila dismissed the complaint because the state cannot
be sued without its consent. Instead, ICNA should have
filed its claim with the Auditor General. Aggrieved, ICNA
appealed to the SC. The SC held that CFI Manila was
correct in dismissing the suit. Note that the debt here is a
fixed and liquidated amount. Where the existence of a
specific and fixed debt is the issue, and is also readily
determinable from the bills of lading and other shipping
papers, the Auditor General has power to act on the
claim. The complaint should be lodged with him.

On October 1965, plaintiff ICNA filed before CFI

Manila (this fact is very crucial) an action for the recovery
of a P86,081.30.
o
Such amount is the insured value of a shipment of
eighty-two (82) cartons of goods, allegedly lost in the
custody of either of the following (either of the ff kasi di
sila sure kung sino may kasalanan):

the carrier, defendant United States Lines, Co.;

the lighter operator, defendant Luzon Stevedoring

Corporation; or

the arrastre operator, defendant Bureau of

Customs, an agency of defendant Republic of the
Philippines (RP).


The RP and the Bureau of Customs (BoC) moved
to dismiss the complaint, claiming State immunity from
suit. Plaintiff opposed this.

Held:

On December 1965, CFI Manila initially denied the

motion to dismiss of RP and BoC.

Ratio:

Meanwhile, the case of Mobil Philippines

Exploration vs. Bureau of Customs was decided by the
Supreme Court on December 1966.
o
Here is the main doctrine of Mobil relevant to our
discussion: Regardless of the merits of the claim against
it, the State, for obvious reasons of public policy, cannot
be sued without its consent. (Suability of the State issue)
Plaintiff should have filed its present claim to the General
Auditing Office, it being for money under the provisions of
Commonwealth Act 327, which state the conditions under
which money claims against the Government may be filed
(COA issue).

CFI Manila took notice of such decision and

dismissed the case with respect to RP and BoC.

Hence, plaintiff appealed such decision.

Issue:
Whether or not the plaintiff is correct in filing a
collection case against RP and BoC in the trial Court
instead of filing a claim with the Auditor General

No.

In the Mobil case, it was held that the Bureau of

Customs, in operating the arrastre service itself, does so
in the performance of a necessary incident to the prime
governmental function of taxation, and, as such, is not
suable for alleged losses resulting therefrom. A fortiori,
neither is the Republic suable for said activity of the
Bureau of Customs.