G.R. No. 96938 October 15, 1991 more, it was rebuffed.
more, it was rebuffed. On July 4, 1988 this
GOVERNMENT SERVICE INSURANCE
SYSTEM (GSIS), petitioner,
vs.
CIVIL SERVICE COMMISSION, HEIRS OF
ELIZAR NAMUCO, and HEIRS OF EUSEBIO
MANUEL, respondents.
Benigno M. Puno for private respondents.
Fetalino, Llamas-Villanueva and Noro for CSC.
NARVASA, J.:p
In May, 1981, the Government Service
Insurance System (GSIS) dismissed six (6)
employees as being "notoriously undersirable,"
they having allegedly been found to be
connected with irregularities in the canvass of
supplies and materials. The dismissal was
based on Article IX, Presidential Decree No. 807
(Civil Service Law) 1 in relation to LOI 14-A
and/or LOI No. 72. The employees' Motion for
Reconsideration was subsequently denied.
Five of these six dismissed employees appealed
to the Merit Systems Board. The Board found
the dismissals to be illegal because effected
without formal charges having been filed or an
opportunity given to the employees to answer,
and ordered the remand of the cases to the
GSIS for appropriate disciplinary proceedings.
The GSIS appealed tothe Civil Service
Commission. By Resolution dated October 21,
1987, the Commission ruled that the dismissal of
all five was indeed illegal and disposed as
follows:
WHEREFORE, it being obvious that
respondents' separation from the service is
illegal, the GSIS is directed to reinstate them
with payment of back salaries and benefits due
them not later than ten (10) days from receipt of
a copy hereof, without prejudice to the right of
the GSIS to pursue proper disciplinary action
against them. It is also directed that the services
of their replacement be terminated effective
upon reinstatement of herein respondents.
xxx xxx xxx
Still unconvinced, the GSIS appealed to the
Supreme Court (G.R. Nos. 80321-22). Once
this time praying that certiorari issue to nullify
Court's Second Division promulgated a
Resolution which:
a) denied its petition for failing to show any
grave abuse of discretion on the part of the Civl
Service Commission, the dismissals of the
employees having in truth been made without
formal charge and hearin, and
b) declared that reinstatement of said five
employees was proper, "without prejudice to the
right of the GSIS to pursue proper disciplinary
action against them;"
c) MODIFIED, however, the challenged CSC
Resolution of October 21, 1987 "by elminating
the payment of back salaries to private
respondents (employees) until the outcome of
the disciplinary proceedings is known,
considering the gravity of the offenses imputed
to them ..., 2
d) ordered reinstateement only of three
employees, namely: Domingo Canero, Renato
Navarro and Belen Guerrero, "it appearing tht
respondents Elizar Namuco and Eusebio
Manuel have since passed away." 3
On January 8, 1990, the aforesaid Resolution of
July 4, 1988 having become final, the heirs of
Namuco and Manuel filed a motion for execution
of the Civil Service Commission Resolution of
October 21, 1987, supra. The GSIS opposed the
motion. It argued that the CSC Resolution of
October 21, 1987 directing reinstatement of
the employees and payment to them of back
salaries and benefits had been superseded
by the Second Division's Resolution of July 4,
1988 precisely eliminating the payment of
back salaries.
The Civil Service Commission granted the
motion for execution in an Order dated June 20,
1990. It accordingly directed the GSIS "to pay
the compulsory heirs of deceased Elizar
Namuco and Eusebio Manuel for the period
from the date of their illegal separation up to the
date of their demise." The GSIS filed a motion
for reconsideration. It was denied by Order of
the CSC dated November 22, 1990.
Once again the GSIS has come to this Court,
the Orders of June 20, 1990 and November 22,
1990. Here it contends that the Civil Service
Commission has no pwer to execute its
judgments and final orders or resolutions, and
even conceding the contrary, the writ of
execution issued on June 20, 1990 is void
because it varies this Court's Resolution of July
4, 1988.
The Civil Service Commission, like the
Commission on Elections and the Commission
on Audit, is a consitutional commission invested
by the Constitution and relevant laws not only
with authority to administer the civil service, 4
but also with quasi-judicial powers. 5 It has the
authority to hear and decide administrative
disciplinary cases instituted directly with it or
brought to it on appeal. 6 The 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 it
within sixty days from the date of its submission
for on certiorari by any aggrieved party within
thirty days from receipt of a copy thereof. 7 It
has the power, too, sitting en banc, to
promulgate its own rules concerning pleadings
and practice before it or before any of its offices,
which rules should not however diminish,
increase, or modify substantive rights. 8
On October 9, 1989, the Civil Service
Commission promulgated Resolution No. 89-779
adopting, approving and putting into effect
simplified rules of procedure on administrative
disciplinary and protest cases, pursuant tothe
authority granted by the constitutional and
statutory provisions above cited, as well as
Republic Act No. 6713. 9 Those rules provide,
among other things, 10 that decision in
"administrative disciplinary cases" shall be
immediately executory unless a motion for
reconsideration is seasonably filed. If the
decision of the Commission is brought to the
Supreme Court on certiorari, the same shall still
be executory unless a restraining order or
preliminary injunction is issued by the High
Court." 11 This is similar to a provision in the
former Civil Service Rules authorizing the
Commissioner, "if public interest so warrants, ...
(to) order his decision executed pending appeal
to the Civil Service Board of Appeals." 12 The
provisions are analogous and entirely consistent
with the duty or responsibility reposed in the
Chairman by PD 807, subject to policies and
resolutions adopted by the Commission, "to
enforce decision on administrative discipline
involving officials of the Commission," 13 as well
as with Section 37 of the same decree declaring
that an appeal to the Commission 14 "shall not
stop the decision from being executory, and in
case the penalty is suspension or removal, the
respondent shall be considered as having been
under preventive suspension during the
pendency of the appeal in the event he wins an
appeal."
In light of all the foregoing consitutional and
statutory provisions, it would appear absurd to
deny to the Civil Service Commission the power
or authority or order execution of its decisions,
resolutions or orders which, it should be
stressed, it has been exercising through the
years. It would seem quite obvious that the
authority to decide cases is inutile unless
accompanied by the authority to see taht what
has been decided is carried out. Hence, the
grant to a tribunal or agency of adjudicatory
power, or the authority to hear and adjudge
cases, should normally and logically be deemed
to include the grant of authority to enforce or
execute the judgments it thus renders, unless
the law otherwise provides.
In any event, the Commission's exercise of that
power of execution has been sanctioned by this
Court in several cases.
In Cucharo v. Subido, 15 for instance, this Court
sustained the challenged directive of the Civil
Service Commissioner, that his decision "be
executed immediately 'but not beyond ten days
from receipt thereof ...". The Court said:
As a major premise, it has been the repeated
pronouncement of this Supreme Tribunal that
the Civil Service Commissioner has the
discretion toorder the immediate execution in
the public interst of his decision separating
petitioner-appellant from the service, always
sbuject however to the rule that, in the event the
Civil Service Board of Appeals or the proper
court determines that his dismissal is illegal, he
should be paid the salary corresponding to the
period of his separation from the service unitl his
reinstatement.
Petitioner GSIS concedes that the heirs of
Namuco and Manuel "are entitled tothe
retirement/death and other benefits due them as
government employees" since, at the time of
their death, they "can be considered not to have
been separated from the separated from the
service." 16
It contend, however, that since Namuco and
Manuel had not been "completely exonerated of
the administrative charge filed against them
as the filing of the proper disciplinary action was
yet to have been taken had death not claimed
them" no back salaries may be paid to them,
although they "may charge the period of (their)
suspension against (their) leave credits, if any,
and may commute such leave credits to money
value;" 17 this, on the authority of this Court's
decision in Clemente v. Commission on Audit.
18 It is in line with these considerations, it
argues, that the final and executory Resolution
of this Court's Second Division of July 4, 1988
should be construed; 19 and since the
Commission's Order of July 20, 1990 maikes a
contrary disposition, the latter order obviously
cannot prevail and must be deemed void and
ineffectual.
This Court's Resolution of July 4, 1988, as
already stated, modified the Civil Service
Commission's Resolution of October 21, 1987
inter alia granting back salaries tothe five
dismissed employees, including Namuco and
Manuel and pertinently reads as follows:
We modify the said Order, however, by
eliminating the payment of back salaries to
private respondents until the outcome of the
disciplinary proceedings is known, considering
the gravity of the offense imputed to them in
connection with the irregularities in the canvass
of supplies and materials at the GSIS.
The reinstatement order shall apply only to
respondents Domingo Canero, Renato Navarro
and Belen Guerrero, it appearing that
respondents Elizar Namuco and Eusebio
Manuel have since passed away. ....
On the other hand, as also already stated, the
Commission's Order of June 20, 1990 directed the GSIS "to
pay the compulsory heirs of deceased Elizar Namuco and
Eusebio Manuel for the period from the date of their illegal
separation up to the date of their demise."
The Commission asserted that in promulgating its disparate
ruling, it was acting "in the interest of justice and for other
humanitarian reasons," since the question of whether or not
Namuco and Manuel should receive back salaries was
"dependent on the result of the disciplinary proceedings
against their co-respondents in the administrative case
before the GSIS," and since at the tiem of their death, "no
formal charge ... (had) as yet been made, nor any finding of
their personal culpability ... and ... they are no longer in a
position to refute the charge."
The Court agrees that the challenged orders of the Civil
Service Commission should be upheld, and not merely upon
compassionate grounds, but simply because there is no fair
and feasible alternative in the circumstances. To be sure, if
the deceased employees were still alive, it would at least be
arguable, positing the primacy of this Court's final
dispositions, that the issue of payment of their back salaries
should properly await the outcome of the disciplinary
proceedings referred to in the Second Division's Resolution
of July 4, 1988.
Death, however, has already sealed that outcome,
foreclosing the initiation of disciplinary administrative
proceedings, or the continuation of any then pending,
against the deceased employees. Whatever may be said of
the binding force of the Resolution of July 4, 1988 so far as,
to all intents and pursposes, it makes exoneration in the
adminstrative proceedings a condition precedent to payment
of back salaries, it cannot exact an impossible performance
or decree a useless exercise. Even in the case of crimes, the
death of the offender exteinguishes criminal liability, not only
as to the personal, but also as to the pecuniary, penalties if it
occurs before final judgment. 20 In this context, the
subsequent disciplinary proceedings, even if not assailable
on grounds of due process, would be an inutile, empty
procedure in so far as the deceased employees are
concerned; they could not possibly be bound by any
substatiation in said proceedings of the original charges:
irrigularities in the canvass of supplies and materials. The
questioned order of the Civil Service Commission merely
recognized the impossibility of complying with the Resolution
of July 4, 1988 and the legal futility of attempting a post-
mortem investigation of the character contemplated.
WHEREFORE, the petition is DISMISSED, without
pronouncement as to costs.

G.R. NO. L-69137 August 5, 1986
FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA
TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-
appellee.
CRUZ, J.:
Stripped of irrelevant details and impertinent
incidents that have cluttered the voluminous
record, the facts of this case may be briefly
narrated as follows:
The petitioner was appointed Administrative
Officer 11, Office of the City Mayor, Cebu City,
by Mayor Florentino Solon on February 18,
1983. 1 The appointment was described as
permanent" but the Civil Service Commission
approved it as "temporary," subject to the final
action taken in the protest filed by the private
respondent and another employee, and provided
"there (was) no pending administrative case
against the appointee, no pending protest
against the appointment nor any decision by
competent authority that will adversely affect the
approval of the appointment." 2 On March 22,
1984, after protracted hearings the legality of
which does not have to be decided here, the
Civil Service Commission found the private
respondent better qualified than the petitioner for
the contested position and, accordingly, directed
"that Felicula Tuozo be appointed to the position
of Administrative Officer 11 in the Administrative
Division, Cebu City, in place of Felimon Luego
whose appointment as Administrative Officer II is
hereby revoked." 3 The private respondent was
so appointed on June 28, 1984, by the new
mayor, Mayor Ronald Duterte. 4 The petitioner,
invoking his earlier permanent appointment, is
now before us to question that order and the
private respondent's title.
The issue is starkly simple: Is the Civil Service
Commission authorized to disapprove a
permanent appointment on the ground that
another person is better qualified than the
appointee and, on the basis of this finding, order
his replacement by the latter?
The Solicitor General, rather than face the
question squarely, says the petitioner could be
validly replaced in the instant case because his
appointment was temporary and therefore could
be withdrawn at will, with or without cause.
Having accepted such an appointment, it is
argued, the petitioner waived his security of
tenure and consequently ran the risk of an
abrupt separation from his office without
violation of the Constitution. 5
While the principle is correct, and we have
applied it many times, 6 it is not correctly applied
in this case. The argument begs the question.
The appointment of the petitioner was not
temporary but permanent and was therefore
protected by Constitution. The appointing
authority indicated that it was permanent, as he
had the right to do so, and it was not for the
respondent Civil Service Commission to reverse
him and call it temporary.
The stamping of the words "APPROVED as
TEMPORARY" did not change the character of
the appointment, which was clearly described as
"Permanent" in the space provided for in Civil
Service Form No. 33, dated February 18, 1983. 7
What was temporary was the approval of the
appointment, not the appointment it sell And
what made the approval temporary was the fact
that it was made to depend on the condition
specified therein and on the verification of the
qualifications of the appointee to the position.
The Civil Service Commission is not empowered
to determine the kind or nature of the
appointment extended by the appointing officer,
its authority being limited to approving or
reviewing the appointment in the light of the
requirements of the Civil Service Law. When the
appointee is qualified and authorizing the other
legal requirements are satisfied, the
Commission has no choice but to attest to the
appointment in accordance with the Civil Service
Laws.
As Justice Ramon C. Fernandez declared in an
earlier case:
It is well settled that the determination of the
kind of appointment to be extended lies in the
official vested by law with the appointing power
and not the Civil Service Commission. The
Commissioner of Civil Service is not empowered
to determine the kind or nature of the
appointment extended by the appointing officer.
When the appointee is qualified, as in this case,
the Commissioner of Civil Service has no choice
but to attest to the appointment. Under the Civil
Service Law, Presidential Decree No. 807, the
Commissioner is not authorized to curtail the
discretion of the appointing official on the nature
or kind of the appointment to be extended. 8
Indeed, the approval is more appropriately
called an attestation, that is, of the fact that the
appointee is qualified for the position to which he
has been named. As we have repeatedly held,
such attestation is required of the Commissioner
of Civil Service merely as a check to assure
compliance with Civil Service Laws. 9
Appointment is an essentially discretionary
power and must be performed by the officer in
which it is vested according to his best lights, the
only condition being that the appointee should
possess the qualifications required by law. If he
does, then the appointment cannot be faulted on
the ground that there are others better qualified
who should have been preferred. This is a
political question involving considerations of
wisdom which only the appointing authority can
decide.
It is different where the Constitution or the law
subjects the appointment to the approval of
another officer or body, like the Commission on
Appointments under 1935 Constitution. 10
Appointments made by the President of the
Philippines had to be confirmed by that body
and could not be issued or were invalidated
without such confirmation. In fact, confirmation
by the Commission on Appointments was then
considered part of the appointing process, which
was held complete only after such confirmation.
11
Moreover, the Commission on Appointments
could review the wisdom of the appointment and
had the power to refuse to concur with it even if
the President's choice possessed all the
qualifications prescribed by law. No similar
arrangement is provided for in the Civil Service
Decree. On the contrary, the Civil Service
Commission is limited only to the non-
discretionary authority of determining whether or
not the person appointed meets all the required
conditions laid down by the law.
It is understandable if one is likely to be misled
by the language of Section 9(h) of Article V of
the Civil Service Decree because it says the
Commission has the power to "approve" and
"disapprove" appointments. Thus, it is provided
therein that the Commission shag have inter alia
the power to:
9(h) Approve all appointments, whether original
or promotional to positions in the civil service,
except those presidential appointees, members
of the Armed Forces of the Philippines, police
forces, firemen, and jailguards, and disapprove
those where the appointees do not possess
appropriate eligibility or required qualifications.
(emphasis supplied)
However, a full reading of the provision,
especially of the underscored parts, will make it
clear that all the Commission is actually allowed
to do is check whether or not the appointee
possesses the appropriate civil service eligibility
or the required qualifications. If he does, his
appointment is approved; if not, it is
disapproved. No other criterion is permitted by
law to be employed by the Commission when it
acts on--or as the Decree says, "approves" or
"disapproves" an appointment made by the
proper authorities.
Significantly, the Commission on Civil Service
acknowledged that both the petitioner and the
private respondent were qualified for the position
in controversy. 12 That recognition alone
rendered it functus officio in the case and
prevented it from acting further thereon except
to affirm the validity of the petitioner's
appointment. To be sure, it had no authority to
revoke the said appointment simply because it
believed that the private respondent was better
qualified for that would have constituted an
encroachment on the discretion vested solely in
the city mayor.
In preferring the private respondent to the
petitioner, the Commission was probably
applying its own Rule V, Section 9, of Civil
Service Rules on Personnel Actions and
Policies, which provides that "whenever there
are two or more employees who are next-in-
rank, preference shall be given to the employee
who is most competent and qualified and who
has the appropriate civil service eligibility." This
rule is inapplicable, however, because neither of
the claimants is next in rank. Moreover, the next-
in-rank rule is not absolute as the Civil Service
Decree allows vacancies to be filled by transfer
of present employees, reinstatement, re-
employment, or appointment of outsiders who
have the appropriate eligibility. 13
There are apparently no political overtones in
this case, which looks to be an honest
contention between two public functionaries who
each sincerely claims to be entitled to the
position in dispute. This is gratifying for politics
should never be permitted to interfere in the
apolitical organization of the Civil Service, which
is supposed to serve all the people regardless of
partisan considerations. This political
detachment will be impaired if the security of
tenure clause in the Constitution is emasculated
and appointments in the Civil Service are
revoked and changed at will to suit the
motivations and even the fancies of whatever
party may be in power.
WHEREFORE, the resolution of the respondent
Commission on Civil Service dated March 22,
1984, is set aside, and the petitioner is hereby
declared to be entitled to the office in dispute by
virtue of his permanent appointment thereto
dated February 18, 1983. No costs.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa,
Melencio-Herrera, Alampay, Gutierrez, Jr., and
Paras, JJ., concur.
[G.R. No. 134990. April 27, 2000]
MANUEL M. LEYSON JR., petitioner, vs.
OFFICE OF THE OMBUDSMAN, TIRSO
ANTIPORDA, Chairman, UCPB and CIIF Oil
Mills, and OSCAR A. TORRALBA, President,
CIIF Oil Mills, respondents. ALEX
DECISION
BELLOSILLO, J.:
On 7 February 1996 International Towage and
Transport Corporation (ITTC), a domestic
corporation engaged in the lighterage or
shipping business, entered into a one (1)-year
contract with Legaspi Oil Company, Inc.
(LEGASPI OIL), Granexport Manufacturing
Corporation (GRANEXPORT) and United
Coconut Chemicals, Inc. (UNITED COCONUT),
comprising the Coconut Industry Investment
Fund (CIIF) companies, for the transport of
coconut oil in bulk through MT Transasia. The
majority shareholdings of these CIIF companies
are owned by the United Coconut Planters Bank
(UCPB) as administrator of the CIIF. Under the
terms of the contract, either party could
terminate the agreement provided a three (3)-
month advance notice was given to the other
party. However, in August 1996, or prior to the
expiration of the contract, the CIIF companies
with their new President, respondent Oscar A.
Torralba, terminated the contract without the
requisite advance notice. The CIIF companies
engaged the services of another vessel, MT
Marilag, operated by Southwest Maritime
Corporation. miso
On 11 March 1997 petitioner Manuel M. Leyson
Jr., Executive Vice President of ITTC, filed with
public respondent Office of the Ombudsman a
grievance case against respondent Oscar A.
Torralba. The following is a summary of the
irregularities and corrupt practices allegedly
committed by respondent Torralba: (a) breach of
contract - unilateral cancellation of valid and
existing contract; (b) bad faith - falsification of
documents and reports to stop the operation of
MT Transasia; (c) manipulation - influenced their
insurance to disqualify MT Transasia; (d)
unreasonable denial of requirement imposed; (e)
double standards and inconsistent in favor of
MT Marilag; (f) engaged and entered into a
contract with Southwest Maritime Corp. which is
not the owner of MT Marilag, where liabilities
were waived and whose paid-up capital is only
P250,000.00; and, (g) overpricing in the freight
rate causing losses of millions of pesos to
Cocochem.[if !supportFootnotes][1][endif]
On 2 January 1998 petitioner charged
respondent Tirso Antiporda, Chairman of UCPB
and CIIF Oil Mills, and respondent Oscar A.
Torralba with violation of The Anti-Graft and
Corrupt Practices Act also before the
Ombudsman anchored on the aforementioned
alleged irregularities and corrupt practices.
spped
On 30 January 1998 public respondent
dismissed the complaint based on its finding that
The case is a simple case of breach of contract
with damages which
should have been filed in
the regular court. This
Office has no jurisdiction to
determine the legality or
validity of the termination
of the contract entered into
by CIIF and ITTC. Besides
the entities involved are
private corporations (over)
which this Office has no
jurisdiction.[if !supportFootnotes][2]
[endif]
On 4 June 1998 reconsideration of the dismissal
of the complaint was denied. The Ombudsman
was unswayed in his finding that the present
controversy involved breach of contract as he
also took into account the circumstance that
petitioner had already filed a collection case
before the Regional Trial Court of Manila-Br. 15,
docketed as Civil Case No. 97-83354. Moreover,
the Ombudsman found that the filing of the
motion for reconsideration on 31 March 1998
was beyond the inextendible period of five (5)
days from notice of the assailed resolution on 19
March 1998.[if !supportFootnotes][3][endif] miso
Petitioner now imputes grave abuse of discretion
on public respondent in dismissing his
complaint. He submits that inasmuch as
Philippine Coconut Producers Federation, Inc.
(COCOFED) v. PCGG[if !supportFootnotes][4][endif] and
Republic v. Sandiganbayan[if !supportFootnotes][5][endif]
have declared that the coconut levy funds are
public funds then, conformably with Quimpo v.
Tanodbayan,[if !supportFootnotes][6][endif] corporations
formed and organized from those funds or
whose controlling stocks are from those funds
should be regarded as government owned
and/or controlled corporations. As in the present
case, since the funding or controlling interest of
the companies being headed by private
respondents was given or owned by the CIIF as
shown in the certification of their Corporate
Secretary,[if !supportFootnotes][7][endif] it follows that they
are government owned and/or controlled
corporations. Corollarily, petitioner asserts that
respondents Antiporda and Torralba are public
officers subject to the jurisdiction of the
Ombudsman. Sdaadsc
Petitioner alleges next that public respondent's
conclusion that his complaint refers to a breach
of contract is whimsical, capricious and
irresponsible amounting to a total disregard of its
main point, i. e., whether private respondents
violated The Anti-Graft and Corrupt Practices
Act when they entered into a contract with
Southwest Maritime Corporation which was
grossly disadvantageous to the government in
general and to the CIIF in particular. Petitioner
admits that his motion for reconsideration was
filed out of time. Nonetheless, he advances that
public respondent should have relaxed its rules
in the paramount interest of justice; after all, the
delay was just a matter of days and he, a
layman not aware of technicalities, personally
filed the complaint. Rtcspped
Private respondents counter that the CIIF
companies were duly organized and are existing
by virtue of the Corporation Code. Their
stockholders are private individuals and entities.
In addition, private respondents contend that
they are not public officers as defined under The
Anti-Graft and Corrupt Practices Act but are
private executives appointed by the Boards of
Directors of the CIIF companies. They
asseverate that petitioner's motion for
reconsideration was filed through the expert
assistance of a learned counsel. They then
charge petitioner with forum shopping since he
had similarly filed a case for collection of a sum
of money plus damages before the trial court.
The Office of the Solicitor General maintains that
the Ombudsman approved the recommendation
of the investigating officer to dismiss the
complaint because he sincerely believed there
was no sufficient basis for the criminal
indictment of private respondents. spped
We find no grave abuse of discretion committed
by the Ombudsman. COCOFED v. PCGG
referred to in Republic v. Sandiganbayan
reviewed the history of the coconut levy funds. I
These funds actually have four (4) general
classes: (a) the Coconut Investment Fund
created under R. A. No. 6260; [if !supportFootnotes][8][endif]
(b) the Coconut Consumers Stabilization Fund
created under P. D. No. 276; [if !supportFootnotes][9][endif]
(c) the Coconut Industry Development Fund
created under P. D. No. 582;[if !supportFootnotes][10][endif]
and, (d) the Coconut Industry Stabilization Fund
created under P. D. No. 1841.[if !supportFootnotes][11][endif]
The various laws relating to the coconut industry
were codified in 1976. On 21 October of that
year, P. D. No. 961[if !supportFootnotes][12][endif] was
promulgated. On 11 June 1978 it was amended
by P. D. No. 1468[if !supportFootnotes][13][endif] by inserting
a new provision authorizing the use of the
balance of the Coconut Industry Development
Fund for the acquisition of "shares of stocks in
corporations organized for the purpose of
engaging in the establishment and operation of
industries x x x commercial activities and other
allied business undertakings relating to coconut
and other palm oil indust(ries)."[if !supportFootnotes][14]
[endif]
From this fund thus created, or the CIIF,
shares of stock in what have come to be known
as the "CIIF companies" were purchased. miso
We then stated in COCOFED that the coconut
levy funds were raised by the State's police and
taxing powers such that the utilization and
proper management thereof were certainly the petitioner in support of his claim that the CIIF jurisdiction. Sclex
concern of the Government. These funds have a companies are government owned and/or With the foregoing conclusion, we find it
public character and are clearly affected with controlled corporations are incomplete without unnecessary to resolve the other issues raised
public interest. resorting to the definition of "government owned by petitioner.
Quimpo v. Tanodbayan involved the issue as to or controlled corporation" contained in par. (13), A brief note on private respondents' charge of
whether PETROPHIL was a government owned Sec. 2, Introductory Provisions of the forum shopping. Executive Secretary v.
or controlled corporation the employees of which Administrative Code of 1987, i. e., any agency Gordon[if !supportFootnotes][16][endif] is instructive that
fell within the jurisdictional purview of the organized as a stock or non-stock corporation forum shopping consists of filing multiple suits
Tanodbayan for purposes of The Anti-Graft and vested with functions relating to public needs involving the same parties for the same cause of
Corrupt Practices Act. We upheld the jurisdiction whether governmental or proprietary in nature, action, either simultaneously or successively, for
of the Tanodbayan on the ratiocination that - and owned by the Government directly or the purpose of obtaining a favorable judgment. It
While it may be that PETROPHIL was not through its instrumentalities either wholly, or, is readily apparent that the present charge will
originally "created" as a where applicable as in the case of stock not prosper because the cause of action herein,
government-owned or corporations, to the extent of at least fifty-one i. e., violation of The Anti-Graft and Corrupt
controlled corporation, (51) percent of its capital stock. The definition Practices Act, is different from the cause of
after it was acquired by mentions three (3) requisites, namely, first, any action in the case pending before the trial court
PNOC, which is a agency organized as a stock or non-stock which is collection of a sum of money plus
government-owned or corporation; second, vested with functions damages. miso
controlled corporation, relating to public needs whether governmental WHEREFORE, the petition is DISMISSED. The
PETROPHIL became a or proprietary in nature; and, third, owned by the Resolution of public respondent Office of the
subsidiary of PNOC and Government directly or through its Ombudsman of 30 January 1998 which
thus shed-off its private instrumentalities either wholly, or, where dismissed the complaint of petitioner Manuel M.
status. It is now funded applicable as in the case of stock corporations, Leyson Jr., as well as its Order of 4 June 1998
and owned by the to the extent of at least fifty-one (51) percent of denying his motion for reconsideration, is
government as, in fact, it its capital stock. Sclaw AFFIRMED. Costs against petitioner.
was acquired to perform In the present case, all three (3) corporations SO ORDERED.apdc
functions related to comprising the CIIF companies were organized Mendoza, Quisumbing, Buena, and De Leon,
government programs and as stock corporations. The UCPB-CIIF owns Jr., JJ., concur.
policies on oil, a vital 44.10% of the shares of LEGASPI OIL, 91.24%
commodity in the of the shares of GRANEXPORT, and 92.85% of
economic life of the nation. the shares of UNITED COCONUT.[if !supportFootnotes]
[15][endif]
It was acquired not Obviously, the below 51% shares of stock
temporarily but as a in LEGASPI OIL removes this firm from the
permanent adjunct to definition of a government owned or controlled
perform essential corporation. Our concern has thus been limited
government or to GRANEXPORT and UNITED COCONUT as
government-related we go back to the second requisite.
functions, as the marketing Unfortunately, it is in this regard that petitioner
arm of the PNOC to assist failed to substantiate his contentions. There is
the latter in selling and no showing that GRANEXPORT and/ or
distributing oil and UNITED COCONUT was vested with functions
petroleum products to relating to public needs whether governmental
assure and maintain an or proprietary in nature unlike PETROPHIL in
adequate and stable Quimpo. The Court thus concludes that the CIIF
domestic supply. Korte companies are, as found by public respondent, G.R. No. 136374 February 9, 2000
But these jurisprudential rules invoked by private corporations not within the scope of its FRANCISCA S. BALUYOT, petitioner,
vs.
PAUL E. HOLGANZA and the OFFICE OF THE
OMBUDSMAN (VISAYAS) represented by its
Deputy Ombudsman for the Visayas
ARTURO C. MOJICA, Director VIRGINIA
PALANCA-SANTIAGO, and Graft
Investigation Officer I ANNA MARIE P.
MILITANTE, respondents.
DE LEON, JR., J.:
Before us is a special civil action for certiorari,
seeking the reversal of the Orders dated August
21, 1998 and October 28, 1998 issued by the
Office of the Ombudsman, which denied
petitioner's motion to dismiss and motion for
reconsideration, respectively.1wphi1.nt
The facts are:
During a spot audit conducted on March 21,
1977 by a team of auditors from the Philippine
National Red Cross (PNRC) headquarters, a
cash shortage of P154,350.13 was discovered in
the funds of its Bohol chapter. The chapter
administrator, petitioner Francisca S. Baluyot,
was held accountable for the shortage.
Thereafter, on January 8, 1998, private
respondent Paul E. Holganza, in his capacity as
a member of the board of directors of the Bohol
chapter, filed an affidavit-complaint1 before the
Office of the Ombudsman charging petitioner of
malversation under Article 217 of the Revised
Penal Code. The complaint was docketed as
OMB-VIS-CRIM-98-0022. However, upon
recommendation by respondent Anna Marie P.
Militante, Graft Investigation Officer I, an
administrative docket for dishonesty was also
opened against petitioner; hence, OMB-VIS-
ADM-98-0063.2
On February 6, 1998, public respondent issued
an Order3 requiring petitioner to file her counter-
affidavit to the charges of malversation and
dishonesty within ten days from notice, with a
warning that her failure to comply would be
construed as a waiver on her part to refute the
charges, and that the case would be resolved
based on the evidence on record. On March 14,
1998, petitioner filed her counter-affidavit, 4
raising principally the defense that public
respondent had no jurisdiction over the
controversy. She argued that the Ombudsman
had authority only over government-owned or
controlled corporations, which the PNRC was
not, or so she claimed.
On August 21, 1998, public respondent issued
the first assailed Order5 denying petitioner's
motion to dismiss. It further scheduled a
clarificatory hearing on the criminal aspect of the
complaint and a preliminary conference on its
administrative aspect on September 2, 1998.
Petitioner received the order on August 26, 1998
and she filed a motion for reconsideration 6 the
next day.
On October 28, 1998, public respondent issued
the second assailed Order7 denying petitioner's
motion for reconsideration. Hence, this recourse.
We dismiss the petition.
Petitioner contends that the Ombudsman has no
jurisdiction over the subject matter of the
controversy since the PNRC is allegedly a
private voluntary organization. The following
circumstances, she insists, are indicative of the
private character of the organization: (1) the
PNRC does not receive any budgetary support
from the government, and that all money given
to it by the latter and its instrumentalities
become private funds of the organization; (2)
funds for the payment of personnel's salaries
and other emoluments come from yearly fund
campaigns, private contributions and rentals
from its properties; and (3) it is not audited by
the Commission on Audit. Petitioner states that
the PNRC falls under the International
Federation of Red Cross, a Switzerland-based
organization, and that the power to discipline
employees accused of misconduct,
malfeasance, or immorality belongs to the
PNRC Secretary General by virtue of Section
"G", Article IX of its by-laws. 8 She threatens that
"to classify the PNRC as a government-owned
or controlled corporation would create a
dangerous precedent as it would lose its
neutrality, independence and impartiality . . . .9
Practically the same issue was addressed in
Camporedondo v. National Labor Relations
Commission, et. al.,10 where an almost identical
set of facts obtained. Petitioner therein was the
administrator of the Surigao del Norte chapter of
the PNRC. An audit conducted by a field auditor
revealed a shortage in the chapter funds in the
sum of P109,000.00. When required to restitute
the amount of P135,927.78, petitioner therein
instead applied for early retirement, which was
denied by the Secretary General of the PNRC.
Subsequently, the petitioner filed a complaint for
illegal dismissal and damages against PNRC
before the National Labor Relations
Commission. In turn, PNRC moved to dismiss
the complaint on the ground of lack of
jurisdiction, averring that PNRC was a
government corporation whose employees are
embraced by civil service regulation. The labor
arbiter dismissed the complaint, and the
Commission sustained his order. The petitioner
assailed the dismissal of his complaint via a
petition for certiorari, contending that the PNRC
is a private organization and not a government-
owned or controlled corporation. In dismissing
the petition, we ruled thus:
Resolving the issue set out in the opening
paragraph of this opinion, we rule that the
Philippine National Red Cross (PNRC) is a
government owned and controlled corporation,
with an original charter under Republic Act No.
95, as amended. The test to determine whether
a corporation is government owned or
controlled, or private in nature is simple. Is it
created by its own charter for the exercise of a
public function, or by incorporation under the
general corporation law? Those with special
charters are government corporations subject to
its provisions, and its employees are under the
jurisdiction of the Civil Service Commission, and
are compulsory members of the Government
Service Insurance System. The PNRC was not
"impliedly converted to a private corporation"
simply because its charter was amended to vest
in it the authority to secure loans, be exempted
from payment of all duties, taxes, fees and other
charges of all kinds on all importations and
purchases for its exclusive use, on donations for
its disaster relief work and other services and in
its benefits and fund raising drives, and be
allotted one lottery draw a year by the Philippine
Charity Sweepstakes Office for the support of its
disaster relief operation in addition to its existing
lottery draws for blood program.
Clearly then, public respondent has jurisdiction
over the matter, pursuant to Section 13, of
Republic Act No. 6770, otherwise known as "The
Ombudsman Act of 1989", to wit:
Sec. 13. Mandate. The Ombudsman and his
Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or
manner against officers or employees of the
Government, or of any subdivision, agency or
instrumentality thereof, including government-
owned or controlled corporations, and enforce
their administrative, civil and criminal liability in
ever case where the evidence warrants in order
to promote efficient service by the Government
to the people.11
WHEREFORE, the petition for certiorari is
hereby DISMISSED. Costs against petitioner.
G.R. No. 95445 August 6, 1991
MANILA PUBLIC SCHOOL TEACHERS
ASSOCIATION, FIDEL FABABIER MERLIN
ANONUEVO, MINDA GALANG and other
teacher-members so numerous similarly
situated, petitioners-appellants,
vs.
THE HON. PERFECTO LAGUIO JR., in his
capacity as Presiding Judge of the Regional
Trial Court of Manila, Branch 18, HON.
ISIDRO CARIO, in his capacity as Secretary
of Education, Culture and Sports and the
HON. ERLINDA LOLARGA in her capacity as
Manila City Schools Superintendent,
respondents-appellees.
G.R No. 95590 August 6, 1991
ALLIANCE OF CONCERNED TEACHERS
(ACT), ENRIQUE D. TORRES, RODRIGO G.
NATIVIDAD, FRANCISCO A. NERECINA, EVA
V. FERIA, LUCIA R. CARRASCO, LEO R.
RAMBOYONG, ZENEIDA PEREZ, MARIA
ACEJO AND OTHER SIMILARLY SITUATED
PUBLIC SCHOOL TEACHERS TOO
NUMEROUS TO BE IMPLEADED, petitioners,
vs.
HON. ISIDRO CARIO in his capacity as
Secretary of Education, Culture and Sports
and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and
Management, respondents.
Free Legal Assistance Group, Movement of
Attorneys for Brotherhood Integrity & additional 1% real property taxes collected by
Nationalism and Union of Lawyers and
Advocates for petitioners in G.R. No. 95590.
Gregorio Fabros for petitioners in G.R. No.
95445.
NARVASA, J.:p
The series of events that touched off these
cases started with the so-called "mass action"
undertaken by some 800 public school teachers,
among them members of the petitioning
associations in both cases, on September 17,
1990 to "dramatize and highlight" 1 the teachers'
plight resulting from the alleged failure of the
public authorities to act upon grievances that
had time and again been brought to the latter's
attention.
The petition in G.R. No. 95590 alleges in great
detail the character and origins of those
grievances as perceived by the petitioners, and
the attempts to negotiate their correction; 2 these
are more briefly, but quite adequately and with
no sacrifice of relevant content, set forth in the
petition in G.R. No. 954451, portions of which
are quoted hereunder without necessarily
affirming their objective truth or correctness:
3. Together with other teachers embracing the
Teachers and Employees Consultative Council
(TECC) and the Alliance of Concerned Teachers,
the petitioners, in accordance with their
Constitution and By-Laws, resolved to engage in
mass concerted actions, after peaceful
dialogues with the heads of the Department of
the Budget and Management, Senate and
House of Representatives in public hearings as
well as after exhausting all administrative
remedies, to press for, among other things, the
immediate payment of due chalk, clothing
allowances, 13th month pay for 1989 arising
from the implementation of the Salary
Standardization Law, the recall of DECS Order
39 s. 1990 directing the oversizing of classes
and overloading of teachers pursuant to the
cost-cutting measures of the government, the
hiring of 47,000 new teachers to ease the
overload of existing teachers, the return of the
local government units to education purposes to
be administered by the Local School Boards,
and consequent recall of DBM Circulars Nos.
904 and 9011 and local budget circular No. 47
consistent with RA 5447 and the new
Constitution mandating that education shall
enjoy the highest budgetary priority in the
national budget, and other equally important
demands; The dialogues and conferences
initiated by the petitioners and other teacher
organizations were as early as March 14, 1989,
March 14, 1990, April 23, 1990, May 28, 1990,
June 5, 1990, September 3, 1990 and
September 14, 1990 with the Civil Service
Commission, the Senate and House of
Representatives, Department of Budget and
Management and the Department of Education,
Culture and Sports, but all these did not result in
the granting of the demands of the petitioners,
leaving them with no other recourse but to take
direct mass action such as the one they
engaged in three weeks ago.
4. On September 14, 1990, the petitioners and
other teachers in other cities and municipalities
in Metro Manila, staged a protest rally at the
DECS premises without disrupting classes as a
last call for the government to negotiate the
granting of demands. No response was made by
the respondent Secretary of Education, despite
the demonstration, so the petitioners began the
ongoing protest mass actions on September,
17,1990. ... 3
September 17, 1990 fell on a Monday, which
was also a regular school day. There is no
question that the some 800 teachers who joined
the mass action did not conduct their classes on
that day; instead, as alleged in the petition in
G.R. No. 95590, 4 they converged at the
Liwasang Bonifacio in the morning whence they
proceeded to the National Office of the
Department of Education, Culture and Sport
(DECS) for a whole-day assembly. At about 1:00
o'clock p.m., three representatives of the group
were allowed to see the respondent Secretary of
Education who "brushed aside their grievances,"
warned them that they would lose their jobs for
going on illegal and unauthorized mass leave.
Upon leaving said respondent's presence, they
were handed an order directing all participants in
the mass action to return to work in 24 hours or
face dismissal, and a memorandum directing the
DECS officials concerned to initiate dismissal
proceedings against those who did not comply
and to hire their replacements. 5 Those
directives notwithstanding, the mass actions
continued into the week, with more teachers
joining in the days that followed. In its issue of
September 19, 1990, the newspaper Manila
Standard reported that the day previous, the
respondent Secretary of Education had relieved
292 teachers who did not return to their classes.
The next day, however, another daily, Newsday,
reported that the Secretary had revoked its
dismissal order and instead placed 56 of the 292
teachers under preventive suspension, despite
which the protesters' numbers had swelled to
4,000. 6
On the record, what did happen was that, based
on reports submitted by the principals of the
various public schools in Metro Manila, the
respondent Secretary of Education had filed
motu proprio administrative complaints against
the teachers who had taken part in the mass
actions and defied the return-to-work order on
assorted charges like grave misconduct, gross
neglect of duty, gross violation of the Civil
Service Law, absence without official leave, etc.,
and placed them under 90-day preventive
suspension. The respondents were served
copies of the charge sheets and given five (5)
days to submit answer or explanation. Later, on
October 8, 1990, the respondent Secretary
constituted an investigating committee of four (4)
to determine and take the appropriate course of
action on the formal charges and designated the
special prosecutors on detail with the DECS to
handle their prosecution during the formal
hearings. 7
On October 11, 1990, the respondent Secretary
of Education rendered the first of his now
questioned decisions on the administrative
complaints. In Case No. DECS 90-002, he found
twenty (20) respondent teachers guilty of the
charges preferred against them and dismissed
them from office, effective immediately. 8 In the
other investigations that followed and as of
December 3, 1990, 658 teachers were
dismissed, 40 were suspended for one (1) year,
33 for nine (9) months, and 122 for six (6)
months; 398 were exonerated. 9
Earlier, on September 19, 1990, the petitioners
in G.R. No. 95445 had filed with the Regional
Trial Court of Manila Branch 18, a petition 10 for
prohibition, declaratory relief and preliminary
mandatory injunction to restrain the
implementation of the return-to-work order of
September 17, 1990 and the suspension or
dismissal of any teacher pursuant thereto and to
declare said order null and void. Issuance ex-
parte of a temporary restraining order was
sought, but seeing no compelling reason
therefor, the Regional Trial Court instead set the
application for preliminary injunction for hearing,
and heard the same, on September 24, 1990.
Thereafter and following the submission of
memorandums by the parties, said Court
rendered judgment declaring the assailed return-
to-work order valid and binding, and dismissing
the petition for lack of merit. 11
Review of said judgment is sought in G. R. No.
95445.
G.R. No. 95590 is a parallel original proceeding
for prohibition, mandamus and certiorari
grounded on the same state of facts and
instituted for substantially the same purpose i.e.,
the invalidation of the return-to-work order of the
respondent Secretary of Education and all
orders of suspension and/or dismissal thereafter
issued by said respondent against the teachers
who had taken part in the mass actions of
September 17, 1990 and the days that followed.
Both cases were ordered consolidated by
Resolution issued on October 25, 1990, 12 and
separate comments were filed by the Solicitor
General on behalf of the public respondents, in
G.R. No. 95445 on October 31, 1990, and in
G.R. No. 95590 on December 5, 1990. 13 On
November 20, 1990 the parties were heard in
oral argument on the petitioners' united pleas for
a temporary restraining order/mandatory
injunction to restore the status quo ante and
enjoin the public respondents from continuing
with the issuance of suspension orders and
proceeding with the administrative cases against
the teachers involved in the mass actions.
Said pleas were denied by the Court in its
Resolution of December 18, 1990, 14 and a
motion for reconsideration filed by the petitioners
in G.R. No. 95590 was likewise denied.
In two separate but identically-worded motions
filed on their behalf by Atty. Froilan M.
Bacungan, 15 the following persons, to wit: Florita
D. Guazon, Elisea G. Lazo, Gonzala G. Sioson,
Esperanza Valero, Nenita Pangilinan, Ramon
David, Aurora Bosi, Encarnita David, Socorro
Sentin, Crispulo Santos, Rodriguez Bagana,
Rodolfo D. Bacsal, Ruben Bersamina, Rodolfo
Arroyo, Irene Gadil, Rebecca Roldan, Rosita
Samson, Priscilla Avendia, Arturo Cabuhat,
Rosalinda Caoili, Angelina Corpuz, Purisima
Lena, Elsie Somera, Dedaica Jusay, Teresita
Partoza, Gloria Salvador, Catherine San
Agustin, Nestor Aguirre, Lorenzo Real, Celia
Ronquillo, Vicente Carranza, Jessie Villanueva,
Yolanda Alura, Clara Alvarez, Danilo Llamas,
Ladera Panita Myrna, Sena, Zenaida Ligon,
Daisy S. Conti, Danilo Caballes, Susan Maragat,
Roberto Manlangit and Elizabeth T. Aguirre,
seek leave to withdraw as parties in G.R. No.
95590. These movants claim that they are such
parties although not individually so named in the
petition in said case, being among those
referred to in its title as "other similarly situated
public school teachers too numerous to be
impleaded," who had been administratively
charged, then preventively suspended and/or
dismissed in the wake of the mass actions of
September 1990. They assert that since this
Court is not a trier of facts, they have opted to
appeal the questioned decisions or actuations of
the respondent Secretary of Education to the
Civil Service Commission where they believe
they will have "... all the opportunity to introduce
evidence on how (Secretary) Cario violated
their constitutional rights to due process of
law ... security of tenure and ... peaceably to
assemble and petition the government for
redress of grievances ...."
An opposition to the first motion was filed 16
which, briefly, contended that, as this Court had
already found that the petitioners had gone on
an unlawful strike and that public respondent
Cario's acts were prima facie lawful, the motion
was either an attempt at forum-shopping or
meant to avoid the "inevitable outcome" of
issues already pending final determination by
the Court.
The Court's Resolution of December 18, 1990,
supra, denying the petitioners' plea for
restoration of the status quo ante and to
restrain/enjoin further suspensions of, and the
initiation or continuation of, administrative
proceedings against the teachers involved, is
based on the following postulates:
(1) the undenied indeed, the pleaded and
admitted fact that about 800 teachers, among
them the individual petitioners and other
unnamed but "similarly situated" members of the
petitioning associations in both cases,
unauthorizedly absented themselves from their
classes on a regular schoolday, September 17,
1990, in order to participate in a "mass action" to
dramatize their grievances concerning, in the
main, the alleged failure of the public authorities,
either to implement at all or to implement in a
just and correct manner, certain laws and
measures intended to benefit them materially;
(2) the fact, too, that in the days that followed,
more mass actions for the same purpose were
undertaken, notwithstanding a return-to-work
order issued by the respondent Secretary of
Education; more teachers joined the so-called
"peaceful assemblies" on September 18, 1990
and the number rising to 4,000 on September
19, 1990; 17
(3) that from the pleaded and admitted facts,
these "mass actions" were to all intents and
purposes a strike; they constituted a concerted
and unauthorized stoppage of, or absence from,
work which it was the teachers' duty to perform,
undertaken for essentially economic reasons;
(4) that this court had already definitively ruled
that employees in the public (civil) service,
unlike those in the private sector, do not have
the right to strike, although guaranteed the right
to self-organization, to petition Congress for the
betterment of employment terms and conditions
and to negotiate with appropriate government
agencies for the improvement of such working
conditions as are not fixed by law; 18
(5) that upon the foregoing premises, it was
prima facie lawful and within his statutory
authority for the respondent Secretary of
Education to take the actions complained of, to
wit: issue a return-to-work order, prefer
administrative charges against, and place under
preventive suspension, those who failed to
comply with said order, and dismiss from the
service those who failed to answer or controvert
the charges; 19
The Court has not since been presented with
any consideration of law or established fact that
would impair the validity of these postulates or
preclude continued reliance thereon for the
purpose of resolving the present petitions on
their merits.
The underlying issue here is due process; not
whether the petitioners have a right to strike,
which it is clear they do not, however justifiable
their reasons, nor whether or not there was in
fact such a strike, it being equally evident from
the pleadings that there was, and there being no
dispute about this. What therefore, is brought
before the Court is the question of whether or
not any rights of the petitioners under the due
process clause of the Constitution as it applies
to administrative proceedings were violated in
the initiation, conduct, or disposition of the
investigations complained of.
Indeed, what the petitioners in G.R. No. 95590
proclaim about denial of due process being their
"paramount complaint" ... "central to their prayer
for interlocutory relief' 20 could as well be said of
the merits of their main cause as of their plea for
a restraining order pendente lite or a preliminary
injunction.
There are, however, insuperable obstacles to
the Court's taking up that issue and resolving it
in these cases. Said issue is not ripe for
adjudication by this Court in the exercise of its
review jurisdiction; and this, for the obvious
reason that it is one of fact. The petitions and
subsequent pleadings of the petitioners allege
facts and circumstances which, it is claimed,
show denial of due process, citing as
supposedly "representative samples" 21 among
others: (a) that teachers were dismissed on the
sole basis of unsworn reports of their principals
and without evidence of their alleged failure to
obey the return-to-work order; (b) that the
charge sheets failed to specify the particular
charges or offenses allegedly committed; (c) that
some teachers were not furnished sworn
complaints, and others were suspended without
any formal charges; (d) that teachers who
attempted to return within a reasonable time
after notice of the return-to-work order were not
accepted back; and similar allegations.
These are however denied and disputed by the
public respondents, who set forth their own
version, initially in their separate Comments in
both cases and, later and in greater detail, in
their Consolidated Memorandum of December
3, 1990, supra, from which the following
passages are quoted:
(6) Petitioners in G.R. No. 95545 and G.R. No.
95590 admit engaging in a strike (referred by
semantic interplay as "concerted activity" or
"mass action") directed against public
respondent Cario beginning September 17,
1990, MPSTA Petition, pp. 3, 9; ACT Petition,
pp. 1516).
To avoid the disruption of classes, public
respondent Cario, also on September 17,
1990, issued a 'return to work order' reminding
striking workers that in law, they cannot engage
in strike and warning them that dismissal
proceedings will be instituted against them if
they do not return to work with 24 hours from
their walkout (MPSTA Petition, p. 4; ACT
Petition, p. 15) and a memorandum to DECS
officials instructing them to notify the striking
teachers to return to work within 24 hours from
their walkout and to initiate dismissal
proceedings against those who defy the return
to work order as well as to hire temporary
replacements, MPSTA Petition, p. 4; ACT
Petition, pp. 15-16).
The striking teachers who did not heed the
return-to-work order were administratively
charged and preventively suspended for ninety
days for grave misconduct, gross neglect of
duty, insubordination, refusal to perform official
duty, absence without leave beginning
September 17, 1990 and other violations of Civil
Service Law, rules and regulations. All of striking
teachers were served with the suspension
orders and the change sheets notifying them of
the charges and giving them five (5) days from
receipt of the charge sheets within which to file
their respective answers.
With the filing of the administrative complaints
and the receipt of the answers of some of the
teachers involved, public respondent Carino on
October 8, 1990 issued a Memorandum forming
an Investigation Committee composed of Atty,
Reno Capinpin of DECS Administrative Services
as Chairman Dr. Alberto Mendoza, representing
the Division Supervisors, Atty. Evangeline de
Castro, representing the City Superintendent of
Schools of Manila, and Atty. Isaias Meleto
representing the National PPSTA Organization,
as members. Copy of the aforesaid
Memorandum is hereto attached as Annex "I."
The committee was authorized to meet
everyday, even as Special Prosecutors from the
Department of justice on detail with the DECS
were designated to handle the prosecution
during the formal hearings. (Ibid.)
Petitioners in GR No. 95545' and 'G.R. No.
95590' admit having received the charge sheets
and notices of preventive suspension wherein
they were given five days from receipt of the
charges within which to file their answers
(MPSTA Petition, p. 4-1 ACT Petition, p. 16,
Annexes x , to , AA ).
xxx xxx xxx
... Many striking teachers received their
preventive suspension orders and the charge
sheets from their respective principals when
they visited their schools. Many refused to
receive and sign receipt therefor; others tore up
the preventive suspension orders and charge
sheets in front of their principals. Instead, they
took the occasion to belittle and insult the
substitute teachers who took over their
classrooms temporarily.
The striking teachers were given a period of five
days to file their Answers in line with Sec. 8,
Rule III of Rules on Administrative Disciplinary
Cases in CSC Memorandum Circular No. 46, s.
1989. The motion for extension of time to file
Answer was denied by DECS Task Force
because it was dilatory the alleged reason being
that Atty. Fabros is handling 2,000 cases of
teachers. The DECS was constrained by Sec.
38(d) of P.D. 807 and Sec. 8 of the
Memorandum Circular mentioned which
mandate that administrative cases must be
decided within 30 days from the filing of the
charges. Another reason was that many refused
to receive the notice of charges. Also, to delay
the resolution of the cases was to their
disadvantage.
Moreover, another reason proferred was that the
Regional Trial Court (RTC) of Manila still had to
act on the petition before it. However, the Motion
was filed AFTER the RTC Manila had already
dismissed the Petition.
Nevertheless, answers to the administrative
complaints started pouring in at the DECS, as
prepared personally by the striking teachers or
by their lawyers.
After initial assessments of the reports coming in
from the principals of the schools concerned and
the answers of the striking teachers, the DECS
Special Task Force prepared on October 9, 1990
and submitted to respondent Secretary Carino
the Guidelines and Criteria as to the nature of
the evidence to be assessed and the
corresponding penalty to be imposed against the
striking teachers, which was approved by
respondent Secretary Carino on the same day. A
copy of the aforesaid Guidelines and Criteria is
hereto attached as Annex "2." Thereafter, the
DECS Special Task Force proceeded with its
task of investigating the cases against the
striking teachers.
Those who refused to sign the DECS return-to-
work order, the preventive suspension orders
and the charge sheets, some even tearing up
the documents presented to them by their
principals were considered by the DECS Special
Task Force as having waived their right to be
heard; their cases had to be resolved on the
basis of the records. Nevertheless, the DECS
Special Task Force summoned the principals
concerned, who then testified under oath
confirming their reports on the absences of the
striking teachers. Some clarificatory questions
were asked of them on the manner of the
service of the DECS orders and the situation
obtaining in their schools.
For those who answered the charge sheets, the
DECS Special Task Force set the administrative
cases for hearing. Many of the striking teachers
refused to appear at the hearings but preferred
to submit their case on the basis of their
answers.
With regard to those who attended the hearings,
each of the absent or striking teachers was
investigated and asked questions under oath on
their answers and the reasons for their
absences and/or joining the teachers' strike.
Some teachers reiterated their answers to the
charge sheets, either giving justifiable reasons
for their absences on the days mentioned or
maintaining their stubborn stand that they have
all the right to absent themselves from classes in
the exercise of their constitutional right to join
mass action to demand from the government
what are supposedly due them. Still the DECS
Special Task Force was not satisfied with their
written answers and explanation during the
hearings. The principals of the striking teachers
were summoned and they confirmed under oath
their reports of absences and/or on teachers
joining the strike.
After having conducted fully their investigations,
the DECS Special Task Force submitted in
series their investigation reports and
recommendation for each category of striking
teachers to respondent Secretary Carino. The
investigation reports, together with their
supporting documents, submitted by the DECS
Special Task Force indicated clearly the manner
and conduct of the administrative hearings, the
nature and weight of the evidence adduced, and
the correspondingly penalty or exoneration
recommended.
On the bases of the investigation reports and
recommendations of the DECS Special Task
Force, and after evaluating the reports and its
documents attached, respondent Secretary
Carino promulgated the decisions either for
exoneration, suspension or dismissal. Copies of
the DECS decisions of exoneration, suspension
or dismissal were forwarded to the principals of
the striking teachers concerned. Those
exonerated were allowed to resume their duties
and received their back salaries. Some of the
teachers either suspended or dismissed have
already received the copies of the decisions,
either personally or through mail.
xxx xxx xxx 22
This copious citation is made, not to suggest
that the Court finds what is stated therein to be
true and the contrary averments of the petitions
to be false, but precisely to stress that the facts
upon which the question of alleged denial of due
process would turn are still in issue, actively
controverted, hence not yet established.
It is not for the Court, which is not a trier of facts,
as the petitioners who would now withdraw
correctly put it, to make the crucial determination
of what in truth transpired concerning the
disputed incidents. Even if that were within its
competence, it would be at best a monumental
task. At any rate, the petitioners cannot-as it
seems they have done lump together into what
amounts to a class action hundreds of individual
cases, each with its own peculiar set of facts,
and expect a ruling that would justly and
correctly resolve each and everyone of those
cases upon little more than general allegations,
frontally disputed as already pointed out, of
incidents supposedly "representative" of each
case or group of cases.
This case illustrates the error of precipitate
recourse to the Supreme Court, especially when
numerous parties desparately situated as far as
the facts are concerned gather under the
umbrella of a common plea, and generalization
of what should be alleged with particularity
becomes unavoidable. The petitioners' obvious
remedy was NOT to halt the administrative
proceedings but, on the contrary, to take part,
assert and vindicate their rights therein, see
those proceedings through to judgment and if
adjudged guilty, appeal to the Civil Service
Commission; or if, pending said proceedings,
immediate recourse to judicial authority was
believed necessary because the respondent
Secretary or those acting under him or on his
instructions were acting without or in excess of
jurisdiction, or with grave abuse of discretion, to
apply, not directly to the Supreme Court, but to
the Regional Trial Court, where there would be
an opportunity to prove the relevant facts
warranting corrective relief.
Parties-litigant are duty bound to observe the
proper order of recourse through the judicial
hierarchy; they by-pass the rungs of the judicial
ladder at the peril of their own causes. 23 This
Court is a court of last resort. Its review
jurisdiction is limited to resolving questions of
law where there is no dispute of the facts or the
facts have already been determined by lower
tribunals, except only in criminal actions where
capital penalties have been imposed.
WHEREFORE, both petitioners are
DISMISSED, without prejudice to any appeals, if
still timely, that the individual petitioners may
take to the Civil Service Commission on the
matters complained of. The motions to withdraw,
supra, are merely NOTED, this disposition
rendering any express ruling thereon
unnecessary. No pronouncement as to costs.
SO ORDERED.
Fernan, C.J. (Chairman), Melencio-Herrera,
Gancayco, Bidin, Grio-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
THIRD DIVISION
G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES
ASSOCIATION (SSSEA), DIONISION T.
BAYLON, RAMON MODESTO, JUANITO
MADURA, REUBEN ZAMORA, VIRGILIO DE
ALDAY, SERGIO ARANETA, PLACIDO
AGUSTIN, VIRGILIO MAGPAYO, petitioner,
vs.
THE COURT OF APPEALS, SOCIAL
SECURITY SYSTEM (SSS), HON. CEZAR C.
PERALEJO, RTC, BRANCH 98, QUEZON
CITY, respondents.
Vicente T. Ocampo & Associates for petitioners.
CORTES, J:
Primarily, the issue raised in this petition is
whether or not the Regional Trial Court can
enjoin the Social Security System Employees
Association (SSSEA) from striking and order the
striking employees to return to work. Collaterally,
it is whether or not employees of the Social
Security System (SSS) have the right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the
Regional Trial Court of Quezon City a complaint
for damages with a prayer for a writ of
preliminary injunction against petitioners,
alleging that on June 9, 1987, the officers and
members of SSSEA staged an illegal strike and
baricaded the entrances to the SSS Building,
preventing non-striking employees from
reporting for work and SSS members from
transacting business with the SSS; that the
strike was reported to the Public Sector Labor -
Management Council, which ordered the strikers
to return to work; that the strikers refused to
return to work; and that the SSS suffered
damages as a result of the strike. The complaint
prayed that a writ of preliminary injunction be
issued to enjoin the strike and that the strikers
be ordered to return to work; that the defendants
(petitioners herein) be ordered to pay damages;
and that the strike be declared illegal.
It appears that the SSSEA went on strike after
the SSS failed to act on the union's demands,
which included: implementation of the provisions
of the old SSS-SSSEA collective bargaining
agreement (CBA) on check-off of union dues;
payment of accrued overtime pay, night
differential pay and holiday pay; conversion of
temporary or contractual employees with six (6)
months or more of service into regular and
permanent employees and their entitlement to
the same salaries, allowances and benefits
given to other regular employees of the SSS;
and payment of the children's allowance of
P30.00, and after the SSS deducted certain
amounts from the salaries of the employees and
allegedly committed acts of discrimination and
unfair labor practices [Rollo, pp. 21-241].
The court a quo, on June 11, 1987, issued a
temporary restraining order pending resolution
of the application for a writ of preliminary
injunction [Rollo, p. 71.] In the meantime,
petitioners filed a motion to dismiss alleging the
trial court's lack of jurisdiction over the subject
matter [Rollo, pp. 72-82.] To this motion, the
SSS filed an opposition, reiterating its prayer for
the issuance of a writ of injunction [Rollo, pp.
209-222]. On July 22,1987, in a four-page order,
the court a quo denied the motion to dismiss and
converted the restraining order into an injunction
upon posting of a bond, after finding that the
strike was illegal [Rollo, pp. 83- 86]. As
petitioners' motion for the reconsideration of the
aforesaid order was also denied on August 14,
1988 [Rollo, p. 94], petitioners filed a petition for
certiorari and prohibition with preliminary
injunction before this Court. Their petition was
docketed as G.R. No. 79577. In a resolution
dated October 21, 1987, the Court, through the
Third Division, resolved to refer the case to the
Court of Appeals. Petitioners filed a motion for
reconsideration thereof, but during its pendency
the Court of Appeals on March 9,1988
promulgated its decision on the referred case
[Rollo, pp. 130-137]. Petitioners moved to recall
the Court of Appeals' decision. In the meantime,
the Court on June 29,1988 denied the motion for
reconsideration in G.R. No. 97577 for being
moot and academic. Petitioners' motion to recall
the decision of the Court of Appeals was also
denied in view of this Court's denial of the
motion for reconsideration [Rollo, pp. 141- 143].
Hence, the instant petition to review the decision
of the Court of Appeals [Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989,
the Court issued a temporary restraining order
enjoining the petitioners from staging another
strike or from pursuing the notice of strike they
filed with the Department of Labor and
Employment on January 25, 1989 and to
maintain the status quo [Rollo, pp. 151-152].
The Court, taking the comment as answer, and
noting the reply and supplemental reply filed by
petitioners, considered the issues joined and the
case submitted for decision.
The position of the petitioners is that the
Regional Trial Court had no jurisdiction to hear
the case initiated by the SSS and to issue the
restraining order and the writ of preliminary
injunction, as jurisdiction lay with the
Department of Labor and Employment or the
National Labor Relations Commission, since the
case involves a labor dispute.
On the other hand, the SSS advances the
contrary view, on the ground that the employees
of the SSS are covered by civil service laws and
rules and regulations, not the Labor Code,
therefore they do not have the right to strike.
Since neither the DOLE nor the NLRC has
jurisdiction over the dispute, the Regional Trial
Court may enjoin the employees from striking.
In dismissing the petition for certiorari and
prohibition with preliminary injunction filed by
petitioners, the Court of Appeals held that since
the employees of the SSS, are government
employees, they are not allowed to strike, and
may be enjoined by the Regional Trial Court,
which had jurisdiction over the SSS' complaint
for damages, from continuing with their strike.
Thus, the sequential questions to be resolved by
the Court in deciding whether or not the Court of
Appeals erred in finding that the Regional Trial
Court did not act without or in excess of
jurisdiction when it took cognizance of the case
and enjoined the strike are as follows:
1. Do the employees of the SSS have the right
to strike?
2. Does the Regional Trial Court have
jurisdiction to hear the case initiated by the SSS
and to enjoin the strikers from continuing with
the strike and to order them to return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social
Justice and Human Rights, provides that the
State "shall guarantee the rights of all workers to
self-organization, collective bargaining and
negotiations, and peaceful concerted activities,
including the right to strike in accordance with
law" [Art. XIII, Sec. 31].
By itself, this provision would seem to recognize
the right of all workers and employees, including
those in the public sector, to strike. But the
Constitution itself fails to expressly confirm this
impression, for in the Sub-Article on the Civil
Service Commission, it provides, after defining
the scope of the civil service as "all branches,
subdivisions, instrumentalities, and agencies of
the Government, including government-owned
or controlled corporations with original charters,"
that "[t]he right to self-organization shall not be
denied to government employees" [Art. IX(B),
Sec. 2(l) and (50)]. Parenthetically, the Bill of
Rights also provides that "[tlhe right of the
people, including those employed in the public
and private sectors, to form unions,
associations, or societies for purposes not
contrary to law shall not abridged" [Art. III, Sec.
8]. Thus, while there is no question that the
Constitution recognizes the right of government
employees to organize, it is silent as to whether
such recognition also includes the right to strike.
Resort to the intent of the framers of the organic
law becomes helpful in understanding the
meaning of these provisions. A reading of the
proceedings of the Constitutional Commission
that drafted the 1987 Constitution would show
that in recognizing the right of government
employees to organize, the commissioners
intended to limit the right to the formation of
unions or associations only, without including the
right to strike.
Thus, Commissioner Eulogio R. Lerum, one of
the sponsors of the provision that "[tlhe right to
self-organization shall not be denied to
government employees" [Art. IX(B), Sec. 2(5)],
in answer to the apprehensions expressed by
Commissioner Ambrosio B. Padilla, Vice-
President of the Commission, explained:
MR. LERUM. I think what I will try to say will not
take that long. When we proposed this
amendment providing for self-organization of
government employees, it does not mean that
because they have the right to organize, they
also have the right to strike. That is a different
matter. We are only talking about organizing,
uniting as a union. With regard to the right to
strike, everyone will remember that in the Bill of
Rights, there is a provision that the right to form
associations or societies whose purpose is not
contrary to law shall not be abridged. Now then,
if the purpose of the state is to prohibit the
strikes coming from employees exercising
government functions, that could be done
because the moment that is prohibited, then the
union which will go on strike will be an illegal
union. And that provision is carried in Republic
Act 875. In Republic Act 875, workers, including
those from the government-owned and
controlled, are allowed to organize but they are
prohibited from striking. So, the fear of our
honorable Vice- President is unfounded. It does
not mean that because we approve this
resolution, it carries with it the right to strike.
That is a different matter. As a matter of fact, that
subject is now being discussed in the Committee
on Social Justice because we are trying to find a
solution to this problem. We know that this
problem exist; that the moment we allow
anybody in the government to strike, then what
will happen if the members of the Armed Forces
will go on strike? What will happen to those
people trying to protect us? So that is a matter of
discussion in the Committee on Social Justice.
But, I repeat, the right to form an organization
does not carry with it the right to strike. [Record
of the Constitutional Commission, vol. 1, p. 569].
It will be recalled that the Industrial Peace Act
(R.A. No. 875), which was repealed by the Labor
Code (P.D. 442) in 1974, expressly banned
strikes by employees in the Government,
including instrumentalities exercising
governmental functions, but excluding entities
entrusted with proprietary functions:
.Sec. 11. Prohibition Against Strikes in the
Government. The terms and conditions of
employment in the Government, including any
political subdivision or instrumentality thereof,
are governed by law and it is declared to be the
policy of this Act that employees therein shall not
strike for the purpose of securing changes or
modification in their terms and conditions of
employment. Such employees may belong to
any labor organization which does not impose
the obligation to strike or to join in strike:
Provided, however, That this section shall apply
only to employees employed in governmental
functions and not those employed in proprietary
functions of the Government including but not
limited to governmental corporations.
No similar provision is found in the Labor Code,
although at one time it recognized the right of
employees of government corporations
established under the Corporation Code to
organize and bargain collectively and those in
the civil service to "form organizations for
purposes not contrary to law" [Art. 244, before
its amendment by B.P. Blg. 70 in 1980], in the
same breath it provided that "[t]he terms and
conditions of employment of all government
employees, including employees of government
owned and controlled corporations, shall be
governed by the Civil Service Law, rules and
regulations" [now Art. 276]. Understandably, the
Labor Code is silent as to whether or not
government employees may strike, for such are
excluded from its coverage [Ibid]. But then the
Civil Service Decree [P.D. No. 807], is equally
silent on the matter.
On June 1, 1987, to implement the constitutional
guarantee of the right of government employees
to organize, the President issued E.O. No. 180
which provides guidelines for the exercise of the
right to organize of government employees. In
Section 14 thereof, it is provided that "[t]he Civil
Service law and rules governing concerted
activities and strikes in the government service
shall be observed, subject to any legislation that
may be enacted by Congress." The President
was apparently referring to Memorandum
Circular No. 6, s. 1987 of the Civil Service
Commission under date April 21, 1987 which,
"prior to the enactment by Congress of
applicable laws concerning strike by government
employees ... enjoins under pain of
administrative sanctions, all government officers
and employees from staging strikes,
demonstrations, mass leaves, walk-outs and
other forms of mass action which will result in
temporary stoppage or disruption of public
service." The air was thus cleared of the
confusion. At present, in the absence of any
legislation allowing government employees to
strike, recognizing their right to do so, or
regulating the exercise of the right, they are
prohibited from striking, by express provision of
Memorandum Circular No. 6 and as implied in
E.O. No. 180. [At this juncture, it must be stated
that the validity of Memorandum Circular No. 6
is not at issue].
But are employees of the SSS covered by the
prohibition against strikes?
The Court is of the considered view that they
are. Considering that under the 1987
Constitution "[t]he civil service embraces all
branches, subdivisions, instrumentalities, and
agencies of the Government, including
government-owned or controlled corporations
with original charters" [Art. IX(B), Sec. .2(l) see
also Sec. 1 of E.O. No. 180 where the
employees in the civil service are denominated
as "government employees"] and that the SSS is
one such government-controlled corporation
with an original charter, having been created
under R.A. No. 1161, its employees are part of
the civil service [NASECO v. NLRC, G.R. Nos.
69870 & 70295, November 24,1988] and are
covered by the Civil Service Commission's
memorandum prohibiting strikes. This being the
case, the strike staged by the employees of the
SSS was illegal.
The statement of the Court in Alliance of
Government Workers v. Minister of Labor and
Employment [G.R. No. 60403, August 3, 1:983,
124 SCRA 11 is relevant as it furnishes the
rationale for distinguishing between workers in
the private sector and government employees
with regard to the right to strike:
The general rule in the past and up to the
present is that 'the terms and conditions of
employment in the Government, including any
political subdivision or instrumentality thereof are
governed by law" (Section 11, the Industrial
Peace Act, R.A. No. 875, as amended and
Article 277, the Labor Code, P.D. No. 442, as
amended). Since the terms and conditions of
government employment are fixed by law,
government workers cannot use the same
weapons employed by workers in the private
sector to secure concessions from their
employers. The principle behind labor unionism
in private industry is that industrial peace cannot
be secured through compulsion by law.
Relations between private employers and their
employees rest on an essentially voluntary
basis. Subject to the minimum requirements of
wage laws and other labor and welfare
legislation, the terms and conditions of
employment in the unionized private sector are
settled through the process of collective
bargaining. In government employment,
however, it is the legislature and, where properly
given delegated power, the administrative heads
of government which fix the terms and
conditions of employment. And this is effected
through statutes or administrative circulars,
rules, and regulations, not through collective
bargaining agreements. [At p. 13; Emphasis
supplied].
Apropos is the observation of the Acting
Commissioner of Civil Service, in his position
paper submitted to the 1971 Constitutional
Convention, and quoted with approval by the
Court in Alliance, to wit:
It is the stand, therefore, of this Commission that
by reason of the nature of the public employer
and the peculiar character of the public service,
it must necessarily regard the right to strike
given to unions in private industry as not
applying to public employees and civil service
employees. It has been stated that the
Government, in contrast to the private employer,
protects the interest of all people in the public
service, and that accordingly, such conflicting
interests as are present in private labor relations
could not exist in the relations between
government and those whom they employ. [At
pp. 16-17; also quoted in National Housing
Corporation v. Juco, G.R. No. 64313, January
17,1985,134 SCRA 172,178-179].
E.O. No. 180, which provides guidelines for the
exercise of the right to organize of government
employees, while clinging to the same
philosophy, has, however, relaxed the rule to
allow negotiation where the terms and
conditions of employment involved are not
among those fixed by law. Thus:
.SECTION 13. Terms and conditions of
employment or improvements thereof, except
those that are fixed by law, may be the subject
of negotiations between duly recognized
employees' organizations and appropriate
government authorities.
The same executive order has also provided for
the general mechanism for the settlement of
labor disputes in the public sector to wit:
.SECTION 16. The Civil Service and labor laws
and procedures, whenever applicable, shall be
followed in the resolution of complaints,
grievances and cases involving government
employees. In case any dispute remains
unresolved after exhausting all the available
remedies under existing laws and procedures,
the parties may jointly refer the dispute to the
[Public Sector Labor- Management] Council for
appropriate action.
Government employees may, therefore, through
their unions or associations, either petition the
Congress for the betterment of the terms and
conditions of employment which are within the
ambit of legislation or negotiate with the
appropriate government agencies for the
improvement of those which are not fixed by law.
If there be any unresolved grievances, the
dispute may be referred to the Public Sector
Labor - Management Council for appropriate
action. But employees in the civil service may
not resort to strikes, walk-outs and other
temporary work stoppages, like workers in the
private sector, to pressure the Govemment to
accede to their demands. As now provided
under Sec. 4, Rule III of the Rules and
Regulations to Govern the Exercise of the Right
of Government- Employees to Self-
Organization, which took effect after the instant
dispute arose, "[t]he terms and conditions of
employment in the government, including any
political subdivision or instrumentality thereof
and government- owned and controlled
corporations with original charters are governed
by law and employees therein shall not strike for
the purpose of securing changes thereof."
II
The strike staged by the employees of the SSS
belonging to petitioner union being prohibited by
law, an injunction may be issued to restrain it.
It is futile for the petitioners to assert that the
subject labor dispute falls within the exclusive
jurisdiction of the NLRC and, hence, the
Regional Trial Court had no jurisdiction to issue
a writ of injunction enjoining the continuance of
the strike. The Labor Code itself provides that
terms and conditions of employment of
government employees shall be governed by the
Civil Service Law, rules and regulations [Art.
276]. More importantly, E.O. No. 180 vests the
Public Sector Labor - Management Council with
jurisdiction over unresolved labor disputes
involving government employees [Sec. 16].
Clearly, the NLRC has no jurisdiction over the
dispute.
This being the case, the Regional Trial Court
was not precluded, in the exercise of its general
jurisdiction under B.P. Blg. 129, as amended,
from assuming jurisdiction over the SSS's
complaint for damages and issuing the injunctive
writ prayed for therein. Unlike the NLRC, the
Public Sector Labor - Management Council has
not been granted by law authority to issue writs
of injunction in labor disputes within its
jurisdiction. Thus, since it is the Council, and not
the NLRC, that has jurisdiction over the instant
labor dispute, resort to the general courts of law
for the issuance of a writ of injunction to enjoin
the strike is appropriate.
Neither could the court a quo be accused of
imprudence or overzealousness, for in fact it had
proceeded with caution. Thus, after issuing a
writ of injunction enjoining the continuance of the
strike to prevent any further disruption of public
service, the respondent judge, in the same
order, admonished the parties to refer the
unresolved controversies emanating from their
employer- employee relationship to the Public
Sector Labor - Management Council for
appropriate action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and
Mandatory Injunction," and reiterated in their
reply and supplemental reply, petitioners allege
that the SSS unlawfully withheld bonuses and
benefits due the individual petitioners and they
pray that the Court issue a writ of preliminary
prohibitive and mandatory injunction to restrain
the SSS and its agents from withholding
payment thereof and to compel the SSS to pay
them. In their supplemental reply, petitioners
annexed an order of the Civil Service
Commission, dated May 5, 1989, which ruled
that the officers of the SSSEA who are not
preventively suspended and who are reporting
for work pending the resolution of the
administrative cases against them are entitled to
their salaries, year-end bonuses and other fringe
benefits and affirmed the previous order of the
Merit Systems Promotion Board.
The matter being extraneous to the issues
elevated to this Court, it is Our view that
petitioners' remedy is not to petition this Court to
issue an injunction, but to cause the execution of
the aforesaid order, if it has already become
final.
WHEREFORE, no reversible error having been
committed by the Court of Appeals, the instant
petition for review is hereby DENIED and the
decision of the appellate court dated March 9,
1988 in CA-G.R. SP No. 13192 is AFFIRMED.
Petitioners' "Petition/Application for Preliminary
and Mandatory Injunction" dated December
13,1988 is DENIED.
SO ORDERED.
[G.R. No. 147392. March 12, 2004]
BENEDICTO ERNESTO R. BITONIO, JR.,
petitioner, vs. COMMISSION ON AUDIT and
CELSO D. GANGAN, CHAIRMAN OF THE
COMMISSION ON AUDIT, respondents.
DECISION
CALLEJO, SR., J.:
The instant petition filed under Rule 64 of the
Revised Rules of Court seeks the annulment of
the Decision[if !supportFootnotes][1][endif]
of the
Commission on Audit (COA) dated January 30,
2001 denying the petitioners motion for the
reconsideration of the COA Notices of
Disallowance Nos. 98-008-101 (95) and 98-017-
101 (97) dated July 31, 1998 and October 9,
1998, respectively, involving the per diems the
petitioner received from the Philippine Economic
Zone Authority (PEZA). In order to avoid
multiplicity of suits, an Amended Petition [if !
supportFootnotes][2][endif]
dated August 16, 2002 was later
filed to include in the resolution of the instant
petition Notice of Disallowance No. 98-003-101
(96) dated July 31, 1998 which was belatedly
received by the petitioner on August 13, 2002.
The antecedent facts are as follows:
In 1994, petitioner Benedicto Ernesto R. Bitonio,
Jr. was appointed Director IV of the Bureau of
Labor Relations in the Department of Labor and
Employment.
In a Letter dated May 11, 1995 addressed to
Honorable Rizalino S. Navarro, then Secretary
of the Department of Trade and Industry, Acting
Secretary Jose S. Brilliantes of the Department
of Labor and Employment designated the
petitioner to be the DOLE representative to the
Board of Directors of PEZA.[if !supportFootnotes][3][endif]
Such designation was in pursuance to Section
11 of Republic Act No. 7916, otherwise known
as the Special Economic Zone Act of 1995,
which provides:
Section 11. The Philippine Economic Zone
Authority (PEZA) Board. There is hereby created
a body corporate to be known as the Philippine
Economic Zone Authority (PEZA)
The Board shall be composed of the Director
General as ex officio chairman with eight (8)
members as follows: the Secretaries or their
representatives of the Department of Trade and
Industry, the Department of Finance, the
Department of Labor and Employment, the
Department of [the] Interior and Local
Government, the National Economic and
Development Authority, and the Bangko Sentral
ng Pilipinas, one (1) representative from the
labor sector, and one (1) representative from the
investor/business sector in the ECOZONE.
Members of the Board shall receive a per diem
of not less than the amount equivalent to the
representation and transportation allowances of
the members of the Board and/or as may be
determined by the Department of Budget and
Management: Provided, however, That the per
diem collected per month does not exceed the
equivalent of four (4) meetings.
As representative of the Secretary of Labor to
the PEZA, the petitioner was receiving a per
diem for every board meeting he attended
during the years 1995 to 1997.
After a post audit of the PEZAs disbursement
transactions, the COA disallowed the payment of
per diems to the petitioner and thus issued the
following:
(a) Notice of Disallowance No. 98-008-101 (95)
dated July 31, 1998 for the total sum of P24,500
covering the period of July-December 1995;
(b) Notice of Disallowance No. 98-003-101 (96)
also dated July 31, 1998 for a total amount of
P100,000 covering the period of January 1996
to January 1997;[if !supportFootnotes][4][endif]
(c) Notice of Disallowance No. 98-017-101 (97)
dated October 9, 1998 for the total amount of
P210,000 covering the period of February 1997
to January 1998.
The uniform reason for the disallowance was
stated in the Notices, as follows:
Cabinet members, their deputies and assistants
holding other offices in addition to their primary
office and to receive compensation therefore
was declared unconstitutional by the Supreme
Court in the Civil Liberties Union vs. Executive
Secretary. Disallowance is in pursuance to COA
Memorandum No. 97-038 dated September 19,
1997 implementing Senate Committee Report
No. 509.[if !supportFootnotes][5][endif]
On November 24, 1998, the petitioner filed his
motion for reconsideration to the COA on the
following grounds:
1. The Supreme Court in its Resolution dated
August 2, 1991 on the motion for clarification
filed by the Solicitor General modified its earlier
ruling in the Civil Liberties Union case which
limits the prohibition to Cabinet Secretaries,
Undersecretaries and their Assistants. Officials
given the rank equivalent to a Secretary,
Undersecretary or Assistant Secretary and other
appointive officials below the rank of Assistant
Secretary are not covered by the prohibition.
2. Section 11 of R.A. No. 7916 provides the legal
basis for the movant to receive per diem. Said
law was enacted in 1995, four years after the
Civil Liberties Union case became final. In
expressly authorizing per diems, Congress
should be conclusively presumed to have been
aware of the parameters of the constitutional
prohibition as interpreted in the Civil Liberties
Union case.[if !supportFootnotes][6][endif]
On January 30, 2001, the COA rendered the
assailed decision denying petitioners motion for
reconsideration.
Hence, this petition.
The issue in this case is whether or not the COA
correctly disallowed the per diems received by
the petitioner for his attendance in the PEZA
Board of Directors meetings as representative of
the Secretary of Labor.
We rule in the affirmative.
The COA anchors the disallowance of per diems
in the case of Civil Liberties Union v. Executive
Secretary[if !supportFootnotes][7][endif] where the Court
declared Executive Order No. 284[if !supportFootnotes][8]
[endif]
allowing government officials to hold
multiple positions in government,
unconstitutional. Thus, Cabinet Secretaries,
Undersecretaries, and their Assistant
Secretaries, are prohibited to hold other
government offices or positions in addition to
their primary positions and to receive
compensation therefor, except in cases where
the Constitution expressly provides. The Courts
ruling was in conformity with Section 13, Article
VII of the 1987 Constitution which reads:
Sec. 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided
in this Constitution, hold any other office or
employment during their tenure. They shall not,
during their tenure, directly or indirectly, practice
any other profession, participate in any business
or be financially interested in any other contract
with, or in any franchise, or special privilege
granted by the Government or any subdivision,
agency or instrumentality thereof, including any
government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or
affinity within the fourth civil degree of the
President shall not, during his tenure, be
appointed as members of the Constitutional
Commissions, or the Office of the Ombudsman,
or as Secretaries, Undersecretaries, Chairmen,
or heads of bureaus or offices, including
government-owned or controlled corporations
and subsidiaries.
Pursuant to the Courts ruling in this case and
the Senate Committee Report on the
Accountability of Public Officers and
Investigations (Blue Ribbon),[if !supportFootnotes][9][endif]
the COA issued Memorandum No. 97-038 which
authorized the issuance of the Notices of
Disallowances for the per diems received by the
petitioner. It states:
The Commission received a copy of Senate
Committee Report No. 509 urging the
Commission on Audit to immediately cause the
disallowance of any payment of any form of
additional compensation or remuneration to
cabinet secretaries, their deputies and
assistants, or their representatives in violation of
the rule on multiple positions and to effect the
refund of any and all such additional
compensation given to and received by the
officials concerned, or their representatives, from
the time of the finality of the Supreme Court
ruling in Civil Liberties Union vs. Executive
Secretary to the present. In the Civil Liberties
Union case, the Supreme Court ruled that
Cabinet Secretaries, their deputies and
assistants may not hold any other office or
employment. It declared Executive Order No.
284 unconstitutional insofar as it allows Cabinet
members, their deputies and assistants to hold
other offices in addition to their primary office
and to receive compensation therefor. The said
decision became final and executory on August
19, 1991.
In view thereof, all unit heads/auditors/team
leaders of the national government agencies
and government-owned or controlled
corporations which have effected payment of
subject allowances are directed to implement
the recommendation contained in the subject
Senate Committee Report by undertaking the
following audit action: [if !supportFootnotes][10][endif]
The petitioner maintains that he is entitled to the
payment of per diems, as R.A. No. 7916
specifically and categorically provides for the
payment of a per diem for the attendance of the
members of the Board of Directors at board
meetings of PEZA. The petitioner contends that
this law is presumed to be valid; unless and until
the law is declared unconstitutional, it remains in
effect and binding for all intents and purposes.
Neither can this law be rendered nugatory on
the basis of a mere memorandum circular COA
Memorandum No. 97-038 issued by the COA.
The petitioner stresses that R.A. No. 7916 is a
statute more superior than an administrative
directive and the former cannot just be repealed
or amended by the latter.
The petitioner also posits that R.A. No. 7916
was enacted four (4) years after the case of Civil
Liberties Union was promulgated. It is, therefore,
assumed that the legislature, before enacting a
law, was aware of the prior holdings of the
courts. Since the constitutionality or the validity
of R.A. No. 7916 was never challenged, the
provision on the payment of per diems remains
in force notwithstanding the Civil Liberties Union
case. Nonetheless, the petitioners position as
Director IV is not included in the enumeration of
officials prohibited to receive additional
compensation as clarified in the Resolution of
the Court dated August 1, 1991; thus, he is still
entitled to receive the per diems.
The petitioners contentions are untenable.
It must be noted that the petitioners presence in
the PEZA Board meetings is solely by virtue of
his capacity as representative of the Secretary
of Labor. As the petitioner himself admitted,
there was no separate or special appointment
for such position.[if !supportFootnotes][11][endif] Since the
Secretary of Labor is prohibited from receiving
compensation for his additional office or
employment, such prohibition likewise applies to
the petitioner who sat in the Board only in behalf
of the Secretary of Labor.
The petitioners case stands on all fours with the
case of Dela Cruz v. Commission on Audit.[if !
supportFootnotes][12][endif]
Here, the Court upheld the
COA in disallowing the payment of honoraria
and per diems to the officers concerned who sat
as members of the Board of Directors of the
National Housing Authority. The officers
concerned sat as alternates of their superiors in
an ex officio capacity. Citing also the Civil
Liberties Union case, the Court explained thus:
The ex-officio position being actually and in legal
contemplation part of the principal office, it
follows that the official concerned has no right to
receive additional compensation for his services
in the said position. The reason is that these
services are already paid for and covered by the
compensation attached to his principal office. It
should be obvious that if, say, the Secretary of
Finance attends a meeting of the Monetary
Board as an ex-officio member thereof, he is
actually and in legal contemplation performing
the primary function of his principal office in
defining policy in monetary banking matters,
which come under the jurisdiction of his
department. For such attendance, therefore, he
is not entitled to collect any extra compensation,
whether it be in the form of a per diem or an
honorarium or an allowance, or some other such
euphemism. By whatever name it is designated,
such additional compensation is prohibited by
the Constitution.
Since the Executive Department Secretaries, as
ex-officio members of the NHA Board, are
prohibited from receiving extra (additional)
compensation, whether it be in the form of a per
diem or an honorarium or an allowance, or some
other such euphemism, it follows that petitioners
who sit as their alternates cannot likewise be
entitled to receive such compensation. A
contrary rule would give petitioners a better right
than their principals.[if !supportFootnotes][13][endif]
Similarly in the case at bar, we cannot allow the
petitioner who sat as representative of the
Secretary of Labor in the PEZA Board to have a
better right than his principal. As the
representative of the Secretary of Labor, the
petitioner sat in the Board in the same capacity
as his principal. Whatever laws and rules the
member in the Board is covered, so is the
representative; and whatever prohibitions or
restrictions the member is subjected, the
representative is, likewise, not exempted. Thus,
his position as Director IV of the DOLE which
the petitioner claims is not covered by the
constitutional prohibition set by the Civil
Liberties Union case is of no moment. The
petitioner attended the board meetings by the
authority given to him by the Secretary of Labor
to sit as his representative. If it were not for such
designation, the petitioner would not have been
in the Board at all.
There is also no merit in the allegation that the
legislature was certainly aware of the
parameters set by the Court when it enacted
R.A. No. 7916, four (4) years after the finality of
the Civil Liberties Union case. The payment of
per diems was clearly an express grant in favor
of the members of the Board of Directors which
the petitioner is entitled to receive.
It is a basic tenet that any legislative enactment
must not be repugnant to the highest law of the
land which is the Constitution. No law can
render nugatory the Constitution because the
Constitution is more superior to a statute. [if !
supportFootnotes][14][endif]
If a law happens to infringe
upon or violate the fundamental law, courts of
justice may step in to nullify its effectiveness. [if !
supportFootnotes][15][endif]
It is the task of the Court to see
to it that the law must conform to the
Constitution. In the clarificatory resolution issued
by the Court in the Civil Liberties Union case on
August 1, 1991, the Court addressed the issue
as to the extent of the exercise of legislative
prerogative, to wit:
The Solicitor General next asks: x x x may the
Decision then control or otherwise encroach on
the exclusive competence of the legislature to
provide funds for a public purpose, in terms of
compensation or honoraria under existing laws,
where in the absence of such provision said
laws would otherwise meet the terms of the
exception by law? Again, the question is
anchored on a misperception. It must be
stressed that the so-called exclusive
competence of the legislature to provide funds
for a public purpose or to enact all types of laws,
for that matter, is not unlimited. Such
competence must be exercised within the
framework of the fundamental law from
which the Legislature draws its power and
with which the resulting legislation or statute
must conform. When the Court sets aside
legislation for being violative of the
Constitution, it is not thereby substituting its
wisdom for that of the Legislature or
encroaching upon the latters prerogative, but
again simply discharging its sacred task of
safeguarding and upholding the paramount
law.
The framers of R.A. No. 7916 must have
realized the flaw in the law which is the reason
why the law was later amended by R.A. No.
8748[if !supportFootnotes][16][endif] to cure such defect. In
particular, Section 11 of R.A. No. 7916 was
amended to read:
SECTION 11. The Philippine Economic Zone
Authority (PEZA) Board. There is hereby created
a body corporate to be known as the Philippine
Economic Zone Authority (PEZA) attached to the
Department of Trade and Industry. The Board
shall have a director general with the rank of
department undersecretary who shall be
appointed by the President. The director general
shall be at least forty (40) years of age, of
proven probity and integrity, and a degree holder
in any of the following fields: economics,
business, public administration, law,
management or their equivalent, and with at
least ten (10) years relevant working experience
preferably in the field of management or public
administration.
The director general shall be assisted by three
(3) deputy directors general each for policy and
planning, administration and operations, who
shall be appointed by the PEZA Board, upon the
recommendation of the director general. The
deputy directors general shall be at least thirty-
five (35) years old, with proven probity and
integrity and a degree holder in any of the
following fields: economics, business, public
administration, law, management or their
equivalent.
The Board shall be composed of thirteen (13)
members as follows: the Secretary of the
Department of Trade and Industry as Chairman,
the Director General of the Philippine Economic
Zone Authority as Vice-chairman,
undersecretaries of the Department of Finance,
the Department of Labor and Employment, the
Department of [the] Interior and Local
Government, the Department of Environment
and Natural Resources, the Department of
Agriculture, the Department of Public Works and
Highways, the Department of Science and
Technology, the Department of Energy, the
Deputy Director General of the National
Economic and Development Authority, one (1)
representative from the labor sector, and one (1)
representative from the investors/business
sector in the ECOZONE. In case of the
unavailability of the Secretary of the Department
of Trade and Industry to attend a particular
board meeting, the Director General of PEZA
shall act as Chairman.[if !supportFootnotes][17][endif]
As can be gleaned from above, the members of
the Board of Directors was increased from 8 to
13, specifying therein that it is the
undersecretaries of the different Departments
who should sit as board members of the PEZA.
The option of designating his representative to
the Board by the different Cabinet Secretaries
was deleted. Likewise, the last paragraph as to
the payment of per diems to the members of the
Board of Directors was also deleted, considering
that such stipulation was clearly in conflict with
the proscription set by the Constitution.
Prescinding from the above, the petitioner is,
indeed, not entitled to receive a per diem for his
attendance at board meetings during his tenure
as member of the Board of Director of the PEZA.
IN LIGHT OF THE FOREGOING, the petition is
DISMISSED. The assailed decision of the COA
is AFFIRMED.
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R.
SALONGA, COMMISSION ON APPOINTMENT,
and HON. GUILLERMO CARAGUE, in his
capacity as Secretary of Budget and
the Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano
co-counsel for petitioner.
PARAS, J.:p
We are faced here with a controversy of far-
reaching proportions. While ostensibly only legal
issues are involved, the Court's decision in this
case would indubitably have a profound effect
on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1),
Article IX-C:
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 position 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. (Emphasis supplied)
The aforequoted provision is patterned after
Section l(l), Article XII-C of the 1973 Constitution
which similarly provides:
There shall be an independent Commission on
Elections composed of a Chairman and eight
Commissioners who shall be natural-born
citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of
age and holders of a college degree. 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.' (Emphasis supplied)
Regrettably, however, there seems to be no
jurisprudence as to what constitutes practice of
law as a legal qualification to an appointive
office.
Black defines "practice of law" as:
The rendition of services requiring the
knowledge and the application of legal principles
and technique to serve the interest of another
with his consent. It is not limited to appearing in
court, or advising and assisting in the conduct of
litigation, but embraces the preparation of
pleadings, and other papers incident to actions
and special proceedings, conveyancing, the
preparation of legal instruments of all kinds, and
the giving of all legal advice to clients. It
embraces all advice to clients and all actions
taken for them in matters connected with the
law. An attorney engages in the practice of law
by maintaining an office where he is held out to
be-an attorney, using a letterhead describing
himself as an attorney, counseling clients in legal
matters, negotiating with opposing counsel
about pending litigation, and fixing and collecting
fees for services rendered by his associate.
(Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct
of cases in court. (Land Title Abstract and Trust
Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650)
A person is also considered to be in the practice
of law when he:
... for valuable consideration engages in the
business of advising person, firms, associations
or corporations as to their rights under the law,
or appears in a representative capacity as an
advocate in proceedings pending or prospective,
before any court, commissioner, referee, board,
body, committee, or commission constituted by
law or authorized to settle controversies and
there, in such representative capacity performs
any act or acts for the purpose of obtaining or
defending the rights of their clients under the
law. Otherwise stated, one who, in a
representative capacity, engages in the business
of advising clients as to their rights under the
law, or while so engaged performs any act or
acts either in court or outside of court for that
purpose, is engaged in the practice of law.
(State ex. rel. Mckittrick v..C.S. Dudley and Co.,
102 S.W. 2d 895, 340 Mo. 852)
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)
Practice of law under modem conditions
consists in no small part of work performed
outside of any court and having no immediate
relation to proceedings in court. It embraces
conveyancing, the giving of legal advice on a
large variety of subjects, and the preparation
and execution of legal instruments covering an
extensive field of business and trust relations
and other affairs. Although these transactions
may have no direct connection with court
proceedings, they are always subject to become
involved in litigation. They require in many
aspects a high degree of legal skill, a wide
experience with men and affairs, and great
capacity for adaptation to difficult and complex
situations. These customary functions of an
attorney or counselor at law bear an intimate
relation to the administration of justice by the
courts. No valid distinction, so far as concerns
the question set forth in the order, can be drawn
between that part of the work of the lawyer
which involves appearance in court and that part
which involves advice and drafting of
instruments in his office. It is of importance to
the welfare of the public that these manifold
customary functions be performed by persons
possessed of adequate learning and skill, of
sound moral character, and acting at all times
under the heavy trust obligations to clients which
rests upon all attorneys. (Moran, Comments on
the Rules of Court, Vol. 3 [1953 ed.] , p. 665-
666, citing In re Opinion of the Justices [Mass.],
194 N.E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A.
139,144). (Emphasis ours)
The University of the Philippines Law Center in
conducting orientation briefing for new lawyers
(1974-1975) listed the dimensions of the
practice of law in even broader terms as
advocacy, counselling and public service.
One may be a practicing attorney in following
any line of employment in the profession. If what
he does exacts knowledge of the law and is of a
kind usual for attorneys engaging in the active
practice of their profession, and he follows some
one or more lines of employment such as this he
is a practicing attorney at law within the meaning
of the statute. (Barr v. Cardell, 155 NW 312)
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, which
device or service requires the use in any degree
of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional
Commission show that it has adopted a liberal
interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I
make a manifestation which I forgot to do during
our review of the provisions on the Commission
on Audit. May I be allowed to make a very brief
statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications
of the members of the Commission on Audit.
Among others, the qualifications provided for by
Section I is that "They must be Members of the
Philippine Bar" I am quoting from the
provision "who have been engaged in the
practice of law for at least ten years".
To avoid any misunderstanding which would
result in excluding members of the Bar who are
now employed in the COA or Commission on
Audit, we would like to make the clarification that
this provision on qualifications regarding
members of the Bar does not necessarily refer
or involve actual practice of law outside the COA
We have to interpret this to mean that as long as
the lawyers who are employed in the COA are
using their legal knowledge or legal talent in
their respective work within COA, then they are
qualified to be considered for appointment as
members or commissioners, even chairman, of
the Commission on Audit.
This has been discussed by the Committee on
Constitutional Commissions and Agencies and
we deem it important to take it up on the floor so
that this interpretation may be made available
whenever this provision on the qualifications as
regards members of the Philippine Bar engaging
in the practice of law for at least ten years is
taken up.
MR. OPLE. Will Commissioner Foz yield to just
one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in
the COA by a lawyer is equivalent to the
requirement of a law practice that is set forth in
the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the
work of COA, although it is auditing, will
necessarily involve legal work; it will involve
legal work. And, therefore, lawyers who are
employed in COA now would have the
necessary qualifications in accordance with the
Provision on qualifications under our provisions
on the Commission on Audit. And, therefore, the
answer is yes.
MR. OPLE. Yes. So that the construction given
to this is that this is equivalent to the practice of
law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987
Constitution, provides, among others, that the
Chairman and two Commissioners of the
Commission on Audit (COA) should either be
certified public accountants with not less than
ten years of auditing practice, or members of the
Philippine Bar who have been engaged in the
practice of law for at least ten years. (emphasis
supplied)
Corollary to this is the term "private practitioner"
and which is in many ways synonymous with the
word "lawyer." Today, although many lawyers do
not engage in private practice, it is still a fact that
the majority of lawyers are private practitioners.
(Gary Munneke, Opportunities in Law Careers
[VGM Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private
practice. The term, as commonly understood,
means "an individual or organization engaged in
the business of delivering legal services." (Ibid.).
Lawyers who practice alone are often called
"sole practitioners." Groups of lawyers are called
"firms." The firm is usually a partnership and
members of the firm are the partners. Some
firms may be organized as professional
corporations and the members called
shareholders. In either case, the members of the
firm are the experienced attorneys. In most
firms, there are younger or more inexperienced
salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to
traditional areas of law practice is essentially
tautologous, unhelpful defining the practice of
law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing
Co.: Minnesota, 1986], p. 593). The practice of
law is defined as the performance of any
acts . . . in or out of court, commonly understood
to be the practice of law. (State Bar Ass'n v.
Connecticut Bank & Trust Co., 145 Conn. 222,
140 A.2d 863, 870 [1958] [quoting Grievance
Comm. v. Payne, 128 Conn. 325, 22 A.2d 623,
626 [1941]). Because lawyers perform almost
every function known in the commercial and
governmental realm, such a definition would
obviously be too global to be workable.(Wolfram,
op. cit.).
The appearance of a lawyer in litigation in behalf
of a client is at once the most publicly familiar
role for lawyers as well as an uncommon role for
the average lawyer. Most lawyers spend little
time in courtrooms, and a large percentage
spend their entire practice without litigating a
case. (Ibid., p. 593). Nonetheless, many lawyers
do continue to litigate and the litigating lawyer's
role colors much of both the public image and
the self perception of the legal profession.
(Ibid.).
In this regard thus, the dominance of litigation in
the public mind reflects history, not reality. (Ibid.).
Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on
the importance of a lawyer as a business
counselor in this wise: "Even today, there are
still uninformed laymen whose concept of an
attorney is one who principally tries cases before
the courts. The members of the bench and bar
and the informed laymen such as businessmen,
know that in most developed societies today,
substantially more legal work is transacted in
law offices than in the courtrooms. General
practitioners of law who do both litigation and
non-litigation work also know that in most cases
they find themselves spending more time doing
what [is] loosely desccribe[d] as business
counseling than in trying cases. The business
lawyer has been described as the planner, the
diagnostician and the trial lawyer, the surgeon.
I[t] need not [be] stress[ed] that in law, as in
medicine, surgery should be avoided where
internal medicine can be effective." (Business
Star, "Corporate Finance Law," Jan. 11, 1989, p.
4).
In the course of a working day the average
general practitioner wig engage in a number of
legal tasks, each involving different legal
doctrines, legal skills, legal processes, legal
institutions, clients, and other interested parties.
Even the increasing numbers of lawyers in
specialized practice wig usually perform at least
some legal services outside their specialty. And
even within a narrow specialty such as tax
practice, a lawyer will shift from one legal task or
role such as advice-giving to an importantly
different one such as representing a client
before an administrative agency. (Wolfram,
supra, p. 687).
By no means will most of this work involve
litigation, unless the lawyer is one of the
relatively rare types a litigator who specializes
in this work to the exclusion of much else.
Instead, the work will require the lawyer to have
mastered the full range of traditional lawyer skills
of client counselling, advice-giving, document
drafting, and negotiation. And increasingly
lawyers find that the new skills of evaluation and
mediation are both effective for many clients and
a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal
work or in litigation work that is constrained in
very important ways, at least theoretically, so as
to remove from it some of the salient features of
adversarial litigation. Of these special roles, the
most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both
by the nature of the client and by the way in
which the lawyer is organized into a social unit
to perform that work. The most common of these
roles are those of corporate practice and
government legal service. (Ibid.).
In several issues of the Business Star, a
business daily, herein below quoted are
emerging trends in corporate law practice, a
departure from the traditional concept of practice
of law.
We are experiencing today what truly may be
called a revolutionary transformation in
corporate law practice. Lawyers and other
professional groups, in particular those
members participating in various legal-policy
decisional contexts, are finding that
understanding the major emerging trends in
corporation law is indispensable to intelligent
decision-making.
Constructive adjustment to major corporate
problems of today requires an accurate
understanding of the nature and implications of
the corporate law research function
accompanied by an accelerating rate of
information accumulation. The recognition of the
need for such improved corporate legal policy
formulation, particularly "model-making" and
"contingency planning," has impressed upon us
the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of
information to be processed, the sorting and
weighing of significant conditional factors, the
appraisal of major trends, the necessity of
estimating the consequences of given courses
of action, and the need for fast decision and
response in situations of acute danger have
prompted the use of sophisticated concepts of
information flow theory, operational analysis,
automatic data processing, and electronic
computing equipment. Understandably, an
improved decisional structure must stress the
predictive component of the policy-making
process, wherein a "model", of the decisional
context or a segment thereof is developed to
test projected alternative courses of action in
terms of futuristic effects flowing therefrom.
Although members of the legal profession are
regularly engaged in predicting and projecting
the trends of the law, the subject of corporate
finance law has received relatively little
organized and formalized attention in the
philosophy of advancing corporate legal
education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital
necessity.
Certainly, the general orientation for productive
contributions by those trained primarily in the
law can be improved through an early
introduction to multi-variable decisional context
and the various approaches for handling such
problems. Lawyers, particularly with either a
master's or doctorate degree in business
administration or management, functioning at
the legal policy level of decision-making now
have some appreciation for the concepts and
analytical techniques of other professions which
are currently engaged in similar types of
complex decision-making.
Truth to tell, many situations involving corporate
finance problems would require the services of
an astute attorney because of the complex legal
implications that arise from each and every
necessary step in securing and maintaining the
business issue raised. (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate
lawyer is assiduously referred to as the
"abogado de campanilla." He is the "big-time"
lawyer, earning big money and with a clientele
composed of the tycoons and magnates of
business and industry.
Despite the growing number of corporate
lawyers, many people could not explain what it
is that a corporate lawyer does. For one, the
number of attorneys employed by a single
corporation will vary with the size and type of the
corporation. Many smaller and some large
corporations farm out all their legal problems to
private law firms. Many others have in-house
counsel only for certain matters. Other
corporation have a staff large enough to handle
most legal problems in-house.
A corporate lawyer, for all intents and purposes,
is a lawyer who handles the legal affairs of a
corporation. His areas of concern or jurisdiction
may include, inter alia: corporate legal research,
tax laws research, acting out as corporate
secretary (in board meetings), appearances in
both courts and other adjudicatory agencies
(including the Securities and Exchange
Commission), and in other capacities which
require an ability to deal with the law.
At any rate, a corporate lawyer may assume
responsibilities other than the legal affairs of the
business of the corporation he is representing.
These include such matters as determining
policy and becoming involved in management.
( Emphasis supplied.)
In a big company, for example, one may have a
feeling of being isolated from the action, or not
understanding how one's work actually fits into
the work of the orgarnization. This can be
frustrating to someone who needs to see the
results of his work first hand. In short, a
corporate lawyer is sometimes offered this
fortune to be more closely involved in the
running of the business.
Moreover, a corporate lawyer's services may
sometimes be engaged by a multinational
corporation (MNC). Some large MNCs provide
one of the few opportunities available to
corporate lawyers to enter the international law
field. After all, international law is practiced in a
relatively small number of companies and law
firms. Because working in a foreign country is
perceived by many as glamorous, tills is an area
coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced
attorneys while the younger attorneys do their
"international practice" in law libraries. (Business
Star, "Corporate Law Practice," May 25,1990, p.
4).
This brings us to the inevitable, i.e., the role of
the lawyer in the realm of finance. To borrow the
lines of Harvard-educated lawyer Bruce
Wassertein, to wit: "A bad lawyer is one who fails
to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent
lawyer is one who surmounts them." (Business
Star, "Corporate Finance Law," Jan. 11, 1989, p.
4).
Today, the study of corporate law practice direly
needs a "shot in the arm," so to speak. No
longer are we talking of the traditional law
teaching method of confining the subject study
to the Corporation Code and the Securities
Code but an incursion as well into the
intertwining modern management issues.
Such corporate legal management issues deal
primarily with three (3) types of learning: (1)
acquisition of insights into current advances
which are of particular significance to the
corporate counsel; (2) an introduction to usable
disciplinary skins applicable to a corporate
counsel's management responsibilities; and (3)
a devotion to the organization and management
of the legal function itself.
These three subject areas may be thought of as
intersecting circles, with a shared area linking
them. Otherwise known as "intersecting
managerial jurisprudence," it forms a unifying
theme for the corporate counsel's total learning.
Some current advances in behavior and policy
sciences affect the counsel's role. For that
matter, the corporate lawyer reviews the
globalization process, including the resulting
strategic repositioning that the firms he provides
counsel for are required to make, and the need
to think about a corporation's; strategy at
multiple levels. The salience of the nation-state
is being reduced as firms deal both with global
multinational entities and simultaneously with
sub-national governmental units. Firms
increasingly collaborate not only with public
entities but with each other often with those
who are competitors in other arenas.
Also, the nature of the lawyer's participation in
decision-making within the corporation is rapidly
changing. The modem corporate lawyer has
gained a new role as a stakeholder in some
cases participating in the organization and
operations of governance through participation
on boards and other decision-making roles.
Often these new patterns develop alongside
existing legal institutions and laws are perceived
as barriers. These trends are complicated as
corporations organize for global operations.
( Emphasis supplied)
The practising lawyer of today is familiar as well
with governmental policies toward the promotion
and management of technology. New
collaborative arrangements for promoting
specific technologies or competitiveness more
generally require approaches from industry that
differ from older, more adversarial relationships
and traditional forms of seeking to influence
governmental policies. And there are lessons to
be learned from other countries. In Europe,
Esprit, Eureka and Race are examples of
collaborative efforts between governmental and
business Japan's MITI is world famous.
(Emphasis supplied)
Following the concept of boundary spanning, the
office of the Corporate Counsel comprises a
distinct group within the managerial structure of
all kinds of organizations. Effectiveness of both
long-term and temporary groups within
organizations has been found to be related to
indentifiable factors in the group-context
interaction such as the groups actively revising
their knowledge of the environment coordinating
work with outsiders, promoting team
achievements within the organization. In
general, such external activities are better
predictors of team performance than internal
group processes.
In a crisis situation, the legal managerial
capabilities of the corporate lawyer vis-a-vis the
managerial mettle of corporations are
challenged. Current research is seeking ways
both to anticipate effective managerial
procedures and to understand relationships of
financial liability and insurance considerations.
(Emphasis supplied)
Regarding the skills to apply by the corporate
counsel, three factors are apropos:
First System Dynamics. The field of systems
dynamics has been found an effective tool for
new managerial thinking regarding both planning
and pressing immediate problems. An
understanding of the role of feedback loops,
inventory levels, and rates of flow, enable users
to simulate all sorts of systematic problems
physical, economic, managerial, social, and
psychological. New programming techniques
now make the system dynamics principles more
accessible to managers including corporate
counsels. (Emphasis supplied)
Second Decision Analysis. This enables users
to make better decisions involving complexity
and uncertainty. In the context of a law
department, it can be used to appraise the
settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk
involved in managing a portfolio of cases.
(Emphasis supplied)
Third Modeling for Negotiation Management.
Computer-based models can be used directly by
parties and mediators in all lands of
negotiations. All integrated set of such tools
provide coherent and effective negotiation
support, including hands-on on instruction in
these techniques. A simulation case of an
international joint venture may be used to
illustrate the point.
[Be this as it may,] the organization and
management of the legal function, concern three
pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers
requires special skills that comprise a major part
of the general counsel's responsibilities. They
differ from those of remedial law. Preventive
lawyering is concerned with minimizing the risks
of legal trouble and maximizing legal rights for
such legal entities at that time when
transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the framework
within which are undertaken those activities of
the firm to which legal consequences attach. It
needs to be directly supportive of this nation's
evolving economic and organizational fabric as
firms change to stay competitive in a global,
interdependent environment. The practice and
theory of "law" is not adequate today to facilitate
the relationships needed in trying to make a
global economy work.
Organization and Functioning of the Corporate
Counsel's Office. The general counsel has
emerged in the last decade as one of the most
vibrant subsets of the legal profession. The
corporate counsel hear responsibility for key
aspects of the firm's strategic issues, including
structuring its global operations, managing
improved relationships with an increasingly
diversified body of employees, managing
expanded liability exposure, creating new and
varied interactions with public decision-makers,
coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that
knowing corporate law is not enough to make
one a good general corporate counsel nor to
give him a full sense of how the legal system
shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all
of the law's effects on corporate activities, he
must, at the very least, also gain a working
knowledge of the management issues if only to
be able to grasp not only the basic legal
"constitution' or makeup of the modem
corporation. "Business Star", "The Corporate
Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and
the bench) is to have more than a passing
knowledge of financial law affecting each aspect
of their work. Yet, many would admit to
ignorance of vast tracts of the financial law
territory. What transpires next is a dilemma of
professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business
Star, "Corporate Finance law," Jan. 11, 1989, p.
4).
Respondent Christian Monsod was nominated
by President Corazon C. Aquino to the position
of Chairman of the COMELEC in a letter
received by the Secretariat of the Commission
on Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly
Monsod does not possess 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.
Atty. Christian Monsod is a member of the
Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-55%.
He has been a dues paying member of the
Integrated Bar of the Philippines since its
inception in 1972-73. He has also been paying
his professional license fees as lawyer for more
than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.)
and having hurdled the bar, Atty. Monsod
worked in the law office of his father. During his
stint in the World Bank Group (1963-1970),
Monsod worked as an operations officer for
about two years in Costa Rica and Panama,
which involved getting acquainted with the laws
of member-countries negotiating loans and
coordinating legal, economic, and project work
of the Bank. Upon returning to the Philippines in
1970, he worked with the Meralco Group,
served as chief executive officer of an
investment bank and subsequently of a
business conglomerate, and since 1986, has
rendered services to various companies as a
legal and economic consultant or chief executive
officer. As former Secretary-General (1986) and
National Chairman (1987) of NAMFREL.
Monsod's work involved being knowledgeable in
election law. He appeared for NAMFREL in its
accreditation hearings before the Comelec. In
the field of advocacy, Monsod, in his personal
capacity and as former Co-Chairman of the
Bishops Businessmen's Conference for Human
Development, has worked with the under
privileged sectors, such as the farmer and urban
poor groups, in initiating, lobbying for and
engaging in affirmative action for the agrarian
reform law and lately the urban land reform bill.
Monsod also made use of his legal knowledge
as a member of the Davide Commission, a
quast judicial body, which conducted numerous
hearings (1990) and as a member of the
Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of
Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia
Muoz-Palma for "innumerable amendments to
reconcile government functions with individual
freedoms and public accountability and the
party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis
supplied)
Just a word about the work of a negotiating
team of which Atty. Monsod used to be a
member.
In a loan agreement, for instance, a negotiating
panel acts as a team, and which is adequately
constituted to meet the various contingencies
that arise during a negotiation. Besides top
officials of the Borrower concerned, there are the
legal officer (such as the legal counsel), the
finance manager, and an operations officer
(such as an official involved in negotiating the
contracts) who comprise the members of the
team. (Guillermo V. Soliven, "Loan Negotiating
Strategies for Developing Country Borrowers,"
Staff Paper No. 2, Central Bank of the
Philippines, Manila, 1982, p. 11). (Emphasis
supplied)
After a fashion, the loan agreement is like a
country's Constitution; it lays down the law as far
as the loan transaction is concerned. Thus, the
meat of any Loan Agreement can be
compartmentalized into five (5) fundamental
parts: (1) business terms; (2) borrower's
representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p.
13).
In the same vein, lawyers play an important role
in any debt restructuring program. For aside
from performing the tasks of legislative drafting
and legal advising, they score national
development policies as key factors in
maintaining their countries' sovereignty.
(Condensed from the work paper, entitled
"Wanted: Development Lawyers for Developing
Nations," submitted by L. Michael Hager,
regional legal adviser of the United States
Agency for International Development, during
the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory
Coast, sponsored by the World Peace Through
Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps
even more so than purely renegotiation policies,
demand expertise in the law of contracts, in
legislation and agreement drafting and in
renegotiation. Necessarily, a sovereign lawyer
may work with an international business
specialist or an economist in the formulation of a
model loan agreement. Debt restructuring
contract agreements contain such a mixture of
technical language that they should be carefully
drafted and signed only with the advise of
competent counsel in conjunction with the
guidance of adequate technical support
personnel. (See International Law Aspects of
the Philippine External Debts, an unpublished
dissertation, U.S.T. Graduate School of Law,
1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt
restructuring/contract construction is the set of
terms and conditions which determines the
contractual remedies for a failure to perform one
or more elements of the contract. A good
agreement must not only define the
responsibilities of both parties, but must also
state the recourse open to either party when the
other fails to discharge an obligation. For a
compleat debt restructuring represents a
devotion to that principle which in the ultimate
analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in
domestic and international affairs of whose kind
U.S. Supreme Court Justice Oliver Wendell
Holmes, Jr. once said: "They carry no banners,
they beat no drums; but where they are, men
learn that bustle and bush are not the equal of
quiet genius and serene mastery." (See Ricardo
J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine
Journal, Vol. 15, Nos. 3 and 4, Third and Fourth
Quarters, 1977, p. 265).
Interpreted in the light of the various definitions
of the term Practice of law". particularly the
modern concept of law practice, and taking into
consideration the liberal construction intended
by the framers of the Constitution, Atty.
Monsod's past work experiences as a lawyer-
economist, a lawyer-manager, a lawyer-
entrepreneur of industry, a lawyer-negotiator of
contracts, and a lawyer-legislator of both the rich
and the poor verily more than satisfy the
constitutional requirement that he has been
engaged in the practice of law for at least ten
years.
Besides in the leading case of Luego v. Civil
Service Commission, 143 SCRA 327, the Court
said:
Appointment is an essentially discretionary
power and must be performed by the officer in
which it is vested according to his best lights, the
only condition being that the appointee should
possess the qualifications required by law. If he
does, then the appointment cannot be faulted on
the ground that there are others better qualified
who should have been preferred. This is a
political question involving considerations of
wisdom which only the appointing authority can
decide. (emphasis supplied)
No less emphatic was the Court in the case of
(Central Bank v. Civil Service Commission, 171
SCRA 744) where it stated:
It is well-settled that when the appointee is
qualified, as in this case, and all the other legal
requirements are satisfied, the Commission has
no alternative but to attest to the appointment in
accordance with the Civil Service Law. The
Commission has no authority to revoke an
appointment on the ground that another person
is more qualified for a particular position. It also
has no authority to direct the appointment of a
substitute of its choice. To do so would be an
encroachment on the discretion vested upon the
appointing authority. An appointment is
essentially within the discretionary power of
whomsoever it is vested, subject to the only
condition that the appointee should possess the
qualifications required by law. ( Emphasis
supplied)
The appointing process in a regular appointment
as in the case at bar, consists of four (4) stages:
(1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a
commission (in the Philippines, upon submission
by the Commission on Appointments of its
certificate of confirmation, the President issues
the permanent appointment; and (4) acceptance
e.g., oath-taking, posting of bond, etc. . . .
(Lacson v. Romero, No. L-3081, October 14,
1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments
to give its consent to the nomination of Monsod
as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article
IX of the Constitution which provides:
The Chairman and the Commisioners shall be
appointed by the President with the consent of
the Commission on Appointments for a term of
seven years without reappointment. Of those
first appointed, three Members shall hold office
for seven years, two Members for five years,
and the last Members for three years, without
reappointment. Appointment to any vacancy
shall be only for the unexpired term of the
predecessor. In no case shall any Member be
appointed or designated in a temporary or acting
capacity.
Anent Justice Teodoro Padilla's separate
opinion, suffice it to say that his definition of the
practice of law is the traditional or stereotyped
notion of law practice, as distinguished from the
modern concept of the practice of law, which
modern connotation is exactly what was
intended by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla's
definition would require generally a habitual law
practice, perhaps practised two or three times a
week and would outlaw say, law practice once or
twice a year for ten consecutive years. Clearly,
this is far from the constitutional intent.
Upon the other hand, the separate opinion of
Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law
practice which really means nothing because the
definition says that law practice " . . . is what
people ordinarily mean by the practice of law."
True I cited the definition but only by way of
sarcasm as evident from my statement that the
definition of law practice by "traditional areas of
law practice is essentially tautologous" or
defining a phrase by means of the phrase itself
that is being defined.
Justice Cruz goes on to say in substance that
since the law covers almost all situations, most
individuals, in making use of the law, or in
advising others on what the law means, are
actually practicing law. In that sense, perhaps,
but we should not lose sight of the fact that Mr.
Monsod is a lawyer, a member of the Philippine
Bar, who has been practising law for over ten
years. This is different from the acts of persons
practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court
can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one
or more qualifications. This matter, I greatly
doubt. For one thing, how can an action or
petition be brought against the President? And
even assuming that he is indeed disqualified,
how can the action be entertained since he is
the incumbent President?
We now proceed:
The Commission on the basis of evidence
submitted doling the public hearings on
Monsod's confirmation, implicitly determined that
he possessed the necessary qualifications as
required by law. The judgment rendered by the
Commission in the exercise of such an
acknowledged power is beyond judicial
interference except only upon a clear showing of
a grave abuse of discretion amounting to lack or
excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave
abuse of discretion is clearly shown shall the
Court interfere with the Commission's judgment.
In the instant case, there is no occasion for the
exercise of the Court's corrective power, since
no abuse, much less a grave abuse of
discretion, that would amount to lack or excess
of jurisdiction and would warrant the issuance of
the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a
nominee by the President, may the Supreme
Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the
answer is in the negative.
(2) In the same vein, may the Court reject the
nominee, whom the Commission has
confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the
confirming body in the U.S. Congress) decides
to confirm a Presidential nominee, it would be
incredible that the U.S. Supreme Court would
still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth,
but by the spirit that giveth life.
Take this hypothetical case of Samson and
Delilah. Once, the procurator of Judea asked
Delilah (who was Samson's beloved) for help in
capturing Samson. Delilah agreed on condition
that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was
captured, the procurator placed an iron rod
burning white-hot two or three inches away from
in front of Samson's eyes. This blinded the man.
Upon hearing of what had happened to her
beloved, Delilah was beside herself with anger,
and fuming with righteous fury, accused the
procurator of reneging on his word. The
procurator calmly replied: "Did any blade touch
his skin? Did any blood flow from his veins?"
The procurator was clearly relying on the letter,
not the spirit of the agreement.
G.R. No. 135996 September 30, 1999
EMILIANO R. "BOY" CARUNCHO III,
petitioner,
vs.
THE COMMISSION ON ELECTIONS, and The
Chairman ATTY. CASIANO ATUEL, JR. and
MEMBERS, ATTY. GRACE S. BELVIS, DR.
FLORENTINA R. LIZANO, City Board of
Canvassers, City of Pasig, respondents.
YNARES-SANTIAGO, J.:
Petitioner Emiliano R. Caruncho III was the
candidate of the Liberal Party for the
congressional seat in the lone district of Pasig
City at the May 11, 1998 synchronized elections.
The other candidates were: Arnulfo G. Acedera,
Jr. (Lakas-NUCD-UMDP); Marcelino P. Arias
(Nacionalista Party); Roberto C. Bassig
(Independent); Esmeraldo T. Batacan (PDR-LM
Coalition); Henry P. Lanot (LAMMP); Francisco
C. Rivera, Jr. (PRP/PDR); Elpidio G. Tuason
(Independent), and Raoul V. Victorino (Liberal
Party/LAMMP).
At 9:00 o'clock in the morning of May 12, 1998,
respondent Pasig City Board of Canvassers
composed of Atty. Casiano Atuel, Jr. as
Chairman, Atty. Grace S. Belvis as Vice-
Chairman, and Dr. Florentina Lizano as Member,
started to canvass the election returns. The
canvass was proceeding smoothly when the
Board received intelligence reports that one of
the candidates for the congressional race,
retired General Arnulfo Acedera, and his
supporters, might disrupt and stop the
canvassing.1wphi1.nt
At exactly 6:00 o'clock in the evening of May 14,
1998, General Acedera and his supporters
stormed the Caruncho Stadium in San Nicolas,
Pasig City, where the canvassing of election
returns was being conducted. They allegedly
forced themselves into the canvassing area,
breaking a glass door in the process. As
pandemonium broke loose, the police fired
warning shots causing those present in the
canvassing venue, including the members of the
Board and canvassing units, to scamper for
safety. The canvassing personnel exited through
the backdoors bringing with them the Election
Returns they were canvassing and tallying as
well as the Statement of Votes that they were
accomplishing. They entrusted these documents
to the City Treasurer's Office and the Pasig
Employment Service Office (PESO). Election
documents and paraphernalia were scattered all
over the place when the intruders left.
The following day, May 15, 1998, the sub-
canvassing units recovered the twenty-two (22)
Election Returns and the Statement of Votes
from the Treasurer's Office and the PESO.
However, page 2 of each of the 22 election
returns, which contained the names of
candidates for congressmen, had been
detached and could not be found. An
investigation was conducted to pinpoint liability
for the loss but it yielded negative result. Hence,
the Board secured proper authority from the
Commission on Elections (COMELEC), 1
through Election Director for the National Capital
Region Atty. Teresita Suarez, for the
reconstitution of the missing page by making
use of the other copies of the election returns,
particularly the provincial copy or the copy in the
ballot boxes placed therein by the Board of
Election Inspectors.
At 2:40 a.m. of May 17, 1998, the Board,
satisfied that it had finished canvassing the
1,491 election returns from as many clustered
precincts, proclaimed Henry P. Lanot as the
winner in the congressional race for the lone
district of Pasig. 2 The votes obtained by the
leading three candidates were: Henry P. Lanot
60,914 votes; Emiliano R. "Boy" Caruncho III
42,942 votes, and Arnulfo Acedera 36,139
votes. The winner, Lanot, led his closest rival,
Caruncho, by 17,971 votes.
However, on May 21, 1998, petitioner Caruncho
filed a "Motion to Nullify Proclamation on the
Basis of Incomplete Returns" 3 with the
COMELEC. He alleged that the Board had
proceeded with the proclamation of Henry Lanot
as the winning congressional candidate even
though one hundred forty-seven (147) election
returns involving about 30,000 votes, were still
not canvassed. He prayed that the COMELEC
en banc declare the proclamation null and void
and that the Board of Canvassers be directed to
convene and reopen the ballot boxes to recount
the votes of the candidates for the House of
Representatives and thereupon proclaim the
winner. On June 1, 1998, petitioner filed an
amended motion to correct some errors in the
listing of precincts under paragraph 10, pages 2
and 3, and paragraph 12, pages 3 and 4, of the
original motion. 4
On June 8, 1998, the Second Division of the
COMELEC issued an Order requiring
respondent Pasig City Board of Canvassers to
comment on the amended motion to nullify
Lanot's proclamation. In his comment filed on
June 23, 1998, respondent Atty. Casiano G.
Atuel, Jr. admitted the disruption and stoppage
of the canvass of election returns on May 11,
1998 but asserted that there were only twenty-
two (22) election returns, not 147 as claimed by
Caruncho, that were missing but these were
eventually recovered. The Board stated in part:
. . . . Contrary to the insinuation of Atty. Irene D.
Jurado, only 22 Election Returns were reported
missing. On the following day, May 15, 1998, the
sub-canvassing units have recovered the 22
missing Election Returns and the Statement of
Votes from the Treasurer's Office and from the
Pasig Employment Service Office (PESO).
There are no missing election returns.
That to the surprise of the Board and of the 22
canvassing units, they found out that Page 2 of
the 22 Election Returns they recovered were
detached and missing. We wish to inform the
Commission that Page 2 of the Local Election
Returns contained the name of candidates for
Congressman. We conducted investigation on
who did the detachment of Page 2 of the 22
Election Returns. However, nobody from the
Treasurer's Office nor from the PESO admitted
that they committed such election offense.
It is impossible that 147 Election Returns were
missing. The COMELEC Instruction is very
specific that only Election Returns to be
canvassed are suppose(d) to be brought out
from the Ballot Boxes containing still
uncanvassed Election Returns. The instruction
further stated that once it was read by the
Board, it will be stamped "READ" and then
deliver the same (sic) to the 22 sub-canvassing
units. Sub-canvassing units cannot get another
Election Returns unless the same is finished,
tallied, stamped as "CANVASSED," and submit
the same to the Secretariat and placed inside a
separate ballot boxes with stamped "READ" and
"CANVASSED" (sic) sealed with metal seals,
padlocked, chained and padlocked again. It was
at this time where (sic) the sub-canvassing units
will get another Election Returns from the Board
for tally and so on. Sub-canvassing units are not
allowed to canvass 2 or more Election Returns
at one time. This was the very reason why only
22 Election Returns were reported missing but
were recovered without Page 2.
That at the very start of the proceeding, the
leading candidates for Congressman were as
follows:
HENRY LANOT FIRST
EMILIANO CARUNCHO SECOND
ARNULFO ACEDERA THIRD
As the canvass goes on, Henry Lanot was
leading Caruncho by thousands. Very few
Election Returns have Caruncho leading and
even if leading, the lead was only a few votes.
Proper authorities from the Commission on
Elections was secured through Atty. Teresita C.
Suarez, Election Director for National Capital
Region for the purpose of making use of other
copies of the Election Returns particularly the
Provincial Copy or the Copy in the Ballot Boxes.
Fortunately, the authorities arrived on time so
that the Board of Canvassers waste(d) no time
in opening the Ballot Boxes to retrieve the
copies from the Board of Canvassers left inside
the Ballot Boxes by the careless Board of
Election Inspectors. Provincial copies were used
as well in the reconstitution of the missing page
2 of the 22 recovered Election Returns.
That there was no truth on the insinuation made
by Atty. Irene D. Jurado that there were 147
Election Returns which were not canvassed
which will affect the result of election for
Emiliano Caruncho. The Board did everything to
have all election returns accounted forth (sic).
We let no stone unturned before we finally come
to the conclusion. That we have finished
canvassing the 1,491 Election Returns and
proclaimed the winning candidates.
That granting without admitting that there were
missing Election Returns which were
uncanvassed, and if ordered canvass(ed), the
more Lanot will widen his lead because the
trend was that Henry Lanot's lead swollen (sic)
as more election returns were canvassed.
That for the first time, I am revealing this
shocking fact to the Commission on Elections
that on two (2) occasions, an unidentified
persons (sic) talked to me at the unholy hours of
the night 2 days while canvassing was going on
and offered me TWO MILLION (P2,000,000.00)
PESOS in cold cash just to proclaim "BOY" as
the elected Congressman. I declined the offer
and told the man that I am a straight man, I am
on the level, I have a family and I am about to
retire. . . .
That at 2:40 A.M. of May 17, 1998, the Board of
Canvassers proclaimed all the winning
candidates for Local positions. As to the
Congressman, the following results are as
follows:
HENRY LANOT 60,914 votes
EMILIANO "BOY" CARUNCHO 42,942 votes
ARNULFO ACEDERA 36,139 votes
The lead of Henry Lanot from Emiliano
Caruncho was 17, 971 votes.
xxx xxx xxx 5
On June 24, 1998, the COMELEC Second
Division 6 promulgated a Resolution 7 decreeing
as follows:
WHEREFORE, in view of the foregoing, this
Commission:
1. Declares that the proclamation of the winning
congressional candidate of Pasig City as NULL
AND VOID;
2. Orders that the respondents-Members of the
City Board of Canvassers of Pasig City to
RECONVENE at the Session Hall of the
Commission and use the Comelec copy of the
one hundred forty-seven (147) election returns
above-mentioned and CANVASS said authentic
copy of the election returns and include the
results thereof with the tally of all election
returns previously canvassed and, thereafter,
PROCLAIM the winning candidate; and
3. Orders the Law Department of this
Commission to investigate candidate Arnulfo
Acedera and if after the investigation, the
evidence so warrant, to file the necessary
charges against him.
SO ORDERED.
Subsequently, on June 26, 1998, respondent
Board filed a "Supplemental Comment" raising
the following matters: (a) the COMELEC had no
jurisdiction over the case under Section 242 of
the Omnibus Election Code; (b) petitioner failed
to record his objections to the elections returns
and the certificate of canvass in the minutes of
the proceedings of the Board, and (c) the
winning candidate, Henry Lanot, was not
impleaded in the motion to nullify his
proclamation. 8
On July 8, 1998, proclaimed winning candidate
Henry Lanot filed a motion for leave to intervene
in the case. 9 He also prayed for the
reconsideration of the June 24, 1998 Resolution
of the COMELEC Second Division and for
referral of the case to the COMELEC en banc. In
his motion for reconsideration 10 that was
attached to said motion to intervene, movant
Lanot argued that failure to notify him of the
case was fatal as he was a real party in interest
who must be impleaded therein. He also alleged
that under the Constitution and Republic Act No.
7166, the COMELEC had no jurisdiction over
the case and that the Resolution of June 24,
1998 was "not based on facts."
That same day, petitioner, represented by new
counsel, 11 filed a motion praying for the
"formation" of a new Board of Canvassers on
account of the June 24, 1998 Resolution of the
COMELEC Second Division. 12 The following
day, the COMELEC Second Division issued an
order setting the case for hearing and
postponing the "reconvening of the City Board of
Canvassers of Pasig City." 13 On July 15, 1998,
movant Lanot filed an opposition to the motion
for the formation of a new Board of Canvassers
on the ground that the Resolution of June 24,
1998 is null and void for the following reasons:
(a) he was not notified of the proceedings and
therefore his right to due process was violated;
(b) said resolution had not become final and
executory by his filing of a motion for
reconsideration, and (c) the case was no longer
a pre-proclamation controversy but an electoral
protest under the jurisdiction of the House of
Representatives Electoral Tribunal, not the
COMELEC. 14
At the hearing on July 21, 1998, the COMELEC
Second Division ordered the filing of
memorandum. Movant Lanot, however,
manifested that he was no longer filing a
memorandum. Thus, the COMELEC, ruled that
"with or without said memorandum," the case
would be deemed submitted for
resolution. 15 Meanwhile, on July 27, 1998,
petitioner filed an opposition to Lanot's motion
for reconsideration 16 after which Lanot filed his
comment on the opposition. 17
On September 28, 1998, the COMELEC Second
Division granted Lanot's motion for intervention
and elevated his motion for reconsideration to
the COMELEC en banc. 18
Thereafter, the COMELEC en banc 19
promulgated a Resolution dated October 1,
1998 reconsidering the Resolution of the
COMELEC Second Division and dismissing
petitioner's amended motion (petition) to nullify
the proclamation on the basis of incomplete
returns for lack of merit. 20 Relying on facts
narrated by the Pasig City Board of Canvassers
in its comment on the motion to nullify the
proclamation, the COMELEC en banc found:
Thus, the board of canvassers did everything to
have all election returns accounted for, and
finished canvassing all the election returns of
1,491 clustered precincts of Pasig City. On the
basis of the canvass, the board proclaimed the
winning candidates for local positions. As to the
winning candidate for congressman, the results
were as follows:
Henry P. Lanot 60,914 votes
Emiliano "Boy" Caruncho 42,942 votes
Arnulfo Acedera 36,139 votes
However, granting arguendo that there were
missing twenty-two (22) election returns
involving about 4,400 votes, the same no longer
affect the results of the election as candidate
Henry P. Lanot obtained the highest number of
votes, with a lead of 17,971 votes over his
closest rival, Emiliano "Boy" Caruncho. The
board of canvassers duly proclaimed candidate
Henry P. Lanot as the winning representative of
the lone district of Pasig City.
Consequently, we find without basis petitioner's
allegation that the proclamation of Henry P.
Lanot was based on an incomplete canvass. We
carefully examined the Comelec copies of the
Statement of Votes and found no truth to the
assertion that there were one hundred forty
seven (147) election returns not canvassed.
Hence, this petition for certiorari.
Petitioner seeks to nullify respondent COMELEC
en banc's Resolution of October 1, 1998,
contending that said body acted in excess of
jurisdiction and with grave abuse of discretion in
overruling his claim that 147 election returns
involving about thirty thousand (30,000) votes
were not canvassed. Petitioner argued that it
was enough reason for contesting the
proclamation of Lanot as winner under an
incomplete canvass. However, as in the
proceedings before the COMELEC, petitioner
failed to implead in the instant petition the
proclaimed winning candidate, Lanot.
The petition must be dismissed.
Petitioner initiated this case through a motion to
nullify the proclamation of Lanot as the winner in
the congressional race in Pasig City. Named
respondents in the motion were the individual
members of the Board of Canvassers in that city.
The proclaimed winner was not included among
the respondents. For that reason alone, the
COMELEC should have been forewarned of a
procedural lapse in the motion that would affect
the substantive rights of the winning candidate, if
not the electorate. Due process in quasi-judicial
proceedings before the COMELEC requires due
notice and hearing. 21 The proclamation of a
winning candidate cannot be annulled if he has
not been notified of the motion to set aside his
proclamation. 22 It was only the intervention of
Lanot in SPC 98-123, which the Second Division
of the COMELEC allowed, which cured the
procedural lapse that could have affected the
popular will of the electorate.
However, petitioner again failed to implead
Lanot in the instant petition for certiorari. In this
connection, Section 2, Rule 3 of the 1997 Rules
of Civil Procedure provides that every action
must be prosecuted or defended in the name of
the real party in interest. By real interest is
meant a present substantial interest, as
distinguished from a mere expectancy or a
future, contingent, subordinate, or consequential
interest. 23 As the winning candidate whose
proclamation is sought to be nullified, Henry P.
Lanot is a real party in interest in these
proceedings. The COMELEC and the Board of
Canvassers of Pasig City are mere nominal
parties whose decision should be defended by
the real party in interest, pursuant to Rule 65 of
the said Rules:
Sec. 5. Respondents and costs in certain cases.
When the petition filed relates to the acts or
omissions of a judge, court, quasi-judicial
agency tribunal, corporation, board, officer or
person, the petitioner shall join, as private
respondent or respondents with such public
respondent or respondents, the person or
persons interested in sustaining the proceedings
in the court; and it shall be the duty of such
private respondents to appear and defend, both
in his or their own behalf and in behalf of the
public respondent or respondents affected by
the proceedings, and the costs awarded in such
proceedings in favor of the petitioner shall be
against the private respondents only, and not
against the judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person
impleaded as public respondent or respondents.
Unless otherwise specifically directed by the
court where the petition is pending, the public
respondents shall not appear in or file an answer
or comment to the petition or any pleading
therein. If the case is elevated to a higher court
by either party, the public respondents shall be
included therein as nominal parties. However,
unless otherwise specifically directed by the
court, they shall not appear or participate in the
proceedings therein. (Emphasis supplied.)
Hence, quasi-judicial agencies should be joined
as public respondents but it is the duty of the
private respondent to appear and defend such
agency. 24 That duty cannot be fulfilled by the
real party in interest such as the proclaimed
winning candidate in a proceeding to annul his
proclamation if he is not even named as private
respondent in the petition. Ordinarily, the
nonjoinder of an indispensable party or the real
party in interest is not by itself a ground for the
dismissal of the petition. The court before which
the petition is filed must first require the joinder
of such party. It is the noncompliance with said
order that would be a ground for the dismissal of
the petition. 25 However, this being an election
case which should be resolved with dispatch
considering the public interest involved, the
Court has not deemed it necessary to require
that Henry P. Lanot be impleaded as a
respondent in this case.
A crucial issue in this petition is what body has
jurisdiction over a proclamation controversy
involving a member of the House of
Representatives. The 1987 Constitution cannot
be more explicit in this regard. Article VI thereof
states:
Sec. 17. The Senate and the House of
Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. . . .
The foregoing constitutional provision is
reiterated in Rule 14 of the 1991 Revised Rules
of the Electoral Tribunal of the House of
Representatives, to wit:
Rule 14. Jurisdiction. The Tribunal shall be
the sole judge of all contests relating to the
election, returns, and qualifications of the
Members of the House of Representatives.
In the recent case of Rasul v. COMELEC and
Aquino-Oreta, 26 the Court, in interpreting the
aforesaid constitutional provision, stressed the
exclusivity of the Electoral Tribunal's jurisdiction
over its members, thus:
Sec. 17, Article VI of the 1987 Constitution as
well as Section 250 of the Omnibus Election
Code provide that "(t)he Senate and the House
of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. . . ."
In Javier v. Comelec (144 SCRA 194), this Court
interpreted the phrase "election, returns and
qualifications" as follows:
The phrase "election, returns and qualifications"
should be interpreted in its totality as referring to
all matters affecting the validity of the
contestee's title. But if it is necessary to specify,
we can say that "election" referred to the
conduct of the polls, including the listing of
voters, the holding of the electoral campaign,
and the casting and counting of the votes;
"returns" to the canvass of the returns and the
proclamation of the winners, including questions
concerning the composition of the board of
canvassers and the authenticity of the election
returns; and "qualifications" to matters that could
be raised in a quo warranto proceeding against
the proclaimed winner, such as his disloyalty or
ineligibility or the inadequacy of his certificate of
candidacy.
The word "sole" in Section 17, Article VI of the
1987 Constitution and Section 250 of the
Omnibus Election Code underscore the
exclusivity of the Tribunal's jurisdiction over
election contests relating to its members.
Inasmuch as petitioner contests the
proclamation of herein respondent Teresa
Aquino-Oreta as the 12th winning senatorial
candidate, it is the Senate Electoral Tribunal
which has exclusive jurisdiction to act on the
complaint of petitioner. . . .
In the same vein, considering that petitioner
questions the proclamation of Henry Lanot as
the winner in the congressional race for the sole
district of Pasig City, his remedy should have
been to file an electoral protest with the House
of Representatives Electoral Tribunal (HRET). 27
Even granting arguendo that the thrust of
petitioner's case is to question the integrity of the
election returns or the validity of the "incomplete
canvass" as the basis for Henry Lanot's
proclamation, and not the proclamation itself,
still, the instant petition is devoid of merit.
The factual question of how many election
returns were missing as a consequence of the
disruption of the canvassing of election returns
has been definitely resolved by the COMELEC
en banc. Thus, raising the same issue before
this Court is pointless because this Court is not
a trier of facts. 28 The facts established below
show that all the legal steps necessary to carry
out the reconstitution of the missing page 2 of
the twenty-two (22) election returns have been
followed. Proper authorization for the
reconstitution of that page was secured from the
COMELEC. The reconstitution was based on the
provincial copy of the election returns that was
retrieved from the sealed ballot boxes. For his
part, petitioner failed to have the anomaly
recorded in the minutes of proceedings of
respondent Board as required by Section 15 of
Republic Act No. 7166. Respondent Board,
therefore, observed the following provisions of
the Omnibus Election Code:
Sec. 233. When the election returns are
delayed, lost or destroyed. In case its copy of
the election returns is missing, the board
canvassers shall, by messenger or otherwise,
obtain such missing election returns from the
board of election inspectors concerned, or if said
returns have been lost or destroyed, the board
of canvassers, upon prior authority of the
Commission, may use any of the authentic
copies of said election returns or a certified copy
of said election returns issued by the
Commission, and forthwith direct its
representative to investigate the case and
immediately report the matter to the
Commission.
The board of canvassers, notwithstanding the
fact that not all the election returns have been
received by it, may terminate the canvass and
proclaim the candidates elected on the basis of
the available election returns if the missing
election returns will not affect the results of the
election.
Granting that the proclamation was made
without taking into account the twenty-two (22)
election returns, still, the COMELEC did not
abuse its discretion. The election returns
represented only 4,400 votes. That number
cannot affect the result of the election because
Henry Lanot's lead over his closest rival, herein
petitioner, was 17,971 votes. As the second
paragraph of Section 233 of the Omnibus
Election Code aforequoted states, the Board of
Canvassers could have totally disregarded the
twenty-two (22) election returns and legally
proclaimed Lanot as the winner in the election in
Pasig City for Member of the House of
Representatives.
An incomplete canvass of votes is illegal and
cannot be the basis of a subsequent
proclamation. 29 A canvass cannot be reflective
of the true vote of the electorate unless all
returns are considered and none is omitted. 30
However, this is true only where the election
returns missing or not counted will affect the
results of the election. It bears stressing that in
the case at bar, the COMELEC has categorically
found that the election returns which were not
counted by respondent canvassers represented
only 4,400 votes. To be sure, this number will not
affect the result of the election considering that
Lanot's lead over petitioner was already 17,971
votes.
On the whole, this Court finds that respondent
COMELEC did not commit grave abuse of
discretion when it issued the assailed Resolution
of October 1, 1998 dismissing petitioner's motion
to nullify the proclamation of Henry P. Lanot as
Member of the House of Representatives for the
lone district of Pasig City.
WHEREFORE, the instant petition for certiorari
is DISMISSED.1wphi1.nt
[G.R. No. 120318. December 5, 1997]
RICARDO "BOY" CANICOSA, petitioner, vs.
COMMISSION ON ELECTIONS, MUNICIPAL
BOARD OF CANVASSERS OF CALAMBA
LAGUNA and SEVERINO LAJARA,
respondents.
DECISION
BELLOSILLO, J.:
RICARDO "BOY" CANICOSA and SEVERINO
LAJARA were candidates for mayor in Calamba,
Laguna, during the 8 May 1995 elections. After
obtaining a majority of some 24,000 votes [if !
supportFootnotes][1][endif]
Lajara was proclaimed winner
by the Municipal Board of Canvassers. On 15
May 1995 Canicosa filed with the Commission
on Elections (COMELEC) a Petition to Declare
Failure of Election and to Declare Null and Void
the Canvass and Proclamation because of
alleged widespread frauds and anomalies in
casting and counting of votes, preparation of
election returns, violence, threats, intimidation,
vote buying, unregistered voters voting, and
delay in the delivery of election documents and
paraphernalia from the precincts to the Office of
the Municipal Treasurer. Canicosa particularly
averred that: (a) the names of the registered
voters did not appear in the list of voters in their
precincts; (b) more than one-half of the
legitimate registered voters were not able to vote
with strangers voting in their stead; (c) he was
credited with less votes than he actually
received; (d) control data of the election returns
was not filled up in some precincts; (e) ballot
boxes brought to the Office of the Municipal
Treasurer were unsecured, i.e., without padlocks
nor self-locking metal seals; and, (f) there was
delay in the delivery of election returns. But the
COMELEC en banc dismissed the petition on
the ground that the allegations therein did not
justify a declaration of failure of election.
Indeed, the grounds cited by Canicosa do not
warrant a declaration of failure of election.
Section 6 of BP Blg. 881, otherwise known as
the Omnibus Election Code, reads:
Sec. 6. Failure of election. - If, on account of
force majeure, violence, terrorism, fraud, or
other analogous causes the election in any
polling place has not been held on the date
fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after
the voting and during the preparation and the
transmission of the election returns or in the
custody or canvass thereof, such election results
in a failure to elect, and in any of such cases the
failure or suspension of election would affect the
result of the election, the Commission shall, on
the basis of a verified petition by any interested
party and after due notice and hearing, call for
the holding or continuation of the election not
held, suspended or which resulted in a failure to
elect on a date reasonably close to the date of
the election not held, suspended or which
resulted in a failure to elect but not later than
thirty days after the cessation of the cause of
such postponement or suspension of the
election or failure to elect.
Clearly, there are only three (3) instances where
a failure of election may be declared, namely:
(a) the election in any polling place has not been
held on the date fixed on account of force
majeure, violence, terrorism, fraud, or other
analogous causes; (b) the election in any polling
place had been suspended before the hour fixed
by law for the closing of the voting on account of
force majeure, violence, terrorism, fraud, or
other analogous causes; or (c) after the voting
and during the preparation and transmission of
the election returns or in the custody or canvass
thereof, such election results in a failure to elect
on account of force majeure, violence, terrorism,
fraud, or other analogous causes.
None of the grounds invoked by Canicosa falls
under any of those enumerated.
Canicosa bewails that the names of the
registered voters in the various precincts did not
appear in their respective lists of voters. But this
is not a ground to declare a failure of election.
The filing of a petition for declaration of failure of
election therefore is not the proper remedy. The
day following the last day for registration of
voters, the poll clerk delivers a certified list of
voters to the election registrar, election
supervisor and the COMELEC, copies of which
are open to public inspection. On the same day,
the poll clerk posts a copy of the list of
registered voters in each polling place. Each
member of the board of election inspectors
retains a copy of the list which may be inspected
by the public in their residence or in their office
during office hours.[if !supportFootnotes][2][endif]
Fifteen (15) days before the regular elections on
8 May 1995 the final list of voters was posted in
each precinct pursuant to Sec. 148 of RA No.
7166. Based on the lists thus posted Canicosa
could have filed a petition for inclusion of
registered voters with the regular courts. The
question of inclusion or exclusion from the list of
voters involves the right to vote [if !supportFootnotes][3]
[endif]
which is not within the power and authority
of COMELEC to rule upon. The determination of
whether one has the right to vote is a justiciable
issue properly cognizable by our regular courts.
Section 138, Art. XII, of the Omnibus Election
Code states:
Sec. 138. Jurisdiction in inclusion and exclusion
cases. - The municipal and metropolitan trial
courts shall have original and exclusive
jurisdiction over all matters of inclusion and
exclusion of voters from the list in their
respective municipalities or cities. Decisions of
the municipal or metropolitan trial courts may be
appealed directly by the aggrieved party to the
proper regional trial court within five days from
receipts of notice thereof, otherwise said
decision of the municipal or metropolitan trial
court shall decide the appeal within ten days
from the time the appeal was received and its
decision shall be immediately final and
executory. No motion for reconsideration shall
be entertained by the courts (Sec. 37, PD 1896,
as amended).
On the other hand, Canicosa could have also
filed with the COMELEC a verified complaint
seeking the annulment of the book of voters
pursuant to Sec. 10, of RA No. 7166:
Sec. 10. Annulment of the List of Voters. - Any
book of voters the preparation of which has
been affected with fraud, bribery, forgery,
impersonation, intimidation, force or any other
similar irregularity or which is statistically
improbable may be annulled after due notice
and hearing by the Commission motu propio or
after the filing of a verified complaint: Provided,
that no order, ruling or decision annulling a book
of voters shall be executed within sixty (60) days
before an election.
If indeed the situation herein described was
common in almost all of the 557 precincts as
alleged by Canicosa,[if !supportFootnotes][4][endif] then it
was more expedient on his part to avail of the
remedies provided by law in order to maintain
the integrity of the election. Since Canicosa
failed to resort to any of the above options, the
permanent list of voters as finally corrected
before the election remains conclusive on the
question as to who had the right to vote in that
election, although not in subsequent elections. [if !
supportFootnotes][5][endif]
Canicosa also avers that more than one-half
(1/2) of the legitimate registered voters were not
able to vote, instead, strangers voted in their
behalf. Again, this is not a ground which
warrants a declaration of failure of election.
Canicosa was allowed to appoint a watcher in
every precinct. The watcher is empowered by
law to challenge any illegal voter. Thus, Secs.
199 and 202, Art. XVII, of the Omnibus Election
Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any
voter, or watcher may challenge any person
offering to vote for not being registered, for using
the name of another or suffering from existing
disqualification. In such case, the board of
election inspectors shall satisfy itself as to
whether or not the ground for the challenge is
true by requiring proof of registration or identity
of the voter x x x x
Sec. 202. Record of challenges and oaths. - The
poll clerk shall keep a prescribed record of
challenges and oaths taken in connection
therewith and the resolution of the board of
election inspectors in each case and, upon the
termination of the voting, shall certify that it
contains all the challenges made x x x x
The claim of Canicosa that he was credited with
less votes than he actually received and that the
control data of the election returns was not filled
up should have been raised in the first instance
before the board of election inspectors or board
of canvassers. Section 179, Art. XV, of the
Omnibus Election Code clearly provides for the
rights and duties of watchers -
Sec. 179. Rights and duties of watchers. - x x x
x The watchers x x x shall have the right to
witness and inform themselves of the
proceedings of the board of election inspectors x
x x to file a protest against any irregularity or
violation of law which they believe may have
been committed by the board of election
inspectors or by any of its members or by any
persons, to obtain from the board of election
inspectors a certificate as to the filing of such
protest and/or of the resolution thereon x x x and
to be furnished with a certificate of the number
of votes in words and figures cast for each
candidate, duly signed and thumbmarked by the
chairman and all the members of the board of
election inspectors x x x x
To safeguard and maintain the sanctity of
election returns, Sec. 212, Art. XVIII, of the
Omnibus Election Code states -
Sec. 212. Election returns. - x x x x Immediately
upon the accomplishment of the election returns,
each copy thereof shall be sealed in the
presence of the watchers and the public, and
placed in the proper envelope, which shall
likewise be sealed and distributed as herein
provided.
Furthermore, it is provided in Sec. 215 of the
Omnibus Election Code that -
Sec. 215. Board of election inspectors to issue a
certificate of the number of votes polled by the
candidates for an office to the watchers. - After
the announcement of the results of the election
and before leaving the polling place, it shall be
the duty of the board of election inspectors to
issue a certificate of the number of votes
received by a candidate upon request of the
watchers. All members of the board of election
inspectors shall sign the certificate.
Supplementing the preceding provisions, Secs.
16 and 17 of RA No. 6646 also require -
Sec. 16. Certification of votes. - After the
counting of the votes cast in the precinct and
announcement of the results of the election, and
before leaving the polling place, the board of
election inspectors shall issue a certificate of
votes upon request of the duly accredited
watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The
provisions of Secs. 235 and 236 of Batas
Pambansa Blg. 881 notwithstanding, the
certificate of votes shall be admissible in
evidence to prove tampering, alteration,
falsification or anomaly committed in the election
returns concerned x x x x
From the foregoing provisions, it is clear that in
case of inconsistency as to the number of votes
written in the election returns and the certificate
of votes, a petition for correction of election
returns must immediately be filed with
COMELEC by all or a majority of the members
of the board of election inspectors or any
candidate affected by the error or mistake. In
order to make out a case for correction of
election returns, there must be an error and at
least a majority of the members of the board of
election inspectors agrees that such error
existed. Canicosa never mentioned that he
petitioned for the correction of the election
returns before the COMELEC
Canicosa complains that the election returns
were delivered late and the ballot boxes brought
to the Office of the Municipal Treasurer
unsecured, i.e., without padlocks nor self-locking
metal seals. These bare allegations cannot
impel us to declare failure of election. Assuming
that the election returns were delivered late, we
still cannot see why we should declare a failure
to elect. The late deliveries did not convert the
election held in Calamba into a mockery or farce
to make us conclude that there was indeed a
failure of election.
In fine, the grounds cited by Canicosa in his
petition do not fall under any of the instances
enumerated in Sec. 6 of the Omnibus Election
Code. In Mitmug v. Commission on Elections [if !
supportFootnotes][6][endif]
we ruled that before COMELEC
can act on a verified petition seeking to declare
a failure of election, at least two (2) conditions
must concur: (a) no voting has taken place in the
precincts on the date fixed by law, or even if
there was voting, the election nevertheless
resulted in failure to elect; and, (b) the votes that
were not cast would affect the result of the
election. From the face of the instant petition, it
is readily apparent than an election took place
and that it did not result in a failure to elect. [if !
supportFootnotes][7][endif]
Canicosa finally insists that it was error on the
part of COMELEC sitting en banc to rule on his
petition. He maintains that his petition should
have first been heard by a division of COMELEC
and later by the COMELEC en banc upon
motion for reconsideration, pursuant to Sec. 3,
Art. IX-C, of the Constitution.[if !supportFootnotes][8][endif]
But this provision applies only when the
COMELEC acts in the exercise of its
adjudicatory or quasi-judicial functions and not
when it merely exercises purely administrative
functions. To reiterate, the grounds cited by
Canicosa in his petition are that: (a) the names
of the registered voters did not appear in the list
of voters in their respective precincts; (b) more
than one-half of the legitimate registered voters
were not able to vote with strangers voting in
their stead; (c) he was credited with less votes
than he actually received; (d) the control data of
the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office
of the Municipal Treasurer were unsecured, i. e.,
without padlocks nor self-locking metal seals;
and, (f) there was delay in the delivery of
election returns.
Clearly, all these matters require the exercise by
the COMELEC of its administrative functions.
Section 2, Art. IX-C, of the 1987 Constitution
grants extensive administrative powers to the
COMELEC with regard to the enforcement and
administration of all laws and regulations relative
to the conduct of elections. Likewise, Sec. 52 of
BP Blg. 881, otherwise known as the Omnibus
Election Code, states:
Sec. 52. Powers and functions of the
Commission on Elections. - In addition to the
powers and functions conferred upon it by the
Constitution, the Commission shall have
exclusive charge of the enforcement and
administration of all laws relative to the conduct
of elections for the purpose of ensuring free,
orderly and honest elections x x x x
Quite obviously, it is only in the exercise of its
adjudicatory or quasi-judicial powers that the
COMELEC is mandated to hear and decide
cases first by Division and then, upon motion for
reconsideration, by the COMELEC en banc. This
is when it is jurisdictional. In the instant case, as
aforestated, the issues presented demand only
the exercise by the COMELEC of its
administrative functions.
The COMELEC exercises direct and immediate
supervision and control over national and local
officials or employees, including members of any
national or local law enforcement agency and
instrumentality of the government required by
law to perform duties relative to the conduct of
elections. Its power of direct supervision and
control includes the power to review, modify or
set aside any act of such national and local
officials. [if !supportFootnotes][9][endif] It exercises
immediate supervision and control over the
members of the boards of election inspectors
and canvassers. Its statutory power of
supervision and control includes the power to
revise, reverse or set aside the action of the
boards, as well as to do what the boards should
have done, even if questions relative thereto
have not been elevated to it by an aggrieved
party, for such power includes the authority to
initiate motu proprio or by itself such steps or
actions as may be required pursuant to law. [if !
supportFootnotes][10][endif]
Specifically, Canicosa alleged that he was
credited with less votes than he actually
received. But he did not raise any objection
before the Municipal Board of Canvassers;
instead, he went directly to the COMELEC. He
now claims, after the COMELEC en banc
dismissed his petition, that it was error on the
part of COMELEC to rule on his petition while
sitting en banc.
We have already disposed of this issue in
Castromayor v. Commission on Elections [if !
supportFootnotes][11][endif]
thus should be pinpointed out,
in this connection, that what is involved here is a
simple problem of arithmetic. The Statement of
Votes is merely a tabulation per precinct of the
votes obtained by the candidates as reflected in
the election returns. In making the correction in
computation, the MBC will be acting in an
administrative capacity, under the control and
supervision of the COMELEC. Hence, any
question pertaining to the proceedings of the
MBC may be raised directly to the COMELEC
en banc in the exercise of its constitutional
function to decide questions affecting elections.
Moreover, it is expressly provided in Rule 27,
Sec. 7, of the Comelec Rules of Procedure that
any party dissatisfied with the ruling of the board
of canvassers shall have a right to appeal to the
COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or
Tallying of Results by the Board of Canvassers.
- (a) Where it is clearly shown before
proclamation that manifest errors were
committed in the tabulation or tallying or election
returns, or certificates of canvass, during the
canvassing as where (1) a copy of the election
returns of one precinct or two or more copies of
a certificate of canvass were tabulated more
than once, (2) two copies of the election returns
or certificate of canvass were tabulated
separately, (3) there was a mistake in the adding
or copying of the figures into the certificate of
canvass or into the statement of votes by
precinct, or (4) so-called election returns from
non-existent precincts were included in the
canvass, the board may motu proprio, or upon
verified petition by any candidate, political party,
organization or coalition of political parties, after
due notice and hearing, correct the errors
committed x x x x (h) The appeal shall be heard
and decided by the Commission en banc.
In Tatlonghari v. Commission on Elections [if !
supportFootnotes][12][endif]
it was made to appear in the
Certificate of Canvass of Votes and
Proclamation of the Winning Candidates that
respondent therein received 4,951 votes or more
than what he actually obtained. In resolving the
case we ruled that the correction of the manifest
mistake in mathematical addition calls for a
mere clerical task of the board of canvassers.
The remedy invoked was purely administrative.
In Feliciano v. Lugay [if !supportFootnotes][13][endif] we
categorized the issue concerning registration of
voters, which Canicosa cited as a ground in his
petition for declaration of failure of election, as
an administrative question. Likewise, questions
as to whether elections have been held or
whether certain returns were falsified or
manufactured and therefore should be excluded
from the canvass do not involve the right to vote.
Such questions are properly within the
administrative jurisdiction of COMELEC, [if !
supportFootnotes][14][endif]
hence, may be acted upon
directly by the COMELEC en banc without
having to pass through any of its divisions.
WHEREFORE, finding no grave abuse of
discretion committed by public respondent
Commission on Elections, the petition is
DISMISSED and its Resolution en banc of 23
May 1995 dismissing the petition before it on the
ground that the allegations therein did not justify
a declaration of failure of election is AFFIRMED.
[G.R. No. 112193. March 13, 1996]
JOSE E. ARUEGO, JR., SIMEONA SAN JUAN
ARUEGO, MA. IMMACULADA T. ALANON,
ROBERTO A. TORRES, CRISTINA A.
TORRES, JUSTO JOSE TORRES and
AGUSTIN TORRES, petitioners, vs. THE HON.
COURT OF APPEALS, THIRTEENTH
DIVISION and ANTONIA ARUEGO,
respondents.
DECISION
HERMOSISIMA, JR., J.:
On March 7, 1983, a Complaint [if !supportFootnotes][1][endif]
for Compulsory Recognition and Enforcement of
Successional Rights was filed before Branch 30
of the Regional Trial Court of Manila by the
minors, private respondent Antonia F. Aruego
and her alleged sister Evelyn F. Aruego,
represented by their mother and natural
guardian, Luz M. Fabian. Named defendants
therein were Jose E. Aruego, Jr. and the five (5)
minor children of the deceased Gloria A. Torres,
represented by their father and natural guardian,
Justo P. Torres, Jr., now the petitioners herein.
In essence, the complaint avers that the late
Jose M. Aruego, Sr., a married man, had an
amorous relationship with Luz M. Fabian
sometime in 1959 until his death on March 30,
1982. Out of this relationship were born Antonia
F. Aruego and Evelyn F. Aruego on October 5,
1962 and September 3, 1963, respectively. The
complaint prayed for an Order praying that
herein private respondent and Evelyn be
declared the illegitimate children of the
deceased Jose M. Aruego, Sr; that herein
petitioners be compelled to recognize and
acknowledge them as the compulsory heirs of
the deceased Jose M. Aruego; that their share
and participation in the estate of their deceased
father be determined and ordered delivered to
them.
The main basis of the action for compulsory
recognition is their alleged open and continuous
possession of the status of illegitimate children
as stated in paragraphs 6 and 7 of the
Complaint, to wit:
6. The plaintiffs father, Jose M. Aruego,
acknowledged and recognized the herein
plaintiffs as his children verbally among plaintiffs
and their mothers family friends, as well as by
myriad different paternal ways, including but not
limited to the following:
(a) Regular support and educational expenses;
(b) Allowance to use his surname;
(c) Payment of maternal bills;
(d) Payment of baptismal expenses and
attendance therein;
(e) Taking them to restaurants and department
stores on occasions of family rejoicing;
(f) Attendance to school problems of plaintiffs;
(g) Calling and allowing plaintiffs to his office
every now and then;
(h) Introducing them as such children to family
friends.
7. The plaintiffs are thus, in continuous
possession of the status of (illegitimate)
children of the deceased Jose M. Aruego who
showered them, with the continuous and clear
manifestations of paternal care and affection as
above outlined.[if !supportFootnotes][2][endif]
Petitioners denied all these allegations.
After trial, the lower court rendered judgment,
dated June 15, 1992, the dispositive portion of
which reads:
WHEREFORE, judgment is rendered -
1. Declaring Antonia Aruego as illegitimate
daughter of Jose Aruego and Luz Fabian;
2. Evelyn Fabian is not an illegitimate daughter
of Jose Aruego with Luz Fabian;
3. Declaring that the estate of deceased Jose
Aruego are the following:
xxxxxxxxx
4. Antonia Aruego is entitled to a share equal to
portion of share of the legitimate children of Jose
Aruego;
5. Defendants are hereby ordered to recognize
Antonia Aruego as the illegitimate daughter of
Jose Aruego with Luz Fabian;
6. Defendants are hereby ordered to deliver to
Antonia Aruego (her) share in the estate of Jose
Aruego, Sr.;
7. Defendants to play (sic) plaintiffs (Antonia
Aruego) counsel the sum of P10,000.00 as atty.s
fee;
8. Cost against the defendants.[if !supportFootnotes][3][endif]
Herein petitioners filed a Motion for Partial
Reconsideration of the decision alleging loss of
jurisdiction on the part of the trial court over the
complaint by virtue of the passage of Executive
Order No. 209 (as amended by Executive Order
No. 227), otherwise known as the Family Code
of the Philippines which took effect on August 3,
1988. This motion was denied by the lower court
in the Order, dated January 14, 1993.
Petitioners interposed an appeal but the lower
court refused to give it due course on the ground
that it was filed out of time.
A Petition for Prohibition and Certiorari with
prayer for a Writ of Preliminary Injunction was
filed by herein petitioners before respondent
Court of Appeals, the petition was dismissed for
lack of merit in a decision promulgated on
August 31, 1993. A Motion for Reconsideration
when filed was denied by the respondent court
in a minute resolution, dated October 13, 1993.
Hence, this Petition for Review on Certiorari
under Rule 45 alleging the following grounds:
A children may prove their filiation, to wit:
RESPONDENT COURT HAD DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN
ACCORD WITH THE LAW AND IS DIRECTLY
CONTRADICTORY TO THE APPLICABLE
DECISION ALREADY ISSUED BY THIS
HONORABLE COURT.
B file the action before the expiration of four years
RESPONDENT COURT ERRED IN HOLDING
THAT THE PETITION FILED BY PETITIONERS
BEFORE IT DOES NOT INVOLVE A
QUESTION OF JURISDICTION.
C complaint of private respondent on the ground of
RESPONDENT COURT HAD CLEARLY
ERRED IN RULING THAT THERE IS NO
PERCEPTIBLE DIFFERENCE BETWEEN THE
CIVIL CODE PROVISION AND THOSE OF THE
FAMILY CODE ANENT THE TIME AN ACTION
FOR COMPULSORY RECOGNITION MAY BE
MADE AND THAT THERE IS NO DIFFERENCE
UNDER THE CIVIL CODE FROM THAT OF
THE FAMILY CODE CONCERNING THE
REQUIREMENT THAT AN ACTION FOR
COMPULSORY RECOGNITION ON THE
GROUND OF CONTINUOUS POSSESSION
OF THE STATUS OF AN ILLEGITIMATE CHILD
SHOULD BE FILED DURING THE LIFETIME
OF THE PUTATIVE PARENT, IN UTTER
DISREGARD OF THE RULING OF THIS
HONORABLE COURT IN THE UYGUANGCO
CASE THAT THE CIVIL CODE PROVISION
HAD BEEN SUPERSEDED, OR AT LEAST
MODIFIED BY THE CORRESPONDING
ARTICLES IN THE FAMILY CODE.
D Court and special laws.
RESPONDENT COURT ERRED IN
DISMISSING PETITIONERS PETITION FOR
PROHIBITION AND IN HOLDING THAT
PETITIONERS REMEDY IS THAT OF AN
APPEAL WHICH ALLEGEDLY HAD ALREADY
BEEN LOST.[if !supportFootnotes][4][endif]
Private respondents action for compulsory
recognition as an illegitimate child was brought
under Book I, Title VIII of the Civil Code on
PERSONS, specifically Article 285 thereof,
which states the manner by which illegitimate
Art. 285. The action for the recognition of natural
children may be brought only during the lifetime
of the presumed parents, except in the following
cases:
(1) If the father or mother died during the
minority of the child, in which case the latter may
from the attainment of his majority; x x x.
Petitioners, on the other hand, submit that with
the advent of the New Family Code on August 3,
1988, the trial court lost jurisdiction over the
prescription, considering that under Article 175,
paragraph 2, in relation to Article 172 of the New
Family Code, it is provided that an action for
compulsory recognition of illegitimate filiation, if
based on the open and continuous possession
of the status of an illegitimate child, must be
brought during the lifetime of the alleged parent
without any exception, otherwise the action will
be barred by prescription. The law cited reads:
Article 172. The filiation of legitimate children is
established by any of the following:
(1) The record of birth appearing in the civil
register or a final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The open and continuous possession of
the status of a legitimate child; or
(2) Any other means allowed by the Rules of
Article 175. Illegitimate children may establish
their illegitimate filiation in the same way and on
the same evidence as legitimate children.
The action must be brought within the same
period specified in Article 173 [during the lifetime
of the child], except when the action is based
on the second paragraph of Article 172, in
which case the action may be brought during
the lifetime of the alleged parent.
In the case at bench, petitioners point out that,
since the complaint of private respondent and
her alleged sister was filed on March 7, 1983, or
almost one (1) year after the death of their
presumed father on March 30, 1982, the action
has clearly prescribed under the new rule as
provided in the Family Code. Petitioners, further,
maintain that even if the action was filed prior to
the effectivity of the Family Code, this new law
must be applied to the instant case pursuant to
Article 256 of the Family Code which provides:
This Code shall have retroactive effect insofar as
it does not prejudice or impair vested or
acquired rights in accordance with the Civil
Code or other laws.
The basic question that must be resolved in this
case, therefore, appears to be: Should the
provisions of the Family Code be applied in the
instant case? As a corollary Will the application
of the Family Code in this case prejudice or
impair any vested right of the private respondent
such that it should not be given retroactive effect
in this particular case?
The phrase vested or acquired rights under
Article 256, is not defined by the Family Code.
The Committee did not define what is meant by
a vested or acquired right, thus leaving it to the
courts to determine what it means as each
particular issue is submitted to them. It is difficult
to provide the answer for each and every
question that may arise in the future.[if !
supportFootnotes][5][endif]
In Tayag vs. Court of Appeals,[if !supportFootnotes][6][endif]
a case which involves a similar complaint
denominated as Claim for Inheritance but
treated by this court as one to compel
recognition as an illegitimate child brought prior
to the effectivity of the Family Code by the
mother of the minor child, and based also on the
open and continuous possession of the status of
an illegitimate child, we had occasion to rule
that:
Under the circumstances obtaining in the case
at bar, we hold that the right of action of the
minor child has been vested by the filing of the
complaint in court under the regime of the Civil
Code and prior to the effectivity of the Family the complaint, never lost jurisdiction over the
Code. We herein adopt our ruling in the recent same despite the passage of E.O. No. 209, also
case of Republic of the Philippines vs. Court of known as the Family Code of the Philippines.
Appeals, et. al.[if !supportFootnotes][7][endif] where we held Our ruling herein reinforces the principle
that the fact of filing of the petition already that the jurisdiction of a court, whether in
vested in the petitioner her right to file it and criminal or civil cases, once attached cannot be
to have the same proceed to final ousted by subsequent happenings or events,
adjudication in accordance with the law in although of a character which would have
force at the time, and such right can no prevented jurisdiction from attaching in the first
longer be prejudiced or impaired by the instance, and it retains jurisdiction until it finally
enactment of a new law. disposes of the case.[if !supportFootnotes][8][endif]
xxx xxx xxx WHEREFORE, the petition is DENIED
Accordingly, Article 175 of the Family Code and the decision of the Court of Appeals dated
finds no proper application to the instant August 31, 1993 and its Resolution dated
case since it will ineluctably affect adversely October 13, 1993 are hereby AFFIRMED.
a right of private respondent and, SO ORDERED.
consequentially, of the minor child she
represents, both of which have been vested
with the filing of the complaint in court. The
trial court is, therefore, correct in applying the
provisions of Article 285 of the Civil Code and in
holding that private respondents cause of action
has not yet prescribed.
Tayag applies four-square with the case
at bench. The action brought by private
respondent Antonia Aruego for compulsory
recognition and enforcement of successional
rights which was filed prior to the advent of the
Family Code, must be governed by Article 285 of
the Civil Code and not by Article 175, paragraph
2 of the Family Code. The present law cannot be
given retroactive effect insofar as the instant
case is concerned, as its application will
prejudice the vested right of private respondent
to have her case decided under Article 285 of
the Civil Code. The right was vested to her by
the fact that she filed her action under the
regime of the Civil Code. Prescinding from this,
the conclusion then ought to be that the action
was not yet barred, notwithstanding the fact that
it was brought when the putative father was
already deceased, since private respondent was
then still a minor when it was filed, an exception
to the general rule provided under Article 285 of
the Civil Code. Hence, the trial court, which
acquired jurisdiction over the case by the filing of