UNTALAN, GRACE E.
undesirable, publicly known to be of bad moral character
Chapter II. REQUIREMENTS FOR PUBLIC
OFFICE
A. Selection for Public Office
1. Appointment
a. Permanent and Temporary
a.2 Maturan vs Maglana
G.R. No. L-52091 March 29, 1982
FACTS:
Petitioner Tereso V. Maturan was appointed as
patrolman. He was promoted to the rank of police
sergeant. Said appointments were provisional and were
renewed twice. After seven (7) years in service,
respondent Mayor Santiago Maglana suspended the
petitioner from office because of two separate pending
falsification of public document cases against him.
Subsequently, respondent Vice-Mayor Honorio
Magoncia, who was then the Acting Mayor instructed
petitioner to tender his resignation pursuant to the Letter
of Instruction No. 14 of the President which was
approved. Meantime, criminal charges were dismissed.
Aterwards, NAPOLCOM Chairman stated that his
suspension was lifted and directed him to report for duty
but the Chief of Police refused to accept him.
Petitioner filed a petition for mandamus with claim for
back salaries, traveling expense and damages before the
Court of First Instance.
Petitioner alleged that the refusal of respondents Mayor
and Chief of Police to reinstate him is a violation of
paragraph 7 of Presidential Decree No. 12-A which
provides:
7. Members of the police force who have been
preventively suspended shall, upon exoneration be
entitled to immediate reinstatement and payment of the
entire salary they failed to receive during the period of
suspension.
In respondents' answer, petitioner has falsely entered in
his duly sworn information sheet that he is a high school
graduate, when in truth he was only a second year high
school student; that petitioner, who has voluntarily
resigned, needs a new appointment and has to meet the
qualifications required by law among which, are, that he
must be at least a high school graduate and not over 33
years of age; that petitioner falls short of these
requirements; and that petitioner is notoriously
1
and oftentimes got drunk while on duty.
The lower court dismissed the petition for lack of merit.
Since petitioner has been separated from the service,
reinstatement is not the proper remedy. The court also
said that the evidence of conflicting entries on
petitioner's two information sheets have not been denied
or rebutted, hence the preponderance of evidence is
against the petitioner that he is not a high school
graduate, as he could not have graduated in two high
schools. Lastly, the trial court ruled that since all
petitioner's appointment were provisional, he can be
removed at any time by the appointing power, Mayor
Maglana.
Petitioner appealed from the decision of the lower court
but the CA certified this case to the SC because the issue
raised were purely legal, which is the interpretation of
Presidential Decree No. 12-A and Letter of Instruction
No. 14.
ISSUE: Whether petitioner be reinstated to his
position as police sergeant
HELD:
No.
Petitioner did not dispute that at the time he was
appointed member of the Police Force, he had neither
qualified in an appropriate examination for the position
of policeman nor was he possessed with any civil service
eligibility for any position in the government. Such lack
of a civil service eligibility makes his appointment
temporary and without a definite term and is dependent
entirely upon the pleasure of the appointing
power. Although indicated as provisional and approved
the petitioner's appointment did not acquire the character
of provisional appointment because of his lack of
appropriate civil service eligibility for the position of
municipal policeman. The Civil Service Commission
cannot even legally approve his appointment as
provisional as this act would constitute an unwarranted
invasion of the discretion of the appointing power. If the
approval of his appointment as provisional under Section
24 (c) of Republic Act 2260 did not make it so, the fact
remains that his appointment was temporary which
could be terminated without any need to show that the
termination was for cause.
At the time he received his appointment, petitioner had
no eligibility. As such what is required is a new
appointment, not merely reinstatement. But even then,
he cannot compel the Mayor to reappoint him for the
power to appoint is in essence discretionary and the
appointing power enjoys sufficient discretion to select
and appoint employees on the basis of their fitness to
perform the duties and assume the responsibilities of the
position filled.
Ancheta, Easterline Grace M.
2014-0556
Tomas D. Achacoso vs.Catalino Macaraig
G.R. No. 93023. March 13, 1991
Facts:
Tomas D. Achacoso was appointed
Administrator of the Philippine Overseas Employment
Administration on October 16, 1987, and assumed office
on October 27, 1987. On January 2, 1990, in compliance
with a request addressed by the President of the
Philippines to "all Department Heads, Undersecretaries,
Assistant Secretaries, Bureau Heads," and other
government officials, he filed a courtesy resignation.
This was accepted by the President on April 3, 1990,
"with deep regrets." On April 10, 1990, the Secretary of
Labor requested him to turn over his office to the Deputy
Administrator as officer in-charge. In a letter dated April
19, 1990, he protested his replacement and declared he
was not surrendering his office because his resignation
was not voluntary but filed only in obedience to the
President's directive. On the same date, respondent Jose
N. Sarmiento was appointed Administrator of the POEA,
vice the petitioner. Achacoso was informed thereof the
following day and was again asked to vacate his office.
He filed a motion for reconsideration on April 23, 1990,
but this was denied on April 30, 1990. He then came to
this Court for relief.
Achacoso contends that he is a member of the
Career Service of the Civil Service and so enjoys
security of tenure, which is one of the characteristics of
the Career Service as distinguished from the Non-Career
2
Service. Claiming to have the rank of undersecretary, he
says he comes under Article IV, Section 5 of P.D. 807,
otherwise known as the Civil Service Decree. In support
of this contention, he invokes Ortiz vs. Commission on
Elections, 2 where we observed that "to constitute a
complete and operative act of resignation, the officer or
employee must show a clear intention to relinquish" and
that "a courtesy resignation cannot properly be
interpreted as a resignation in the legal sense for it is not
necessarily a reflection of a public official's intention to
surrender his position." He concludes that as his removal
was illegal, there was no vacancy in the disputed office
to which respondent Sarmiento could have been validly
appointed.
Respondents contend that as the petitioner was
not a career executive service eligible at the time of his
appointment, he came under the exception to the above
rule and so was subject to the provision that he "shall
subsequently take the required Career Executive Service
examination and that he shall not be promoted to a
higher rank until he qualifies in such examination." Not
having taken that examination, he could not claim that
his appointment was permanent and guaranteed him
security of tenure in his position.
Issue: WON petitioner is protected by the security of
tenure clause
Held:
It is settled that a permanent appointment can be
issued only "to a person who meets all the requirements
for the position to which he is being appointed, including
the appropriate eligibility prescribed." Achacoso did not.
At best, therefore, his appointment could be regarded
only as temporary. And being so, it could be withdrawn
at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.
The mere fact that a position belongs to the
Career Service does not automatically confer security of
tenure on its occupant even if he does not possess the
required qualifications. Such right will have to depend
on the nature of his appointment, which in turn depends
on his eligibility or lack of it. A person who does not
have the requisite qualifications for the position cannot
be appointed to it in the first place or, only as an
exception to the rule, may be appointed to it merely in an
acting capacity in the absence of appropriate eligibles.
The appointment extended to him cannot be regarded as
permanent even if it may be so designated. The purpose
of an acting or temporary appointment is to prevent a
hiatus in the discharge of official functions by
authorizing a person to discharge the same pending the
selection of a permanent or another appointee. The
person named in an acting capacity accepts the position
under the condition that he shall surrender the office
once he is called upon to do so by the appointing
authority.
The acting appointee is separated by a method of
terminating official relations known in the law of public
officers as expiration of the term. His term is understood
at the outset as without any fixity and enduring at the
pleasure of the appointing authority. When required to
relinquish his office, he cannot complain that he is being
removed in violation of his security of tenure because
removal imports the separation of the incumbent before
the expiration of his term. This is allowed by the
Constitution only when it is for cause as provided by
law. The acting appointee is separated precisely because
his term has expired. Expiration of the term is not
covered by the constitutional provision on security of
tenure.
CHAPTER II REQUIREMENTS FOR PUBLIC
OFFICE
A. Selection for Public Office
a. Appointment Permanent and
Temporary
Romouldez v. CSC (197 SCRA
168)
FACTS:
Petitioner was appointed and served as a
Commercial Attache of the Department of Trade
continuously for twelve years from September, 1975 to
August 30, 1987. His civil service eligibilities are:
3
Patrolman of the City of Manila (1963 CS Exam) and a
Commercial Attache (1973 CS Exam).
He was transferred to the respondent PCA whereby he
was extended an appointment as Deputy Administrator
for Industrial Research and Market Development. 1 The
nature of his appointment was "reinstatement" and his
employment status was "temporary. His appointment
was renewed for another six months also on a
"temporary" status and subject to certain conditions to
which petitioner agreed.
When his appointment expired, the Governing Board did
not renew the same so he was promptly informed thereof
by the Acting Chairman of the Board of the PCA.
Petitioner appealed to respondent CSC He requested
reinstatement to his previous position in PCA and in
support of the request, he invoked the provisions of
(CSC) Memorandum Circular No. 29.
Respondent CSC denied petitioner's request for
reinstatement by way of its Resolution No. 90-407,
holding that CSC Memorandum Circular No. 29 was not
applicable to petitioner's case because it took effect on
July 19, 1989 when petitioner had long been out of the
government service since February 28, 1989 and that his
reappointment was essentially discretionary on the part
of the proper appointing authority.
On May 11, 1990, respondent PCA appointed Mr.
Roman Santos to the contested position.
Petitioner moved for a reconsideration of Resolution No.
90-407 but it was denied by respondent CSC in
Resolution No. 90-693 dated July 31, 1990.
ISSUE:
Whether or not it is mandatory for an appointing
authority to extend permanent appointments to selected
appointees with corresponding civil service eligibilities;
HELD:
No. There is no doubt the appointment extended
to petitioner by respondent PCA as PCA Deputy
Administrator for Industrial Research and Market
Development was temporary. Although petitioner was
formerly holding a permanent appointment as a
commercial attache, he sought and accepted this
temporary appointment to respondent PCA. His
temporary appointment was for a definite period and
when it lapsed and was not renewed.
This is not a case of removal from office. Indeed, when
he accepted this temporary appointment he was thereby
effectively divested of security of tenure. A temporary
appointment does not give the appointee any definite
tenure of office but makes it dependent upon the
pleasure of the appointing power. Thus, the matter of
converting such a temporary appointment to a permanent
one is addressed to the sound discretion of the
appointing authority. Respondent CSC cannot direct the
appointing authority to make such an appointment if it is
not so disposed.
The duty of respondent CSC is to approve or disapprove
an appointment. Its attestation is limited to the
determination whether the appointee possesses the
required qualifications for the position as the appropriate
civil service eligibility.
The CSC Memorandum Circular No. 29, s. 1989 cannot
be given retrospective effect so as to entitle to permanent
appointment an employee whose temporary appointment
had expired before the Circular was issued.
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G.
ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as
COMMISSIONER OF THE BUREAU OF
CUSTOMS, AND GUILLERMO CARAGUE, in his
capacity as SECRETARY OF THE DEPARTMENT
OF BUDGET, respondents, COMMISSION ON
APPOINTMENTS, intervenor.
Facts:
The petitioners seek to enjoin the respondent
Salvador Mison from performing the functions of the
Office of Commissioner of the Bureau of Customs and
the respondent Guillermo Carague, as Secretary of the
Department of Budget, from effecting disbursements in
payment of Mison's salaries and emoluments, on the
ground that Mison's appointment as Commissioner of
the Bureau of Customs is unconstitutional by reason of
its not having been confirmed by the Commission on
Appointments. The respondents, on the other hand,
maintain the constitutionality of respondent Mison's
appointment without the confirmation of the
Commission on Appointments.
Section 16, Article VII of the 1987 Constitution
says:
The President shall nominate and, with
the consent of the Commission on
4
Appointments, appoint the heads of the
executive departments, ambassadors, other
public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval
captain, and other officers whose appointments
are vested in him in this Constitution. He shall
also appoint all other officers of the Government
whose appointments are not otherwise provided
for by law, and those whom he may be
authorized by law to appoint. The Congress may,
by law, vest the appointment of other officers
lower in rank in the President alone, in the
courts, or in the heads of the departments,
agencies, commissions or boards.
The President shall have the power to
make appointments during the recess of the
Congress, whether voluntary or compulsory, but
such appointments shall be effective only until
disapproval by the Commission on
Appointments or until the next adjournment of
the Congress.
Issue: Whether the appoinment of the petitioners is
constitutional.
Held: Yes. The President acted within her constitutional
authority and power in appointing petitioners without
submitting his nomination to the Commission on
Appointments for confirmation.
The first group of officers whom the President
shall appoint needs consent of the Commission on
appointments. The second, third and fourth group may
be appointed with or without the consent of the
Commission. The respondents who are heads of bureaus
need not to be confirmed by the Commisson as cleared
by the Amicus Curiae. Furthermore, the President is
expressly authorized by law, Section 601 of Presidential
Decree No. 34, to appoint the Commissioner of the
Bureau of Customs.
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION
ON APPOINTMENTS COMMITTEE ON
JUSTICE, JUDICIAL AND BAR COUNCIL AND
HUMAN RIGHTS AND HESIQUIO R.
MALLILLIN, respondents.
Facts:
On August 27, 1987, President Cory Aquino
appointed petitioner Bautista as permanent Chairman of
the Commission on Human Rights (CHR). Bautista took
her oath of office on December 22, 1988 to Chief Justice
Marcelo Fernan and immediately acted as such.
On January 9, 1989, the Secretary of the
Commission on Appointments (CoA) wrote a letter to
Bautista requesting for her presence along with several
documents at the office of CoA on January 19. Bautista
refused to be placed under CoA's review hence this
petition filed with the Supreme Court. While waiting for
the progress of the case, President Aquino appointed
Hesiquio R. Mallillin as "Acting Chairman of the
Commission on Human Rights" but he was not able to
sit in his appointive office because of Bautista's refusal
to surrender her post. Malilin invoked EO 163-A which
provides that the tenure of the Chairman and the
Commissioners of the CHR should be at the pleasure of
the President thus stating that Bautista shall be
subsequently removed as well.
Issues:
1. Whether or not Bautista's appointment is subject to
CoA's confirmation.
2. Whether or not Bautista's appointment is an ad interim
appointment.
Held:
Sec. 16, Art. VII of the 1987 Constitution
provides: The President shall nominate and, with the
consent of the Commission on Appointments, appoint
the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him
in this Constitution. He shall also appoint all other
officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may
be authorized by law to appoint.
The Congress may, by law, vest the appointment
of other officers lower in rank in the President alone, in
the courts, or in the heads of the departments, agencies,
commissions or boards. The President shall have the
power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by
the Commission on Appointments or until the next
adjournment of the Congress.
1. No. The position of Chairman of CHR is not
among the positions mentioned in the first sentence of
Sec. 16 Art 7 of the Constitution, which provides that the
appointments which are to be made with the
confirmation of CoA. Rather, it is within the authority of
5
President, vested upon her by Constitution (2nd sentence
of Sec. 16 Art 7), that she appoint executive officials
without confirmation of CoA. The Commission on
Appointments, by the actual exercise of its
constitutionally delimited power to review presidential
appointments, cannot create power to confirm
appointments that the Constitution has reserved to the
President alone.
2. Under the Constitutional design, ad interim
appointments do not apply to appointments solely for the
President to make. Ad interim appointments, by their
very nature under the 1987 Constitution, extend only to
appointments where the review of the Commission on
Appointments is needed. That is why ad interim
appointments are to remain valid until disapproval by the
Commission on Appointments or until the next
adjournment of Congress; but appointments that are for
the President solely to make, that is, without the
participation of the Commission on Appointments,
cannot be ad interim appointments.
Petitioner Bautista is declared to be, as she is,
the duly appointed Chairman of the Commission on
Human Rights and the lawful incumbent thereof, entitled
to all the benefits, privileges and emoluments of said
office. The temporary restraining order heretofore issued
by the Court against respondent Mallillin enjoining him
from dismissing or terminating personnel of the
Commission on Human Rights is made permanent.
ANDREUS, ANDREW T.
Chapter II. REQUIREMENTS FOR PUBLIC
OFFICE
Disqualifications
G.R. No. 87193 June 23, 1989
JUAN GALLANOSA FRIVALDO, petitioner, vs.
COMMISSION ON ELECTIONS, et al., respondents.
Facts:
The petitioner was proclaimed governor-elect of
the province of Sorsogon . The League of
Municipalities, Sorsogon Chapter filed with the
Commission on Elections a petition for the annulment of
Frivaldo; election and proclamation on the ground that
he was not a Filipino citizen, having been naturalized in
the United States. Petitioner admitted that he was
naturalized in the United States as alleged but pleaded
the special and affirmative defenses that he had sought
American citizenship only to protect himself against
President Marcos. Private respondents reiterated their
assertion that Frivaldo was a naturalized American
citizen and had not reacquired Philippine citizenship on
the day of the election on January 18, 1988. He was
therefore not qualified to run for and be elected
governor. The Solicitor General likewise support the
private respondents by contending that petitioner was
not a citizen of the Philippines and had not repatriated
himself after his naturalization as an American citizen.
As an alien, he was disqualified from public office in the
Philippines. His election did not cure this defect because
the electorate of Sorsogon could not amend the
Constitution, the Local Government Code, and the
Omnibus Election Code.
Issue: Whether or not petitioner was disqualified from
serving for public office.
Held:
Yes. He claims that by actively participating in
the elections in this country, he automatically forfeited
American citizenship under the laws of the United
States, which is not the primary concern of Supreme
Court. The alleged forfeiture is between him and the
United States as his adopted country. It should be
obvious that even if he did lose his naturalized American
citizenship, such forfeiture did not and could not have
the effect of automatically restoring his citizenship in the
Philippines that he had earlier renounced. At best, what
might have happened as a result of the loss of his
naturalized citizenship was that he became a stateless
individual. The contention of Frivaldo that he could not
have repatriated himself has no merit because it would
allow all Filipinos who have renounced this country to
claim back their abandoned citizenship without formally
rejecting their adopted state and reaffirming their
allegiance to the Philippines.
JODELLE CHRIS CUANAN
CHAPTER II REQUIREMENTS
FOR PUBLIC OFFICE
C. Qualifications
2. Labo v. COMELEC (176 SCRA 1)
G.R. No. 86564 August 1, 1989
RAMON L. LABO, JR.,
vs. THE COMMISSION ON ELECTIONS
(COMELEC) EN BANC AND LUIS L.
LARDIZABAL
6
FACTS:
Petitioner Labo was proclaimed mayor-elect of
Baguio City on January 20, 1988. Private respondent
alleged that he was a foreigner and filed a petition for
quo warranto against the petitioner. He averred that the
issue in this case is not his citizenship but the issue is
whether or not the public respondent has jurisdiction to
conduct any inquiry, considering that the petition for quo
warranto against him was not filed on time. The
Supreme Court proceeded to resolve the issue regarding
his citizenship as it involved an important question
clearly and urgently affecting the public interest.
There were two administrative decisions on the
question of the petitioner's citizenship. The first was
rendered by the Commission on Elections on May 12,
1982, and found the petitioner to be a citizen of the
Philippines. The second was rendered by the
Commission on Immigration and Deportation on
September 13, 1988, and held that the petitioner was not
a citizen of the Philippines.
The first decision was penned by then
COMELEC Chigas, Vicente Santiago, Jr., with
Commissioners Pabalate Savellano and Opinion
concurring in full and Commissioner Bacungan
concurring in the dismissal of the petition "without
prejudice to the issue of the respondent's citizenship
being raised anew in a proper case." Commissioner
Sagadraca reserved his vote, while Commissioner Felipe
was for deferring decision until representations shall
have been made with the Australian Embassy for official
verification of the petitioner's alleged naturalization as
an Australian.
The second decision was unanimously rendered
by Chairman Miriam Defensor-Santiago and
Commissioners Alano and Geraldez of the Commission
on Immigration and Deportation. It is important to
observe that in the proceeding before the COMELEC,
there was no direct proof that the herein petitioner had
been formally naturalized as a citizen of Australia. This
conjecture, which was eventually rejected, was merely
inferred from the fact that he had married an Australian
citizen, obtained an Australian passport, and registered
as an alien with the CID upon his return to this country
in 1980. The decision of the CID took into account the
official statement of the Australian Government dated
August 12, 1984, through its Consul in the Philippines,
that the petitioner was still an Australian citizen as of
that date by reason of his naturalization in 1976
The petitioner does not deny that he obtained
Australian Passport No. 754705, which he used in
coming back to the Philippines in 1980, when he
declared before the immigration authorities that he was
an alien and registered as such under Alien Certificate of
Registration No. B-323985. He later asked for the
change of his status from immigrant to a returning
former Philippine citizen and was granted Immigrant
Certificate of Residence No. 223809. He also
categorically declared that he was a citizen of Australia
in a number of sworn statements voluntarily made by
him and. even sought to avoid the jurisdiction of the
barangay court on the ground that he was a foreigner. 18
Issue: Whether or not Labo is a Filipino citizen eligible
to hold public office
Answer: No. Labo is no longer a Filipino citizen.
Holding:
The petitioner's contention that his marriage to
an Australian national in 1976 did not automatically
divest him of Philippine citizenship is irrelevant. There
is no claim or finding that he automatically ceased to be
a Filipino because of that marriage. He became a citizen
of Australia because he was naturalized as such through
a formal and positive process. As a condition for such
naturalization, he formally took the Oath of Allegiance
and/or made the Affirmation of Allegiance. Renouncing
all other allegiance, he swore "to be faithful and bear
true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia ..." and to fulfill his duties "as an
Australian citizen."
The petitioner now claims that his naturalization
in Australia made him at worst only a dual national and
did not divest him of his Philippine citizenship. Such a
specious argument cannot stand against the clear
provisions of CA No. 63, which enumerates the modes
by which Philippine citizenship may be lost. Among
these are: (1) naturalization in a foreign country; (2)
express renunciation of citizenship; and (3) subscribing
to an oath of allegiance to support the Constitution or
laws of a foreign country, all of which are applicable to
the petitioner.
Petitioner asserts his naturalization in Australia
was annulled after it was found that his marriage to the
Australian citizen was bigamous, that circumstance
alone did not automatically restore his Philippine
citizenship. Under CA No. 63 as amended by PD No.
725, Philippine citizenship may be reacquired by direct
act of Congress, by naturalization, or by repatriation. It
does not appear in the record, nor does the petitioner
claim, that he has reacquired Philippine citizenship by
any of these methods.
7
The petitioner is not now, nor was he on the day
of the local elections on January 18, 1988, a citizen of
the Philippines. In fact, he was not even a qualified voter
under the Constitution itself because of his alienage. He
was therefore ineligible as a candidate for mayor of
Baguio City, under Section 42 of the Local Government
Code providing in material part as follows: Sec.
42. Qualifications. An elective local official must be a
citizen of the Philippines,
The electorate had no power to permit a
foreigner owing his total allegiance to the Queen of
Australia, or at least a stateless individual owing no
allegiance to the Republic of the Philippines, to preside
over them as mayor of their city. Only citizens of the
Philippines have that privilege over their countrymen.
These qualifications are continuing requirements;
once any of them is lost during incumbency, title to
the office itself is deemed forfeited. In the case at bar,
the citizenship and voting requirements were not
subsequently lost but were not possessed at all in the
first place on the day of the election. The petitioner
was disqualified from running as mayor and,
although elected, is not now qualified to serve as
such.
Finally, there is the question of whether or not
the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained only
the second highest number of votes in the election, he
was obviously not the choice of the people of Baguio
city.
WHEREFORE, petitioner Ramon J. Labo,
Jr. is hereby declared NOT a citizen of the
Philippines and therefore DISQUALIFIED from
continuing to serve as Mayor of Baguio City. He is
ordered to VACATE his office and surrender the
same to the Vice-Mayor of Baguio City.
Macadato, Milsum F.
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA,
ROGELIO T. PALO, DOMINGO A. JADLOC,
CARLITO T. CRUZ and MANUEL P.
REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive
Secretary, and RICHARD J. GORDON, respondents.
Facts:
 The constitutionality of Section 13, paragraph
(d), of R.A. 7227, otherwise known as the "Bases
Conversion and Development Act of 1992," under which
respondent Mayor Richard J. Gordon
of Olongapo City was appointed Chairman and Chief
Executive Officer of the Subic Bay Metropolitan
Authority (SBMA), is challenged with prayer for
prohibition, preliminary injunction and temporary
restraining order. Said provision provides the President
the power to appoint an administrator of the SBMA
provided that in the first year of its operation, the mayor
of Olongapo shall be appointed as chairman and chief
executive officer of the Subic Bay Metropolitan
Authority.
Petitioners, who claim to be taxpayers,
employees of the U.S. Facility at the Subic, Zambales,
and officers and members of the Filipino Civilian
Employees Association in U.S. Facilities in the
Philippines, maintain that such infringes to the
constitutional provision of Section 7 first paragraph Art.
IX-B, of the Constitution, which states that
"no elective official shall be eligible for appointment
or designation in any capacity to any public officer or
position during his tenure." The petitioners also contend
that Congress encroaches upon the discretionary power
of the President to appoint.
Issue:
Whether or not respondent Mayor Richard J.
Gordon of Olongapo City is qualified and eligible to
hold the office of Chairman and Chief Executive Officer
of the Subic Bay Metropolitan Authority
Ruling:
No. The Supreme Court held that as
long as he is an incumbent, an elective official remains
ineligible for appointment to another public office. The
court ruled that the Constitution seeks to prevent a
public officer to hold multiple functions since they are
accorded with a public office that is a full time job to let
them function without the distraction of other
governmental duties.
In full, Sec. 7 of Art. IX-B of the Constitution
provides:
8
No elective official shall be eligible for
appointment or designation in any
capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by
the primary functions of his position, no
appointive official shall hold any other
office or employment in the
Government or any subdivision, agency
or instrumentality thereof, including
government-owned or controlled
corporations or their subsidiaries.
The section expresses the policy against the
concentration of several public positions in one person,
so that a public officer or employee may serve full-time
with dedication and thus be efficient in the delivery of
public services. It is an affirmation that a public office is
a full-time job.
Since the ineligibility of an elective official for
appointment remains all throughout his tenure or during
his incumbency, he may however resign first from his
elective post to cast off the constitutionally-attached
disqualification before he may be considered fit for
appointment.
As in the case of respondent Gordon, an
incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he
does not automatically forfeit his elective office nor
remove his ineligibility imposed by the Constitution.
On the contrary, since an incumbent elective
official is not eligible to the appointive position, his
appointment or designation thereto cannot be valid in
view of his disqualification or lack of eligibility.
As incumbent elective official, respondent
Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA;
hence, his appointment thereto pursuant to a legislative
act that contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City,
and his acts as SBMA official are not necessarily null
and void; he may be considered a de facto officer, "one
whose acts, though not those of a lawful officer, the law,
upon principles of policy and justice, will hold valid so
far as they involve the interest of the public and third
persons, where the duties of the office were exercised.
SANTIAGO, LARIELA CAMILLE S.
Chapter II. REQUIREMENTS FOR PUBLIC
OFFICE
RULING
D. Disqualification
1. Dumlao v. COMELEC
GR NO. L- 52245
JANUARY 22, 1980
FACTS
The Petition alleges that petitioner, Patricio
Dumlao, is a former Governor of Nueva Vizcaya, who
has filed his certificate of candidacy for said position of
Governor in the forthcoming elections of January 30,
1980. Petitioner, Romeo B. Igot, is a taxpayer, a
qualified voter and a member of the Bar who, as such,
has taken his oath to support the Constitution and obey
the laws of the land. Petitioner, Alfredo Salapantan,
Jr., is also a taxpayer, a qualified voter, and a resident of
San Miguel, Iloilo.
Petitioner Dumlao specifically questions the
constitutionality of Paragraph 1, Section 4 of Batas
Pambansa Blg. 52 as discriminatory and contrary to the
equal protection and due process guarantees of the
Constitution. Section 4 disqualifies any retired elective
provincial city or municipal official who has received
payment of the retirement benefits AND who shall
have been 65 years of age at the commencement of the
term of office to which he seeks to be elected shall not
be qualified to run for the same elective local office from
which he has retired
For their part, Petitioners Igot and Salapantan,
Jr. assail the assail the validity of Paragraph 2, Seciton 4
of Batas Pambansa Blg. 52 which disqualifies any
person who was convicted of a crime given that there
was judgment for conviction and the prima facie nature
of the filing of charges for the commission of such
crimes. They also question the validity of Batas
Pambansa Blg. 53 which requires the accreditation of
some political parties by respondent COMELEC for
being contrary to section 9(1), Art. XII(C) of the
Constitution.
9
ISSUE
1. Whether or not the petitioners have a cause
of action
2. Whether or not the assailed statutory
provisions are unconstitutional
1. No. The SC pointed out the procedural
lapses of this case for this case should have
never been merged. Dumlaos issue is different
from Igots. They have separate issues.
Further, this case does not meet all the
requisites so that itd be eligible for judicial
review. There are standards that have to be
followed in the exercise of the function of
judicial review, namely: (1) the existence of an
appropriate case; (2) an interest personal and
substantial by the party raising the constitutional
question; (3) the plea that the function be
exercised at the earliest opportunity; and (4) the
necessity that the constitutional question be
passed upon in order to decide the case.
In this case, only the 3rd requisite was met.
2. In Dumlaos stand, there is no violation of
equal protection. It is subject to rational
classification. Here, persons over 65 are
classified differently from younger employees to
promote emergence of younger blood. The
tiredness of the retiree for government work is
present, and what is emphatically significant is
that the retired employee has already declared
himself tired and unavailable for the same
government work, but, which, by virtue of a
change of mind, he would like to assume again.
The constitutional guarantee is not violated by a
reasonable classification is germane to the
purpose of the law and applies to all those
belonging to the same class.
Regarding Igot's petition, the challenged
proviso contravenes the constitutional
presumption of innocence, as a candidate is
disqualified from running from public office on
the ground alone that charges have been filed
against him before a civil or military tribunal. It
condemns before one is fully heard. In ultimate
 effect, except as to the degree of proof, no
distinction is made between a person convicted
of acts of disloyalty and one against whom
charges have been filed for such acts, as both of
them would be ineligible to run for public office.
A legislative/administrative determination of
guilt should not be allowed to be substituted for
a judicial determination. Igot's petition was
meritorious.
WHEREFORE, the first paragraph of
section 4 of Batas Pambansa Bilang 52 is hereby
declared valid and the second paragraph of
section 4 Batas Pambansa Bilang 52 is declared
null and void.
MENDOZA, ANGELICA P.
CHAPTER II. REQUIREMENTS FOR PUBLIC
OFFICE - DISQUALIFICATION
FORTUNATO R. PAMIL, petitioner-appellant, vs.
HONORABLE VICTORINO C. TELERON, as
Judge of the Court of First Instance of Bohol, Branch
III, and REV. FR. MARGARITO R.
GONZAGA, respondents-appellees.
G.R. No. L-34854 November 20, 1978
FERNANDO, J.:
Facts: In 1971, Private respondent, Father Margarito
R. Gonzaga, was elected to the position of municipal
mayor of Alburquerque, Bohol. Therefore, he was duly
proclaimed. Petitioner, Fortunato Pamil, an aspirant
for the office, filed a quo warranto case against Gonzaga
questioning the eligibility of Gonzaga, based on the
Section 2175 of the 1917 Revised Administrative
Code: In no case shall there be elected or appointed
to a municipal office ecclesiastics, soldiers in active
service, persons receiving salaries or compensation
from provincial or national funds, or contractors for
public works of the municipality. The suit did not
prosper, respondent Judge sustaining the right of Father
Gonzaga to the office of municipal mayor. He ruled that
such statutory ineligibility was impliedly repealed by the
Election Code of 1971. The matter was then elevated to
this Tribunal by petitioner. It is his contention that there
10
was no such implied repeal, that it is still in full force
and effect. Thus was the specific question raised.
Issue: Whether or not Section 2175 of the Revised
Administrative Code of 1917 is no longer operative?
Held: The Supreme Court decision was indecisive.
Under the 1935 Constitution, No religious test shall be
required for the exercise of civil or political rights. If
the doctrine of constitutional supremacy is to be
maintained, then Section 2175 shall not prevail, thus, an
ecclesiastic may run for elective office. However, this
issue proved to have divided the Supreme Court because
it failed to obtain the majority vote of eight, which is
needed in order to declare Section 2175 of the RAC to
be unconstitutional. For this, the petition filed by
Fortunato Pamil must be granted and the decision of
the lower court reversed and set aside. Fr. Gonzaga is
hereby ordered to vacate the mayoralty position.
It was also pointed out (in the dissenting opinions) that
how can one who swore to serve the Churchs interest
above all be in duty to enforce state policies which at
times may conflict with church tenets. This is in
violation of the separation of the church and state. The
Revised Administrative Code still stands because there is
no implied repeal.
WHEREFORE, the petition for certiorari is
GRANTED. The judgment a quo is REVERSED and
SET ASIDE. Respondent Gonzaga is hereby ordered
immediately to vacate the mayoralty of the
municipality of Alburquerque, Bohol, there being a
failure to elect.
CHAPTER VIII TERMINATION OF
OFFICIAL RELATION
Acceptance of Incompatible Office
HOMOBONO ADAZA, petitioner, vs. FERNANDO
PACANA, JR., respondent.
The issues posed for determination in this petition for
prohibition with prayer for a writ of preliminary
injunction and/or restraining order are: [1] whether or
not a provincial governor who was elected and had
qualified as a Mambabatas Pambansa [MP] can exercise
and discharge the functions of both offices
simultaneously; and [2] whether or not a vice-governor
who ran for the position of Mambabatas Pambansa, but
lost, can continue serving as vice-governor and
subsequently succeed to the office of governor if the said
office is vacated.
FACTS:
Petitioner Homobono A. Adaza was elected governor of
the province of Misamis Oriental in the January 30, 1980
elections. He took his oath of office and started
discharging his duties as provincial governor on March
3, 1980. Elected vice-governor for said province in the
same elections was respondent Fernando Pacana, Jr.,
who likewise qualified for and assumed said office on
March 3, 1980. Under the law, their respective terms of
office would expire on March 3, 1986.
On March 27, 1984, respondent Pacana filed his
certificate of candidacy for the May 14, 1984 Batasan
Pambansa elections; petitioner Adaza followed suit on
April 27, 1984. In the ensuing elections, petitioner won
by placing first among the candidates, while respondent
lost.
Petitioner took his oath of office as Mambabatas
1
Pambansa on July 19, 1984 and since then he has
discharged the functions of said office.
On July 23, 1984, respondent took his oath of office as
governor of Misamis Oriental before President
Ferdinand E. Marcos, 2 and started to perform the duties
of governor on July 25, 1984.
Claiming to be the lawful occupant of the governors
office, petitioner has brought this petition to exclude
respondent therefrom. He argues that he was elected to
said office for a term of six years, that he remains to be
11
the governor of the province until his term expires on
March 3, 1986 as provided by law, and that within the
context of the parliamentary system, as in France, Great
Britain and New Zealand, a local elective official can
hold the position to which he had been elected and
simultaneously be an elected member of Parliament.
Petitioner further contends that respondent Pacana
should be considered to have abandoned or resigned
from the position of vice-governor when he filed his
certificate of candidacy for the 1984 Batas Pambansa
elections; and since respondent had reverted to the status
of a mere private citizen after he lost in the Batas
Pambansa elections, he could no longer continue to
serve as vice-governor, much less assume the office of
governor.
ISSUE:
Whether or not Adaza can serve as a member of the
Batasan and as a governor of the province
simultaneously. Whether or not a vice governor who ran
for Congress and lost can assume his original position
and as such can, by virtue of succession, take the vacated
seat of the governor.
HELD:
Section 10, Article VIII of the 1973 Constitution
provides as follows:
Section 10. A member of the National Assembly [now
Batasan Pambansa shall not hold any other office or
employment in the government or any subdivision,
agency or instrumentality thereof, including government
owned or controlled corporations, during his tenure,
except that of prime minister or member of the cabinet.
The language used in the above-cited section is plain,
certain and free from ambiguity. The only exceptions
mentioned therein are the offices of prime minister and
cabinet member. The wisdom or expediency of the said
provision is a matter which is not within the province of absence from office. Indubitably, respondent falls
the Court to determine. within the coverage of this provision, considering that at
the time he filed his certificate of candidacy for the 1984
A public office is a public trust. 3 It is created for the
Batasan Pambansa election he was a member of the
interest and the benefit of the people. As such, a holder
Sangguniang Panlalawigan as provided in Sections 204
thereof is subject to such regulations and conditions as
and 205 of Batas Pambansa Blg. 337, 5 otherwise known
the law may impose and he cannot complain of any
as the Local Government Code.
restrictions which public policy may dictate on his
holding of more than one office. It is therefore of no
avail to petitioner that the system of government in other
states allows a local elective official to act as an elected
JOSE LINO LUNA vs. EULOGIO RODRIGUEZ
member of the parliament at the same time. The dictate
of the people in whom legal sovereignty lies is explicit. G.R. No. L-12581 March 13, 1917
It provides no exceptions save the two offices
specifically cited in the above-quoted constitutional Facts: An election for the office of governor of the
provision. Thus, while it may be said that within the Province of Rizal was held on the 6th day of June, 1916.
purely parliamentary system of government no At said election Jose Lino Luna, Eulogio Rodriguez and
incompatibility exists in the nature of the two offices Servando de los Angeles were candidates for said office.
under consideration, as incompatibility is understood in The election was closed, the votes cast were counted,
common law, the incompatibility herein present is one and a return was made by the inspectors of said
created by no less than the constitution itself. In the case municipalities to the provincial board of Canvassers,
at bar, there is no question that petitioner has taken his who, after a canvass, proclaimed Eulogio Rodriguez,
oath of office as an elected Mambabatas Pambansa and having received a plurality of said votes, as duly elected
has been discharging his duties as such. In the light of
governor of said province. Jose Lino Luna presented a
the oft-mentioned constitutional provision, this fact
protest in the CFI.
operated to vacate his former post and he cannot now
continue to occupy the same, nor attempt to discharge its
Issue:
functions.
Whether or not the petitioner is entitled to occupy the
The second proposition advanced by petitioner is that office of the provincial governor
respondent Pacana, as a mere private citizen, had no
right to assume the governorship left vacant by
Held:
petitioners election to the Batasan Pambansa. That the
No. The complaint does not show that the plaintiff was
respondent should be considered as having abandoned or
entitled to the office or that the defendant is illegally in
resigned from the vice-governorship when he filed his
possession thereof. Furthermore, court has held on
certificate of candidacy for the Batas Pambansa
several occasions, in applying that portion of the
elections. The point pressed runs afoul of Batas
Pambansa Blg. 697, the law governing the election of Election Law referring to the election of provincial
members of the Batasan Pambansa on May 14, 1984, governors, that a person is not entitled to occupy the
Section 13[2] of which specifically provides that office of provincial governor until his election has been
governors, mayors, members of the various duly proclaimed by the provincial board of canvassers
sangguniang or barangay officials shall, upon filing a and a certificate of election has been issued to him in
certificate of candidacy, be considered on forced leave of pursuance of that proclamation (Manalo vs. Sevilla, 24
12
Phil. Rep., 609). The certificate of election is the
credential which proves his right to exercise the
functions of the office and admits him into possession
thereof.chanroblesvirtualawlibrary chanrobles virtual
law library
Section 1999 of the Administrative Code provides in
effect that a person holding a public office shall continue
to possess and exercise the functions of the same until
his successor is elected and qualifies. By virtue of this
statute on who occupies a public office is required to
maintain possession thereof until his successor is elected
and qualifies. If he turns the office over to a person who
was not duly elected and who has not qualified he is
acting in violation of law and will be responsible for the
loss of money or property occasioned by such transfer.
While section 209 of the Code of Civil Procedure
provides that a plaintiff in an action of quo warranto may
be declared entitled to the office in question before he
has taken the oath of office or executed the official bond
required by law, that fact is not in conflict with our
opinion that the plaintiff in the present action must go so
far as to allege in his complaint and prove on the trial
that he was duly elected to the office in
dispute.chanroblesvirtualawlibrary chanrobles virtual
law library
The complaint rests the plaintiff's right to the office
exclusively upon the decision of the Court of First
Instance in the election contest. That right is not based
on a proclamation of the provincial board of canvassers
or on a certificate of election issued in pursuance
thereof. There is no allegation in the complaint that the
provincial board of canvassers corrected its canvass in
accordance with the decision of the Court of First
Instance, or that, after such correction, that body duly
proclaimed the plaintiff elected to the office in question.
Neither is there an allegation that a certificate of election
was duly issued to the plaintiff in pursuance of such
13
proclamation. Plaintiff's right to the office, according to
his own allegations, rests exclusively on the judgment of
the Court of First Instance referred
to.chanroblesvirtualawlibrary chanrobles virtual law
library
This court has held on several occasions (Topacio vs.
Paredes, 23 Phil. Rep., 238; Hontiveros vs. Altavas, 24
Phil. Rep., 632) that a Court of First Instance in an
election contest has no authority to declare any one
elected to the office to which the contest relates. Its sole
duty is to order the provincial board of canvassers to
correct its return. Its judgment, therefore, is not proof of
plaintiff's election. Moreover, it is subject to appeal. In
fact, the judgment of the court in this case was appealed
and that appeal is now pending in this
court.chanroblesvirtualawlibrary chanrobles virtual law
library
Garchitorena v. Crescini (December 18, 1918)
De Facto Officers
Physical possession of the Office
FACTS:
On the 6th of June 1916 an election was held in the
province of Amobos, Camarines,for the electoral
position of governor and other provincial and municipal
officers. The said governor position was being vied by
the names of Andres Garchitorena, Manuel Crescini,
Engracio Imperial and Francisco Botor. After the
elections were closed and the returns of the ballots were
made by the inspectors of the various municipalities to
the provincial board of inspectors, the following are the
results of the said election, Andres Garchitorena had
received 2,468 votes; that Manuel Crescini had received
3,198 votes; that Engracio Imperial had received 1,954
votes and Francisco Botor had received 692 votes. After
the final examination and tallying of votes by the Board
of Inspectors, they declared Manuel Crescini as the
newly elected Governor, for he received the plurality of
votes cast. They issued a certificate to him as he was
proclaimed the winner. Upon notice of said
proclamation, immediately the runner up, Andres
Garchitorena presented a protest against said election,
contending that there were many frauds and
irregularities committed in various municipalities of the
said province, also he alleged that he received a majority
of all the legal votes cast. Two trials were conducted,
and the judges (Mina and Paredes) both found in favor
of petitioner.
ISSUE:
Whether or not petitioner won the elections.
RULING:
Yes
Petitioner, in this case is the winner in the elections. The
presumption is that an election is honestly conducted,
and the burden of proof to show it otherwise is on the
party assailing the return. But when the return is clearly
shown to be willfully and corruptly false, the whole of it
becomes worthless as proof. When the election has been
conducted so irregularly and fraudulently that the true
result cannot be ascertained, the whole return must be
rejected. It is impossible to make a list of all the frauds
which will invalidate an election. Each case must rest
upon its own evidence.
The record of the frauds and irregularities committed in
the said municipalities in which Judges Mina and
Paredes annulled the entire vote, not only shows that
legal voters were prevented from voting, but in some
instances, legal ballots were tampered with and
destroyed after they had been cast, to such an extent that
no confidence can be placed in the return. The return in
no sense discloses the expressed will of the voters.
Search has been made in vain for cases in jurisprudence
in which the frauds and irregularities committed were
more glaring and more atrocious, and in which the real
will of the voters were more effectively defeated, than is
found in the records in said municipalities in the present
case. The statements of fact made by Judges Mina and
Paredes relating to said frauds and irregularities are fully
sustained by the evidence adduced during the trial of the
cause.
Lao vs. To-Chip
14
Facts: The Supervising Land Examiner of Bureau filed a
complaint against petitioner Tomas Lao with the
Provincial Fiscal of Samar for alleged violation of
Presidential Decree No. 772, which penalizes squatting
and other similar acts. After preliminary investigation,
the Provincial Fiscal dismissed the charges for lack of
merit.
Alleging that the filing of said complaint publicly put
him to shame as he is a businessman with a gross annual
income of forty million pesos, petitioner filed in the then
Court of First Instance of Samar an action for damages
based on Articles 20 and 21 of the Civil Code against
Private Respondent To-Chip and her husband Ramon To-
Chip, the latter as a nominal party.
Both parties appealed to the Court of Appeals.
On August 1, 1986, the Court of Appeals, thru its First
Civil Cases Division composed of justices Ramon G.
Gaviola, Jr., Ma. Rosario Quetulio-Losa and Leonor Ines
Luciano, with Justice Luciano as ponente, promulgated a
decision reversing the lower court's decision and
dismissing the complaint. Petitioner filed a motion for
reconsideration assailing the validity of the Court of
Appeals decision on the ground that on August 1, 1986,
the appellate court had no jurisdiction to issue said
decision as two of the three members of the first Civil
Cases Division had been "effectively disempowered to
sit thereon as of July 31, 1986" as a result of the
reorganization of said court. 2
In its resolution of November 7, 1986, the Court of
Appeals denied the motion for reconsideration, which
was also penned by Justice Luciano and concurred in by
Justices Jorge R. Coquia and Emeterio C. Cui states that
the justices who were not re-appointed because of the
reorganization held office in a hold-over capacity until
the newly appointed as well as re-appointed justices took
their oath of office before the President at 2:00 o'clock in
the afternoon of August 1, 1986. As the questioned
decision was promulgated at 11:45 A.M. of August 1,
1986, the justices who were not re-appointed were still
validly performing judicial functions including the
promulgation of decisions.
Consequently, petitioner filed the instant petition for
review on certiorari raising, among others, the issue of
the jurisdiction of the Court of Appeals to promulgate
the decision of August 1, 1986 as "there was no existing
quorum and hence no authority to exercise any judicial
power pertaining to the Court of Appeals." 3
ISSUE: Whether or not there is authority to exercise any
judicial power pertaining to the Court of Appeals
HELD: No. On July 28, 1986, President Corazon C.
Aquino issued Executive Order No. 33. Said executive
order amends certain sections of the Judiciary Act of
1980 and renames the Intermediate Appellate Court as
the Court of Appeals. Pertinent to this case is Section 6
thereof which amends Section 11 of the Judiciary Act as
follows:
SEC. 11. Quorum. A majority of the
actual members of the Court shall
constitute a quorum for its session en
banc. Three members shall constitute a
quorum for the sessions of a division.
The unanimous vote of the three
numbers of a division shall be necessary
for the pronouncement of a decision or
final resolution, which shall be reached
in consultation before the writing of the
opinion by any member of the division.
In the event that the three members do
not reach a unanimous vote, the
Presiding Justice shall request the raffle
Committee of the Court for the
designation of two additional Justices to
sit temporarily with them, forming a
special division of five members and the
concurrence of a majority of such
division shall be necessary for the
pronouncement of a decision or final
resolution. The designation of such
additional Justices shall be made strictly
by raffle.
xxx xxx xxx
(Emphasis supplied)
In line with the reorganization of the Court of Appeals,
all the justices tendered their resignation. The records of
the Office of the Court Administrator reveal that on July
15
30,1986, President Aquino accepted the resignations of
the justices of the Court of Appeals. The following day,
July 31, 1986, the President appointed the Presiding
Justice and forty-one (41) Associate Justices of said
court.
At 5:20 o'clock in the afternoon of July 31, 1986, this
Court received the communication of the President
regarding her acceptance of the resignations of the
Justices of the Court of Appeals. This Court then
informed the justices concerned about said
communication. Hence, the office of Justice Gaviola
received the notice of the President's acceptance of his
resignation at 8:15 P.M. of the same day while the office
of Justice Quetulio-Losa received such notice at 8:30
A.M. of the following day, August 1, 1986.
From these facts, it is clear that when the decision in
question was promulgated at 11:45 A.M. on August 1,
1986, Justices Gaviola and Quetulio-Losa had both
ceased to be members of the Court of appeals since at
that time, they had been informed that their resignations
had been accepted by the President. It is therefore,
immaterial that the newly appointed and re-appointed
justices took their oath of office at 2:00 o'clock in the
afternoon of August 1, 1986. What is crucial is that when
the questioned decision was promulgated, two of the
three justices necessary to constitute a quorum in a
division had lost their authority to act as justices by
reason of the presidential acceptance of their
resignations. To endorse the opinion of the Court of
Appeals that the justices who were not re-appointed
were acting in a hold-over capacity until their
replacements shall have taken their oath of office, will
abet, rather than avoid, a disorderly administration of
justice.
Time and again, We have ruled that to be binding, a
judgment must be duly signed and promulgated during
the incumbency of the judge who signed it. 4 Thus, the
promulgation of a decision after a judge retires is nun
and void. 5 Fairness, equity and justice demand that the
same rulings, although they involved judges of the lower
courts, should be applied with equal force to cases
involving decisions promulgated by the higher courts the
justices of which have resigned.
SO ORDERED.

GLOVASA, IMELOU A.
Chapter III. DE FACTO OFFICERS
C. Entitlement to Salary
1. Monroy vs. Court of Appeals (20 SCRA 620)
G.R. No. L-23258 July 1, 1967
ROBERTO R. MONROY, petitioner, vs. HON.
COURT OF APPEALS and FELIPE DEL
ROSARIO, respondent.
Facts: Petitioner Roberto Monroy was the incumbent
Mayor of Navotas, Rizal, when on September 15, 1961,
his certificate of candidacy as representative of the first
district of Rizal in the forthcoming elections was filed
with the Commission on Elections. Three days later, or
on September 18, 1961, petitioner filed a letter
withdrawing said certificate of candidacy. The
Commission on Elections, per resolution, approved the
withdrawal. But on September 21, 1961, respondent
Felipe del Rosario, then the vice-mayor of Navotas, took
his oath of office as municipal mayor on the theory that
petitioner had forfeited the said office upon his filing of
the certificate of candidacy in question.
Upon these facts, the Court of First Instance of Rizal,
held in the suit for injunction instituted by petitioner
against respondents that (a) the former had ceased to be
mayor of Navotas, Rizal, after his certificate of
candidacy was filed on September 15, 1961; (b)
respondent del Rosario became municipal mayor upon
his having assumed office as such on September 21,
1961; (c) petitioner must reimburse, as actual damages,
the salaries to which respondent was entitled as Mayor
from September 21, 1961 up to the time he can reassume
said office; and (d) petitioner must pay respondent
P1,000.00 as moral damages.
This judgment was, on appeal by petitioner to the Court
of Appeals, affirmed in toto except for the award of
moral damages which was eliminated. The same Court
reaffirmed its stand upon petitioner's filing a motion to
reconsider. Hence, this petition for certiorari to review
the ruling of the Court of Appeals.
Issue: Whether or not Court of Appeals erred in
affirming a lower court judgment requiring petitioner to
pay respondent Del Rosario by way of actual damages
the salaries he was allegedly entitled to receive from
September 21, 1961, to the date of petitioner's vacation
of his office as mayor.
16
Ruling: The Court agrees with the Court of Appeals. It
is the general rule, i.e., "that the rightful incumbent of a
public office may recover from an officer de facto the
salary received by the latter during the time of his
wrongful tenure, even though he entered into the office
in good faith and under color of title" that applies in the
present case. The resulting hardship occasioned by the
operation of this rule to the de facto officer who did
actual work is recognized; but it is far more cogently
acknowledged that the de facto doctrine has been
formulated, not for the protection of the de facto officer
principally, but rather for the protection of the public and
individuals who get involved in the official acts of
persons discharging the duties of an office without being
lawful officers. The question of compensation involves
different principles and concepts however. Here, it is
possession of title, not of the office, that is decisive.
A de facto officer, not having good title, takes the
salaries at his risk and must therefore account to the de
jure officer for whatever amount of salary he received
during the period of his wrongful retention of the public
office. Thus, finding no error in the judgment appealed
from, the same is, as it is hereby, affirmed in toto.
VELASCO, KRISTIN DIANNE J.
De facto Officers
Entitlement to Salary
Menzon v Petilla
G.R. No. 90762 May 20, 1991
Ponente: Gutierrez, Jr.:
Facts:
On February 16, 1988, by virtue of the fact that
no Governor had been proclaimed in the province of
Leyte, the Secretary of Local Government Luis Santos
designated the Vice-Governor, Leopoldo E. Petilla as
Acting Governor of Leyte while petitioner Aurelio D.
Menzon, a senior member of the Sangguniang
Panlalawigan was designated as the Vice-Governor for
the province of Leyte.
The Provincial Administrator, Tente U. Quintero
inquired from the Undersecretary of the Department of
Local Government, Jacinto T. Rubillar, Jr., as to the
legality of the appointment of the petitioner to act as the
Vice-Governor of Leyte. The latter stated that since B.P.
337 has no provision relating to succession in the Office
of the Vice-Governor in case of a temporary vacancy, the
appointment of the petitioner as the temporary Vice-
Governor is not necessary. Thereafter, Sangguniang
Panlalawigan, in a special session, issued Resolution No.
505 where it held invalid the appointment of the
petitioner as acting Vice-Governor of Leyte.
The petitioner sought clarification from
Undersecretary Jacinto T. Rubillar, Jr. regarding the June
22, 1989 opinion. Undersecretary Rubillar replied and
explained his opinion that the designation extended by
the Secretary of Local Government in favor of one of the
Sangguniang Panlalawigan Members of Leyte to
temporarily discharge the powers and duties of the vice-
governor during the pendency of the electoral
controversy in the Office of the Governor, does not
contradict the stand on the matter since the peculiar
situation in the Province of Leyte, where the electoral
controversy in the Office of the Governor has not yet
been settled, calls for the designation of the Sangguniang
Member to act as vice-governor temporarily.
In view, of the clarificatory letter, the Regional
Director of the Department of Local Government,
Resurreccion Salvatierra, wrote a letter addressed to the
Acting-Governor of Leyte, Leopoldo E. Petilla,
requesting the latter that Resolution No. 505 of the
Sangguniang Panlalawigan be modified accordingly.
Despite several letters of request, the Acting Governor
and the Sangguniang Panlalawigan, refused to correct
Resolution No. 505 and pay the petitioner the
emoluments attached to the Office of Vice-Governor.
The petitioner filed a petition
for certiorari and mandamus. The petition sought the
nullification of Resolution No. 505 and for the payment
of his salary for his services as the acting Vice-Governor
of Leyte. In the meantime, however, the issue on the
governorship of Leyte was settled and Adelina
Larrazabal was proclaimed the Governor of the province
of Leyte.
During the pendency of the petition, the
provincial treasurer of Leyte, Florencio Luna allowed
the payment to the petitioner of his salary as acting Vice-
Governor of Leyte in the amount of P17,710.00.
The Court dismissed the petition filed by
Aurelio D. Menzon. Respondent Leopoldo Petilla was
requested by Governor Larrazabal to direct the petitioner
to pay back to the province of Leyte all the emoluments
and compensation which he received while acting as the
Vice-Governor of Leyte. The petitioner filed a motion
for reconsideration of our resolution to uphold the
petitioner's right to receive the salary and emoluments
attached to the office of the Vice-Governor while he was
acting as such.
Issue:
Whether the petitioner has the right to be paid the
salary attached to the Office of the Vice Governor?
Ruling:
17
Yes. The petitioner's right to be paid the salary
attached to the Office of the Vice Governor is
indubitable. The compensation, however, to be
remunerated to the petitioner, following the example in
Commonwealth Act No. 588 and the Revised
Administrative Code, and pursuant to the proscription
against double compensation must only be such
additional compensation as, with his existing salary,
shall not exceed the salary authorized by law for the
Office of the Vice-Governor.
Even granting that the President, acting through
the Secretary of Local Government, possesses no power
to appoint the petitioner, at the very least, the petitioner
is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed
the Office of the Vice-Governor under color of a known
appointment. As revealed by the records, the petitioner
was appointed by no less than the alter ego of the
President, the Secretary of Local Government, after
which he took his oath of office before Senator Alberto
Romulo in the Office of Department of Local
Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of
validity. The respondents themselves acknowledged the
validity of the petitioner's appointment and dealt with
him as such. It was only when the controversial
Resolution No. 505 was passed by the same persons who
recognized him as the acting Vice-Governor that the
validity of the appointment of the petitioner was made
an issue and the recognition withdrawn.
The petitioner, for a long period of time,
exercised the duties attached to the Office of the Vice-
Governor. He was acclaimed as such by the people of
Leyte. Upon the principle of public policy on which
the de facto doctrine is based and basic considerations of
justice, it would be highly iniquitous to now deny him
the salary due him for the services he actually rendered
as the acting Vice-Governor of the province of Leyte.
GOJAR, Judy Charisse R.
CHAPTER III DE FACTO OFFICERS
C. Entitlement to Salary
3. Sampayan v. Daza (213 SCRA 807)
MELANIO D. SAMPAYAN et al vs. RAUL A. DAZA
et al
G.R. No. 103903. September 11, 1992
FACTS:
On February 18, 1992, petitioners, filed the instant
petition for prohibition seeking to disqualify respondent
Raul Daza, then incumbent congressman, from
continuing to exercise the functions of his office, on the
ground that the latter is a greencard holder and a lawful
permanent resident of the United States since October
16, 1974.
Petitioners alleged that Mr.Daza has not renounced his
status as permanent resident.
Petitioners manifested that on April 2, 1992, they filed a
petition before the COMELEC to disqualify respondent
Daza from running in the recent May 11, 1992 elections
on the basis of Section 68 of the Omnibus Election Code
and that the instant petition is concerned with the
unlawful assumption of office by respondent Daza from
June 30, 1987 until June 30, 1992.
ISSUE:
WON respondent Daza should be disqualified as a
member of the House of Representatives for violation of
Section 68 of the Omnibus Election Code.
RULING:
The Supreme Court ruled in negative because the
prohibition case should be dismissed because this case is
already moot and academic for the reason that
petitioners seek to unseat respondent from his position
forthe duration of his term of office commencing June
30, 1987 and ending June 30, 1992.
Moreover the jurisdiction of this case rightfully pertains
to the House Electoral Tribunal and a writ of prohibition
can no longer be issued against respondent since his
term has already expired.
Furthermore, as a de facto public officer, respondent
cannot be made to reimburse funds disbursed during his
term of office becaus e his acts are as valid as those of a
dejure officer.
Moreover, as a de facto officer, he is entitled to
18
emoluments for actual services rendered.
GR No L-30188 October 2, 1928
FELIPE TAYKO, EDUARDO BUENO, BAUTISTA
TAYKO, BERNARDO SOLDE, and VICENTE
ELUM, petitioners
Vs.
NICOLAS CAPISTRANO, ALFREDO CACNIO,
JUAN GADIANI, respondents
FACTS:
NICOLAS CAPISTRANO was appointed judge of the
Court of First Instance of Oriental Negros. Reaching at
the age of 65, under section 148 of the Administrative
Code as amended, provides that Judges of the Court of
First Instance and auxiliary judges shall be appointed to
serve until they shall reach the age of sixty-five years.
Honorable SIXTO DE LA COSTA was duly designated
and acted as auxiliary judge of the Province of Oriental
Negros. Between the auxiliary judge and the respondent
judge has an understanding that the auxiliary judge
would hear and take cognizance of all elections protests
and criminal actions then pending or to file arising from
the said last general election. Capistrano declared that he
will try the criminal cases for the reason that the
auxiliary judge refused to try the same on the ground
that the preliminary investigations were held before him,
but the said auxiliary judge didnt made that statement.
Capistrano took great interest and active part in the filing
of criminal charges against the petitioners herein to the
unjustifiable extent of appointing a deputy fiscal, who
then filed the proper information, when the provincial
fiscal refused to file criminal charges against the
petitioners for violation of the election for lack of
sufficient evidence to sustain the same.
Capistrano is neither a judge de jure nor de facto, and he
still continued to hold the office of the Judge and
pretends to be duly qualified and acting judge of the
province.
ISSUE: Whether or not Capistrano can still continue
public office
HELD: His term of office may have been expired, but
his successor has not been appointed, and as good faith,
he must be regarded as holding over in good faith. Thus
respondent judge must be considered a judge de facto.
Briefly defined, a de facto judge is one who exercises
the duties of a judicial office under color of an
appointment or election thereto (Brown vs. O'Connell,
36 Conn., 432). He differs, on the one hand, from a mere
usurper who undertakes to act officially without any
color of right, and on the other hand, from a judge de
jure who is in all respects legally appointed and qualified
and whose term of office has not expired (State vs.
Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen
[Mass.], 361; Van Slyke vs. Farmers' Mut. Fire Ins. Co.,
39 Wis., 390).
Official acts of a de facto judge are just as valid for all
purposes as those of a de jure judges, so far as the public
or third persons who are interested therein are
concerned.
People of the Philippines vs Timoteo Penesa
[GR No CA-263. August 19, 1948]
81 Phil 398
Facts:
Timoteo Penesa and Rosario Aguillon lived, as
husband and wife, in a barrio in Camarines Sur.
Rosarios children of her late husband lived with them as
well. There have been wrangles between Timoteo and
Rosarios children of her late husband and the couple
then decided to live apart. They had certain
arrangements in the division of the palay, lumber and
firewood. Timoteo left the house on August 30, 1942 and
early the next day, he returned asking Rosario to live
with him in another place but she refused. Santiago
Cerrado, Rosarios cousin, came to the house and upon
seeing Timoteo, he asked if why he was there after they
agreed to live separately. Timoteo got angered and
unsheathed his bolo and assaulted Santiago. Cresencio
Doro, Rosarios eldest son, tried to prevent another blow
upon Santiago and made a similar remark to Timoteo.
Then Rosario went down through the stairway preceded
by Santiago. Cresencio and Timoteo grappled for the
possession of the bolo and both fell on the floor. A
brother of Rosario snatched the bolo and a dagger from
Timoteos hands. As the result of this, Santiago was
wounded although not serious. On the other hand,
Cresencio was also wounded from the scene.
19
Upon the evidence that the trial court found
Timoteo Pasana guilty of frustrated homicide and
holding that the mitigating circumstance of passion and
obfuscation without any aggravating circumstance.
Then, he appealed. He stated his own version of the
story however theres an inherent improbability of the
appellants story about the assault of which he claims to
be the victim. The trial court found him guilty of
frustrated homicide and this is an error.
Issue:
Whether or not a prosecuting officer who did not have a
lawful appointment still have authority
Held:
A prosecuting officer who has no lawful appointment,
may at least be a de facto officer.
Chapter V DE FACTO OFFICERS
Challenge to a De Facto Officer
Tayko vs Capistrano
G.R. No. L-30188 October 2, 1928
FELIPE TAYKO, EDUARDO BUENO, BAUTISTA
TAYKO, BERNARDO SOLDE and VICENTE
ELUM, petitioners,
vs.
NICOLAS CAPISTRANO, acting as Judge of First
Instance of Oriental Negros. ALFREDO B. CACNIO,
as Provincial Fiscal of Oriental Negros, and JUAN
GADIANI, respondents.
This case is a petition for a writ of prohibition against
the respondent judge; petition seeks to inhibit said judge
in taking cognizance of certain civil and criminal
election cases.
Petitioners allege that Judge Nicolas Capistrano,
appointed judge of the Court of First Instance of Oriental
Negros, has already reached the age of 65 and under
section 48 of the Administrative Code, should
discontinue acting as such.
Another judge in the name of Sixto de la Costa was
designated to act as the auxiliary judge of the province
of Oriental Negros. Between the two judges is an
understanding that de la Costa is to hear all election and
criminal cases while Capistrano is to hear all ordinary
cases. However, petitioners allege that Capistrano tried
and still trying election and criminal cases
notwithstanding said arrangement. Moreover, petitioners
also allege that Capistrano is neither a judge de jure nor
a de facto judge but still continues to hold his office and
therefore acts in excess of his jurisdiction.
ISSUE: W/N Capistrano is still a de facto judge despite
reaching the age limit specified in the Administrative
Code
The Supreme Court in ruling in favor of Capistrano
states that an incumbent officer will hold over even after
the conclusion of his term until the election of a
successor. "The rightful authority of a judge, in the full
exercise of his public judicial function, cannot be
questioned by any merely private suitor, nor by any
other, excepting in the form especially provided by law.
A judge de facto assumes the exercise of a part of the
prerogative of sovereignty, and the legality of that
assumption is open to the attack of the sovereign power
alone. Thus, the acts of Capistrano are still valid and
binding for he is still a de facto judge of the Court of
First Instance of Oriental Negros. The title of a de facto
officer cannot be indirectly questioned in a proceeding to
obtain a writ of prohibition to prevent him from doing an
official act nor in a suit to enjoin the collection of a
judgment rendered by him.
JANDAYAN VS. RUIZ
G.R. No. L-37471 January 28, 1980
FACTS:
On May 10, 1973 petitioner was convicted of Serious
Physical Injuries through Reckless Imprudence by the
Municipal Court of Loay, Bohol and sentenced to suffer
three (3) months of Arrests Mayor. On appeal, the case
was raffled to the CFI of Bohol, Branch 1, presided over
by the Judge Paulino Marquez. On June 26, 1973, an
order was served on petitioner that the promulgation of
the decision would take place on July 6, 1973. On June
27, 1973, Judge Paulino Marquez retired from service.
Upon motion of counsel for petitioner, the promulgation
of decision was postponed from July 6 to July 12.
Finally on July 16, 1973, the decision dated June 22,
1973 as prepared and signed by Judge Marquez was
promulgated by respondent Judge.
20
Petitioner Jandayan was confined in the Bohol
provincial jail on July 16, 1973 when respondent Judge
Fernando S. Ruiz of the court of the First Instance of
Bohol promulgated the sentence in the accordance with a
decision of the then Judge Paulino Marquez, dated June
22, 1973, notwithstanding the undeniable fact that such
Judge had retired by reason of age as far back as June
27, 1973.
ISSUE:
Whether or not a decision rendered by a retired Judge
can still be validly promulgated and acquire a binding
effect.
RULING:
The Court held that a decision of a Judge promulgated
after his retirement could have been set aside based on
the cases such as People v. Court of Appeals and
Jimenez v. Republic, except for their non-applicability in
view of the failure to raise an objection in the lower
court as well as in the Court of Appeals. Likewise, a
judge who had retired had no legal authority to
promulgate a decision.
On the case of Jimenez v. Republic, wherein the case was
heard and tried before Judge Eulogio Mencias, the
decision was prepared and signed by Judge Mencias on
January 16, 1965. On the same date, the clerk of court
issued and served notice on the petitioner to appear in
court on January 21, 1965 for the promulgation of the
sentence. In view that January 21, was declared by the
President a special holiday, the promulgation of the
decision could not be carried out on that day. On January
21, 1965, Judge Eulogio Mencias had reached the age of
70 and was retired on that day from the bench.
Respondent Judge Pedro Navarro was immediately
designated to take the place of Judge Mencias. The
former judge ordered that the sentence be promulgated
on January 29, 1965, but for some reason, it was
postponed to March 1, 1965. Petitioner Jimenez filed a
motion to set aside the decision as well as its
promulgation on the ground of Judge Mencias having
retired. Respondent Judge, however, denied the motion,
necessitating the filing of a petition for certiorari and
prohibition.
People s Garcia
GR 126252
August 30,1993
Facts: Senior Insp. Enmodias and SPO3 Panganiban
boarded a passenger jeepney. Accused JESUS GARCIA
then boarded the jeepney carrying a plastic bag. After a
couple of minutes, the policemen smelled marijuana
which seemed to emanate from accuseds bag. To
confirm their suspicion, they decided to follow accused
when he gets off the jeepney.
The accused proceeded to Rizal Park and sat by the
monument. Half a meter away, the police officers saw
the accused retrieve a green travelling bag from the back
pocket of hispants. He then transferred five (5) packages
wrapped in newspaper from the plastic bag to the green
bag. As the newspaper wrapper of one of the packages
was partially torn, the police officers saw the content of
the package. It appeared to be marijuana. Forthwith, the
policemen approached the accused and identified
themselves. The policemen then asked the accused if
they could inspect his travelling bag. The accused
surrendered his bag and the inspection revealed that it
contained five (5) bricks of what appeared to be dried
marijuana leaves.
The police officers then arrested the accused and seized
his bag. The accused was turned over to the CIS office at
the Baguio Water District Compound for further
investigation. For his part, the accused admitted being at
the locus criminis but denied possessing marijuana or
carrying any bag on November 28, 1994.
In a Decision, dated January 29, 1996, RTC Judge Pastor
de Guzman, Jr. found the accused guilty of illegal
possession of prohibited drugs and sentenced him to
suffer the maximum penalty of death. The decision was
promulgated on February 20, 1996.
On April 12, 1996, Judge de Guzman, Jr. filed an
application for disability retirement. This Court, in its en
banc Resolution, dated June 18, 1996, approved his
application. The effectivity of his retirement was made
retroactive to February 16, 1996.
Appellant impugns his conviction on the ground that the
decision convicting him of the crime charged was not
validly promulgated as the promulgation was made (4)
days after the retirement of the judge who penned the
decision
Issue: Whether or not the decision of Judge De Guzman
was not validly promulgated and therefore void.
21
Ruling: No. Although the effectivity of Judge de
Guzman, Jr.s disability retirement was made retroactive
to February 16, 1996, it cannot be denied that at the time
his subject decision was promulgated on February 20,
1996, he was still the incumbent judge of the RTC,
Branch LX of Baguio City, and has in fact continued to
hold said office and act as judge thereof until his
application for retirement was approved in June 1996.
Thus, as of February 20, 1996 when the decision
convicting appellant was promulgated, Judge de
Guzman, Jr. was actually discharging his duties as a de
facto judge. In fact, as of that time, he has yet to file his
application for disability retirement.
CARROLL H. LAMB, petitioner,
vs.
W.H. PHIPPS, as Auditor for the Philippine
Islands, respondent.
G.R. No. L-7806 July 12, 1912
FACTS:
Petitioner was the superintendent of the Iwahig Penal
Colony until he resigned on Dec. 31, 1911 due to ill
health. Before that he was assigned as provincial
treasurer for Marinduque, Mindoro and Laguna.
Petitioner requested herein respondent who was the
Auditor General for his clearance certificate. The
certificate will show that petitioner was cleared on his
accountability (property and funds under his custody) in
order that petitioner may be allowed to leave the country
without incurring criminal liability. Despite of the records
of the respondent that petitioner has settled his accounts,
respondent still, refuses to issue the certificate because a
certain Fernandez may bring a civil suit against the
government. However the records also show that
Fernandez signed the receipt acknowledging payment
from the government.
There was petition for mandamus, asking the Supreme
Court to compel respondent to issue the certificate was
demmurred to by the auditor because it is a suit against
the government and the petition states no cause of action.
The Supreme Court initially asked the petitioner to amend
his petition but the latter did not do so hence the Supreme
Court decided the case upon the facts petitioners
intended to make.
ISSUE:
Whether Mandamus may issue to compel the respondent
to issue the certificate of clearance of the petitioner?
RULING:
No. Auditors and comptrollers, as accounting officers, are
generally regarded as quasi-judicial officers. They
perform mere ministerial duties only in cases where the
sum due is conclusively fixed by law or pursuant to law.
Except in such cases, the action of the accounting officers
upon claims coming before them for settlement and
certification of balances found by them to be due, is not
merely ministerial but judicial and discretionary.
Mandamus will therefore not issue. The Supreme Court
relied on the case of Decatur vs. Paulding where it was
held the US courts that an Auditor may not be compelled
by mandamus. Also, the Supreme Court held that the
decision of the executive branch is not reviewable by the
courts.
A purely ministerial act is one which an officer or tribunal
performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of legal
authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act
done. A ministerial act is one to which nothing is left to
the discretion of the person who must perform. It is a
simple, definite duty arising under conditions admitted or
proved to exist and imposed by law. It is a precise act,
accurately marked out, enjoined upon particular officers
for a particular purpose.
The following are the powers and duties of the Auditor
General: First, that the Auditor for the Philippine Islands
has exclusive jurisdiction in the first instance to examine,
audit, and settle all accounts pertaining to the revenues
and receipts from whatever source of every governmental
entity within the Philippine Islands. Second, that his
decision or the result of his accounting upon such
revenues and receipts and accounts is final and conclusive
upon all parties unless an appeal is taken within a period
of one year. Third, that the Governor-General of the
Philippine Islands (See sec. 36, Act No. 1792) is not
possessed with power to revoke or alter or modify the
results of accountings made by the Auditor without
reference to the Secretary of War. Fourth, that when an
appeal is taken to the Governor-General and the latter
disapproves of the accounting made by the auditor, he
must at once forward to the Secretary of War for final
action the matter in controversy.
22
ARISTORENAS vs MOLINA
A.M. No. P-94-1030 5 July 1995
Quiason, J.:
FACTS:
The complainants were among the defendants in
a Civil Case. In an order dated December 11, 1991, the
trial court, acting on the motion for execution filed by
the plaintiffs, ordered the issuance of a writ of execution
as to complainants. The writ sought to enforce the
money judgment against complainants in the amount of
P23,600.00. The writ was however returned unsatisfied.
Complainants, then, filed a motion to quash, but was
denied by the trial court.
By virtue of another writ of execution issued by
the trial court, respondent sheriff Molina issued a Notice
of Levy dated November 15, 1993 and subsequently, a
Notice of Auction Sale dated January 18, 1994.
Complainants' alleged that the respondent
endeavored to execute a judgment that is not yet final
and executory; levied on the entire property and not on
the undivided portion pertaining to complainants levied
on property worth more than "millions of pesos" to
satisfy the P23,600.00 money claim; and failed to
properly publish the Notice of Auction Sale.
ISSUE:
Whether or not respondent Sheriff Molina has
the sound discretion to execute such.
HELD:
No. Respondent Molinas role in the execution
of judgments is purely ministerial, the court has no
discretion whether to execute the judgment or not. It is
within the jurisdiction of the courts to correct errors of
their ministerial officers and to control their own
processes. The remedy sought is judicial in nature and
not proper in the instant administrative complaint against
the sherrif.
Espina v. CA (294 SCRA 525)
FACTS:
Petitioner Elmer Espina and private respondent Miguel
Cotiamco were candidates for director of respondent
Leyte IV Electric Cooperative (LEYECO IV),
representing the Baybay South District.
On May 23, 1990, petitioner Elmer Espina filed with the
LEYECO IV District Election Committee (DECOM) a
petition to disqualify private respondent Miguel
Cotiamco on the ground that respondent was not a
bonafide member of the LEYECO IV. The DECOM
endorsed the petition to the National Electrification
Administration.
On May 27, 1990, the election for the position of
director of the LEYECO IV was held. The results of the
election showed that Cotiamco garnered 636 votes
against Espinas 599 votes. Accordingly, private
respondent Cotiamco was proclaimed winner by the
DECOM and sworn in as member of the board on June
6, 1990.
On June 27, 1990, the NEA remanded the petition for
disqualification filed by petitioner Espina to the
DECOM for proper disposition on the ground that the
latter had original jurisdiction over the case.
After hearing, the DECOM rendered a decision on July
28, 1990 disqualifying private respondent Cotiamco.
Consequently, petitioner Espina took his oath and
assumed office.
However, private respondent Cotiamco appealed to the
NEA which on October 1, 1990 reversed the DECOM
and declared private respondent duly elected director of
LEYECO IV. The NEA found that, contrary to
petitioners claim, private respondent Miguel Cotiamco
was a bonafide member of the LEYECO IV.
On October 23, 1990, petitioner Espina in turn filed with
the Court of Appeals a petition for certiorari and
prohibition with an urgent prayer for the issuance of a
temporary restraining order and a writ of preliminary
and permanent injunction.
Private respondent Cotiamco moved to dismiss the
petition on the ground of lack of jurisdiction of the Court
23
of Appeals, failure of petitioner to exhaust administrative
remedies, and lack of merit of the petition.
DEMAFELIX, Faith Jane P.
CHAPTER IV
POWERS AND DUTIES OF PUBLIC OFFICERS
B. MINISTERIAL and DISCRETIONARY
POWERS
2. Discretionary
2-b. ANGCHANGCO V. OMBUDSMAN
[268 SCRA 301]
FACTS:
Petitioner served as a deputy sheriff and later as Sheriff
IV in the Regional Trial Court of Agusan del Norte and
Butuan City. The Department of Labor and Employment,
on August 24, 1989 rendered a decision ordering the
Nasipit Integrated Arrastre and Stevedoring Services Inc.
(NIASSI) to pay its workers the sum of P1,281,065.505.
The decision having attained finality, a writ of execution
was issued directing the Provincial Sheriff of Agusan del
Norte or his deputies to satisfy the same. Petitioner, as
the assigned sheriff and pursuant to the writ of execution
issued, caused the satisfaction of the decision by
garnishing NIASSI's daily collections from its various
clients.
In an attempt to enjoin the further enforcement of the
writ of execution, Atty Tranquilino O. Calo Jr., President
of NIASSI, filed a complaint for prohibition and
damages, in addition o the civil case , Atty. Calo likewise
filed graft, estafa/malversation and misconduct against
the petitioner before the Ombudsman and recommended
its dismissal for lack of merit. meanwhile, several
workers of NIASSI filed letters-complaints with the
office of the Ombudsman-Mindanao alleging, among
other things, that petitioner illegally deducted 25% from
their differential pay.
The Office of the Ombudsman-Mindanao endorsed the
administrative aspect of the complaints. The court in an
En Banc resolution dismissed the case for lack of
interest on the part of the complainants. although the
administrative aspect of the complaint was already
discussed the criminal complaints prompting petitioner
to file several omnibus motions for early resolution.
When Petitioner retired, the criminal complaints still
remained unresolved, as a consequence of which
petitioners request for clearance in order that he may
qualify to receive his retirement benefits, but was
denied. With criminal complaints remaining unresolved
for 6 years petitioner filed a motion to dismiss, however,
it was not acted upon.
ISSUE:
Whether mandamus the proper remedy.
MIN-90-0133, MIN-90-0138, MIN-90-0188, MIN-90-
0189, MIN-90-0190, MIN-90-0191, and MIN-90-0192
are ordered DISMISSED. The Office of the Ombudsman
is further directed to issue the corresponding clearance in
favor of petitioner.
SO ORDERED.

HELD:

Verily, the Office of the Ombudsman in the instant case

has failed to discharge its duty mandated by the
Constitution "to promptly act on complaints filed in any
form or manner against public officials and employees
of the government, or any subdivision, agency or
instrumentality thereof."

Mandamus is employed to compel the performance,

when refused, of a ministerial duty, this being its chief
use and not a discretionary duty. It is nonetheless
likewise available to compel action, when refused, in
matters involving judgment and discretion, but not to
direct the exercise of judgment or discretion in a
particular way or the retraction or reversal of an action
already taken in the exercise of either (Rules of Court in
the Philippines, Volume III by Martin, 4th Edition, page
233).
It is correct, as averred in the comment that in the
performance of an official duty or act involving
discretion, the corresponding official can only be
directed by mandamus to act, but not to act one way or
the other. However, this rule admits of exceptions such
as in cases where there is gross abuse of discretion,
manifest injustice, or palpable excess of authority (Kant
Kwong vs. PCGG, 156 SCRA 222, 232 [1987]).
Here, the Office of the Ombudsman, due to its failure to
resolve the criminal charges against petitioner for more
than six years, has transgressed on the constitutional
right of petitioner to due process and to a speedy
disposition of the cases against him, as well as the
Ombudsman's own constitutional duty to act promptly
on complaints filed before it. For all these past 6 years,
petitioner has remained under a cloud, and since his
retirement in September 1994, he has been deprived of
the fruits of his retirement after serving the government
for over 42 years all because of the inaction of
respondent Ombudsman. If we wait any longer, it may
be too late for petitioner to receive his retirement
benefits, not to speak of clearing his name. This is a case
of plain injustice which calls for the issuance of the writ
prayed for.
WHEREFORE, the Court RESOLVED to give
DUE COURSE to the petition and to GRANT the same.
Ombudsman Cases No. MIN-3-90-0671, MIN-90-0132,

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