Political Law Reviewer Sandoval Notes II

7/21/2019 Political Law Reviewer Sandoval Notes II

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FOUR HUNDRED AND SEVENTY-NINE (479) QUESTIONS AND ANSWERS IN POLITICAL LAWAND PUBLIC INTERNATIONAL LAW

(Culled !"# S$%&$'&* L+, &d De$,$"&, " *e Su.!e#e C"u!*)

A**"!&e/ EDWIN REY SANDOVAL(As of August 25, 2004)

PART II

C0 AD1INISTRATIVE LAW

280. Describe the Administrative Code of 1987.

Held2 The Code is a general law and incorporates in a unied document the maorstructural, functional and procedural principles of go!ernance (Third Whereas Clause, AdministrativeCode of 1987)and em"odies changes in administrati!e structures and procedures designed to ser!ethe people#$ (Fourth Whereas Clause, Administrative Code of 1987) The Code is di!ided into se!en(%) "oo&s# These "oo&s contain pro!isions on the organi'ation, powers and general administration ofdepartments, "ureaus and oces under the eecuti!e "ranch, the organi'ation and functions of theConstitutional Commissions and other constitutional "odies, the rules on the national go!ernment

"udget, as well as guidelines for the eercise "* administrati!e agencies of +uasilegislati!e and+uasiudicial powers# The Code co!ers "oth the internal administration, i.e.,internal organi'ation,personnel and recruitment, super!ision and discipline, and the e-ects of the functions performed "*administrati!e ocials on pri!ate indi!iduals or parties outside go!ernment# (Ople v. Torres !.".#o. 127$8% &'l 2) 1998 *+'no,-

281. hat is Administrative +o/er

Held2 Administrative poweris concerned with the wor& of appl*ing policies and enforcingorders as determined "* proper go!ernmental organs# .t ena"les the /resident to a uniformstandard of administrati!e ecienc* and chec& the ocial conduct of his agents# To this end, he canissue administrati!e orders, rules and regulations# (Ople v. Torres !.". #o. 127$8% &'l 2)1998 *+'no,-

282. hat is an Administrative Order

Held2 An administrative order is an ordinance issued "* the /resident which relates tospecic aspects in the administrati!e operation of go!ernment# .t must "e in harmon* with the lawand should "e for the sole purpose of implementing the law and carr*ing out the legislati!e polic*#(Ople v. Torres !.". #o. 127$8% &'l 2) 1998 *+'no,-

28). hat is the !overnment of the "ep'blic of the +hilippines

A&,02 The overnment of the !epu"li# of the $hilippinesrefers to the corporate go!ernmentalentit* through which the functions of the go!ernment are eercised throughout the /hilippines,including, sa!e as the contrar* appears from the contet, the !arious arms through which politicalauthorit* is made e-ecti!e in the /hilippines, whether pertaining to the autonomous regions, thepro!incial, cit*, municipal or "aranga* su"di!isions or other forms of local go!ernment# (ec. 2*1,ntrod'ctor +rovisions 34ec'tive Order #o. 292-

285. hat is an A6enc of the !overnment

A&,02 A%en#& of the overnment refers to an* of the !arious units of the o!ernment,including a department, "ureau, oce, instrumentalit*, or go!ernmentowned or controlledcorporation, or a local go!ernment or a distinct unit therein# (ec. 2*5, ntrod'ctor +rovisions34ec'tive Order #o. 292-

28%. hat is a Department

A&,02 'epartmentrefers to an eecuti!e department created "* law# 1or purposes of oo&.3, this shall in#lude an* instrumentalit*, as herein dened, ha!ing or assigned the ran& of a

department, regardless of its name or designation# (ec. 2*7, ntrod'ctor +rovisions34ec'tive Order #o. 292-

28$. hat is a 'rea'

A&,02 ureaurefers to an* principal su"di!ision or unit of an* department# 1or purposes ofoo& .3, this shall in#ludean* principal su"di!ision or unit of an* instrumentalit* gi!en or assignedthe ran& of a "ureau, regardless of actual name or designation, as in the case of departmentwideregional oces# (ec. 2*8, ntrod'ctor +rovisions 34ec'tive Order #o. 292-

287. hat is an Oce

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Political Law Reviewer


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A&,02 *#e refers, within the framewor& of go!ernmental organi'ation, to an* maorfunctional unit of a department or "ureau in#ludin% regional oces# .t ma& alsorefer to an* positionheld or occupied "* indi!idual persons, whose functions are dened "* law or regulation# (ec. 2*9,ntrod'ctor +rovisions 34ec'tive Order #o. 292-

288. hat is a !overnment nstr'mentalit hat are incl'ded in the term!overnment nstr'mentalit

A&,02 A %overnment instrumentalit&refers to an* agenc* of the national go!ernment, notintegrated within the department framewor&, !ested with special functions or urisdiction "* law,

endowed with some if not all corporate powers, administering special funds, eno*ing operationalautonom*, usuall* through a charter# The term includes regulator* agencies, chartered institutionsand go!ernmentowned or controlled corporations# (ec. 2*10, ntrod'ctor +rovisions34ec'tive Order #o. 292-

289. hat is a "e6'lator A6enc

A&,02 A re%ulator& a%en#&refers to an* agenc* epressl* !ested with urisdiction to regulate,administer or adudicate matters a-ecting su"stantial rights and interest of pri!ate persons, theprincipal powers of which are eercised "* a collecti!e "od*, such as a commission, "oard or council#(ec. 2*11, ntrod'ctor +rovisions 34ec'tive Order #o. 292-

290. hat is a Chartered nstit'tion

A&,02 A #hartered institutionrefers to an* agenc* organi'ed or operating under a specialcharter, and !ested "* law with functions relating to specic constitutional policies or o"ecti!es# Thisterm includes state uni!ersities and colleges and the monetar* authorit* of the tate# (ection2*12, ntrod'ctor +rovisions 34ec'tive Order #o. 292-

291. hat is a !overnmentO/ned or Controlled Corporation

A&,02 overnment+owned or #ontrolled #orporationrefers to an* agenc* organi'ed as a stoc&or nonstoc& corporation, !ested with functions relating to pu"lic needs whether go!ernmental orproprietar* in nature, and owned "* the o!ernment directl* or through its instrumentalities eitherwholl*, or, where applica"le as in the case of stoc& corporations, to the etent of at least ft*one (5)per cent of its capital stoc&6 (ec. 2*1), ntrod'ctor +rovisions 34ec'tive Order #o.292-

292. hen is a !overnmentO/ned or Controlled Corporation deemed to beperformin6 proprietar f'nction hen is it deemed to be performin66overnmental f'nction

Held2 o!ernmentowned or controlled corporations ma* perform go!ernmental orproprietar* functions or "oth, depending on the purpose for which the* ha!e "een created# .f thepurpose is to o"tain special corporate "enets or earn pecuniar* prot, the function is proprietar*# .fit is in the interest of health, safet* and for the ad!ancement of pu"lic good and welfare, a-ecting thepu"lic in general, the function is go!ernmental# /owers classied as proprietar*$ are those intendedfor pri!ate ad!antage and "enet# (la:'era v. Alcala 29% C"A )$$ 52% ept. 11 1998 3nanc *+'risima,-

29). The +hilippine #ational "ed Cross (+#"C- is a 6overnmento/ned and controlledcorporation /ith an ori6inal charter 'nder ".A. #o. 9% as amended. ts charterho/ever /as amended to vest in it the a'thorit to sec're loans be e4emptedfrom pament of all d'ties ta4es fees and other char6es etc. ith the amendntof its charter has it been ;impliedl converted to a private corporation


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:ith the transfer of Camp :allace to the C?A, the go!ernment no longer has a right orinterest to protect# Conse+uentl*, the 9epu"lic is not a real part* in interest and it ma* not institutethe instant action# 8or ma* it raise the defense of imprescripti"ilit*, the same "eing applica"le onl*in cases where the go!ernment is a part* in interest# # eing the owner of the areas co!ered "*Camp :allace, it is the ases Con!ersion and ?e!elopment Authorit*, not the o!ernment, whichstands to "e "eneted if the land co!ered "* TCT 8o# T5%0 issued in the name of petitioner iscancelled#

8onetheless, it has "een posited that the transfer of militar* reser!ations and their etensions

to the C?A is "asicall* for the purpose of accelerating the sound and "alanced con!ersion of thesemilitar* reser!ations into alternati!e producti!e uses and to enhance the "enets to "e deri!ed fromsuch propert* as a measure of promoting the economic and social de!elopment, particularl* ofCentral


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.t should also "e noted that petitioner is un+uestiona"l* a "u*er in good faith and for !alue,ha!ing ac+uired the propert* in @>=, or 5 *ears after the issuance of the original certicate of title,as a third transferee# .f onl* not to do !iolence and to gi!e some measure of respect to the Torrens*stem, petitioner must "e a-orded some measure of protection# (hipside ncorporated v. Co'rtof Appeals )%2 C"A ))5 ?eb. 20 2001 ) rdDiv. *@elo,-

29%. Disc'ss the nat're and f'nctions of the #ational Telecomm'nications Commission(#TC- and anale its po/ers and a'thorit as /ell as the la/s r'les andre6'lations that 6overn its e4istence and operations.

Held2 The 8TC was created pursuant to Hecuti!e Brder 8o# 54> # .t assumed thefunctions formerl* assigned to the oard of Communications and the Communications Control ureau,which were "oth a"olished under the said Hecuti!e Brder# /re!iousl*, the 8TC;s function weremerel* those of the defunct /u"lic er!ice Commission (/C), created under Commonwealth Act 8o#4>, as amended, otherwise &nown as the /u"lic er!ice Act, considering that the oard ofCommunications was the successorininterest of the /C# Inder Hecuti!e Brder 8o# 25A, issued inApril @F%, the 8TC "ecame an attached agenc* of the ?epartment of Transportation andCommunications#

.n the regulator* communications industr*, the 8TC has the sole authorit* to issue Certicatesof /u"lic Con!enience and 8ecessit* (C/C8) for the installation, operation, and maintenance ofcommunications facilities and ser!ices, radio communications s*stems, telephone and telegraphs*stems# uch power includes the authorit* to determine the areas of operations of applicants for

telecommunications ser!ices# pecicall*, ection > of the /u"lic er!ice Act authori'es the then/C, upon notice and hearing, to issue Certicates of /u"lic Con!enience for the operation of pu"licser!ices within the /hilippines whene!er the Commission nds that the operation of the pu"licser!ice proposed and the authori'ation to do "usiness will promote the pu"lic interests in a properand suita"le manner#$ (Commonwealth A#t /o. 10, 2e#tion 13a4) The procedure go!erning theissuance of such authori'ations is set forth in ection 2@ of the said Act # ("ep'blic v. 34pressTelecomm'nication Co. nc. )7) C"A )1$ &an. 1% 2002 1stDiv. *Bnaresantia6o,-

29$. s the lin6 of the administrative r'les and re6'lations /ith the + =a/ Centerthe operative act that 6ives the r'les force and eEect

Held2 .n granting a*antel the pro!isional authorit* to operate a CGT, the 8TC applied 9ule5, ection = of its @%F 9ules of /ractice and /rocedure, which pro!idesD

ec# =# $rovisional !elief# J Ipon the ling of an application, complaint or petition or atan* stage thereafter, the oard ma* grant on motion of the pleader or on its own initiative,the relief pra*ed for, "ased on the pleading, together with the ada!its and supportingdocuments attached thereto, without preudice to a nal decision after completion of thehearing which shall "e called within thirt* (=0) da*s from grant of authorit* as&ed for#

9espondent Htelcom, howe!er, contends that the 8TC should ha!e applied the 9e!ised 9uleswhich were led with the Bce of the 8ational Administrati!e 9egister on 1e"ruar* =, @@=# These9e!ised 9ules deleted the phrase on its own initiati!e$6 accordingl*, a pro!isional authorit* ma* "eissued onl* upon ling of the proper motion "efore the Commission#

.n answer to this argument, the 8TC, through the ecretar* of the Commission, issued acertication to the e-ect that inasmuch as the @@= 9e!ised 9ules ha!e not "een pu"lished in anewspaper of general circulation, the 8TC has "een appl*ing the @%F 9ules#

The a"sence of pu"lication, coupled with the certication "* the Commissioner of the 8TCstating that the 8TC was still go!erned "* the @F% 9ules, clearl* indicate that the @@= 9e!ised9ules ha!e not ta&en e-ect at the time of the grant of the pro!isional authorit* to a*antel# The factthat the @@= 9e!ised 9ules were led with the I/


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This does not impl*, howe!er, that the su"ect Administrati!e Brder is a !alid eerciseof such +uasilegislati!e power# The original Administrati!e Brder issued on August =0, @F@,under which the respondents led their applications for importations, was not pu"lished in theBcial a'ette or in a newspaper of general circulation# The +uestioned Administrati!e Brder,legall*, until it is pu"lished, is in!alid within the contet of Article 2 of Ci!il Code, which readsD

Article 2# 2C!A 170).

ence, the @@= 9e!ised 9ules should "e pu"lished in the Bcial a'ette or in a newspaper ofgeneral circulation "efore it can ta&e e-ect# H!en the @@= 9e!ised 9ules itself mandates that said9ules shall ta&e e-ect onl* after their pu"lication in a newspaper of general circulation (2e#tion thereof)# .n the a"sence of such pu"lication, therefore, it is the @%F 9ules that go!ern# ("ep'blic v.

34press Telecomm'nication Co. nc. )7) C"A )1$ &an. 1% 2002 1

st

Div. *Bnaresantia6o,-

297. @a a person be held liable for violation of an administrative re6'lation /hich/as not p'blished

Held2 /etitioner insists, howe!er, that it cannot "e held lia"le for illegal eaction as /BHAGemorandum Circular 8o# .., eries of @F=, which enumerated the allowa"le fees which ma* "ecollected from applicants, is !oid for lac& of pu"lication#

There is merit in the argument#

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.n Tanada v. Tuvera, the Court held, as followsD

:e hold therefore that all statutes, including those of local application and pri!atelaws, shall "e pu"lished as a condition for their e-ecti!it*, which shall "egin fteen da*s afterpu"lication unless a di-erent e-ecti!it* date is ed "* the legislature#

Co!ered "* this rule are presidential decrees and eecuti!e orders promulgated "* the/resident in the eercise of legislati!e powers whene!er the same are !alidl* delegated "* thelegislature or, at present, directl* conferred "* the Constitution# Administrati!e rules and regulationsmust also "e pu"lished if their purpose is to enforce or implement eisting law pursuant to a !alid

delegation#

.nterpretati!e regulations and those merel* internal in nature, that is, regulating onl*the personnel of the administrati!e agenc* and the pu"lic, need not "e pu"lished# 8either ispu"lication re+uired of the socalled letter of instructions issued "* the administrati!e superiorsconcerning the rules or guidelines to "e followed "* their su"ordinates in the performance of theirduties#$

Appl*ing this doctrine, we ha!e pre!iousl* declared as ha!ing no force and e-ect the followingadministrati!e issuancesD a) 9ules and 9egulations issued "* the Eoint Ginistr* of ealthGinistr* of


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re+uirement, namel* those dealing with instructions from an administrati!e superior to a su"ordinateregarding the performance of their duties, a circumstance which does not o"tain in the case at "ench#

To summari'e, petitioner should "e a"sol!ed from the three (=) counts of eaction as /BHAAdministrati!e Circular 8o# 2, eries of @F= could not "e the "asis of administrati!e sanctions againstpetitioner for lac& of pu"lication# (+hilsa nternational +lacement and ervices Corporation v.ecretar of =abor and 3mploment )%$ C"A 175 April 5 2001 )rd Div. *!ona6a"ees,-

299. @a a s'ccessf'l bidder compel a 6overnment a6enc to formalie a contract/ith it not/ithstandin6 that its bid e4ceeds the amo'nt appropriated bCon6ress for the proFect

Held2 Hnshrined in the @F% /hilippine Constitution is the mandate that no mone* shall "epaid out of the Treasur* ecept in pursuance of an appropriation made "* law#$ (ec# 2@LM, Article 3.of the @F% Constitution) Thus, in the eecution of go!ernment contracts, the precise import of thisconstitutional restriction is to re+uire the !arious agencies to limit their ependitures within theappropriations made "* law for each scal *ear#

.t is +uite e!ident from the tenor of the language of the law that the eistence of

appropriations and the a!aila"ilit* of funds are indispensa"le prere+uisites to or conditions sine uanon for the eecution of go!ernment contracts# The o"!ious intent is to impose such conditions as apriori re+uisites to the !alidit* of the proposed contract. Ising this as our premise, we cannot accedeto /BTBK.8A;s contention that there is alread* a perfected contract# :hile we held in -etropolitan-anila 'evelopment Authorit& v. an#om nvironmental Corporation that the e-ect of an un+ualiedacceptance of the o-er or proposal of the "idder is to perfect a contract, upon notice of the award tothe "idder,$ howe!er, such statement would "e inconse+uential in a go!ernment where theacceptance referred to is *et to meet certain conditions# To hold otherwise is to allow a pu"lic ocerto eecute a "inding contract that would o"ligate the go!ernment in an amount in ecess of theappropriations for the purpose for which the contract was attempted to "e made. This is a dangerousprecedent#

.n the case at "ar, there seems to "e an o!ersight of the legal re+uirements as earl* as the"idding stage# The rst step of a ids and Awards Committee (AC) is to determine whether the "ids

compl* with the re+uirements# The AC shall rate a "id passed$ onl* if it complies with all there+uirements and the su"mitted price does not eceed the appro!ed "udget for the contract#$(mplementin% !ules and !e%ulations 3!!4 for ?e#utive rder /o. , supra.)

Htant on the record is the fact that the 39. /roect was awarded to /BTBK.8A on accountof its "id in the amount of />#5FF illion /esos# owe!er, under 9epu"lic Act 8o# F%>0 (eneralAppropriations A#t, F@ , p. 118, supra.), the onl* fund appropriated for the proect was / illion/esos and under the Certication of A!aila"le 1unds (CA1) onl* /#2 illion /esos was a!aila"le#Clearl*, the amount appropriated is insucient to co!er the cost of the entire 39. /roect# There isno wa* that the CBGH


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funds# ?enitel*, to act otherwise would "e a futile eercise for the contract would ine!ita"l* su-erthe !ice of nullit*#

3eril*, the contract, as epressl* declared "* law, is ineistent and !oid a" initio (Arti#le 109of the Civil Code of the $hilippines). This is to sa* that the proposed contract is without force ande-ect from the !er* "eginning or from its incipienc*, as if it had ne!er "een entered into, and hence,cannot "e !alidated either "* lapse of time or ratication#

.n ne, we rule that /BTBK.8A, though the winning "idder, cannot compel the CBGH


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restraining order or writ of inunction for, if that were the intention, the Constitution wouldha!e epressl* said so# NEurisdiction is conferred onl* "* the Constitution or "* law#; .t is ne!erderi!ed "* implication#$

H!identl*, the Npre!enti!e measures and legal aid ser!ices; mentioned in theConstitution refer to etraudicial and udicial remedies (including a writ of preliminar*inunction) which the C9 ma* see& from the proper courts on "ehalf of the !ictims of humanrights !iolations# 8ot "eing a court of ustice, the C9 itself has no urisdiction to issue thewrit, for a writ of preliminar* inunction ma* onl* "e issued N"* the udge of an* court in whichthe action is pending Lwithin his districtM, or "* a Eustice of the Court of Appeals, or of the

upreme Court# # A writ of preliminar* inunction is an ancillar* remed*# .t is a!aila"leonl* in a pending principal action, for the preser!ation or protection of the rights and interestof a part* thereto, and for no other purpose#$

The Commission does ha!e legal standing to indorse, for appropriate action, its ndings andrecommendations to an* appropriate agenc* of go!ernment. (imon &r. v. Commission onH'man "i6hts 229 C"A 117 1)51)% &an. % 1995 3n anc *Iit'6 &.,-

)0). Does the petition for ann'lment of proclamation of a candidate merel involvethe e4ercise b the CO@3=3C of its administrative po/er to revie/ revise andreverse the actions of the board of canvassers and therefore F'sties nonobservance of proced'ral d'e process or does it involve the e4ercise of theCO@3=3CJs :'asiF'dicial f'nction

Held2 Ta&ing cogni'ance of pri!ate respondentOs petitions for annulment of petitionerOsproclamation, CBGH


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.n cases where the doctrine of primar* urisdiction is clearl* applica"le, the court cannotarrogate unto itself the authorit* to resol!e a contro!ers*, the urisdiction o!er which is lodged withan administrati!e "od* of special competence# (IillaKor v. CA 280 C"A 297 Oct. 9 1992 )rd

Div. *+an6aniban,-

)0$. Disc'ss the Doctrine of 34ha'stion of Administrative "emedies. hat are thee4ceptions thereto.

Held2 # efore a part* is allowed to see& the inter!ention of the court, it is a preconditionthat he should ha!e a!ailed of all the means of administrati!e processes a-orded him# ence, if a

remed* within the administrati!e machiner* can still "e resorted to "* gi!ing the administrati!eocer concerned e!er* opportunit* to decide on a matter that comes within his urisdiction then suchremed* should "e ehausted rst "efore the court;s udicial power can "e sought# The prematurein!ocation of court;s urisdiction is fatal to one;s cause of action# Accordingl*, a"sent an* nding ofwai!er or estoppel the case is suscepti"le of dismissal for lac& of cause of action# This doctrine ofehaustion of administrati!e remedies was not without its practical and legal reasons, for one thing,a!ailment of administrati!e remed* entails lesser epenses and pro!ides for a speedier disposition ofcontro!ersies# .t is no less true to state that the courts of ustice for reasons of comit* andcon!enience will sh* awa* from a dispute until the s*stem of administrati!e redress has "eencompleted and complied with so as to gi!e the administrati!e agenc* concerned e!er* opportunit* tocorrect its error and to dispose of the case#

This doctrine is disregardedD

when there is a !iolation of due process6

when the issue in!ol!ed is purel* a legal +uestion6when the administrati!e action is patentl* illegal amounting to lac& or ecess of urisdiction6when there is estoppel on the part of the administrati!e agenc* concerned6when there is irrepara"le inur*6when the respondent is a department secretar* whose acts as an alter e%oof the /resident

"ears the implied and assumed appro!al of the latter6when to re+uire ehaustion of administrati!e remedies would "e unreasona"le6when it would amount to a nullication of a claim6when the su"ect matter is a pri!ate land in land case proceeding6when the rule does not pro!ide a plain, speed* and ade+uate remed*, andwhen there are circumstances indicating the urgenc* of udicial inter!ention#

(+aat v. CA 2$$ C"A 1$7 *1997,-

2# 8onehaustion of administrati!e remedies is not urisdictional# .t onl* renders the action

premature, i.e., claimed cause of action is not ripe for udicial determination and for that reason apart* has no cause of action to !entilate in court# (Carale v. Abarintos 2$9 C"A 1)2 @arch )1997 )rdDiv. *Davide,-

D0 THE LAW OF PUBLIC OFFICERS

)07. Dene Appointment. Disc'ss its nat're.

Held2 An appointment$ to a pu"lic oce is the une+ui!ocal act of designating or selecting"* one ha!ing the authorit* therefor of an indi!idual to discharge and perform the duties andfunctions of an oce or trust# The appointment is deemed complete once the last act re+uired of theappointing authorit* has "een complied with and its acceptance thereafter "* the appointee in orderto render it e-ecti!e# Appointment necessaril* calls for an eercise of discretion on the part of theappointing authorit*# .n $amantasan n% ;un%sod n% -a&nila v. ntermediate Appellate Court,reiterated in Flores v. 'rilon, this Court has heldD

The power to appoint is, in essence, discretionar*# The appointing power has the rightof choice which he ma* eercise freel* according to his udgment, deciding for himself who is"est +ualied among those who ha!e the necessar* +ualications and eligi"ilities# .t is aprerogati!e of the appointing power #$

.ndeed, it ma* rightl* "e said that the right of choice is the heart of the power to appoint# .n theeercise of the power of appointment, discretion is an integral thereof# (erm'de v. Torres )11C"A 7)) A'6. 5 1999 )rdDiv. *Iit'6,-

)08. @a the Civil ervice Commission or the 'preme Co'rt validl n'llif an

appointment on the 6ro'nd that somebod else is better :'alied

Held2 The head of an agenc* who is the appointing power is the one most &nowledgea"le todecide who can "est perform the functions of the oce# Appointment is an essentiall* discretionar*power and must "e performed "* the ocer !ested with such power according to his "est lights, theonl* condition "eing that the appointee should possess the +ualications re+uired "* law# .f he does,then the appointment cannot "e faulted on the ground that there are others "etter +ualied whoshould ha!e "een preferred# .ndeed, this is a prerogati!e of the appointing authorit* which he alonecan decide# The choice of an appointee from among those who possess the re+uired +ualications isa political and administrati!e decision calling for considerations of wisdom, con!enience, utilit* andthe interests of the ser!ice which can "est "e made "* the head of the oce concerned, the person

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most familiar with the organi'ational structure and en!ironmental circumstances within which theappointee must function#

As long as the appointee is +ualied the Ci!il er!ice Commission has no choice "ut to attestto and respect the appointment e!en if it "e pro!ed that there are others with superior credentials#The law limits the Commission;s authorit* onl* to whether or not the appointees possess the legal+ualications and the appropriate ci!il ser!ice eligi"ilit*, nothing else# .f the* do then theappointments are appro!ed "ecause the Commission cannot eceed its power "* su"stituting its willfor that of the appointing authorit*. 8either can we# ("imonte v. CC 255 C"A %05%0% @a29 199% 3n anc *ellosillo &.,-

)09. Does the ;ne4tinran>< r'le import an mandator or peremptor re:'irementthat the person ne4tinran> m'st be appointed to the vacanc

Held2 The netinran& rule is not a"solute6 it onl* applies in cases of promotion, a processwhich denotes a scalar ascent of an ocer to another position higher either in ran& or salar*# Ande!en in promotions, it can "e disregarded for sound reasons made &nown to the netinran&, as theconcept does not import an* mandator* or peremptor* re+uirement that the person netinran& must"e appointed to the !acanc*# The appointing authorit*, under the Ci!il er!ice


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/ri!ate respondent capitali'es on his lac& of CH eligi"ilit* "* adamantl* contending that themo"ilit* and Qei"ilit* concepts in the assignment of personnels under the Career Hecuti!e er!icedo not appl* to him "ecause he s not a Career Hecuti!e er!ice Bcer# B"!iousl*, the contention iswithout merit# As correctl* pointed out "* the olicitor eneral, noneligi"les holding permanentappointments to CH positions were ne!er meant to remain immo"ile in their status# Btherwise, theirlac& of eligi"ilit* would "e a premium !esting them with permanenc* in the CH positions, a pri!ilegee!en their eligi"le counterparts do not eno*#

Then too, the cases on unconsented transfer in!o&ed "* pri!ate respondent nd no applicationin the present case# To reiterate, pri!ate respondent;s appointment is merel* temporar*6 hence, he

could "e transferred or reassigned to other positions without !iolating his right to securit* of tenure#(De =eon v. Co'rt of Appeals )%0 C"A 1 &an. 22 2001 3n anc *Bnaresantia6o,-

)11. n the career e4ec'tive service is a career e4ec'tive service (C3- eli6ibilit allthat an emploee needs to ac:'ire sec'rit of ten're s appointment to a C3ran> necessar for the ac:'isition of s'ch sec'rit of ten're

Held2 .n the career eecuti!e ser!ice, the ac+uisition of securit* of tenure which presupposes

a permanent appointment is go!erned "* the rules and regulations promulgated "* the CH oard #

As clearl* set forth in the foregoing pro!isions, two re+uisites must concur in order that anemplo*ee in the career eecuti!e ser!ice ma* attain securit* of tenure, to witD

CH eligi"ilit*6 andAppointment to the appropriate CH ran

.n addition, it must "e stressed that the securit* of tenure of emplo*ees in the careereecuti!e ser!ice (ecept rst and second le!el emplo*ees in the ci!il ser!ice), pertains onl* to ran&and not to the oce or to the position to which the* ma* "e appointed# Thus, a career eecuti!eser!ice ocer ma* "e transferred or reassigned from one position to another without losing his ran&which follows him where!er he is transferred or reassigned# .n fact, a CHB su-ers no diminution ofsalar* e!en if assigned to a CH position with lower salar* grade, as he is compensated according tohis CH ran& and not on the "asis of the position or oce he occupies#

.n the case at "ar, there is no +uestion that respondent 9amon # 9oco, though a CH eligi"le,does not possess the appropriate CH ran&, which is J CH ran& le!el 3, for the position of 9egional?irector of the . I 3.O. #o. 292-.

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)1). hat is a primaril condential position hat is the test to determine /hethera position is primaril condential or not

Held2 A primaril& #ondential position is one which denotes not onl* condence in theaptitude of the appointee for the duties of the oce "ut primaril* close intimac* which ensuresfreedom from intercourse without em"arrassment or freedom from misgi!ings or "etra*als of personaltrust or condential matters of state# (De los antos v. @allare 87 +hil. 289 *19%0,-

Inder the pro?imit& rule, the occupant of a particular position could "e considered acondential emplo*ee if the predominant reason wh* he was chosen "* the appointing authorit* was

the latter;s "elief that he can share a close intimate relationship with the occupant which ensuresfreedom of discussion without fear or em"arrassment or misgi!ings of possi"le "etra*al of personaltrust or condential matters of state# :ithal, where the position occupied is more remote from that ofthe appointing authorit*, the element of trust "etween them is no longer predominant# (CC v.alas 275 C"A 515 &'ne 19 1997-

)15. Does the Civil ervice =a/ contemplate a revie/ of decisions e4oneratin6 ocersor emploees from administrative char6es

Held2 * this ruling, we now epressl* a"andon and o!errule etant urisprudence that thephrase Npart* ad!ersel* a-ected "* the decision; refers to the go!ernment emplo*ee against whomthe administrati!e case is led for the purpose of disciplinar* action which ma* ta&e the form ofsuspension, demotion in ran& or salar*, transfer, remo!al or dismissal from oce$ and not includedare cases where the penalt* imposed is suspension for not more than thirt* (=0) da*s or ne in an

amount not eceeding thirt* da*s salar*$ ($aredes v. Civil 2ervi#e Commission, 19 2C!A 80, 8>) orwhen respondent is eonerated of the charges, there is no occasion for appeal#$ (-endeG v. Civil2ervi#e Commission, 0 2C!A 9>, 98) .n other words, we o!errule prior decisions holding that theCi!il er!ice )H -a%pale v. Civil 2ervi#e Commission (1> 2C!A =98)H/avarro v. Civil 2ervi#e Commission and ?port $ro#essin% Eone Authorit& ( 2C!A 7) and morerecentl* 'el Castillo v. Civil 2ervi#e Commission (=7 2C!A 180). (CC v. +edro O. Dacoco !.".#o. 1)%80% April 29 1999 3n anc *+ardo,-

)1%. hat is preventive s'spension Disc'ss its nat're.

Held2 .mposed during the pendenc* of an administrati!e in!estigation, pre!enti!esuspension is not a penalt* in itself# .t is merel* a measure of precaution so that the emplo*ee who is

charged ma* "e separated, for o"!ious reasons, from the scene of his alleged misfeasance while thesame is "eing in!estigated# Thus pre!enti!e suspension is distinct from the administrati!e penalt* ofremo!al from oce such as the one mentioned in ec# F(d) of /#?# 8o# F0%# :hile the former ma* "eimposed on a respondent during the in!estigation of the charges against him, the latter is the penalt*which ma* onl* "e meted upon him at the termination of the in!estigation or the nal disposition ofthe case# (eFa r. v. CA 207 C"A $89 @arch )1 1992 *"omero,-

)1$. Disc'ss the >inds of preventive s'spension 'nder the Civil ervice =a/. henma a civil service emploee placed 'nder preventive s'spension be entitled tocompensation

Held2 There are two &inds of pre!enti!e suspension of ci!il ser!ice emplo*ees who arecharged with o-enses punisha"le "* remo!al or suspensionD () pre!enti!e suspension pendin%investi%ation(2e#. >1, Civil 2ervi#e ;aw, /o. 9) and (2) pre!enti!e suspensionpendin% appealifthe penalt* imposed "* the disciplining authorit* is suspension or dismissal and, after re!iew, therespondent is eonerated (2e#tion 07, par. 0, Civil 2ervi#e ;aw, /o. 9).

/re!enti!e suspension pendin% investi%ation is not a penalt*# .t is a measure intended toena"le the disciplining authorit* to in!estigate charges against respondent "* pre!enting the latterfrom intimidating or in an* wa* inQuencing witnesses against him# .f the in!estigation is not nishedand a decision is not rendered within that period, the suspension will "e lifted and the respondent willautomaticall* "e reinstated# .f after in!estigation respondent is found innocent of the charges and iseonerated, he should "e reinstated# owe!er, no compensation was due for the period of pre!enti!esuspension pending in!estigation# The Ci!il er!ice Act of @5@ (!.A. /o. ) pro!iding forcompensation in such a case once the respondent was eonerated was re!ised in @%5 and thepro!ision on the pa*ment of salaries during suspension was deleted#

ut although it is held that emplo*ees who are pre!enti!el* suspended pendin% investi%ationare not entitled to the pa*ment of their salaries e!en if the* are eonerated, the* are entitled tocompensation for the period of their suspensionpendin% appealif e!entuall* the* are found innocent#

/re!enti!e suspension pendin% investi%ation is not a penalt* "ut onl* a means ofena"ling the disciplining authorit* to conduct an unhampered in!estigation# Bn the other hand,pre!enti!e suspension pendin% appeal is actuall* puniti!e although it is in e-ect su"se+uentl*considered illegal if respondent is eonerated and the administrati!e decision nding him guilt* isre!ersed# ence, he should "e reinstated with full pa* for the period of the suspension# (!loria v.CA !.". #o. 1)1012 April 21 1999 3n anc *@endoa,-

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)17. Disc'ss the po/er of Omb'dsman to cond'ct administrative investi6ations andto impose preventive s'spension.

Held2 :orth stressing, to resol!e the present contro!ers*, we must recall that the authorit*of the Bm"udsman to conduct administrati!e in!estigations is mandated "* no less than theConstitution#

9#A# >%%0, the Bm"udsman %%0#

owe!er, the +uestion of whether or not the Bm"udsman ma* conduct an in!estigation o!er aparticular act or omission is di-erent from the +uestion of whether or not petitioner, afterin!estigation, ma* "e held administrati!el* lia"le# This distinction ought here to "e &ept in mind e!enas we must also ta&e note that the power to in!estigate is distinct from the power to suspendpre!enti!el* an erring pu"lic ocer#


15/79

imposed after the issues are oined, and onl* for a maimum period of sit* da*s# ere, petitionerwas suspended without ha!ing had the chance to refute rst the charges against him, and for themaimum period of si months pro!ided "* the Bm"udsman s 'nder the Constit'tion

Held2 The petition assails the authorit* of the andigan"a*an to decree a ninet*da*pre!enti!e suspension of Gme# Giriam ?efensorantiago, a enator of the 9epu"lic of the /hilippines,

from an* go!ernment position, and furnishing a cop* thereof to the enate of the /hilippines for theimplementation of the suspension order#

The authorit* of the andigan"a*an to order the pre!enti!e suspension of an incum"entpu"lic ocial charged with !iolation of the pro!isions of 9epu"lic Act 8o# =0@ has "oth legal andurisprudential support#

.n the relati!el* recent case of 2e%ovia v. 2andi%an"a&an, the Court reiteratedD

The !alidit* of ection =, 9#A# =0@, as amended J treating of the suspensionpendente liteof an accused pu"lic ocer J ma* no longer "e put at issue, ha!ing "eenrepeatedl* upheld "* this Court#

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16/79

The pro!ision of suspensionpendente liteapplies to all persons indicted upon a !alidinformation under the Act, whether the* "e appointi!e or electi!e ocials6 or permanent ortemporar* emplo*ees, or pertaining to the career or noncareer ser!ice#$ (At pp# ==>==%)

.t would appear, indeed, to "e a ministerial dut* of the court to issue an order of suspensionupon determination of the !alidit* of the information led "efore it# Bnce the information is found to"e sucient in form and su"stance, the court is "ound to issue an order of suspension as a matter of

course, and there seems to "e no ifs and "uts a"out it#$ Hplaining the nature of the pre!enti!esuspension, the Court in the case of a&ot v. 2andi%an"a&anD

.t is not a penalt* "ecause it is not imposed as a result of udicial proceedings#.n fact, if ac+uitted, the ocial concerned shall "e entitled to reinstatement and to the salariesand "enets which he failed to recei!e during suspension#$

.n issuing the pre!enti!e suspension of petitioner, the andigan"a*an merel* adhered to theclear and une+ui!ocal mandate of the law, as well as the urisprudence in which the Court has, morethan once, upheld andigan"a*an;s authorit* to decree the suspension of pu"lic ocials andemplo*ees indicted "efore it#

ection = of 9epu"lic Act 8o# =0@ does not state that the pu"lic ocer concerned must "esuspended onl* in the oce where he is alleged to ha!e committed the acts with which he has "een

charged# Thus, it has "een held that the use of the word o*#eD would indi#ate that it applies to an&o*#e whi#h the o*#er #har%ed ma& "e holdin%, and not onl& the parti#ular o*#e under whi#h hestands a##used. (a&ot v. 2andi%an"a&an, supraH 2e%ovia v. 2andi%an"a&an, supra.)

n passant, while the imposition of suspension is not automatic or selfoperati!e as the!alidit* of the information must "e determined in a presuspension hearing, there is no hard and fastrule as to the conduct thereof# .t has "een said that J

N 8o specic rules need "e laid down for such presuspension hearing# uce itto state that the accused should "e gi!en a fair and ade+uate opportunit* to challenge the 3A


17/79

The order of suspension prescri"ed "* 9epu"lic Act 8o# =0@ is distinct from the power ofCongress to discipline its own ran&s under the Constitution which pro!ides that each J

house ma* determine the rules of its proceedings, punish its Gem"ers fordisorderl* "eha!ior, and, with the concurrence of twothirds of all its Gem"ers, suspend or epel aGem"er# A penalt* of suspension, when imposed, shall not eceed sit* da*s#$ (ection >L=M, Article3., @F% Constitution)

The suspension contemplated in the a"o!e constitutional pro!ision is a puniti!e measure that

is imposed upon determination "* the enate or the ouse of 9epresentati!es, as the case ma* "e,upon an erring mem"er# Thus, in its resolution in the case of Ceferino $aredes, r. v. 2andi%an"a&an,et al., the Court armed the order of suspension of Congressman /aredes "* the andigan"a*an,despite his protestations on the encroachment "* the court on the prerogati!es of Congress# TheCourt ruledD

/etitioner;s in!ocation of ection > (=), Article 3. of the Constitution J whichdeals with the power of each ouse of Congress inter alia to Npunish its Gem"ers for disorderl*"eha!ior,; and Nsuspend or epel a Gem"er; "* a !ote of twothirds of all its Gem"ers su"ect to the+ualication that the penalt* of suspension, when imposed, should not eceed sit* da*s J inuna!ailing, as it appears to "e +uite distinct from the suspension spo&en of in ection = of 9A =0@,which is not a penalt* "ut a preliminar*, pre!enti!e measure, prescinding from the fact that the latteris not "eing imposed on petitioner for mis"eha!ior as a Gem"er of the ouse of 9epresentati!es#$

The doctrine of separation of powers "* itself ma* not "e deemed to ha!e e-ecti!el* ecluded

Gem"ers of Congress from 9epu"lic Act 8o# =0@ nor from its sanctions# The maim simpl*recogni'es each of the three coe+ual and independent, al"eit coordinate, "ranches of thego!ernment J the


18/79

)2). Does the prohibition in ection 1) Article I of the 1987 Constit'tion insofar asCabinet members their dep'ties or assistants are concerned admit of the broade4ceptions made for appointive ocials in 6eneral 'nder ection 7 par. (2-

Article L

Held2 The threshold +uestion therefore isD does the prohi"ition in ection =, Article 3.. of the@F% Constitution insofar as Ca"inet mem"ers, their deputies or assistants are concerned admit ofthe "road eceptions made for appointi!e ocials in general under ection %, par# (2), Article .which, for eas* reference is +uoted anew, thusD Inless otherwise allowed "* law or "* the primar*functions of his position, no appointi!e ocial shall hold an* other oce or emplo*ment in the

go!ernment or an* su"di!ision, agenc* or instrumentalit* thereof, including go!ernmentowned orcontrolled corporation or their su"sidiaries#$

:e rule in the negati!e#

The practice of designating mem"ers of the Ca"inet, their deputies and assistants asmem"ers of the go!erning "odies or "oards of !arious go!ernment agencies and instrumentalities,including go!ernmentowned and controlled corporations, "ecame pre!alent during the timelegislati!e powers in this countr* were eercised "* former /resident 1erdinand H# Garcos pursuant tohis martial law authorit*# There was a proliferation of newl*created agencies, instrumentalities andgo!ernmentowned and controlled corporations created "* presidential decrees and other modes ofpresidential issuances where Ca"inet mem"ers, their deputies or assistants were designated to head

or sit as mem"ers of the "oard with the corresponding salaries, emoluments, per diems, allowancesand other per+uisites of oce#

This practice of holding multiple oces or positions in the go!ernment soon led to a"uses "*unscrupulous pu"lic ocials who too& ad!antage of this scheme for purposes of selfenrichment#

/articularl* odious and re!olting to the people;s sense of propriet* and moralit* in go!ernmentser!ice were the data contained therein that 9o"erto !# Bngpin was a mem"er of the go!erning"oards of twent*nine (2@) go!ernmental agencies, instrumentalities and corporations6 .melda 9#Garcos of twent*three (2=)6 Cesar H#A# 3irata of twent*two (22)6 Arturo 9# Tanco, Er# of fteen (5)6Eesus # ipolito and eronimo S# 3elasco, of fourteen each (4)6 Cesar C# Salamea of thirteen (=)69u"en # Ancheta and Eose A# 9ono of twel!e (2) each6 Ganuel /# Al"a, il"erto B# Teodoro, andHdgardo Tordesillas of ele!en () each6 and Constitutional Commission, con!ened as it was after the peoplesuccessfull* unseated former /resident Garcos, should draft into its proposed Constitution thepro!isions under consideration which are en!isioned to remed*, if not correct, the e!ils that Qow fromthe holding of multiple go!ernmental oces and emplo*ment#

ut what is indeed signicant is the fact that although ection %, Article . alread* containsa "lan&et prohi"ition against the holding of multiple oces or emplo*ment in the go!ernmentsu"suming "oth electi!e and appointi!e pu"lic ocials, the Constitutional Commission should see itt to formulate another pro!ision, ec# =, Article 3.., specicall* prohi"iting the /resident, 3ice/resident, mem"ers of the Ca"inet, their deputies and assistants from holding an* other oce oremplo*ment during their tenure, unless otherwise pro!ided in the Constitution itself#

H!identl*, from this mo!e as well as in the di-erent phraseologies of the constitutionalpro!isions in +uestion, the intent of the framers of the Constitution was to impose a stricterprohi"ition on the /resident and his ocial famil* in so far as holding other oces or emplo*ment inthe go!ernment or elsewhere is concerned#

Goreo!er, such intent is underscored "* a comparison of ection =, Article 3.. with otherpro!isions of the Constitution on the dis+ualications of certain pu"lic ocials or emplo*ees fromholding other oces or emplo*ment# Inder ection =, Article 3., L8Mo enator or Gem"er of theouse of 9epresentati!es ma* hold an* other oce or emplo*ment in the overnment ? ? ?.D Indersection 5(4), Article 3., L8Mo mem"er of the armed forces in the acti!e ser!ice shall, at an* time, "eappointed in an* capacit* to a ci!ilian position in the overnment, including go!ernmentowned orcontrolled corporations or an* of their su"sidiaries#$ H!en ection %(2), Article ., relied upon "*

respondents pro!ides LIMnless otherwise allowed "* law or "* the primar* functions of his position,no appointi!e ocial shall hold an* other oce or emplo*ment in the overnment.D

.t is +uite nota"le that in all these pro!isions on dis+ualications to hold other oce oremplo*ment, the prohi"ition pertains to an oce or emplo*ment in the %overnment and go!ernmentowned or controlled corporations or their su"sidiaries# .n stri&ing contrast is the wording of ection=, Article 3.. which states that LTMhe /resident, 3ice/resident, the Gem"ers of the Ca"inet, andtheir deputies or assistants shall not, unless otherwise pro!ided in this Constitution, hold an* otheroce or emplo*ment during their tenure#$ .n the latter pro!ision, the dis+ualication is a"solute, not"eing +ualied "* the phrase in the o!ernment#$ The prohi"ition imposed on the /resident and hisocial famil* is therefore allem"racing and co!ers "oth pu"lic and pri!ate oce or emplo*ment#

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oing further into ection =, Article 3.., the second sentence pro!idesD The* shall not, duringsaid tenure, directl* or indirectl*, practice an* other profession, participate in an* "usiness, or "enanciall* interested in an* contract with, or in an* franchise, or special pri!ilege granted "* theo!ernment or an* su"di!ision, agenc* or instrumentalit* thereof, including go!ernmentowned orcontrolled corporations or their su"sidiaries#$ These sweeping, allem"racing prohi"itions imposed onthe /resident and his ocial famil*, which prohi"itions are not similarl* imposed on other pu"licocials or emplo*ees such as the Gem"ers of Congress, mem"ers of the ci!il ser!ice in general andmem"ers of the armed forces, are proof of the intent of the @F% Constitution to treat the /residentand his ocial famil* as a class "* itself and to impose upon said class stricter prohi"itions#

Thus, while all other appointi!e ocials in the ci!il ser!ice are allowed to hold other oce oremplo*ment in the go!ernment during their tenure when such is allowed "* law or "* the primar*functions of their positions, mem"ers of the Ca"inet, their deputies and assistants ma* do so onl*when epressl* authori'ed "* the Constitution itself# .n other words, ection %, Article . is meantto la* down the general rule applica"le to all electi!e and appointi!e pu"lic ocials and emplo*ees,while ection =, Article 3.. is meant to "e the eception applica"le onl* to the /resident, the 3ice/resident, Gem"ers of the Ca"inet, their deputies and assistants#

This "eing the case, the +ualif*ing phrase unless otherwise pro!ided in this Constitution$ inection =, Article 3.. cannot possi"l* refer to the "road eceptions pro!ided under ection %, Article. of the @F% Constitution# To construe said +ualif*ing phrase as respondents would ha!e us to do,would render nugator* and meaningless the manifest intent and purpose of the framers of the

Constitution to impose a stricter prohi"ition on the /resident, 3ice/resident, Gem"ers of the Ca"inet,their deputies and assistants with respect to holding other oces or emplo*ment in the go!ernmentduring their tenure# 9espondents; interpretation that ection = of Article 3.. admits of the eceptionsfound in ection %, par# (2) of Article . would o"literate the distinction so carefull* set "* theframers of the Constitution as to when the highran&ing ocials of the Hecuti!e ranch from the/resident to assistant ecretar*, on the one hand, and the generalit* of ci!il ser!ants from the ran&immediatel* "elow Assistant ecretar* downwards, on the other, ma* hold an* other oce or positionin the go!ernment during their tenure#

Goreo!er, respondents; reading of the pro!isions in +uestion would render certain parts of theConstitution inoperati!e# This o"ser!ation applies particularl* to the 3ice/resident who, underection = of Article 3.. is allowed to hold other oce or emplo*ment when so authori'ed "* theConstitution, "ut who as an electi!e pu"lic ocial under ec# %, par# () of Article . is a"solutel*ineligi"le for appointment or designation in an* capacit* to an* pu"lic oce or position during his

tenure#$ urel*, to sa* that the phrase unless otherwise pro!ided in this Constitution$ found inection =, Article 3.. has reference to ection %, par# () of Article . would render meaningless thespecic pro!isions of the Constitution authori'ing the 3ice/resident to "ecome a mem"er of theCa"inet (2e#. =, "id.), and to act as /resident without relin+uishing the 3ice/residenc* where the/resident shall not ha!e "een chosen or fails to +ualif* (2e#. 7, Arti#le 6)# uch a"surd conse+uencecan "e a!oided onl* "* interpreting the two pro!isions under consideration as one, i.e., ection %, par#() of Article . pro!iding the general rule and the other, i.e., ection =, Article 3.. as constitutingthe eception thereto# .n the same manner must ection %, par# (2) of Article . "e construed !isU!is ection =, Article 3..#

ince the e!ident purpose of the framers of the @F% Constitution is to impose a stricter

prohi"ition on the /resident, 3ice/resident, mem"ers of the Ca"inet, their deputies and assistantswith respect to holding multiple oces or emplo*ment in the go!ernment during their tenure, theeception to this prohi"ition must "e read with e+ual se!erit*# Bn its face, the language of ection=, Article 3.. is prohi"itor* so that it must "e understood as intended to "e a positi!e andune+ui!ocal negation of the pri!ilege of holding multiple go!ernment oces and emplo*ment# 3eril*,where!er the language used in the constitution is prohi"itor*, it is to "e understood as intended to "ea positi!e and une+ui!ocal negation (3arne* !# Eustice, F> K* 5@>6 > #:# 45%6 unt !# tate, 22 Te#App# =@>, = #:# 2==)# The phrase unless otherwise pro!ided in this Constitution$ must "e gi!en aliteral interpretation to refer onl* to those particular instances cited in the Constitution itself, to witDthe 3ice/resident "eing appointed as a mem"er of the Ca"inet under ection =, par# (2), Article 3..6 oracting as /resident in those instances pro!ided under ection %, pars# (2) and (=), Article 3..6 and, theecretar* of Eustice "eing e?+o*#io mem"er of the Eudicial and ar Council "* !irtue of ection F (),Article 3...#

.t "eing clear that the @F% Constitution see&s to prohi"it the /resident, 3ice/resident,mem"ers of the Ca"inet, their deputies or assistants from holding during their tenure multiple ocesor emplo*ment in the go!ernment, ecept in those cases specied in the Constitution itself and asa"o!e claried with respect to posts held without additional compensation in an e?+o*#iocapacit* aspro!ided "* law and as re+uired "* the primar* functions of their oce, the citation of Ca"inetmem"ers (then called Ginisters) as eamples during the de"ate and deli"eration on the general rulelaid down for all appointi!e ocials should "e considered as mere personal opinions which cannoto!erride the constitution;s manifest intent and the people;s understanding thereof#

.n the light of the construction gi!en to ection =, Article 3.. in relation to ection %, par# (2),Article . of the @F% Constitution, Hecuti!e Brder 8o# 2F4 dated Eul* 2=, @F% is unconstitutional#

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Bstensi"l* restricting the num"er of positions that Ca"inet mem"ers, undersecretaries or assistantsecretaries ma* hold in addition to their primar* position to not more than two (2) positions in thego!ernment and go!ernment corporations, Hecuti!e Brder 8o# 2F4 actuall* allows them to holdmultiple oces or emplo*ment in direct contra!ention of the epress mandate of ection =, Article3.. of the @F% Constitution prohi"iting them from doing so, unless otherwise pro!ided in the @F%Constitution itself#

The Court is alerted "* respondents to the impractical conse+uences that will result from astrict application of the prohi"ition mandated under ection =, Article 3.. on the operations of theo!ernment, considering that Ca"inet mem"ers would "e stripped of their oces held in an e?+o*#io

capacit*, "* reason of their primar* positions or "* !irtue of legislation# As earlier claried in thisdecision, e?+o*#ioposts held "* the eecuti!e ocial concerned without additional compensation aspro!ided "* law and as re+uired "* the primar* functions of his oce do not fall under the denitionof an* other oce$ within the contemplation of the constitutional prohi"ition# :ith respect to otheroces or emplo*ment held "* !irtue of legislation, including chairmanships or directorships ingo!ernmentowned or controlled corporations and their su"sidiaries, suce it to sa* that the fearedimpractical conse+uences are more apparent than real# eing head of an eecuti!e department is nomean o"# .t is more than a fulltime o", re+uiring full attention, speciali'ed &nowledge, s&ills andepertise# .f maimum "enets are to "e deri!ed from a department head;s a"ilit* and epertise, heshould "e allowed to attend to his duties and responsi"ilities without the distraction of othergo!ernmental oces or emplo*ment# e should "e precluded from dissipating his e-orts, attentionand energ* among too man* positions and responsi"ilit*, which ma* result in hapha'ardness andinecienc*# urel* the ad!antages to "e deri!ed from this concentration of attention, &nowledge andepertise, particularl* at this stage of our national and economic de!elopment, far outweigh the

"enets, if an*, that ma* "e gained from a department head spreading himself too thin and ta&ing inmore than what he can handle#

1inding Hecuti!e Brder 8o# 2F4 to "e constitutionall* inrm, the Court here"* ordersrespondents to immediatel* relin+uish their other oces or emplo*ment, as hereindened, in the go!ernment, including go!ernmentowned or controlled corporations andtheir su"sidiaries# (Civil =iberties nion v. 34ec'tive ecretar 195 C"A )17 ?eb.22 1991 3n anc *?ernan C&,)

)25. Does the prohibition a6ainst holdin6 d'al or m'ltiple oces or emploment'nder ection 1) Article I of the Constit'tion appl to posts occ'pied b the34ec'tive ocials specied therein /itho't additional compensation in an e4ocio capacit as provided b la/ and as re:'ired b the primar f'nctions ofsaid ocialsM oce

Held2 The prohi"ition against holding dual or multiple oces or emplo*ment under ection=, Article 3.. of the Constitution must not, howe!er, "e construed as appl*ing to posts occupied "*the Hecuti!e ocials specied therein without additional compensation in an e?+o*#io capacit* aspro!ided "* law and as reuired(As opposed to the term allowedD used in 2e#tion 7, par. (), Arti#leI+ of the Constitution, whi#h is permissive. !euiredD su%%ests an imposition, and therefore,o"li%ator& in nature)"* the primar* functions of said ocials; oce# The reason is that these postsdo not comprise an* other oce$ within the contemplation of the constitutional prohi"ition "ut areproperl* an imposition of additional duties and functions on said ocials. To characteri'e these postsotherwise would lead to a"surd conse+uences, among which areD The /resident of the /hilippinescannot chair the 8ational ecurit* Council reorgani'ed under Hecuti!e Brder 8o# 5# 8either canthe 3ice/resident, the Hecuti!e ecretar*, and the ecretaries of 8ational ?efense, Eustice,


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"e holding positions in the oces mentioned in the law# Thus, for instance, one who does not hold apre!ious appointment in the ureau of Customs, cannot, under the act, "e designated arepresentati!e from that oce# The same is true with respect to the representati!es from the otheroces# 8o new appointments are necessar*# This is as it should "e, "ecause the representati!es sodesignated merel& perform duties in the oard in addition to those alread& performed under theirori%inal appointments.D

The term primar*$ used to descri"e functions$ refers to the order of importance and thusmeans chief or principal function# The term is not restricted to the singular "ut ma* refer to the plural(==A Words and $hrases, p. 1)# The additional duties must not onl* "e closel* related to, "ut must

"e re+uired "* the ocial;s primar* functions# Hamples of designations to positions "* !irtue ofone;s primar* functions are the ecretaries of 1inance and udget sitting as mem"ers of the Gonetar*oard, and the ecretar* of Transportation and Communications acting as Chairman of the Garitime.ndustr* Authorit* and the Ci!il Aeronautics oard#

.f the functions to "e performed are merel* incidental, remotel* related, inconsistent,incompati"le, or otherwise alien to the primar* function of a ca"inet ocial, such additional functionswould fall under the pur!iew of an* other oce$ prohi"ited "* the Constitution# An eample would"e the /ress Indersecretar* sitting as a mem"er of the oard of the /hilippine Amusement andaming Corporation# The same rule applies to such positions which confer on the ca"inet ocialmanagement functions andPor monetar* compensation, such as "ut not limited to chairmanships ordirectorships in go!ernmentowned or controlled corporations and their su"sidiaries#

Gandating additional duties and functions to the /resident, 3ice/resident, Ca"inet Gem"ers,

their deputies or assistants which are not inconsistent with those alread* prescri"ed "* their oces orappointments "* !irtue of their special &nowledge, epertise and s&ill in their respecti!e eecuti!eoces is a practice longrecogni'ed in man* urisdictions# .t is a practice ustied "* the demands ofecienc*, polic* direction, continuit* and coordination among the di-erent oces in the Hecuti!eranch in the discharge of its multifarious tas&s of eecuting and implementing laws a-ecting nationalinterest and general welfare and deli!ering "asic ser!ices to the people# .t is consistent with thepower !ested on the /resident and his alter egos, the Ca"inet mem"ers, to ha!e control of all theeecuti!e departments, "ureaus and oces and to ensure that the laws are faithfull* eecuted#:ithout these additional duties and functions "eing assigned to the /resident and his ocial famil* tosit in the go!erning "odies or "oards of go!ernmental agencies or instrumentalities in an e?+o*#iocapacit* as pro!ided "* law and as re+uired "* their primar* functions, the* would "e depri!ed of themeans for control and super!ision, there"* resulting in an unwield* and confused "ureaucrac*#

.t "ears repeating though that in order that such additional duties or functions ma* not

transgress the prohi"ition em"odied in ection =, Article 3.. of the @F% Constitution, such additionalduties or functions must "e reuired "& the primar& fun#tions of the o*#ial #on#erned, who is toperform the same in an e?+o*#io #apa#it& as provided "& law, without re#eivin% an& additional#ompensation therefor.

The e?+o*#ioposition "eing actuall* and in legal contemplation part of the principal oce, itfollows that the ocial concerned has no right to recei!e additional compensation for his ser!ices inthe said position# The reason is that these ser!ices are alread* paid for and co!ered "* thecompensation attached to his principal oce# .t should "e o"!ious that if, sa*, the ecretar* of1inance attends a meeting of the Gonetar* oard as an e?+o*#iomem"er thereof, he is actuall* andin legal contemplation performing the primar* function of his principal oce in dening polic* inmonetar* and "an&ing matters, which come under the urisdiction of his department# 1or suchattendance, therefore, he is not entitled to collect an* etra compensation, whether it "e in the formof a per diem or an honorarium or an allowance, or some other such euphemism# * whate!er nameit is designated, such additional compensation is prohi"ited "* the Constitution# (Civil =ibertiesnion v. 34ec'tive ecretar 195 C"A )17 ?eb. 22 1991 3n anc *?ernan C&,-

)2%. ho'ld members of the Cabinet appointed to other positions in the 6overnmentp'rs'ant to 34ec'tive Order #o. 285 /hich later /as declared 'nconstit'tional bthe C for bein6 violative of ection 1) Article I of the Constit'tion be made toreimb'rse the 6overnment for /hatever pa and emol'ments the received fromholdin6 s'ch other positions

Held2 ?uring their tenure in the +uestioned positions, respondents ma* "e considered defa#toocers and as such entitled to emoluments for actual ser!ices rendered . .t has "een held thatin cases where there is no de Bureocer, a de fa#toocer, who, in good faith has had possession ofthe oce and has discharged the duties pertaining thereto, is legall* entitled to the emoluments of

the oce, and ma* in an appropriate action reco!er the salar*, fees and other compensationsattached to the oce# This doctrine is, undou"tedl*, supported on e+uita"le grounds since it seemsunust that the pu"lic should "enet "* the ser!ices of an ocer de fa#toand then "e freed from alllia"ilit* to pa* an* one for such ser!ices. An* per diem, allowances or other emoluments recei!ed "*the respondents "* !irtue of actual ser!ices rendered in the +uestioned positions ma* therefore "eretained "* them# (Civil =iberties nion v. 34ec'tive ecretar 195 C"A )17 ?eb. 221991 3n anc *?ernan C&,-

)2$. @a a enator or Con6ressman hold an other oce or emploment

A&,02 8o enator or Gem"er of the ouse of 9epresentati!es ma* hold an* other oce oremplo*ment in the go!ernment, or an* su"di!ision, agenc*, or instrumentalit* thereof, including

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go!ernmentowned or controlled corporations or their su"sidiaries, during his term without forfeitinghis seat# 8either shall he "e appointed to an* oce which ma* ha!e "een created or the emolumentsthereof increased during the term for which he was elected# (ec. 1) Art. I 1987 Constit'tion-.

)27. hat are the sit'ations covered b the la/ on nepotism

Held2 Inder the denition of nepotism, one is guilt* of nepotism if an appointment is issuedin fa!or of a relati!e within the third ci!il degree of consanguinit* or anit* of an* of the followingD

a) appointing authorit*6

") recommending authorit*6c) chief of the "ureau or oce6 andd) person eercising immediate super!ision o!er the appointee#

Clearl*, there are four situations co!ered# .n the last two mentioned situations, it is immaterialwho the appointing or recommending authorit* is# To constitute a !iolation of the law, it suces thatan appointment is etended or issued in fa!or of a relati!e within the third ci!il degree ofconsanguinit* or anit* of the chief of the "ureau or oce, or the person eercising immediatesuper!ision o!er the appointee# (CC v. +edro O. Dacoco !.". #o. 1)%80% April 29 19993n anc *+ardo,-

)28. hat are the e4emptions from the operation of the r'les on nepotism

A&,02 The following are eempted from the operation of the rules on nepotismD (a) persons

emplo*ed in a condential capacit*, (") teachers, (c) ph*sicians, and (d) mem"ers of the Armed1orces of the /hilippines#

The rules on nepotism shall li&ewise not "e applica"le to the case of a mem"er of an* famil*who, after his or her appointment to an* position in an oce or "ureau, contracts marriage withsomeone in the same oce or "ureau, in which e!ent the emplo*ment or retention therein of "othhus"and and wife ma* "e allowed# (ec. %9 Chap. 7 'btitle A Title >. I 3.O. #o. 292-

)29. hat is the doctrine of for6iveness or condonation Does it appl to pendin6criminal cases

Held2 # A pu"lic ocial cannot "e remo!ed for administrati!e misconduct committed duringa prior term, since his reelection to oce operates as a condonation of the ocer;s pre!iousmisconduct to the etent of cutting o- the right to remo!e him therefor# The foregoing rule, howe!er,

nds no application to criminal cases pending against petitioner# (A6'inaldo v. antos 212 C"A7$8 77) *1992,-

2# A reelected local ocial ma* not "e held administrati!el* accounta"le for misconductcommitted during his prior term of oce# The rationale for this holding is that when the electorateput him "ac& into oce, it is presumed that it did so with full &nowledge of his life and character,including his past misconduct# .f, armed with such &nowledge, it still reelects him, then suchreelection is considered a condonation of his past misdeeds# (@aor Alvin . !arcia v. Hon.

Art'ro C. @oFica et al. !.". #o. 1)905) ept. 10 1999 *G'is'mbin6,-

))0. hat is the Doctrine of Condonation ll'strative case.

Held2 /etitioner contends that, per our ruling in A%uinaldo v. 2antos, his reelection hasrendered the administrati!e case led against him moot and academic# This is "ecause his reelectionoperates as a condonation "* the electorate of the misconduct committed "* an electi!e ocialduring his pre!ious term# /etitioner further cites the ruling of this Court in $as#ual v. :on. $rovin#ialoard of /ueva #iBa, #itin% Conant v. ro%an, that

:hen the people ha!e elected a man to oce, it must "e assumed that the*did this with &nowledge of his life and character, and that the* disregarded or forga!e hisfaults or misconduct, if he had "een guilt* of an*# .t is not for the court, "* reason of suchfaults or misconduct to practicall* o!errule the will of the people#$

9espondents, on the other hand, contend that while the contract in +uestion was signedduring the pre!ious term of petitioner, it was to commence or "e e-ecti!e onl* on eptem"er @@F orduring his current term# .t is the respondents; su"mission that petitioner went "e*ond the protecti!econnes$ of urisprudence when he agreed to etend his act to his current term of oce#$ A%uinaldo

cannot appl*, according to respondents, "ecause what is in!ol!ed in this case is a misconductcommitted during a pre!ious term "ut to "e e-ecti!e during the current term#

9espondents maintain that,

petitioner performed two acts with respect to the contractD he pro!ided for a suspensi!eperiod ma&ing the suppl* contract commence or "e e-ecti!e during his succeeding or currentterm and during his current term of oce he acceded to the suspensi!e period ma&ing thecontract e-ecti!e during his current term "* causing the implementation of the contract#$

ence, petitioner cannot ta&e refuge in the fact of his reelection, according to respondents#

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1urther, respondents point out that the contract in +uestion was signed ust four da*s "eforethe date of the @@F election and so it could not "e presumed that when the people of Ce"u Cit*!oted petitioner to oce, the* did so with full &nowledge of petitioner;s character#

Bn this point, petitioner responds that &nowledge of an ocial;s pre!ious acts is presumedand the court need not in+uire whether, in reelecting him, the electorate was actuall* aware of hisprior misdeeds#

/etitioner cites our ruling in 2alalima v. uin%ona, wherein we a"sol!ed Al"a* go!ernor 9amon9# alalima of his administrati!e lia"ilit* as regards a retainer agreement he signed in fa!or of a law

rm during his pre!ious term, although dis"ursements of pu"lic funds to co!er pa*ments under theagreement were still "eing done during his su"se+uent term# /etitioner argues that, following2alalima, the doctrine ofA%uinaldo applies e!en where the e-ects of the acts complained of are stille!ident during the su"se+uent term of the reelected ocial# The implementation of the contract is amere incident of its eecution# esides, according to petitioner, the sole act$ for which he has "eenadministrati!el* charged is the signing of the contract with 1#H# Suellig# The charge, in his !iew,ecludes the contract;s eecution or implementation, or an* act su"se+uent to the perfection of thecontract#

.n 2alalima, we recall that the olicitor eneral maintained that A%uinaldo did not appl* tothat case "ecause the administrati!e case against o!ernor 9odolfo Aguinaldo of Caga*an wasalread* pending when he led his certicate of candidac* for his reelection "id# 8e!ertheless, in2alalima, the Court applied theA%uinaldo doctrine, e!en if the administrati!e case against o!ernoralalima was led after his reelection#

:e now come to the concluding in+uir*# ranting that the Bce of the Bm"udsman ma*in!estigate, for purposes pro!ided for "* law, the acts of petitioner committed prior to his presentterm of oce6 and that it ma* pre!enti!el* suspend him for a reasona"le period, can that oce holdhim administrativel& lia"le for said acts7

.n a num"er of cases, we ha!e repeatedl* held that a reelected local ocial ma* not "e heldadministrati!el* accounta"le for misconduct committed during his prior term of oce . The rationalefor this holding is that when the electorate put him "ac& into oce, it is resumed that it did so withfull &nowledge of his life and character, including his past misconduct# .f, armed with such&nowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds#

owe!er, in the present case, respondents point out that the contract entered into "*petitioner with 1#H# Suellig was signed ust four da*s "efore the date of the elections# .t was not madean issue during the election, and so the electorate could not "e said to ha!e !oted for petitioner with&nowledge of this particular aspect of his life and character#

1or his part, petitioner contends that the onl* conclusi!e determining factor$ as regards thepeople;s thin&ing on the matter is an election# Bn this point we agree with petitioner# That the people!oted for an ocial with &nowledge of his character is presumed, precisel* to eliminate the need todetermine, in factual terms, the etent of this &nowledge# uch an underta&ing will o"!iousl* "eimpossi"le# Bur rulings on the matter do not distinguish the precise timing or period when themisconduct was committed, rec&oned from the date of the ocial;s reelection, ecept that it must "eprior to said date#

As held in 2alalima,

The rule adopted in $as#ual, +ualied in A%uinaldo insofar as criminal cases areconcerned, is still a good law# uch a rule is not onl* founded on the theor* that an ocial;s reelectionepresses the so!ereign will of the electorate to forgi!e or condone an* act or omission constituting aground for administrati!e discipline which was committed during his pre!ious term# :e ma* add thatsound poli#& di#tates it. To rule otherwise would open the Jood%ates to e?a#er"atin% endless partisan#ontests "etween the reele#ted o*#ial and his politi#al enemies, who ma& not stop to hound theformer durin% his new term with administrative #ases for a#ts alle%ed to have "een #ommitted durin%his previous term. is second term ma* thus "e de!oted to defending himself in the said cases to thedetriment of pu"lic ser!ice #$

The a"o!e ruling in 2alalima applies to this case# /etitioner cannot an*more "e heldadministrativel& lia"le for an act done during his pre!ious term, that is, his signing of the contract

with 1#H# Suellig#

The assailed retainer agreement in 2alalima was eecuted sometime in @@0# o!ernor2alalima was reelected in @@2 and pa*ments for the retainer continued to "e made during hissucceeding term# This situation is no di-erent from the one in the present case, wherein deli!eries ofthe asphalt under the contract with 1#H# Suellig and the pa*ments therefor were supposed to ha!ecommenced on eptem"er @@F, during petitioner;s second term#

owe!er, respondents argue that the contract, although signed on Ga* %, @@F, duringpetitioner;s prior term, is to "e made e-ecti!e onl* during his present term#

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:e fail to see an* di-erence to ustif* a !alid distinction in the result# The agreement "etweenpetitioner (representing Ce"u Cit*) and 1#H# Suellig was perfected on the date the contract wassigned, during petitioner;s prior term# At that moment, petitioner alread* acceded to the terms of thecontract, including stipulations now alleged to "e preudicial to the cit* go!ernment# Thus, an*culpa"ilit* petitioner ma* ha!e in signing the contract alread* "ecame etant on the da* the contractwas signed# .t hardl* matters that the deli!eries under the contract are supposed to ha!e "een mademonths later#

:hile petitioner can no longer "e held administrati!el* lia"le for signing the contract with 1#H#Suellig, howe!er, this should not preudice the ling of an* case other than administrati!e against

petitioner# Bur ruling in this case, ma* not "e ta&en to mean the total eoneration of petitioner forwhate!er wrongdoing, if an*, might ha!e "een committed in signing the su"ect contract# The rulingnow is limited to the +uestion of whether or not he ma* "e held administrativel& lia"le therefor, and itis our considered !iew that he ma* not# (!arcia v. @oFica )15 C"A 207 ept. 10 1999 2 nd

Div. *G'is'mbin6,-

))1. +etitioner claims that enipao has no a'thorit to remove her as Director I ofthe 3D and reassi6n her to the =a/ Department. +etitioner f'rther ar6'es thatonl the CO@3=3C actin6 as a colle6ial bod can a'thorie s'ch reappointment.@oreover petitioner maintains that a reassi6nment /itho't her consent amo'ntsto removal from oce /itho't d'e process and therefore ille6al.

Held2 /etitioner;s posturing will hold water if enipa*o does not possess an* color of title tothe oce of Chairman of the CBGH (h) of the Bmni"us Hlection Code #

/etitioner claims that enipa*o failed to secure the appro!al of the CBGH


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The CBGH 'ntil the termination of his case still re:'ired to le a formalapplication for leave of absence to ens're his reinstatement 'pon his ac:'ittaland th's protect his sec'rit of ten're Concomitantl /ill his prolon6edabsence from oce for more than one (1- ear a'tomaticall F'stif his bein6dropped from the rolls /itho't prior notice despite his bein6 alle6edl placed'nder s'spension b his emploer 'ntil the termination of his case /hich nallres'lted in his ac:'ittal for lac> of evidence

Held2 HIH.A 9# A


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go!ernment that the suspension imposed on her was onl* until the nal disposition of her #ase. Asshe drew near her !indication she ne!er did epect the worst to come to her# Bn the third *ear of herdetention the cit* go!ernment lifted her suspension, dropped her from the rolls without prior noticeand without her &nowledge, much less ga!e her an opportunit* to forthwith correct the omission of anapplication for lea!e of a"sence "elatedl* laid on her#

Ipon her ac+uittal for lac& of e!idence and her release from detention she was deniedreinstatement to her position# he was forced to see& recourse in the Ci!il er!ice Commission whichordered her immediate reinstatement with "ac& wages from @ Bcto"er @@4, the date when shepresented herself for reassumption of duties "ut was turned "ac& "* the cit* go!ernment, up to the

time of her actual reinstatement#

/lainl*, the case of petitioner Cit* o!ernment of Ga&ati Cit* re!ol!es around a rotunda ofdou"t, a dilemma concerning the legal status and implications of its suspension of pri!ate respondentHuse"ia 9# al'ote and the automati# lea!e of a"sence espoused "* the Ci!il er!ice Commission#Against this concern is the punctilious adherence to technicalit*, the re+uirement that pri!aterespondent should ha!e led an application for lea!e of a"sence in proper form. The instant case istherefore a dispute "etween, at its worst, pri!ate respondent;s su"stantial compliance with thestanding rules, and the Cit* o!ernment;s insistence that the lowl* cler& should ha!e still gonethrough the formalities of appl*ing for lea!e despite her detention, of whi#h petitioner had a#tualnoti#e, and the suspension order #ou#hed in simple lan%ua%e that she was "ein% suspended until thenal disposition of her #riminal #ase.

The meaning of suspension until the nal disposition of her #ase is that should her case "edismissed she should "e reinstated to her position with pa*ment of "ac& wages# he did not ha!e toappl* for lea!e of a"sence since she was alread* suspended "* her emplo*er until her case would "eterminated# :e ha!e done ustice to the wor&ingman in the past6 toda* we will do no less "*resol!ing all dou"ts in fa!or of the hum"le emplo*ee in faithful o"eisance to the constitutionalmandate to a-ord full protection to la"or (Const#, Art# ..., ec# =, par# 6 Art# .., ec# F)

As ma* "e gleaned from the pleadings of the parties, the issues areD () whether pri!aterespondent Huse"ia 9# al'ote ma* "e considered a"sent without lea!e6 (") whether due process had"een o"ser!ed "efore she was dropped from the rolls6 and, (=) whether she ma* "e deemed to ha!ea"andoned her position, hence, not entitled to reinstatement with "ac& salaries for not ha!ing led a

formal application for lea!e# Hncapsulated, the issues ma* "e reduced to whether pri!ate respondentma* "e considered a"sent without lea!e or whether she a"andoned her o" as to ustif* "eingdropped from the ser!ice for not ling a formal application for lea!e#

/etitioner would ha!e pri!ate respondent declared on A:B< and faults her for failing to le anapplication for lea!e of a"sence under ecs# 20 (8ow ec# 52 of 9ule 3., = dated 2% ?ecem"er @@, as amended "* CC GC8os# 4, s# @@F and 4, s# @@@) of the CC 9ules and reects the CC;s ruling of an automatic lea!eof a"sence for the period of her detention$ since the current Civil 2ervi#e ;aw and !ules do notcontain an* specic pro!ision on automati# lea!e of a"sence#$

The Court "elie!es that pri!ate respondent cannot "e faulted for failing to le prior to herdetention an application for lea!e and o"tain appro!al thereof# The records clearl* show that she had"een ad!ised three (=) da*s after her arrest, or on @ eptem"er @@, that petitioner Cit* go!ernmentof Ga&ati Cit* had pla#ed her under suspension until the nal disposition of her #riminal #ase. Thisact of petitioner indu"ita"l* recogni'ed pri!ate respondent;s predicament and thus allowed her toforego reporting for wor& during the pendenc* of her criminal case without the needless eercise ofstrict formalities# At the !er* least, this ocial communication should "e ta&en as an e+ui!alent of aprior appro!ed lea!e of a"sence since it was her emplo*er itself which placed her under suspensionand thus ecused her from further formalities in appl*ing for such lea!e# Goreo!er, the arran%ement"ound the Cit& overnment to allow private respondent to return to her wor5 after the termination ofher #ase, i.e., if ac+uitted of the criminal charge# This pledge sucientl* ser!ed as legitimate reasonfor her to altogether dispense with the formal application for lea!e6 there was no reason to, as in factit was not re+uired, since she was for all practical purposes incapacitated or disa"led to do so#

.ndeed, pri!ate respondent did not ha!e the least intention to go on A:B< from her post as

Cler& ... of petitioner, for A:B< means the emplo*ee lea!ing or a"andoning his post without ustia"lereason and without notif*ing his emplo*er# .n the instant case, pri!ate respondent had a !alid reasonfor failing to report for wor& as she was detained without "ail# ence, right after her release fromdetention, and when nall* a"le to do so, she presented herself to the Gunicipal /ersonnel Bcer ofpetitioner Cit* o!ernment to report for wor Certainl*, had she "een told that it was still necessar*for her to le an application for lea!e despite the @ eptem"er @@ assurance from petitioner,pri!ate respondent would ha!e lost no time in ling such piece of document# ut the situationmomentaril* suspending her from wor& persistedD petitioner Cit* o!ernment did not alter the modusvivendi with pri!ate respondent and lulled her into "elie!ing that its commitment that her suspensionwas onl* until the termination of her case was true and relia"le# Inder the circumstances pri!aterespondent was in, prudence would ha!e dictated petitioner, more particularl* the incum"ent cit*eecuti!e, in patria potestas, to ad!ise her that it was still necessar* J although indeed unnecessar*

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and a useless ceremon* J to le such application despite the suspension order, "efore depri!ing herof her legitimate right to return to her position# $atria potestas in piatate de"et, non in atro#itate,#onsistere. /aternal power should consist or "e eercised in a-ection, not in atrocit*#

.t is clear from the records that pri!ate respondent al'ote was arrested and detained withouta warrant on > eptem"er @@ for which reason she and her coaccused were su"ected immediatel*to in+uest proceedings# This fact is e!ident from the instant petition itself and its attachments #ence, her ordeal in ail "egan on > eptem"er @@ and ended onl* after her ac+uittal, thus lea!ingher no time to attend to the formalit* of ling a lea!e of a"sence#

ut petitioner Cit* o!ernment would unceremoniousl* set aside its @ eptem"er @@suspension order claiming that it was superseded three (=) *ears later "* a memorandum droppingher from the rolls e-ecti!e 2 Eanuar* @@= for a"sence for more than one () *ear without ociallea!e#$ ence, the suspension order was !oid since there was no pending administrati!e chargeagainst pri!ate respondent so that she was not ecused from ling an application for lea!e#

:e do not agree# .n placing pri!ate respondent under suspension until the nal disposition ofher criminal case, the Gunicipal /ersonnel Bcer acted with competence, so he presuma"l* &newthat his order of suspension was not a&in to either suspension as penalt* or pre!enti!e suspensionsince there was no administrati!e case against pri!ate respondent# As competence on the part of theG/B is presumed, an* error on his part should not preudice pri!ate respondent, and that what he hadin mind was to consider her as "eing on lea!e of a"sence without pa* and their emplo*eremplo*eerelationship "eing merel* suspended, not se!ered, in the meantime# This construction of the order ofsuspension is actuall* more consistent with logic as well as fairness and &indness to its author, the

G/B# ignicantl*, the idea of a suspended emplo&er+emplo&ee relationship is widel* accepted inla"or law to account for situations wherein la"orers would ha!e no wor& to perform for causes notattri"uta"le to them. :e nd no "asis for den*ing the application of this principle to the instant casewhich also in!ol!es a lowl* wor&er in the pu"lic ser!ice#

Goreo!er, we certainl* cannot nullif* the Cit* o!ernment;s order of suspension, as we ha!eno reason to do so, much less retroacti!el* appl* such nullication to depri!e pri!ate respondent of acompelling and !alid reason for not ling the lea!e application# 1or as we ha!e held, a !oid actthough in law a mere scrap of paper nonetheless confers legitimac* upon past acts or omissions donein reliance thereof# Conse+uentl*, the eistence of a statute or eecuti!e order prior to its "eingadudged !oid is an operati!e fact to which legal conse+uences are attached . .t would indeed "eghastl* unfair to pre!ent pri!ate respondent from rel*ing upon the order of suspension in lieu of aformal lea!e application#

At an* rate, statements are, or should "e, construed against the one responsi"le for theconfusion6 otherwise stated, petitioner must assume full responsi"ilit* for the conse+uences of its ownact, hence, he should "e made to answer for the miup of pri!ate respondent as regards the lea!eapplication# At the !er* least, it should "e considered estopped from claiming that its order ofsuspension is !oid or that it did not ecuse pri!ate respondent from ling an application for lea!e onaccount of her incarceration# .t is a fact that she relied upon this order, issued "arel* three (=) da*sfrom the date of her arrest, and assumed that when the criminal case would "e settled she couldreturn to wor& without need of an* prior act#

The holding of the Ci!il er!ice Commission that pri!ate respondent was on automati# lea!e ofa"sence during the period of her detention must "e sustained# The CC is the constitutionall*mandated central personnel agenc* of the o!ernment tas&ed to esta"lish a career ser!ice andadopt measures to promote morale, ecienc*, integrit*, responsi!eness, progressi!eness andcourtes* in the ci!il ser!ice$ (Const#, Art# ., ec# =) and strengthen the merit and rewards s*stem,integrate all human resources de!elopment programs for all le!els and ran&s, and institutionali'e amanagement climate conduci!e to pu"lic accounta"ilit*#$ esides, the Administrative Code of 1987further empowers the CC to prescri"e, amend, and enforce rules and regulations for carr*ing intoe-ect the pro!isions of the Civil 2ervi#e ;awand other pertinent laws,$ and for matters concerninglea!es of a"sence, the Code specicall* !ests the CC to ordain J

ec# >0# ;eave of a"sen#e# J Bcers and emplo*ees in the Ci!il er!ice shall "eentitled to lea!e of a"sence, with or without pa*, as ma* "e pro!ided "* law and the rules andregulations of the Ci!il er!ice Commission in the interest of the ser!ice#

/ursuant thereto the CC promulgated !esolution /o. 91+1=1 dated 2% ?ecem"er @@

entitled !ules mplementin% oo5 6 of ?e#utive rder /o. 9 and ther $ertinent Civil 2ervi#e ;awswhich it has se!eral times amended through memorandum circulars# .t de!otes 9ule 3. to lea!es ofa"sence# /etitioner Cit* o!ernment relies upon ecs# 20 and =5 to de"un& the CC ruling of anautomati#lea!e of a"sence# ignicantl*, these pro!isions ha!e "een amended so that ec# 20 of theCivil 2ervi#e !ulesis now ec# 52 of 9ule 3., on ;eave of A"sen#e, of !esolution /o. 91+1=1dated2% ?ecem"er @@ as amended "* CC GC 8o# 4, s# @@F, and ec# =5 is now ec# >= as amended"* CC GC 8os# 4, s# @@F and 4, s# @@@#

As a general rule, ecs# 20 and 52, as well as ecs# =5 and >=, re+uire an appro!ed lea!e ofa"sence to a!oid "eing an A:B


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referring onl* to one mode of securing the appro!al of a lea!e of a"sence which would re+uire anemplo*ee to appl* for it, formalities and all, "efore eceedin

Documents

Political Law Reviewer Sandoval Notes II