Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 111471 September 26, 1994

CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T. DEBULGADO, petitioners,
vs.
CIVIL SERVICE COMMISSION, respondent.
Marlon P. Ontal for petitioners.

FELICIANO, J.:
Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros
Occidental. On 1 October 1992, petitioner Mayor appointed his wife, petitioner Victoria T.
Debulgado, as General Services Officer, that is, as head of the Office of General Services 1 of
the City Government of San Carlos.

Petitioner Victoria was one of three (3) employees of the City Government who were
considered for the position of General Services Officer. Before her promotion in 1992, she
had been in the service of the City Government for about thirty-two (32) years. She joined
the City Government on 3 January 1961 as Assistant License Clerk. Through the years, she
rose from the ranks, successively occupying the following positions:
(a) Assistant Chief of the License & Fees Division, from 1 July 1965 to 30
June 1973;
(b) Chief of the License and Fees Division, from 1 July 1973 to 1 January
1981;
(c) Cashier, from 2 January 1981 to 30 June 1989; and
(d) Cashier IV, from 1 July 1989 to 30 September 1992. 2
On 1 October 1992, petitioner Victoria assumed the new post, and commenced
discharging the functions, of General Services Officer of San Carlos City and
receiving the regular salary attached to that position.
On 16 December 1992, public respondent Civil Service Commission ("Commission")
received a letter 3 from Congressman Tranquilino B. Carmona of the First District of Negros Occidental, calling attention
to the promotional appointment issued by petitioner Mayor in favor of his wife.

The Commission directed its Regional Office No. 6-Iloilo City to submit a report on the
appointment of petitioner Victoria.
From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the
Commission found that petitioner Mayor was the lawful husband of the appointee, petitioner
Victoria, the two (2) having been married sometime in 1964. Director Caberoy also reported
that the appointment papers prepared by the Office of the City Mayor of San Carlos were
submitted to the Bacolod City CSC-Field Office on 28 October 1992, and that the
appointment was thereafter approved by Director Purita H. Escobia of that CSC-Field Office,
on 18 November 1992.
Acting on the report of Director Caberoy, the Commission, in its Resolution No. 93-1427
dated 13 April 1993, recalled the approval issued by Director Escobia and disapproved the
promotion of petitioner Victoria to the position of General Services Officer of San Carlos City
upon the ground that that promotion violated the statutory prohibition against nepotic
appointments.
On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of Resolution No.
93-1427 of the Commission. 4 Petitioners moved for reconsideration, contending that the statutory prohibition against
nepotism was not applicable to the appointment of Victoria as General Services Officer. Petitioners also asserted that the
Commission had deprived petitioner Victoria of her right to due process by unilaterally revoking her appointment. The motion for
reconsideration was denied by the Commission on 21 July 1993.

In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that the
Commission had gravely abused its discretion in withdrawing and disapproving petitioner
Victoria's promotional appointment. Petitioners assert that Victoria can no longer be removed
from the position of General Services Officer without giving her an opportunity to be heard
and to answer the charged of nepotism.
Petitioner Mayor denies that he had been motivated by personal reasons when he appointed
his wife to the new post. He states that his wife was the most qualified among the candidates
for appointment to that position, she having worked for the City Government for thirty-two
(32) years and being highly recommended by the OIC-Treasurer of San Carlos City. 5 It is also
claimed by petitioner Mayor that his choice of his wife for the position was concurred in by the Sangguniang Panglungsod. 6 He
further avers that he had consulted the Field and Regional Officers of the Commission in Bacolod City, and raised the question
of applicability of the prohibition against nepotism to the then proposed promotion of his wife in one of the seminars conducted
by the Commission's Regional Office held in San Carlos City on 21 and 22 September 1992. According to petitioner Mayor, one
Gregorio C. Agdon, a supervising personnel specialist in the Commission's Bacolod Office, informed him that the promotional
appointment was not covered by the prohibition. 7

The basic contention of petitioners is that the prohibition against nepotic appointments is
applicable only to original appointments and not to promotional appointments. They believe
that because petitioner Victoria was already in the service of the City Government before
she married petitioner Mayor, the reason behind the prohibition no longer applied to her
promotional appointment. Petitioners also affirm that petitioner Victoria deserves to be
promoted to General Services Officer, considering her long and faithful service to the City
Government. 8
The task before this Court is, accordingly, two-fold:

(1) to determine whether a promotional appointment is covered by the legal

prohibition against nepotism, or whether that prohibition applies only to
original appointments to the Civil Service; and
(2) to determine whether the Commission had gravely abused its discretion in
recalling and disapproving the promotional appointment given to petitioner
Victoria after the Commission, through Director Escobia, had earlier approved
that same appointment, without giving an opportunity to petitioner Victoria to
explain her side on the matter.
I
The prohibitory norm against nepotism in the public service is set out in Section 59, Book V
of the Revised Administrative Code of 1987 (also known as E.O. No. 292). Section 59 reads
as follows:
Sec. 59. Nepotism (1) All appointments in the national, provincial, city and
municipal governmentsor in any branch or instrumentality thereof, including
government-owned or controlled corporations,made in favor of a relative of
the appointing or recommending authority, or of the chief of the bureau or
office, or of the persons exercising immediate supervision over him, are
hereby prohibited.
As used in this Section the word "relative" and members of the family referred
to are those related within the third degree either of consanguinity or of
affinity.
(2) The following are exempted from the operation of the rules on nepotism:
(a) persons employed in a confidential capacity, (b) teachers, (c) physicians,
and (d) members of the Armed Forces of the Philippines: Provided, however,
That in each particular instance full report of such appointment shall be made
to the Commission.
The restriction mentioned in subsection (1) shall not be applicable to the case
of a member of any family who, after his or her appointment to any position in
an office or bureau, contracts marriage with someone in the same office or
bureau, in which event the employment or retention therein of both husband
and wife may be allowed.
(3) In order to give immediate effect to these provisions, cases of previous
appointment which are in contravention hereof shall be corrected by transfer
and pending such transfer, no promotion or salary increase shall be allowed
in favor of the relative or relatives who were appointed in violation of these
provisions. (Emphasis supplied).
Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of Executive Order No.
292 and other Pertinent Civil Service Laws," issued on 27 December 1991, implementing,
among other things, the abovequoted Section 59, provides as follows:

Sec. 6. No appointments in the national, provincial, city and

municipal government or in any branch or instrumentality thereof, including
government-owned or controlled corporations with original chartersshall be
made in favor of a relative of the appointing or recommending authority, or of
the chief of the bureau or office, or of the persons exercising immediate
supervision over the appointee.
Unless otherwise specifically provided by law, as used in this Section, the
word "relative" and the members of the family referred to are those related
within the third degree either of consanguinity or of affinity.
The following are exempted from the operation of the rules on nepotism: (a)
persons employed in a confidential capacity; (b) teachers; (c) physicians; (d)
members of the Armed Forces of the Philippines. Provided, however, That in
each particular instance full report of such appointment shall be made to the
Commission.
The restriction mentioned in the first paragraph of this Section shall not be
applicable to the case of a member of any family who after his or her
appointment to any position in an office or bureau, contracts marriage with
someone in the same office or bureau, in which event the employment or
retention therein of both husband and wife may be allowed.
Cases of previous appointment which are in contravention hereof shall be
corrected by transfer, and pending such transfer no promotion or salary
increase shall be allowed in favor of the relative or relatives who were
appointed in violation of these provisions. (Emphasis supplied)
It will be noted that the abovequoted Section 6 of Implementing Rule XVIII essentially
tracks the provisions of Section 59, Book V of E.O. No. 292. 9
We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292, quoted above. The
noteworthy fact may be pointed out, at the outset, that Section 59 as it exists today has been
in our statute books in substantially identical form and language for at least thirty (30)
years. 10
A textual examination of Section 59 at once reveals that the prohibition was cast in
comprehensive and unqualified terms. Firstly, it explicitly covers "all appointments", without
seeking to make any distinction between differing kinds or types of appointments. Secondly,
Section 59 covers all appointments to the national, provincial, city andmunicipal government,
as well as any branch or instrumentality thereof and all government owned or controlled
corporations. Thirdly, there is a list of exceptions set out in Section 59 itself, but it is a short
list:
(a) persons employed in a confidential capacity;
(b) teachers;
(c) physicians; and
(d) members of the Armed Forces of the Philippines.

The list has not been added to or subtracted from for the past thirty (30) years. The
list does not contain words like "and other similar positions." Thus, the list appears to
us to be a closed one, at least closed until lengthened or shortened by Congress.
Section 59 of Book V, E.O. No. 292 should, of course, be read in connection with the
Omnibus Implementing Rules. Additional light is shed on the issue we here address by some
provisions of these Rules. Section 1, Rule V of the Omnibus Implementing Rules reads as
follows:
Sec. 1. All appointments in the career service shall be made only according to
merit and fitness to be determined as far as practicable by competitive
examinations.
As used in these Rules, any action denoting movement or progress of
personnel in the civil serviceshall be known as personnel action. Such action
shall include promotion, transfer, reinstatement, reemployment, detail,
secondment, reassignment, demotion and separation. All original
appointments and personnel actions shall be in accordance with these Rules
and with other regulations and standards that may be promulgated by the
Commission. (Emphasis supplied)
Section 1, Rule VII of the same Rules also bears upon our inquiry:
Sec. 1. The following constitute personnel actions: original appointment,
appointment through certification, promotion, transfer, reinstatement,
reemployment, detail, secondment, demotion and separation. (Emphasis
supplied)
Under the abovequoted provisions of the Implementing Rules, both an original appointment
and a promotion are particular species of personnel action. The original appointment of a
civil service employee and all subsequent personnel actions undertaken by or in respect of
that employee such as promotion, transfer, reinstatement, reemployment, etc., must comply
with the Implementing Rules including, of course, the prohibition against nepotism in Rule
XVIII. To the extent that all personnel actions occurring after an original appointment, require
the issuance of a new appointment to another position (or to the original position in case of
reinstatement), we believe that such appointment must comply with all applicable rules and
prohibitions, including the statutory and regulatory prohibition against nepotism. To limit the
thrust of the prohibition against nepotism to the appointment issued at the time of initial entry
into the government service, and to insulate from that prohibition appointments subsequently
issued when personnel actions are thereafter taken in respect of the same employee, would
be basically to render that prohibition, in the words of Laurel V, etc. v. Civil Service
Commission, 11 "meaningless and toothless."
Inquiry into the basic purpose or objective of the prohibition against nepotism also strongly
indicates that that prohibition was intended to be a comprehensive one. Section 1, Book V,
E.O. No. 292 sets out the basic policy which pervades all the provisions of our Civil Service
law, including Section 59 thereof:

Sec. 1. Declaration of Policy. The State shall insure and promote

the Constitutional mandate that appointments in the Civil Service shall be
made only according to merit and fitness; . . . (Emphasis supplied)
Put succinctly, that purpose is to ensure that all appointments and other personnel
actions in the civil service should be based on merit and fitness and should never
depend on how close or intimate an appointee is to the appointing power. 12
Laurel V, etc. v. Civil Service Commission supra, is instructive in this connection. In that
case, petitioner Governor of Batangas Province appointed or designated his brother,
Benjamin Laurel, who had been holding a promotional appointment as Civil Security Officer,
a position classified as "primarily confidential" by the Civil Service, to the position of
Provincial Administrator, a position in the Career Civil Service. This Court held that the
appointment or designation as Acting Provincial Administrator was violative of the prohibition
against nepotism, then embodied in Section 49, P.D. No. 807. Moreover, the Court
emphatically agreed with the Civil Service Commission that "although what was extended to
Benjamin was merely a designation and not an appointment, . . . the prohibitive mantle on
nepotism would include designation, because what cannot be done directly, cannot be done
indirectly:"
We cannot accept petitioner's view. His specious and tenuous distinction
between appointment and designation is nothing more than either a ploy
ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch
maneuver to cushion the impact of its violation. The rule admits of no
distinction between appointment and designation. Designation is also defined
as "an appointment or assignment to a particular office"; and "to designate"
means "to indicate, select, appoint or set apart for a purpose of duty." (Black's
Law Dictionary, Fifth ed., 402)
xxx xxx xxx
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that
designation should be differentiated from appointment. Reading this section
with Section 25 of said decree, career service positions may be filled up only
by appointment, either permanent or temporary; hence a designationof a
person to fill it up because it is vacant, is necessarily included in the term
appointment, for it precisely accomplishes the same purpose. Moreover, if
a designation is not to be deemed included in the term appointment under
Section 49 of P.D. No. 807, then the prohibition on nepotism would be
meaningless and toothless. Any appointing authority may circumvent it by
merely designating, and not appointing, a relative within the prohibited degree
to a vacant position in the career service. Indeed, as correctly stated by public
respondent, "what cannot be done directly cannot be done
indirectly." 13(Emphasis partly in the original and partly supplied; citation omitted)
Thus, the Court was unwilling to restrict and limit the scope of the prohibition which is
textually very broad and comprehensive.

One of the contentions of petitioner in the case at bar is that the ratio of the prohibition
against nepotism is not applicable here because petitioner Victoria was already in the
government service at the time petitioners were married in 1964. It is not disputed that the
original 1961 appointment of petitioner Victoria as an Assistant License Clerk was not a
nepotic appointment. Indeed, Section 59 itself states, in the 4th paragraph thereof, that the
prohibition against nepotism is not
applicable to the case of a member of any family who, after his or her
appointment to any position in any office or bureau, contracts marriage with
someone in the same office or bureau, in which event the employment or
retention therein of both husband and wife may be allowed. (Emphasis
supplied)
The subsequent marriage of one to the other of petitioners did not retroactively
convert the original appointment of petitioner Victoria into a prohibited nepotic one. It
is the promotional appointment issued by petitioner Mayor to petitioner Victoria in 1
October 1982 that is at stake.
Here, the basic argument of petitioners is that to read the prohibition in Section 59, Book V
of E.O. No. 292 as applicable both to original and promotional or subsequent appointments,
would be to deprive the government of the services of loyal and faithful employees who
would thereby be penalized simply because the appointing or recommending official
happens to be related to the employees within the third degree of consanguinity or affinity.
A major difficulty with the petitioners' argument is that it tends to prove too much. For the
appointee, whether in an original or a promotion appointment, may in fact be quite loyal and
efficient and hard-working; yet that circumstance will not prevent the application of the
prohibition certainly in respect of the original appointment. The Court is not unaware of the
difficulties that the comprehensive prohibition against nepotism would impose upon
petitioner Victoria and others who maybe in the same position. It is essential to stress,
however, that the prohibition applies quite without regard to the actual merits of the
proposed appointee and to the good intentions of the appointing or recommending authority,
and that the prohibition against nepotism in appointments whether original or promotional, is
not intended by the legislative authority to penalize faithful service.
The purpose of Section 59 which shines through the comprehensive and unqualified
language in which it was cast and has remained for decades, is precisely to take out of the
discretion of the appointing and recommending authority the matter of
appointing or recommending for appointment a relative. In other words, Section 59 insures
the objectivity of the appointing or recommending official by preventing that objectivity from
being in fact tested. The importance of this statutory objective is difficult to overstress in the
culture in which we live and work in the Philippines, where family bonds remain, in general,
compelling and cohesive.
The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it
says in plain and ordinary language: it refers to "all appointments" whether original or
promotional in nature. The public policy embodied in Section 59 is clearly fundamental in

importance, and the Court has neither authority nor inclination to dilute that important public
policy by introducing a qualification here or a distinction there.
It follows that the promotional appointment of petitioner Victoria by her husband, petitioner
Mayor, falls within the prohibited class of appointments: the prohibited relationship between
the appointing authority (petitioner Mayor) and the appointee (wife Victoria) existed at the
time the promotional appointment was issued. It is scarcely necessary to add that the
reasons which may have moved petitioner Mayor to issue the prohibited appointment are, as
a matter of law, not relevant in this connection. 14
II
We turn to the second issue where petitioners contend that when the promotional
appointment of petitioner Victoria was approved by Director Escobia, CSC Field Office,
Bacolod City, that appointment become complete. When petitioner Victoria took her oath of
office and commenced the discharge of the duties of a General Services Officer, she
acquired a vested right to that position and cannot, according to petitioners, be removed
from that position without due process of law.
This argument misconceives the nature of the action taken by the respondent Commission.
That action was notthe imposition of an administrative disciplinary measure upon petitioner
Victoria, nor upon petitioner Mayor. There were no administrative charges in respect of
which petitioner Victoria would have been entitled to notice and hearing. The Commission, in
approving or disapproving an appointment, only examines the conformity of the appointment
with applicable provisions of law and whether the appointee possesses all the minimum
qualifications and none of the disqualifications. At all events, as the Solicitor General has
noted, petitioner Victoria was afforded an opportunity to be heard when she filed a motion for
reconsideration with the Commission and there challenged the disapproval by the
Commission.
The action of the Commission was, in other words, taken in implementation of Section 59,
Book V, E.O. No. 292 and the relevant Implementing Regulations. Because the promotional
appointment in favor of petitioner Victoria was a violation of Section 59, it was null and void
as being contra legem. Section 9 of Rule V of the Omnibus Implementing Regulations sets
out the principal legal consequence of an appointment issued in disregard of the statutory
prohibition:
Sec. 9. An appointment accepted by the appointee cannot be withdrawn or
revoked by the appointing authority and shall remain in force and effect until
disapproved by the Commission. However, an appointment may be void from
the beginning due to fraud on the part of the appointee or because it was
issued in violation of law. (Emphasis supplied)
A void appointment cannot give rise to security of tenure on the part of the holder of
such appointment.
The Commission is empowered to take appropriate action on all appointments and other
personnel actions, e.g., promotions. 15 Such power includes the authority to recall an appointment initially

approved in disregard of applicable provisions of Civil Service law and regulations. Section 20 of Rule VI of the Omnibus
Implementing Rules makes this clear:

Sec. 20. Notwithstanding the initial approval of an appointment, the same

may be recalled on any of the following grounds:
(a) Non-compliance with the procedures/criteria provided in the agency's
Merit Promotion Plan;
(b) Failure to pass through the agency's Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and
employees relative to promotion; or
(d) Violation of other existing civil service law, rules and regulations.
(Emphasis supplied).
The recall or withdrawal by the Commission of the approval which had been issued by one
of its Field Officers, Director Escobia, was accordingly lawful and appropriate, the
promotional appointment of petitioner Victoria being void "from the beginning." The approval
issued by Director Escobia did not, as it could not, cure the intrinsic vice of that appointment.
We conclude, in respect of the second issue, that petitioners have not shown any grave
abuse of discretion, amounting to lack of excess of jurisdiction on the part of respondent
Commission.
Petitioners have also complained that the letter of Congressman Carmona which had
precipitated action on the part of respondent Commission, was not a verified letter. They
contend that the Commission could not or should not have acted upon the charges raised in
that letter.
We are not aware of any law or regulation requiring the letter written by the Congressman to
be subscribed under oath before the Commission could act thereon. Under its own rules and
regulations, the Commission may reviewmotu proprio personnel actions involving the
position of a Division Chief or above, such as the position of General Services Officer. 16 We
hold that the respondent Commission had authority, indeed the duty, to recall on its own initiative the erroneous initial approval
of the promotional appointment extended to petitioner Victoria, and to review the same de novo.

WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED for lack
of merit. No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Bidin, J., is on leave.

#Footnotes

1 An office created by the local Government Code of 1991; Sections 454 and
490, R.A. No. 7160.
2 Annex "C," Rollo, p. 29.
3 Annex "J," Rollo, p. 36.
4 In this Resolution, the Commission had also instructed Director Caberoy "to
formally charged Mayor Rogelio R. Debulgado for violation of the law on
nepotism, conduct the formal investigation, if necessary, and submit [his]
report and recommendation to the Commission immediately." It appears that
the criminal complaint against petitioner Mayor was later withdrawn in
Resolution No. 93-3320 of the Commission; Annex "A," Petitioners'
Reply, Rollo, pp. 119-120.
5 Annex "D," Rollo, p. 30.
6 Annex "F," Rollo, p. 32.
7 Annex "H," Rollo, p. 34.
8 The minimum qualifications of a General Services Officer are prescribed in
Section 490 of the Local Government Code of 1991:
"Sec. 490. Qualifications, Powers and Duties. (a) No person shall be
appointed general services officer unless he is a citizen of the Philippines, a
resident of the local government unit concerned, of good moral character, a
holder of a college degree on public administration, business administration
and management from a recognized college or university, and a first grade
civil service eligible or its equivalent. He must have acquired experience in
general services, including management of supply, property, solid waste
disposal, and general sanitation for at least five (5) years in the case of the
provincial or city general services officer, and three (3) years in the case of
the municipal general services officer.
The appointment for a general services officer shall be mandatory for the
provincial and city governments.
xxx xxx xxx
(Emphasis supplied)
9 On 10 September 1993, the Commission issued its Memorandum Circular
No. 38, Series of 1993, entitled "Omnibus Guidelines on Appointments and
other Personnel Actions" published in the Manila Standard, 6 October 1993;
text in "Omnibus Rules Implementing Book V of E.O. No. 292 and other

Pertinent Civil Service Laws (published by the Commission). Part VII of

Memorandum Circular No. 38 reads in relevant part as follows:
"VII. PROHIBITIONS ON APPOINTMENTS
xxx xxx xxx
2. No appointment in the national, provincial, city and
municipal governments or in any branch or instrumentality
thereof, including government owned or controlled
corporations shall be made in favor of a relative of the
appointing or recommending authority, or of the chief of the
bureau of office or of the persons exercising immediate
supervision over the appointee. [Nepotism]
xxx xxx xxx
c. The following are exempted from the operation of the rules
on nepotism:
persons employed in a confidential capacity
teachers
physicians
members of the Armed Forces of the Philippines
d. the nepotism rule covers all kinds of appointments be they
original, promotional, transfer or reemployment regardless of
status.
xxx xxx xxx
(Emphasis supplied)
We note that paragraph 2(d), above underscored, was added by the
Commission after the controversy here involved had begun and after the
promotional appointment to General Services Officer had been issued to
petitioner Victoria. The Court will not, of course, rely upon this paragraph in
resolving the first issue here presented. Moreover, it is necessary to settle the
question of whether Part VII, 2(d) of Memorandum Circular No. 38, Series of
1993 is itself valid or whether it has expanded the scope of the statutory norm
in Section 59, something which an implementing regulation obviously cannot
do.
Paragraph 2(d) of Memorandum Circular No. 38 is quoted above basically to
point out that it sets out the understanding of the Commission of the scope

and reach of Section 59, Book V of E.O. No. 292 and that that understanding
has been cast in a form of a general regulation applicable to subsequent
appointments and not limited to the particular appointment of petitioner
Victoria Debulgado.
10 See Section 30, R.A. No. 2260, as amended effective 19 June 1959
known as the Civil Service Law of 1959; and Section 49 of P.D. No. 807 dated
6 October 1975, known as the Civil Service Decree of the Philippines.
11 203 SCRA 195 (1991).
12 Teologo v. Civil Service Commission, 19 SCRA 238 (1990); Meram v.
Edralin, 154 SCRA 238 (1987).
13 203 SCRA at 208-209.
In Sulu Islamic Association of Masjid Lambayong v. Malik (226 SCRA 193
[1993]), respondent Judge appointed his nephew (son of his older sister) to
the position of janitor in his court, and later promoted him first as MTC Aide
and later as Process Server. The Court held that he had violated the
prohibition against nepotism found in Section 59, book VI of E.O. no. 292 for
which offense, among others, respondent was dismissed from the service.
The Court did not seek to distinguish between the original appointment of
respondent Judge's nephew as janitor from his subsequent promotional
appointments.
14 It also follows that subparagraph 2(d) of Part VII, Memorandum Circular
No. 38, Series of 1993 (quoted in footnote 8, supra) does not unduly expand
the scope of the statutory norm but, to the contrary, merely faithfully reflects
the scope and reach thereof. Subparagraph 2(d) must hence be held valid
and effective.
15 Section 12(14), Chapter 3, Book V of E.O. No. 292.
16 See Memorandum Circular No. 41, Series of 1991, dated 12 November
1991.

Republic of the Philippines

Supreme Court
Manila
EN BANC
DANTE V. LIBAN, REYNALDO M.
BERNARDO and SALVADOR M. VIARI,
Petitioners,

G. R. No. 175352
Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

- versus -

RICHARD J. GORDON,
Respondent.
PHILIPPINE NATIONAL RED CROSS,
Intervenor.

Promulgated:
January 18, 2011

x--------------------------------------------------x
R E S O LUTI O N
LEONARDO-DE CASTRO, J.:

This resolves the Motion for Clarification and/or for Reconsideration [1] filed on August 10,
2009 by respondent Richard J. Gordon (respondent) of theDecision promulgated by this Court on
July 15, 2009 (the Decision), the Motion for Partial Reconsideration[2] filed on August 27,

2009 by movant-intervenorPhilippine National Red Cross (PNRC), and the latters Manifestation
and Motion to Admit Attached Position Paper[3] filed on December 23, 2009.

In the Decision,[4] the Court held that respondent did not forfeit his seat in the Senate when he
accepted the chairmanship of the PNRC Board of Governors, as the office of the PNRC Chairman is
not a government office or an office in a government-owned or controlled corporation for purposes of
the prohibition in Section 13, Article VI of the 1987 Constitution. [5] The Decision, however, further
declared void the PNRC Charter insofar as it creates the PNRC as a private corporation and
consequently ruled that the PNRC should incorporate under the Corporation Code and register with
the Securities and Exchange Commission if it wants to be a private corporation. [6] The dispositive
portion of the Decision reads as follows:
WHEREFORE, we declare that the office of the Chairman of the Philippine
National Red Cross is not a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13, Article VI of the
1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12,
and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95,
as amended by Presidential Decree Nos. 1264 and 1643, are VOID because they
create the PNRC as a private corporation or grant it corporate powers. [7]
In his Motion for Clarification and/or for Reconsideration, respondent raises the following
grounds: (1) as the issue of constitutionality of Republic Act (R.A.) No. 95 was not raised by the
parties, the Court went beyond the case in deciding such issue; and (2) as the Court decided that
Petitioners did not have standing to file the instant Petition, the pronouncement of the Court on the
validity of R.A. No. 95 should be considered obiter.[8]

Respondent argues that the validity of R.A. No. 95 was a non-issue; therefore, it was
unnecessary for the Court to decide on that question. Respondent citesLaurel v. Garcia,[9] wherein the
Court said that it will not pass upon a constitutional question although properly presented by the
record if the case can be disposed of on some other ground and goes on to claim that since this Court,
in the Decision, disposed of the petition on some other ground, i.e., lack of standing of petitioners,
there was no need for it to delve into the validity of R.A. No. 95, and the rest of the judgment should
be deemed obiter.

In its Motion for Partial Reconsideration, PNRC prays that the Court sustain the
constitutionality of its Charter on the following grounds:
A.

THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL

REPUBLIC ACT NO. 95 AS AMENDED DEPRIVED INTERVENOR
PNRC OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS.
1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT
CONTROVERSY.
2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS AMENDED
WAS NEVER AN ISSUE IN THIS CASE.

B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO. 1264

AND NOT REPUBLIC ACT NO. 95. PRESIDENTIAL DECREE NO. 1264
WAS NOT A CREATION OF CONGRESS.
C. PNRCS STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN.
WHILE IT IS PERFORMING HUMANITARIAN FUNCTIONS AS AN
AUXILIARY TO GOVERNMENT, IT IS A NEUTRAL ENTITY SEPARATE
AND INDEPENDENT OF GOVERNMENT CONTROL, YET IT DOES NOT
QUALIFY AS STRICTLY PRIVATE IN CHARACTER.

In his Comment and Manifestation[10] filed on November 9, 2009, respondent manifests: (1)
that he agrees with the position taken by the PNRC in its Motion for Partial Reconsideration dated
August 27, 2009; and (2) as of the writing of said Comment and Manifestation, there was pending
before the Congress of the Philippines a proposed bill entitled An Act Recognizing the PNRC as an
Independent, Autonomous, Non-Governmental Organization Auxiliary to the Authorities of the
Republic of the Philippines in the Humanitarian Field, to be Known as The Philippine Red Cross. [11]

After a thorough study of the arguments and points raised by the respondent as well as those of
movant-intervenor in their respective motions, we have reconsidered our pronouncements in our
Decision dated July 15, 2009 with regard to the nature of the PNRC and the constitutionality of some
provisions of the PNRC Charter, R.A. No. 95, as amended.

As correctly pointed out in respondents Motion, the issue of constitutionality of R.A. No. 95
was not raised by the parties, and was not among the issues defined in the body of the Decision; thus,
it was not the very lis mota of the case. We have reiterated the rule as to when the Court will consider
the issue of constitutionality in Alvarez v. PICOP Resources, Inc.,[12] thus:

This Court will not touch the issue of unconstitutionality unless it is the very lis
mota. It is a well-established rule that a court should not pass upon a
constitutional question and decide a law to be unconstitutional or invalid, unless
such question is raised by the parties and that when it is raised, if the record also
presents some other ground upon which the court may [rest] its judgment, that course
will be adopted and the constitutional question will be left for consideration until such
question will be unavoidable.[13]

Under the rule quoted above, therefore, this Court should not have declared void certain
sections of R.A. No. 95, as amended by Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC
Charter. Instead, the Court should have exercised judicial restraint on this matter, especially since
there was some other ground upon which the Court could have based its judgment. Furthermore, the
PNRC, the entity most adversely affected by this declaration of unconstitutionality, which was not
even originally a party to this case, was being compelled, as a consequence of the Decision, to
suddenly reorganize and incorporate under the Corporation Code, after more than sixty (60) years of
existence in this country.

Its existence as a chartered corporation remained unchallenged on ground of unconstitutionality

notwithstanding that R.A. No. 95 was enacted on March 22, 1947 during the effectivity of the 1935
Constitution, which provided for a proscription against the creation of private corporations by special
law, to wit:
SEC. 7. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such
corporations are owned and controlled by the Government or any subdivision or
instrumentality thereof. (Art. XIV, 1935 Constitution.)

Similar provisions are found in Article XIV, Section 4 of the 1973 Constitution and Article XII,
Section 16 of the 1987 Constitution. The latter reads:
SECTION 16. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations. Government-owned or
controlled corporations may be created or established by special charters in the
interest of the common good and subject to the test of economic viability.

Since its enactment, the PNRC Charter was amended several times, particularly on June 11,
1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue of R.A. No. 855, R.A. No.
6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of several laws relating to the
PNRCs corporate existence notwithstanding the effectivity of the constitutional proscription on the
creation of private corporations by law, is a recognition that the PNRC is not strictly in the nature of a
private corporation contemplated by the aforesaid constitutional ban.

A closer look at the nature of the PNRC would show that there is none like it not just in terms
of structure, but also in terms of history, public service and official status accorded to it by the State
and the international community. There is merit in PNRCs contention that its structure is sui
generis.

The PNRC succeeded the chapter of the American Red Cross which was in existence in the
Philippines since 1917. It was created by an Act of Congress after the Republic of the Philippines
became an independent nation on July 6, 1946 and proclaimed on February 14, 1947 its adherence to
the Convention of Geneva of July 29, 1929 for the Amelioration of the Condition of the Wounded and
Sick of Armies in the Field (the Geneva Red Cross Convention). By that action the Philippines
indicated its desire to participate with the nations of the world in mitigating the suffering caused by
war and to establish in the Philippines a voluntary organization for that purpose and like other
volunteer organizations established in other countries which have ratified the Geneva Conventions, to
promote the health and welfare of the people in peace and in war.[14]

The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and further amended
by P.D. Nos. 1264 and 1643, show the historical background and legal basis of the creation of the
PNRC by legislative fiat, as a voluntary organization impressed with public interest. Pertinently R.A.
No. 95, as amended by P.D. 1264, provides:
WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894,
the nations of the world unanimously agreed to diminish within their power the evils
inherent in war;
WHEREAS, more than one hundred forty nations of the world have ratified
or adhered to the Geneva Conventions of August 12, 1949 for the Amelioration of the
Condition of the Wounded and Sick of Armed Forces in the Field and at Sea, The

Prisoners of War, and The Civilian Population in Time of War referred to in this
Charter as the Geneva Conventions;
WHEREAS, the Republic of the Philippines became an independent
nation on July 4, 1946, and proclaimed on February 14, 1947 its adherence to the
Geneva Conventions of 1929, and by the action, indicated its desire to
participate with the nations of the world in mitigating the suffering caused by
war and to establish in the Philippines a voluntary organization for that purpose
as contemplated by the Geneva Conventions;
WHEREAS, there existed in the Philippines since 1917 a chapter of the
American National Red Cross which was terminated in view of the independence of
the Philippines; and
WHEREAS, the volunteer organizations established in other countries which
have ratified or adhered to the Geneva Conventions assist in promoting the health
and welfare of their people in peace and in war, and through their mutual
assistance and cooperation directly and through their international organizations
promote better understanding and sympathy among the people of the world;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as Commanderin-Chief of all the Armed Forces of the Philippines and pursuant to Proclamation No.
1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972,
do hereby decree and order that Republic Act No. 95, Charter of the Philippine
National Red Cross (PNRC) as amended by Republic Acts No. 855 and 6373, be
further amended as follows:
Section 1. There is hereby created in the Republic of the Philippines a
body corporate and politic to be the voluntary organization officially designated
to assist the Republic of the Philippines in discharging the obligations set forth
in the Geneva Conventions and to perform such other duties as are inherent
upon a national Red Cross Society. The national headquarters of this
Corporation shall be located in Metropolitan Manila. (Emphasis supplied.)

The significant public service rendered by the PNRC can be gleaned from Section 3 of its
Charter, which provides:
Section 3. That the purposes of this Corporation shall be as follows:
(a) To provide volunteer aid to the sick and wounded of armed forces in time
of war, in accordance with the spirit of and under the conditions prescribed by the
Geneva Conventions to which the Republic of the Philippines proclaimed its
adherence;
(b) For the purposes mentioned in the preceding sub-section, to perform all
duties devolving upon the Corporation as a result of the adherence of the Republic of
the Philippines to the said Convention;
(c) To act in matters of voluntary relief and in accordance with the authorities
of the armed forces as a medium of communication between people of the Republic

of the Philippines and their Armed Forces, in time of peace and in time of war, and to
act in such matters between similar national societies of other governments and the
Governments and people and the Armed Forces of the Republic of the Philippines;
(d) To establish and maintain a system of national and international relief in
time of peace and in time of war and apply the same in meeting and emergency needs
caused by typhoons, flood, fires, earthquakes, and other natural disasters and to
devise and carry on measures for minimizing the suffering caused by such disasters;
(e) To devise and promote such other services in time of peace and in time of
war as may be found desirable in improving the health, safety and welfare of the
Filipino people;
(f) To devise such means as to make every citizen and/or resident of the
Philippines a member of the Red Cross.

The PNRC is one of the National Red Cross and Red Crescent Societies, which, together with
the International Committee of the Red Cross (ICRC) and the IFRC and RCS, make up the
International Red Cross and Red Crescent Movement (the Movement). They constitute a worldwide
humanitarian movement, whose mission is:
[T]o prevent and alleviate human suffering wherever it may be found, to protect life
and health and ensure respect for the human being, in particular in times of armed
conflict and other emergencies, to work for the prevention of disease and for the
promotion of health and social welfare, to encourage voluntary service and a constant
readiness to give help by the members of the Movement, and a universal sense of
solidarity towards all those in need of its protection and assistance. [15]

The PNRC works closely with the ICRC and has been involved in humanitarian activities in
the Philippines since 1982. Among others, these activities in the country include:

1. Giving protection and assistance to civilians displaced or otherwise affected by armed

clashes between the government and armed opposition groups, primarily in Mindanao;
2. Working to minimize the effects of armed hostilities and violence on the population;
3. Visiting detainees; and
4. Promoting awareness of international humanitarian law in the public and private sectors. [16]

National Societies such as the PNRC act as auxiliaries to the public authorities of their own
countries in the humanitarian field and provide a range of services including disaster relief and health
and social programmes.

The International Federation of Red Cross (IFRC) and Red Crescent Societies (RCS) Position
Paper,[17] submitted by the PNRC, is instructive with regard to the elements of the specific nature of
the National Societies such as the PNRC, to wit:
National Societies, such as the Philippine National Red Cross and its sister
Red Cross and Red Crescent Societies, have certain specificities deriving from the
1949 Geneva Convention and the Statutes of the International Red Cross and Red
Crescent Movement (the Movement). They are also guided by the seven
Fundamental Principles of the Red Cross and Red Crescent Movement: Humanity,
Impartiality, Neutrality, Independence, Voluntary Service, Unity and
Universality.
A National Society partakes of a sui generis character. It is a protected
component of the Red Cross movement under Articles 24 and 26 of the First Geneva
Convention, especially in times of armed conflict. These provisions require that the
staff of a National Society shall be respected and protected in all circumstances. Such
protection is not ordinarily afforded by an international treaty to ordinary private
entities or even non-governmental organisations (NGOs). This sui generis character
is also emphasized by the Fourth Geneva Convention which holds that an Occupying
Power cannot require any change in the personnel or structure of a National
Society. National societies are therefore organizations that are directly regulated
by international humanitarian law, in contrast to other ordinary private entities,
including NGOs.
xxxx
In addition, National Societies are not only officially recognized by their
public authorities as voluntary aid societies, auxiliary to the public authorities in the
humanitarian field, but also benefit from recognition at the International level. This is
considered to be an element distinguishing National Societies from other
organisations (mainly NGOs) and other forms of humanitarian response.
x x x. No other organisation belongs to a world-wide Movement in which all
Societies have equal status and share equal responsibilities and duties in helping each
other. This is considered to be the essence of the Fundamental Principle of
Universality.
Furthermore, the National Societies are considered to be auxiliaries to the
public authorities in the humanitarian field. x x x.
The auxiliary status of [a] Red Cross Society means that it is at one and the
same time a private institution and a public service organization because the
very nature of its work implies cooperation with the authorities, a link with the
State. In carrying out their major functions, Red Cross Societies give their
humanitarian support to official bodies, in general having larger resources than the
Societies, working towards comparable ends in a given sector.
x x x No other organization has a duty to be its governments
humanitarian partner while remaining independent.[18] (Emphases ours.)

It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained
valid and effective from the time of its enactment in March 22, 1947 under the 1935 Constitution and
during the effectivity of the 1973 Constitution and the 1987 Constitution.

The PNRC Charter and its amendatory laws have not been questioned or challenged on
constitutional grounds, not even in this case before the Court now.

In the Decision, the Court, citing Feliciano v. Commission on Audit,[19] explained that the
purpose of the constitutional provision prohibiting Congress from creating private corporations was to
prevent the granting of special privileges to certain individuals, families, or groups, which were
denied to other groups. Based on the above discussion, it can be seen that the PNRC Charter does not
come within the spirit of this constitutional provision, as it does not grant special privileges to a
particular individual, family, or group, but creates an entity that strives to serve the common good.

Furthermore, a strict and mechanical interpretation of Article XII, Section 16 of the 1987
Constitution will hinder the State in adopting measures that will serve the public good or national
interest. It should be noted that a special law, R.A. No. 9520, the Philippine Cooperative Code of
2008, and not the general corporation code, vests corporate power and capacities upon cooperatives
which are private corporations, in order to implement the States avowed policy.
In the Decision of July 15, 2009, the Court recognized the public service rendered by the
PNRC as the governments partner in the observance of its international commitments, to wit:
The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization,
whose mission is to bring timely, effective, and compassionate humanitarian
assistance for the most vulnerable without consideration of nationality, race, religion,
gender, social status, or political affiliation. The PNRC provides six major services:
Blood Services, Disaster Management, Safety Services, Community Health and
Nursing, Social Services and Voluntary Service.
The Republic of the Philippines, adhering to the Geneva Conventions,
established the PNRC as a voluntary organization for the purpose contemplated in the
Geneva Convention of 27 July 1929. x x x.[20] (Citations omitted.)

So must this Court recognize too the countrys adherence to the Geneva Convention and
respect the unique status of the PNRC in consonance with its treaty obligations. The Geneva
Convention has the force and effect of law.[21] Under the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the land. [22] This constitutional
provision must be reconciled and harmonized with Article XII, Section 16 of the Constitution, instead
of using the latter to negate the former.

By requiring the PNRC to organize under the Corporation Code just like any other private
corporation, the Decision of July 15, 2009 lost sight of the PNRCs special status under international
humanitarian law and as an auxiliary of the State, designated to assist it in discharging its obligations
under the Geneva Conventions. Although the PNRC is called to be independent under its
Fundamental Principles, it interprets such independence as inclusive of its duty to be the
governments humanitarian partner. To be recognized in the International Committee, the PNRC must
have an autonomous status, and carry out its humanitarian mission in a neutral and impartial manner.

However, in accordance with the Fundamental Principle of Voluntary Service of National

Societies of the Movement, the PNRC must be distinguished from private and profit-making entities.
It is the main characteristic of National Societies that they are not inspired by the desire for financial
gain but by individual commitment and devotion to a humanitarian purpose freely chosen or accepted
as part of the service that National Societies through its volunteers and/or members render to the
Community.[23]

The PNRC, as a National Society of the International Red Cross and Red Crescent
Movement, can neither be classified as an instrumentality of the State, so as not to lose its character
of neutrality as well as its independence, nor strictly as a private corporation since it is regulated by
international humanitarian law and is treated as an auxiliary of the State.[24]

Based on the above, the sui generis status of the PNRC is now sufficiently
established. Although it is neither a subdivision, agency, or instrumentality of the government, nor a
government-owned or -controlled corporation or a subsidiary thereof, as succinctly explained in the
Decision of July 15, 2009, so much so that respondent, under the Decision, was correctly allowed to

hold his position as Chairman thereof concurrently while he served as a Senator, such a conclusion
does notipso facto imply that the PNRC is a private corporation within the contemplation of the
provision of the Constitution, that must be organized under the Corporation Code. As correctly
mentioned by Justice Roberto A. Abad, the sui generis character of PNRC requires us to approach
controversies involving the PNRC on a case-to-case basis.

In sum, the PNRC enjoys a special status as an important ally and auxiliary of the government
in the humanitarian field in accordance with its commitments under international law. This Court
cannot all of a sudden refuse to recognize its existence, especially since the issue of the
constitutionality of the PNRC Charter was never raised by the parties. It bears emphasizing that the
PNRC has responded to almost all national disasters since 1947, and is widely known to provide a
substantial portion of the countrys blood requirements. Its humanitarian work is unparalleled. The
Court should not shake its existence to the core in an untimely and drastic manner that would not only
have negative consequences to those who depend on it in times of disaster and armed hostilities but
also have adverse effects on the image of the Philippines in the international community. The
sections of the PNRC Charter that were declared void must therefore stay.

WHEREFORE, premises considered, respondent Richard J. Gordons Motion for

Clarification and/or for Reconsideration and movant-intervenor PNRCs Motion for Partial
Reconsideration of the Decision in G.R. No. 175352 dated July 15, 2009 are GRANTED. The
constitutionality of R.A. No. 95, as amended, the charter of the Philippine National Red Cross, was
not raised by the parties as an issue and should not have been passed upon by this Court. The
structure of the PNRC is sui generis being neither strictly private nor public in nature. R.A. No. 95
remains valid and constitutional in its entirety. The dispositive portion of the Decision should
therefore be MODIFIED by deleting the second sentence, to now read as follows:
WHEREFORE, we declare that the office of the Chairman of the Philippine
National Red Cross is not a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13, Article VI of the
1987 Constitution.
SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

No part
RENATO C. CORONA
Chief Justice

See dissenting opinion

ANTONIO T. CARPIO
Associate Justice

I join the dissent of J. Carpio

CONCHITA CARPIO MORALES
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

I join the dissent of J. Carpio

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

See my concurring opinion

ROBERTO A. ABAD

MARTIN S. VILLARAMA, JR.

Associate Justice

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

I join J. Carpio in his dissent

JOSE C. MENDOZA
Associate Justice

I agree with the dissent of J. Carpio

MARIA LOURDES P. A. SERENO
Associate Justice

C E R T I F I C AT I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

RENATO C. CORONA
Chief Justice