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APPOINTMENT FINALS 1

G.R. No. 92299 April 19, 1991 respondent as PBO of Rizal upon the aforestated
recommendation of Abella.
REYNALDO R. SAN JUAN, petitioner,
vs. CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET In a letter dated August 3, 1988 addressed to Secretary
AND MANAGEMENT and CECILIA ALMAJOSE, respondents. Carague, the petitioner reiterated his request for the
appointment of Dalisay Santos to the contested position
Legal Services Division for petitioner.
unaware of the earlier appointment made by
Sumulong, Sumulong, Paras & Abano Law Offices for private
Undersecretary Cabuquit.
respondent.
On August 31, 1988, DBM Regional Director Agripino G.
GUTIERREZ, JR., J.:
Galvez wrote the petitioner that Dalisay Santos and his other
In this petition for certiorari pursuant to Section 7, Article IX recommendees did not meet the minimum requirements
(A) of the present Constitution, the petitioner Governor of under Local Budget Circular No. 31 for the position of a local
the Province of Rizal, prays for the nullification of Resolution budget officer. Director Galvez whether or not through
No. 89-868 of the Civil Service Commission (CSC) dated oversight further required the petitioner to submit at least
November 21, 1989 and its Resolution No. 90-150 dated three other qualified nominees who are qualified for the
February 9, 1990. position of PBO of Rizal for evaluation and processing.

The dispositive portion of the questioned Resolution reads: On November 2, 1988, the petitioner after having been
informed of the private respondent's appointment wrote
WHEREFORE, foregoing premises considered, the Secretary Carague protesting against the said appointment
Commission resolved to dismiss, as it hereby dismisses the on the grounds that Cabuquit as DBM Undersecretary is not
appeal of Governor Reynaldo San Juan of Rizal. Accordingly, legally authorized to appoint the PBO; that the private
the approved appointment of Ms. Cecilia Almajose as respondent lacks the required three years work experience
Provincial Budget Officer of Rizal, is upheld. (Rollo, p. 32) as provided in Local Budget Circular No. 31; and that under
The subsequent Resolution No. 90-150 reiterates CSC's Executive Order No. 112, it is the Provincial Governor, not
position upholding the private respondent's appointment by the Regional Director or a Congressman, who has the power
denying the petitioner's motion for reconsideration for lack to recommend nominees for the position of PBO.
of merit. On January 9, 1989 respondent DBM, through its Director of
The antecedent facts of the case are as follows: the Bureau of Legal & Legislative Affairs (BLLA) Virgilio A.
Afurung, issued a Memorandum ruling that the petitioner's
On March 22, 1988, the position of Provincial Budget Officer letter-protest is not meritorious considering that public
(PBO) for the province of Rizal was left vacant by its former respondent DBM validly exercised its prerogative in filling-
holder, a certain Henedima del Rosario. up the contested position since none of the petitioner's
In a letter dated April 18, 1988, the petitioner informed nominees met the prescribed requirements.
Director Reynaldo Abella of the Department of Budget and On January 27, 1989, the petitioner moved for a
Management (DBM) Region IV that Ms. Dalisay Santos reconsideration of the BLLA ruling.
assumed office as Acting PBO since March 22, 1988 pursuant
to a Memorandum issued by the petitioner who further On February 28, 1989, the DBM Secretary denied the
requested Director Abella to endorse the appointment of petitioner's motion for reconsideration.
the said Ms. Dalisay Santos to the contested position of PBO On March 27, 1989, the petitioner wrote public respondent
of Rizal. Ms. Dalisay Santos was then Municipal Budget CSC protesting against the appointment of the private
Officer of Taytay, Rizal before she discharged the functions respondent and reiterating his position regarding the
of acting PBO. matter.
In a Memorandum dated July 26, 1988 addressed to the Subsequently, public respondent CSC issued the questioned
DBM Secretary, then Director Abella of Region IV resolutions which prompted the petitioner to submit before
recommended the appointment of the private respondent us the following assignment of errors:
as PBO of Rizal on the basis of a comparative study of all
Municipal Budget Officers of the said province which A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY
included three nominees of the petitioner. According to DBM ASSISTANT SECRETARY CABUQUIT OF CECILIA
Abella, the private respondent was the most qualified since ALMAJOSE AS PBO OF RIZAL.
she was the only Certified Public Accountant among the
B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE
contenders.
POSSESSES ALL THE REQUIRED QUALIFICATIONS.
On August 1, 1988, DBM Undersecretary Nazario S.
C. THE CSC ERRED IN DECLARING THAT PETITIONER'S
Cabuquit, Jr. signed the appointment papers of the private
NOMINEES ARE NOT QUALIFIED TO THE SUBJECT POSITION.
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D. THE CSC AND THE DBM GRAVELY ABUSED THEIR The petitioner contends that since the appointing authority
DISCRETION IN NOT ALLOWING PETITIONER TO SUBMIT with respect to the Provincial Budget Officer of Rizal was
NEW NOMINEES WHO COULD MEET THE REQUIRED vested in him before, then, the real intent behind Executive
QUALIFICATION (Petition, pp. 7-8, Rollo, pp. 15-16) Order No. 112 in empowering him to recommend nominees
to the position of Provincial Budget Officer is to make his
All the assigned errors relate to the issue of whether or not
recommendation part and parcel of the appointment
the private respondent is lawfully entitled to discharge the
process. He states that the phrase "upon recommendation
functions of PBO of Rizal pursuant to the appointment made
of the local chief executive concerned" must be given
by public respondent DBM's Undersecretary upon the
mandatory application in consonance with the state policy
recommendation of then Director Abella of DBM Region IV.
of local autonomy as guaranteed by the 1987 Constitution
The petitioner's arguments rest on his contention that he under Art. II, Sec. 25 and Art. X, Sec. 2 thereof. He further
has the sole right and privilege to recommend the nominees argues that his power to recommend cannot validly be
to the position of PBO and that the appointee should come defeated by a mere administrative issuance of public
only from his nominees. In support thereof, he invokes respondent DBM reserving to itself the right to fill-up any
Section 1 of Executive Order No. 112 which provides that: existing vacancy in case the petitioner's nominees do not
meet the qualification requirements as embodied in public
Sec. 1. All budget officers of provinces, cities and respondent DBM's Local Budget Circular No. 31 dated
municipalities shall be appointed henceforth by the Minister February 9, 1988.
of Budget and Management upon recommendation of the
local chief executive concerned, subject to civil service law, The questioned ruling is justified by the public respondent
rules and regulations, and they shall be placed under the CSC as follows:
administrative control and technical supervision of the
As required by said E.O. No. 112, the DBM Secretary may
Ministry of Budget and Management.
choose from among the recommendees of the Provincial
The petitioner maintains that the appointment of the private Governor who are thus qualified and eligible for
respondent to the contested position was made in appointment to the position of the PBO of Rizal.
derogation of the provision so that both the public Notwithstanding, the recommendation of the local chief
respondents committed grave abuse of discretion in executive is merely directory and not a condition sine qua
upholding Almajose's appointment. non to the exercise by the Secretary of DBM of his
appointing prerogative. To rule otherwise would in effect
There is no question that under Section 1 of Executive Order give the law or E.O. No. 112 a different interpretation or
No. 112 the petitioner's power to recommend is subject to construction not intended therein, taking into consideration
the qualifications prescribed by existing laws for the position that said officer has been nationalized and is directly under
of PBO. Consequently, in the event that the the control and supervision of the DBM Secretary or through
recommendations made by the petitioner fall short of the his duly authorized representative. It cannot be gainsaid that
required standards, the appointing authority, the Minister said national officer has a similar role in the local
(now Secretary) of public respondent DBM is expected to government unit, only on another area or concern, to that
reject the same. of a Commission on Audit resident auditor. Hence, to
In the event that the Governor recommends an unqualified preserve and maintain the independence of said officer from
person, is the Department Head free to appoint anyone he the local government unit, he must be primarily the choice
fancies ? This is the issue before us. of the national appointing official, and the exercise thereof
must not be unduly hampered or interfered with, provided
Before the promulgation of Executive Order No. 112 on the appointee finally selected meets the requirements for
December 24, 1986, Batas Pambansa Blg. 337, otherwise the position in accordance with prescribed Civil Service Law,
known as the Local Government Code vested upon the Rules and Regulations. In other words, the appointing official
Governor, subject to civil service rules and regulations, the is not restricted or circumscribed to the list submitted or
power to appoint the PBO (Sec. 216, subparagraph (1), BP recommended by the local chief executive in the final
337). The Code further enumerated the qualifications for selection of an appointee for the position. He may consider
the position of PBO. Thus, Section 216, subparagraph (2) of other nominees for the position vis a vis the nominees of the
the same code states that: local chief executive. (CSC Resolution No. 89-868, p. 2; Rollo,
(2) No person shall be appointed provincial budget officer p. 31)
unless he is a citizen of the Philippines, of good moral The issue before the Court is not limited to the validity of the
character, a holder of a degree preferably in law, commerce, appointment of one Provincial Budget Officer. The tug of
public administration or any related course from a war between the Secretary of Budget and Management and
recognized college or university, a first grade civil service the Governor of the premier province of Rizal over a
eligibility or its equivalent, and has acquired at least five seemingly innocuous position involves the application of a
years experience in budgeting or in any related field. most important constitutional policy and principle, that of
APPOINTMENT FINALS 3

local autonomy. We have to obey the clear mandate on local present Chief Justice in his opinion in the Hebron case,
autonomy. Where a law is capable of two interpretations, supervision goes no further than "overseeing or the power
one in favor of centralized power in Malacañang and the or authority of an officer to see that subordinate officers
other beneficial to local autonomy, the scales must be perform their duties. If the latter fail or neglect to fulfill them
weighed in favor of autonomy. the former may take such action or step as prescribed by law
to make them perform their duties." (Ibid, pp. 147-148)
The exercise by local governments of meaningful power has
Control, on the other hand, "means the power of an officer
been a national goal since the turn of the century. And yet,
to alter or modify or nullify or set aside what a subordinate
inspite of constitutional provisions and, as in this case,
had done in the performance of their duties and to
legislation mandating greater autonomy for local officials,
substitute the judgment of the former for that of the latter."
national officers cannot seem to let go of centralized
It would follow then, according to the present Chief Justice,
powers. They deny or water down what little grants of
to go back to the Hebron opinion, that the President had to
autonomy have so far been given to municipal corporations.
abide by the then provisions of the Revised Administrative
President McKinley's Instructions dated April 7, 1900 to the Code on suspension and removal of municipal officials, there
Second Philippine Commission ordered the new being no power of control that he could rightfully exercise,
Government "to devote their attention in the first instance the law clearly specifying the procedure by which such
to the establishment of municipal governments in which disciplinary action would be taken.
natives of the Islands, both in the cities and rural
Pursuant to this principle under the 1935 Constitution,
communities, shall be afforded the opportunity to manage
legislation implementing local autonomy was enacted. In
their own local officers to the fullest extent of which they are
1959, Republic Act No. 2264, "An Act Amending the Law
capable and subject to the least degree of supervision and
Governing Local Governments by Increasing Their
control which a careful study of their capacities and
Autonomy and Reorganizing Local Governments" was
observation of the workings of native control show to be
passed. It was followed in 1967 when Republic Act No. 5185,
consistent with the maintenance of law, order and loyalty.
the Decentralization Law was enacted, giving "further
In this initial organic act for the Philippines, the Commission autonomous powers to local governments governments."
which combined both executive and legislative powers was
The provisions of the 1973 Constitution moved the country
directed to give top priority to making local autonomy
further, at least insofar as legal provisions are concerned,
effective.
towards greater autonomy. It provided under Article II as a
The 1935 Constitution had no specific article on local basic principle of government:
autonomy. However, in distinguishing between presidential
Sec. 10. The State shall guarantee and promote the
control and supervision as follows:
autonomy of local government units, especially the
The President shall have control of all the executive barangay to ensure their fullest development as self-reliant
departments, bureaus, or offices, exercise general communities.
supervision over all local governments as may be provided
An entire article on Local Government was incorporated into
by law, and take care that the laws be faithfully executed.
the Constitution. It called for a local government code
(Sec. 11, Article VII, 1935 Constitution)
defining more responsive and accountable local government
the Constitution clearly limited the executive power over structures. Any creation, merger, abolition, or substantial
local governments to "general supervision . . . as may be boundary alteration cannot be done except in accordance
provided by law." The President controls the executive with the local government code and upon approval by a
departments. He has no such power over local governments. plebiscite. The power to create sources of revenue and to
He has only supervision and that supervision is both general levy taxes was specifically settled upon local governments.
and circumscribed by statute.
The exercise of greater local autonomy is even more marked
In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court in the present Constitution.
stated:
Article II, Section 25 on State Policies provides:
. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then
Sec. 25. The State shall ensure the autonomy of local
Justice, now Chief Justice, Concepcion as theponente,
governments
clarified matters. As was pointed out, the presidential
competence is not even supervision in general, but general The 14 sections in Article X on Local Government not only
supervision as may be provided by law. He could not thus go reiterate earlier doctrines but give in greater detail the
beyond the applicable statutory provisions, which bind and provisions making local autonomy more meaningful. Thus,
fetter his discretion on the matter. Moreover, as had been Sections 2 and 3 of Article X provide:
earlier ruled in an opinion penned by Justice Padilla in
Sec. 2. The territorial and political subdivisions shall enjoy
Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to by the
local autonomy.
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Sec. 3. The Congress shall enact a local government code be no reservation of the right to fill up a position with a
which shall provide for a more responsive and accountable person of the appointing power's personal choice.
local government structure instituted through a system of
The public respondent's grave abuse of discretion is
decentralization with effective mechanisms of recall,
aggravated by the fact that Director Galvez required the
initiative, and referendum, allocate among the different
Provincial Governor to submit at least three other names of
local government units their powers, responsibilities, and
nominees better qualified than his earlier recommendation.
resources, and provide for the qualifications, election,
It was a meaningless exercise. The appointment of the
appointment and removal, term, salaries, powers and
private respondent was formalized before the Governor was
functions and duties of local officials, and all other matters
extended the courtesy of being informed that his nominee
relating to the organization and operation of the local units.
had been rejected. The complete disregard of the local
When the Civil Service Commission interpreted the government's prerogative and the smug belief that the DBM
recommending power of the Provincial Governor as purely has absolute wisdom, authority, and discretion are manifest.
directory, it went against the letter and spirit of the
In his classic work "Philippine Political Law" Dean Vicente G.
constitutional provisions on local autonomy. If the DBM
Sinco stated that the value of local governments as
Secretary jealously hoards the entirety of budgetary powers
institutions of democracy is measured by the degree of
and ignores the right of local governments to develop self-
autonomy that they enjoy. Citing Tocqueville, he stated that
reliance and resoluteness in the handling of their own funds,
"local assemblies of citizens constitute the strength of free
the goal of meaningful local autonomy is frustrated and set
nations. . . . A people may establish a system of free
back.
government but without the spirit of municipal institutions,
The right given by Local Budget Circular No. 31 which states: it cannot have the spirit of liberty." (Sinco, Philippine Political
Law, Eleventh Edition, pp. 705-706).
Sec. 6.0 — The DBM reserves the right to fill up any existing
vacancy where none of the nominees of the local chief Our national officials should not only comply with the
executive meet the prescribed requirements. constitutional provisions on local autonomy but should also
appreciate the spirit of liberty upon which these provisions
is ultra vires and is, accordingly, set aside. The DBM may
are based.
appoint only from the list of qualified recommendees
nominated by the Governor. If none is qualified, he must WHEREFORE, the petition is hereby GRANTED. The
return the list of nominees to the Governor explaining why questioned resolutions of the Civil Service Commission are
no one meets the legal requirements and ask for new SET ASIDE. The appointment of respondent Cecilia Almajose
recommendees who have the necessary eligibilities and is nullified. The Department of Budget and Management is
qualifications. ordered to appoint the Provincial Budget Officer of Rizal
from among qualified nominees submitted by the Provincial
The PBO is expected to synchronize his work with DBM.
Governor.
More important, however, is the proper administration of
fiscal affairs at the local level. Provincial and municipal SO ORDERED.
budgets are prepared at the local level and after completion
are forwarded to the national officials for review. They are
prepared by the local officials who must work within the
constraints of those budgets. They are not formulated in the
inner sanctums of an all-knowing DBM and unilaterally
imposed on local governments whether or not they are
relevant to local needs and resources. It is for this reason
that there should be a genuine interplay, a balancing of
viewpoints, and a harmonization of proposals from both the
local and national officials. It is for this reason that the
nomination and appointment process involves a sharing of
power between the two levels of government.

It may not be amiss to give by way of analogy the procedure


followed in the appointments of Justices and Judges. Under
Article VIII of the Constitution, nominations for judicial
positions are made by the Judicial and Bar Council. The
President makes the appointments from the list of nominees
submitted to her by the Council. She cannot apply the DBM
procedure, reject all the Council nominees, and appoint
another person whom she feels is better qualified. There can
APPOINTMENT FINALS 5

G.R. No. 104732 June 22, 1993 any head, official or appointing officer of a government
office, agency or instrumentality, whether national or local,
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO,
including government-owned or controlled corporations,
DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P.
who appoints or hires any new employee, whether
REYES, petitioner, vs.
provisional, temporary or casual, or creates and fills any new
HON. FRANKLIN M. DRILON, Executive Secretary, and
position, except upon prior authority of the Commission.
RICHARD J. GORDON, respondents.
The Commission shall not grant the authority sought unless
BELLOSILLO, J.: it is satisfied that the position to be filled is essential to the
proper functioning of the office or agency concerned, and
The constitutionality of Sec. 13, par. (d), of R.A. that the position shall not be filled in a manner that may
7227,1 otherwise known as the "Bases Conversion and influence the election. As an exception to the foregoing
Development Act of 1992," under which respondent Mayor provisions, a new employee may be appointed in case of
Richard J. Gordon of Olongapo City was appointed Chairman urgent need: Provided, however, That notice of the
and Chief Executive Officer of the Subic Bay Metropolitan appointment shall be given to the Commission within three
Authority (SBMA), is challenged in this original petition with days from the date of the appointment. Any appointment or
prayer for prohibition, preliminary injunction and temporary hiring in violation of this provision shall be null and void. (2)
restraining order "to prevent useless and unnecessary Any government official who promotes, or gives any
expenditures of public funds by way of salaries and other increase of salary or remuneration or privilege to any
operational expenses attached to the office . . . ."2 Paragraph government official or employee, including those in
(d) reads — government-owned or controlled corporations . . . .
(d) Chairman administrator — The President shall appoint a for the reason that the appointment of respondent Gordon
professional manager as administrator of the Subic to the subject posts made by respondent Executive
Authority with a compensation to be determined by the Secretary on 3 April 1992 was within the prohibited 45-day
Board subject to the approval of the Secretary of Budget, period prior to the 11 May 1992 Elections.
who shall be the ex oficio chairman of the Board and who
shall serve as the chief executive officer of the Subic The principal question is whether the proviso in Sec. 13, par.
Authority: Provided, however, That for the first year of its (d), of R.A. 7227 which states, "Provided, however, That for
operations from the effectivity of this Act, the mayor of the the first year of its operations from the effectivity of this Act,
City of Olongapo shall be appointed as the chairman and the mayor of the City of Olongapo shall be appointed as the
chief executive officer of the Subic Authority (emphasis chairman and chief executive officer of the Subic Authority,"
supplied). violates the constitutional proscription against appointment
or designation of elective officials to other government
Petitioners, who claim to be taxpayers, employees of the posts.
U.S. Facility at the Subic, Zambales, and officers and
members of the Filipino Civilian Employees Association in In full, Sec. 7 of Art. IX-B of the Constitution provides:
U.S. Facilities in the Philippines, maintain that the proviso in
No elective official shall be eligible for appointment or
par. (d) of Sec. 13 herein-above quoted in italics infringes on
designation in any capacity to any public office or position
the following constitutional and statutory provisions: (a) Sec.
during his tenure.
7, first par., Art. IX-B, of the Constitution, which states that
"[n]o elective official shall be eligible for appointment or Unless otherwise allowed by law or by the primary functions
designation in any capacity to any public officer or position of his position, no appointive official shall hold any other
during his tenure,"3 because the City Mayor of Olongapo City office or employment in the Government or any subdivision,
is an elective official and the subject posts are public offices; agency or instrumentality thereof, including government-
(b) Sec. 16, Art. VII, of the Constitution, which provides that owned or controlled corporations or their subsidiaries.
"[t]he President shall . . . . appoint all other officers of the
The section expresses the policy against the concentration
Government whose appointments are not
of several public positions in one person, so that a public
otherwise provided for by law, and those whom he may be
officer or employee may serve full-time with dedication and
authorized by law to appoint",4since it was Congress through
thus be efficient in the delivery of public services. It is an
the questioned proviso and not the President who
affirmation that a public office is a full-time job. Hence, a
appointed the Mayor to the subject posts;5 and, (c) Sec. 261,
public officer or employee, like the head of an executive
par. (g), of the Omnibus Election Code, which says:
department described in Civil Liberties Union v. Executive
Sec. 261. Prohibited Acts. — The following shall be guilty of Secretary, G.R. No. 83896, and Anti-Graft League of the
an election offense: . . . (g) Appointment of new employees, Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian
creation of new position, promotion, or giving salary Reform, G.R. No. 83815,6 ". . . . should be allowed to attend
increases. — During the period of forty-five days before a to his duties and responsibilities without the distraction of
regular election and thirty days before a special election, (1) other governmental duties or employment. He should be
APPOINTMENT FINALS 6

precluded from dissipating his efforts, attention and energy appointive officials, there may be a law that will allow them
among too many positions of responsibility, which may to hold other positions.
result in haphazardness and inefficiency . . . ."
MR. FOZ. Yes, I suggest we make that difference, because in
Particularly as regards the first paragraph of Sec. 7, "(t)he the case of appointive officials, there will be certain
basic idea really is to prevent a situation where a local situations where the law should allow them to hold some
elective official will work for his appointment in an executive other positions. 12
position in government, and thus neglect his constituents . .
The distinction being clear, the exemption allowed to
. ."7
appointive officials in the second paragraph cannot be
In the case before us, the subject proviso directs the extended to elective officials who are governed by the first
President to appoint an elective official, i.e., the Mayor of paragraph.
Olongapo City, to other government posts (as Chairman of
It is further argued that the SBMA posts are merely ex
the Board and Chief Executive Officer of SBMA). Since this is
officio to the position of Mayor of Olongapo City, hence, an
precisely what the constitutional proscription seeks to
excepted circumstance, citing Civil Liberties Union v.
prevent, it needs no stretching of the imagination to
Executive Secretary, 13 where we stated that the prohibition
conclude that the proviso contravenes Sec. 7, first par., Art.
against the holding of any other office or employment by the
IX-B, of the Constitution. Here, the fact that the expertise of
President, Vice-President, Members of the Cabinet, and
an elective official may be most beneficial to the higher
their deputies or assistants during their tenure,
interest of the body politic is of no moment.
as provided in Sec. 13, Art. VII, of the Constitution, does not
It is argued that Sec. 94 of the Local Government Code (LGC) comprehend additional duties and functions required by the
permits the appointment of a local elective official to primary functions of the officials concerned, who are to
another post if so allowed by law or by the primary functions perform them in an ex officio capacity as provided by law,
of his office.8 But, the contention is fallacious. Section 94 of without receiving any additional compensation therefor.
the LGC is not determinative of the constitutionality of Sec.
This argument is apparently based on a wrong premise.
13, par. (d), of R.A. 7227, for no legislative act can prevail
Congress did not contemplate making the subject SBMA
over the fundamental law of the land. Moreover, since the
posts as ex officio or automatically attached to the Office of
constitutionality of Sec. 94 of LGC is not the issue here nor is
the Mayor of Olongapo City without need of appointment.
that section sought to be declared unconstitutional, we
The phrase "shall be appointed" unquestionably shows the
need not rule on its validity. Neither can we invoke a practice
intent to make the SBMA posts appointive and not merely
otherwise unconstitutional as authority for its validity.
adjunct to the post of Mayor of Olongapo City. Had it been
In any case, the view that an elective official may be the legislative intent to make the subject positions ex officio,
appointed to another post if allowed by law or by the Congress would have, at least, avoided the word
primary functions of his office, ignores the clear-cut "appointed" and, instead, "ex officio" would have been
difference in the wording of the two (2) paragraphs of Sec. used. 14
7, Art.
Even in the Senate deliberations, the Senators were fully
IX-B, of the Constitution. While the second paragraph
aware that subject proviso may contravene Sec. 7, first par.,
authorizes holding of multiple offices by
Art. IX-B, but they nevertheless passed the bill and decided
an appointive official when allowed by law or by the primary
to have the controversy resolved by the courts. Indeed, the
functions of his position, the first paragraph appears to be
Senators would not have been concerned with the effects of
more stringent by not providing any exception to the rule
Sec. 7, first par., had they considered the SBMA posts as ex
against appointment or designation of an elective official to
officio.
the government post, except as are particularly recognized
in the Constitution itself, e.g., the President as head of the Cognizant of the complication that may arise from the way
economic and planning agency;9 the Vice-President, who the subject proviso was stated, Senator Rene Saguisag
may be appointed Member of the Cabinet; 10 and, a member remarked that "if the Conference Committee just said "the
of Congress who may be designated ex officio member of Mayor shall be the Chairman" then that should foreclose the
the Judicial and Bar Council. 11 issue. It is a legislative choice." 15 The Senator took a view
that the constitutional proscription against appointment of
The distinction between the first and second paragraphs of
elective officials may have been sidestepped if Congress
Sec. 7, Art. IX-B, was not accidental when drawn, and not
attached the SBMA posts to the Mayor of Olongapo City
without reason. It was purposely sought by the drafters of
instead of directing the President to appoint him to the post.
the Constitution as shown in their deliberation, thus —
Without passing upon this view of Senator Saguisag, it
MR. MONSOD. In other words, what then Commissioner is suffices to state that Congress intended the posts to be
saying, Mr. Presiding Officer, is that the prohibition is more appointive, thus nibbling in the bud the argument that they
strict with respect to elective officials, because in the case of are ex officio.
APPOINTMENT FINALS 7

The analogy with the position of Chairman of the Metro the power of appointment is conferred on the President,
Manila Authority made by respondents cannot be applied to such conferment necessarily carries the discretion of whom
uphold the constitutionality of the challenged proviso since to appoint. Even on the pretext of prescribing the
it is not put in issue in the present case. In the same vein, the qualifications of the officer, Congress may not abuse such
argument that if no elective official may be appointed or power as to divest the appointing authority, directly or
designated to another post then Sec. 8, Art. IX-B, of the indirectly, of his discretion to pick his own choice.
Constitution allowing him to receive double Consequently, when the qualifications prescribed by
compensation 16 would be useless, is non sequitur since Sec. Congress can only be met by one individual, such enactment
8 does not affect the constitutionality of the subject proviso. effectively eliminates the discretion of the appointing power
In any case, the Vice-President for example, an elective to choose and constitutes an irregular restriction on the
official who may be appointed to a cabinet post under Sec. power of appointment. 24
3, Art. VII, may receive the compensation attached to the
In the case at bar, while Congress willed that the subject
cabinet position if specifically authorized by law.
posts be filled with a presidential appointee for the first year
Petitioners also assail the legislative encroachment on the of its operations from the effectivity of R.A. 7227,
appointing authority of the President. Section 13, par. (d), the proviso nevertheless limits the appointing authority to
itself vests in the President the power to appoint the only one eligible, i.e., the incumbent Mayor of Olongapo
Chairman of the Board and the Chief Executive Officer of City. Since only one can qualify for the posts in question, the
SBMA, although he really has no choice under the law but to President is precluded from exercising his discretion to
appoint the Mayor of Olongapo City. choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no
As may be defined, an "appointment" is "[t]he designation
power at all and goes against the very nature itself of
of a person, by the person or persons having authority
appointment.
therefor, to discharge the duties of some office or
trust," 17 or "[t]he selection or designation of a person, by While it may be viewed that the proviso merely sets the
the person or persons having authority therefor, to fill an qualifications of the officer during the first year of
office or public function and discharge the duties of the operations of SBMA, i.e., he must be the Mayor of Olongapo
same. 18 In his treatise, Philippine Political City, it is manifestly an abuse of congressional authority to
Law, 19 Senior Associate Justice Isagani A. Cruz defines prescribe qualifications where only one, and no other, can
appointment as "the selection, by the authority vested with qualify. Accordingly, while the conferment of the appointing
the power, of an individual who is to exercise the functions power on the President is a perfectly valid legislative act,
of a given office." the proviso limiting his choice to one is certainly an
encroachment on his prerogative.
Considering that appointment calls for a selection, the
appointing power necessarily exercises a discretion. Since the ineligibility of an elective official for appointment
According to Woodbury, J., 20 "the choice of a person to fill remains all throughout his tenure or during his incumbency,
an office constitutes the essence of his appointment," 21and he may however resign first from his elective post to cast off
Mr. Justice Malcolm adds that an "[a]ppointment to office is the constitutionally-attached disqualification before he may
intrinsically an executive act involving the exercise of be considered fit for appointment. The deliberation in the
discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Constitutional Commission is enlightening:
Intermediate Appellate Court 23 we held:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the
The power to appoint is, in essence, discretionary. The substitution of the word "term" with TENURE.
appointing power has the right of choice which he may
MR. FOZ. The effect of the proposed amendment is to make
exercise freely according to his judgment, deciding for
possible for one to resign from his position.
himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative of MR. DAVIDE. Yes, we should allow that prerogative.
the appointing power . . . .
MR. FOZ. Resign from his position to accept an executive
Indeed, the power of choice is the heart of the power to position.
appoint. Appointment involves an exercise of discretion of
whom to appoint; it is not a ministerial act of issuing MR. DAVIDE. Besides, it may turn out in a given case that
appointment papers to the appointee. In other words, the because of, say, incapacity, he may leave the service, but if
choice of the appointee is a fundamental component of the he is prohibited from being appointed within the term for
appointing power. which he was elected, we may be depriving the government
of the needed expertise of an individual. 25
Hence, when Congress clothes the President with the power
to appoint an officer, it (Congress) cannot at the same time Consequently, as long as he is an incumbent, an elective
limit the choice of the President to only one candidate. Once official remains ineligible for appointment to another public
office.
APPOINTMENT FINALS 8

Where, as in the case of respondent Gordon, an incumbent same is adjudged to be such (State vs. Carroll, 38 Conn., 499;
elective official was, notwithstanding his ineligibility, Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213;
appointed to other government posts, he does not Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28
automatically forfeit his elective office nor remove his
Conformably with our ruling in Civil Liberties Union, any and
ineligibility imposed by the Constitution. On the contrary,
all per diems, allowances and other emoluments which may
since an incumbent elective official is not eligible to the
have been received by respondent Gordon pursuant to his
appointive position, his appointment or designation thereto
appointment may be retained by him.
cannot be valid in view of his disqualification or lack of
eligibility. This provision should not be confused with Sec. The illegality of his appointment to the SBMA posts being
13, Art. VI, of the Constitution where "(n)o Senator or now evident, other matters affecting the legality of the
Member of the House of Representatives may hold any questioned proviso as well as the appointment of said
other office or employment in the Government . . . during respondent made pursuant thereto need no longer be
his term without forfeiting his seat . . . ." The difference discussed.
between the two provisions is significant in the sense that
incumbent national legislators lose their elective posts only In thus concluding as we do, we can only share the lament
after they have been appointed to another government of Sen. Sotero Laurel which he expressed in the floor
office, while other incumbent elective officials must first deliberations of S.B. 1648, precursor of R.A. 7227, when he
resign their posts before they can be appointed, thus articulated —
running the risk of losing the elective post as well as not . . . . (much) as we would like to have the present Mayor of
being appointed to the other post. It is therefore clear that Olongapo City as the Chief Executive of this Authority that
ineligibility is not directly related with forfeiture of office. ". we are creating; (much) as I, myself, would like to because I
. . . The effect is quite different where it is know the capacity, integrity, industry and dedication of
expressly provided by law that a person holding one office Mayor Gordon; (much) as we would like to give him this
shall be ineligible to another. Such a provision is held to terrific, burdensome and heavy responsibility, we cannot do
incapacitate the incumbent of an office from accepting or it because of the constitutional prohibition which is very
holding a second office (State ex rel. Van Antwerp v Hogan, clear. It says: "No elective official shall be appointed or
283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, designated to another position in any capacity." 29
61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147, For, indeed, "a Constitution must be firm and immovable,
65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v like a mountain amidst the strife of storms or a rock in the
State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the ocean amidst the raging of the waves." 30 One of the
constitution, or statutes declare that persons holding one characteristics of the Constitution is permanence, i.e., "its
office shall be ineligible for election or appointment to capacity to resist capricious or whimsical change dictated
another office, either generally or of a certain kind, the not by legitimate needs but only by passing fancies,
prohibition has been held to incapacitate the incumbent of temporary passions or occasional infatuations of the people
the first office to hold the second so that any attempt to hold with ideas or personalities . . . . Such a Constitution is not
the second is void (Ala. — State ex rel. Van Antwerp v. likely to be easily tampered with to suit political expediency,
Hogan, 218 So 2d 258, 283 Ala 445)." 27 personal ambitions or ill-advised agitation for change." 31

As incumbent elective official, respondent Gordon is Ergo, under the Constitution, Mayor Gordon has a choice.
ineligible for appointment to the position of Chairman of the We have no choice.
Board and Chief Executive of SBMA; hence, his appointment WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227,
thereto pursuant to a legislative act that contravenes the which states: ". . . Provided, however, That for the first year
Constitution cannot be sustained. He however remains of its operations from the effectivity of this Act, the Mayor of
Mayor of Olongapo City, and his acts as SBMA official are not the City of Olongapo shall be appointed as the chairman and
necessarily null and void; he may be considered a de chief executive officer of the Subic Authority," is declared
facto officer, "one whose acts, though not those of a lawful unconstitutional; consequently, the appointment pursuant
officer, the law, upon principles of policy and justice, will thereto of the Mayor of Olongapo City, respondent Richard
hold valid so far as they involve the interest of the public and J. Gordon, is INVALID, hence NULL and VOID.
third persons, where the duties of the office were exercised
. . . . under color of a known election or appointment, void However, all per diems, allowances and other emoluments
because the officer was not eligible, or because there was a received by respondent Gordon, if any, as such Chairman
want of power in the electing or appointing body, or by and Chief Executive Officer may be retained by him, and all
reason of some defect or irregularity in its exercise, such acts otherwise legitimate done by him in the exercise of his
ineligibility, want of power or defect being unknown to the authority as officer de facto of SBMA are hereby UPHELD.
public . . . . [or] under color of an election, or appointment,
SO ORDERED.
by or pursuant to a public unconstitutional law, before the
APPOINTMENT FINALS 9

[G.R. No. 122197. June 26, 1998] 2. That the budget containing an appropriation for the
position of Assistant Provincial Treasurer for Administration
ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON
was already approved by the Provincial Board; and
AUDIT, respondent.
3. That Mr. Dimaandal at the time of his designation as
MARTINEZ, J.:
Acting Provincial Treasurer for Administration was no longer
This petition for certiorari seeks the reversal of the decision performing the duties and functions of Supply Officer III."
of the Commission on Audit dated September 7, 1995,[1] the
The Provincial Auditor, however, denied the request for
dispositive portion of which reads, to wit:
reconsideration. Appellant was required to refund the
Foregoing premises considered, the instant appeal cannot amount of P52,908.00 which was disallowed.
be given due course. Accordingly, the disallowance in
Petitioner appealed to the respondent Commission on Audit
question in the total amount of P52,908.00 is hereby
which sustained the stand of the Provincial Auditor of
affirmed. Considering that the claim for the RATA
Batangas as valid and proper. The respondent Commission
differential in the amount of P8,400.00 is devoid of any legal
was of the view that the petitioner was merely designated
basis, the same is also disallowed. Hence, appellant Zosimo
as an Assistant Provincial Treasurer for Administration in
M. Dimaandal is hereby directed to refund the salary and
addition to his regular duties. As such, he is not entitled to
RATA differential in the amount of P61,308.00 he had
receive an additional salary. The Commission further opined
received from the Provincial Government of Batangas.[2]
that petitioner was likewise not entitled to receive the
The undisputed facts: difference in RATA provided for under the Local Budget
Circular issued by the Department of Budget and
On November 23, 1992, petitioner Zosimo M. Dimaandal, Management considering that the party designating him to
then holding the position of Supply Officer III, was such position is not the duly competent authority, provided
designated Acting Assistant Provincial Treasurer for for under Section 471 of the Local Government Code.
Administration by then Governor Vicente A. Mayo of Notably, petitioner was appointed as Assistant Provincial
Batangas. Pursuant to the designation, petitioner filed a Treasurer for Administration by the Secretary of Finance
claim for the difference in salary and Representation and only on July 8, 1994.
Transportation Allowance (RATA) of Assistant Provincial
Treasurer and Supply Officer III for the whole year of 1993 in Thus, the respondent Commission not only affirmed the
the total amount of P61,308.00. disallowance of the amount of P52,908.00 but likewise
disallowed the claim for the RATA differential in the amount
However, the Provincial Auditor disallowed in of P8,400.00, for being devoid of any legal basis. Petitioner
audit P52,908.00 of the claim. What was allowed was only was, therefore, directed to refund the salary and RATA
the amount of P8,400.00 which corresponds to the differential in the amount of P61,308.00.
difference in the allowances attached to the designation and
the position occupied by the appellant. The disallowance Hence, this petition.
was premised on the following reasons:
The issue here is whether or not an employee who is
1. The provisions of Section 2077 of the Revised designated in an acting capacity is entitled to the difference
Administrative Code is not applicable in the instant case as in salary between his regular position and the higher
the power to fill the position of Assistant Provincial position to which he is designated.
Treasurer rests on the Secretary of Finance.
Petitioner avers that the respondent Commissions decision
2. The designation is temporary in nature and does not is probably not in accordance with applicable decisions of
amount to the issuance of an appointment as could entitle the Supreme Court.[3] He cites the cases of Cui, et. al. vs.
the designee to receive the salary of the position to which Ortiz, et. al.,[4] April 29, 1960; and, Menzon vs. Petilla, May
he is designated (Opinion of the Director, Office for Legal 20, 1991,[5] which laid down the rule that de facto officers
Affairs, Civil Service Commission dated January 25, 1994). are entitled to salary for services actually
rendered. Petitioner contends that he may be considered as
On August 3, 1994, Governor Mayo wrote to the Provincial a de facto officer by reason of services rendered in favor of
Auditor requesting reconsideration of the subject the Province of Batangas. He then posits the view that to
disallowance, interposing the following reasons: disallow his compensation and in the process allow the
1. That Section 2077 of the Revised Administrative Code is Province of Batangas to keep and enjoy the benefits derived
applicable in the instant case as the same provides that the from his services actually rendered would be tantamount to
Governor General or the officer having the power to fill-up deprivation of property without due process of law, and
a temporary absence or disability in the provincial office has impairment of obligation of contracts duly enshrined in the
the power to order or authorize payment of compensation Constitution.
to any government officer or employee designated or
appointed temporarily to fill the place;
APPOINTMENT FINALS 10

On the other hand, the respondent Commission, through Necessarily, petitioners designation as Assistant Provincial
the Office of the Solicitor General, maintains that the Treasurer for Administration by Governor Mayo being
decisions cited by petitioner do not find application in defective, confers no right on the part of petitioner to claim
petitioners case. In the case of Menzon, what was extended the difference in the salaries and allowances attached to the
was an appointment to the vacant position of Vice- position occupied by him.
Governor. Here, what was extended to petitioner was not an
Moreover, what was extended to petitioner by Governor
appointment but a mere designation. Thus, the nature of
Mayo was merely a designation not an appointment. The
petitioners designation and in the absence of authority of
respondent Commission clearly pointed out the difference
the Governor to authorize the payment of the additional
between an appointment and designation, thus:
salary and RATA without the appropriate resolution from the
Sangguniang Panlalawigan does not make the ruling on de There is a great difference between an appointment and
facto officers applicable in this case. designation. While an appointment is the selection by the
proper authority of an individual who is to exercise the
We find the petition to be without merit.
powers and functions of a given office, designation merely
We are not persuaded by petitioners insistence that he connotes an imposition of additional duties, usually by law,
could still claim the salary and RATA differential because he upon a person already in the public service by virtue of an
actually performed the functions pertaining to the office of earlier appointment (Santiago vs. COA, 199 SCRA 125).
Acting Assistant Provincial Treasurer and, therefore, entitled
Designation is simply the mere imposition of new or
to the salary and benefits attached to it despite the fact that
additional duties on the officer or employee to be
the Governor of Batangas had no authority to designate him
performed by him in a special manner. It does not entail
to the said position.
payment of additional benefits or grant upon the person so
The law applicable is Section 471(a) of RA 7160 otherwise designated the right to claim the salary attached to the
known as the Local Government Code which mandates that: position (COA Decision No. 95-087 dated February 2,
1995). As such, there being no appointment issued,
Sec. 471. Assistant Treasurers. - (a) An assistant treasurer
designation does not entitle the officer designated to
may be appointed by the Secretary of Finance from a list of
receive the salary of the position. For the legal basis of an
at least three (3) ranking eligible recommendees of the
employees right to claim the salary attached thereto is a duly
governor or mayor, subject to civil service law, rules and
issued and approved appointment to the position (Opinion
regulations.
dated January 25, 1994 of the Office for Legal Affairs, Civil
xxxxxxxxx Service Commission, Re: Evora, Carlos, A. Jr., Designation).[6]

In fact, the appointing officer is authorized by law to order This Court has time and again ruled that:
the payment of compensation to any government officer or
Although technically not binding and controlling on the
employee designated or appointed to fill such vacant
courts, the construction given by the agency or entity
position, as provided under Section 2077 of the Revised
charged with the enforcement of a statute should be given
Administrative Code which states that:
great weight and respect (In re Allen, 2 Phil. 630, 640),
"Section 2077. Compensation for person appointed to particularly so if such construction, as in the case at bar, has
temporary service. been uniform, and consistent, and has been observed and
acted on for a long period of time (Molina vs. Rafferty, 38
xxxxxxxxx Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar
In case of the temporary absence or disability of a provincial Central vs. Collector of Customs, 51 Phil. 143).[7]
officer or in case of a vacancy in a provincial office, the We see no justifiable reason to sustain petitioners argument
President of the Philippines or officer having the power to that non-payment of his salary differential and RATA would
fill such position may, in his discretion, order the payment of be a violation of his constitutional right against deprivation
compensation, or additional compensation, to any of property without due process of law and the non-
Government officer or employee designated or appointed impairment of obligation of contracts clause in the
temporarily to fill the place, but the total compensation paid Constitution.
shall not exceed the salary authorized by law for the position
filled. The right to the salary of an Assistant Provincial Treasurer is
based on the assumption that the appointment or
Undoubtedly, the aforecited laws do not authorize the designation thereof was made in accordance with
Provincial Governor to appoint nor even designate one law. Considering that petitioners designation was without
temporarily in cases of temporary absence or disability or a color of authority, the right to the salary or an allowance due
vacancy in a provincial office. That power resides in the from said office never existed. Stated differently, in the
President of the Philippines or the Secretary of Finance. absence of such right, there can be no violation of any
APPOINTMENT FINALS 11

constitutional right nor an impairment of the obligation of as de facto officers and entitled to salaries for services
contracts clause under the Constitution. actually rendered.

The nature of petitioners designation and the absence of Finally, the appointment signed by Finance Undersecretary
authority of the Governor to authorize the payment of the Juanita D. Amatong is dated July 8, 1994. Petitioners claim
additional salary and RATA without the appropriate that the appointment retro-acts to his assumption of office
resolution from the Sangguniang Panlalawigan does not is not confirmed by the express phraseology of the
make him a de facto officer. appointment itself, which states:

A de facto officer is defined as one who derives his Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER
appointment from one having colorable authority to FOR ADMINISTRATION na may
appoint, if the office is an appointive office, and whose katayuang PERMANENT sa OFFICE OF THE PROVINCIAL
appointment is valid on its face. It is likewise defined as one TREASURER OF BATANGAS sa pasahod na ONE HUNDRED
who is in possession of an office, and is discharging its duties TWENTY ONE THOUSAND SIX HUNDRED TWENTY
under color of authority, by which is meant authority (P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng
derived from an appointment, however irregular or pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma
informal, so that the incumbent be not a mere ng puno ng tanggapan o appointing authority.[12]
volunteer.[8] Then a de facto officer is one who is in
The subsequent appointment of petitioner to the position
possession of an office in the open exercise of its functions
on July 8, 1994, cannot justify petitioners retention of the
under color of an election or an appointment, even though
excess amount of P61,308.00, which corresponds to the
such election or appointment may be irregular.[9]
amount disallowed and ordered refunded by COA
Petitioner invokes in his favor the ruling in Menzon vs. representing the salary and RATA in excess of what was due
Petilla,[10] that a de facto officer is entitled to receive the him in 1993.
salary for services actually rendered. However, his reliance
WHEREFORE, premises considered, the petition is hereby
on the Menzon case is misplaced. In Menzon, what was
DISMISSED for lack of merit.
extended was an appointment to the vacant position of
Vice-Governor, in petitioners’ case, he was designated. The SO ORDERED.
appointment of Menzon had the color of validity. This Court
said:

And finally, even granting that the President, acting through


the Secretary of Local Government, possesses no power to
appoint the petitioner, at the very least, the petitioner is a
de facto officer entitled to compensation. There is no
denying that the petitioner assumed the Office of the Vice-
Governor under a color of a known appointment. As
revealed by the records, the petitioner was appointed by no
less than the alter ego of the President, The Secretary of
Local Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of Department
of Local Government Regional Director Res
Salvatierra. Concededly, the appointment has the color of
validity.

Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.[11] does
not apply in petitioners case. In Cui, this Court held:

Petitioners appointments on December 1 and 12, 1955 by


the then mayor of the municipality were legal and in order,
the appointing mayor still in possession of his right to
appoint. For such appointments to be complete, the
approval of the President of the Philippines is required. The
law provides that pending approval of said appointment by
the President, the appointee may assume office and receive
salary for services actually rendered. Accordingly, therefore,
in that duration until the appointment is finally acted upon
favorably or unfavorably, the appointees may be considered
APPOINTMENT FINALS 12

[G.R. No. 118883. January 16, 1998] vice-president of the ABC, was subsequently appointed by
the provincial governor as member of the Sangguniang
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES,
Bayan[8] in place of private respondent. Aquino assumed
Represented by VICE MAYOR NENITO AQUINO and MAYOR
office on July 18, 1990 after taking his oath.[9]
LYDIA T. ROMANO, petitioner,vs. COURT OF APPEALS and
AUGUSTO T. ANTONIO, respondents. Subsequently, the ruling of DILG Secretary Santos annulling
the election of the FABC president was reversed by the
DECISION
Supreme Court in Taule vs. Santos.[10] In the same case, the
PANGANIBAN, J.: appointment of Private Respondent Antonio as sectoral
representative to the Sangguniang Panlalawigan was
Although a resignation is not complete without an declared void, because he did not possess the basic
acceptance thereof by the proper authority, an office may qualification that he should be president of the federation
still be deemed relinquished through voluntary of barangay councils.[11] This ruling of the Court became final
abandonment which needs no acceptance. and executory on December 9, 1991.
Statement of the Case On March 31, 1992, private respondent wrote to the
Before us is a petition for review under Rule 45 of the Rules members of the Sangguniang Bayan of San Andres advising
of Court seeking a reversal of the Decision[1] of the Court of them of his re-assumption of his original position, duties and
Appeals[2] promulgated on January 31, 1995 in CA-G.R. SP responsibilities as sectoral representative[12] therein. In
No. 34158, which modified the Decision dated February 18, response thereto, the Sanggunian issued Resolution No. 6,
1994 of the Regional Trial Court[3] of Virac, Catanduanes, Series of 1992, declaring that Antonio had no legal basis to
Branch 42, in Sp. Civil Case No. 1654. resume office as a member of the Sangguniang Bayan.[13]

The dispositive portion of the assailed Decision of the On August 13, 1992, private respondent sought from the
appellate court reads: DILG a definite ruling relative to his right to resume his office
as member of the Sangguniang Bayan.[14] Director Jacob F.
WHEREFORE, the judgment appealed from is hereby Montesa, department legal counsel of the DILG, clarified
MODIFIED such that paragraphs 1, 2 and 4 thereof are Antonios status in this wise:
deleted. Paragraph 3 is AFFIRMED. No pronouncement as to
costs.[4] Having been elected President of the ABC in
accordance with the Departments Memorandum Circular
Antecedent Facts No. 89-09,[15] you became an ex-officio member in
Private Respondent Augusto T. Antonio was elected the sanggunian. Such position has not been vacated
barangay captain of Sapang Palay, San Andres, Catanduanes inasmuch as you did not resign nor abandon said office when
in March 1989. He was later elected president of the you were designated as temporary representative of the
Association of Barangay Councils (ABC)[5] for the Federation to the Sangguniang Panlalawigan of
Municipality of San Andres, Catanduanes. In that capacity Catanduanes on June 7, 1990. The Supreme Court in Triste
and pursuant to the Local Government Code of 1983, he was vs. Leyte State College Board of Trustees (192 SCRA 327),
appointed by the President as member of the Sangguniang declared that: designation implies temporariness. Thus, to
Bayan of the Municipality of San Andres. designate a public officer to another position may mean to
vest him with additional duties while he performs the
Meanwhile, then Secretary Luis T. Santos of the Department functions of his permanent office. In some cases, a public
of Interior and Local Government (DILG) declared the officer may be designated to a position in an acting capacity
election for the president of the Federation of the as when an undersecretary is designated to discharge the
Association of Barangay Councils (FABC) of the same functions of the Secretary pending the appointment of a
province, in which private respondent was a voting member, permanent Secretary.
void for want of a quorum. Hence, a reorganization of the
provincial council became necessary. Conformably, the DILG Furthermore, incumbent ABC presidents are mandated by
secretary designated private respondent as a temporary the Rules and Regulations Implementing the 1991 Local
member of the Sangguniang Panlalawigan of the Province of Government Code to continue to act as president of the
Catanduanes, effective June 15, 1990. association and to serve as ex-officio members of
the sangguniang bayan, to wit:
In view of his designation, private respondent resigned as a
member of the Sangguniang Bayan. He tendered his Article 210 (d) (3), Rule XXIX of the Implementing Rules and
resignation[6] dated June 14, 1990 to Mayor Lydia T. Romano Regulations of Rep. Act No. 7160, provides that:
of San Andres, Catanduanes, with copies furnished to the The incumbent presidents of the municipal, city and
provincial governor, the DILG and the municipal provincial chapters of the liga shall continue to serve as ex-
treasurer. Pursuant to Section 50 of the 1983 Local officio members of the sanggunianconcerned until the
Government Code[7] (B.P. Blg. 337), Nenito F. Aquino, then
APPOINTMENT FINALS 13

expiration of their term of office, unless sooner removed for Appellate Courts Ruling
cause.
Respondent Court of Appeals affirmed the trial courts ruling
(f) x x x Pending election of the presidents of the municipal, but deleted the first, second and fourth paragraphs of its
city, provincial and metropolitan chapters of the liga, the dispositive portion. It held that private respondents
incumbent presidents of the association of barangay resignation was not accepted by the proper authority, who
councils in the municipality, city, province and Metropolitan is the President of the Philippines. While the old Local
Manila, shall continue to act as president of the Government Code is silent as to who should accept and act
corresponding ligachapters under this Rule. on the resignation of any member of the Sanggunian, the
law vests in the President the power to appoint members of
In view of the foregoing, considering that the annuled
the local legislative unit. Thus, resignations must be
designation is only an additional duty to your primary
addressed to and accepted by him. It added that, though the
function, which is the ABC President, we find no legal
secretary of the DILG is the alter ego of the President and
obstacle if you re-assume your representation in
notice to him may be considered notice to the President, the
the sanggunian bayan as ex-officio member.[16]
records are bereft of any evidence showing that the DILG
Despite this clarification, the local legislative body issued secretary received and accepted the resignation letter of
another resolution[17] reiterating its previous stand. Antonio.

In response to private respondents request,[18] Director Moreover, granting that there was complete and effective
Montesa opined that Antonio did not relinquish or abandon resignation, private respondent was still the president of the
his office; and that since he was the duly elected ABC ABC and, as such, he was qualified to sit in the Sangguniang
president, he could re-assume his position in the Bayan in an ex officio capacity by virtue of Section 494[21] of
Sanggunian.[19] A copy of said reply was sent to the members R.A. 7160[22] and Memorandum Circular No. 92-38.[23] In
of the local legislative body. view, however, of the May 1994 elections in which a new set
of barangay officials was elected, Antonios reassumption of
Notwithstanding, the Sanggunian refused to acknowledge office as barangay representative to the Sangguniang Bayan
the right of private respondent to re-assume office as was no longer legally feasible.
sectoral representative.
The appellate court added that private respondent could not
On December 10, 1992, private respondent filed a petition be considered to have abandoned his office. His designation
for certiorari and mandamus with preliminary mandatory as member of the Sangguniang Panlalawigan was merely
injunction and/or restraining order before the RTC. On temporary and not incompatible with his position as
February 18, 1994, the trial court rendered its decision president of the ABC of San Andres, Catanduanes.
holding that Augusto T. Antonios resignation from
the Sangguniang Bayan was ineffective and inoperative, Finally, Respondent Court deleted the award of attorneys
since there was no acceptance thereof by the proper fees for being without basis, and held that Resolution Nos. 6
authorities. The decretal portion of the decision reads: and 28 of the Sangguniang Bayan of San Andres involved a
valid exercise of the powers of said local body. It thus
WHEREFORE, in view of the foregoing, judgment is hereby modified the trial courts judgment by affirming paragraph 3
rendered in favor of the petitioner and against the and deleting the other items. Unsatisfied, petitioners
respondents and ordering the latter: brought the present recourse.[24]
(1) to pay the petitioner jointly and severally the amount Issues
of P10,000.00 as attorneys fees and the cost of the suit;
The petitioner, in its memorandum,[25] submits before this
(2) to allow petitioner to assume his position as sectoral Court the following issues:
representative of the Sangguniang Bayan of San Andres,
Catanduanes; I. Whether or not respondents resignation as ex-officio
member of Petitioner Sangguniang Bayan ng San Andres,
(3) to pay the petitioner jointly and severally his uncollected Catanduanes is deemed complete so as to terminate his
salaries similar to those received by the other members of official relation thereto;
the Sangguniang Bayanof San Andres, Catanduanes as
certified to by the Municipal Budget Officer and Municipal II. Whether or not respondent had totally abandoned his ex-
Treasurer of the same municipality from April 8, 1992 up to officio membership in Petitioner Sangguniang Bayan;
the date of this judgment; and
III. Whether or not respondent is entitled to collect salaries
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and similar to those received by other members of Petitioner
void and to have no effect.[20] Sangguniang Bayan from April 8, 1992 up to date of
judgment in this case by the Regional Trial Court of Virac,
Petitioners appealed this judgment to the Court of Appeals. Catanduanes.[26]
APPOINTMENT FINALS 14

In sum, was there a complete and effective resignation? If referred or endorsed the latter to the Sangguniang Bayan for
not, was there an abandonment of office? proper action. In any event, there is no evidence that the
resignation was accepted by any government functionary or
This Court’s Ruling
office.
The petition is meritorious. Although the terms of office of
Parenthetically, Section 146 of B.P. Blg. 337 states:
barangay captains, including private respondent, elected in
March 1989 have expired, the Court deemed it necessary to Sec. 146. Composition. - (1) The sangguniang bayan shall be
resolve this case, as the Court of Appeals had ordered the the legislative body of the municipality and shall be
payment of the uncollected salaries allegedly due prior to composed of the municipal mayor, who shall be the
the expiration of Respondent Antonios term. presiding officer, the vice-mayor, who shall be the presiding
officer pro tempore, eight members elected at large, and the
First Issue: Validity of Resignation
members appointed by the President consisting of the
The petitioner submits that the resignation of private president of the katipunang bayan and the president of
respondent was valid and effective despite the absence of the kabataang barangay municipal federation. x x
an express acceptance by the President of the x. (Emphasis supplied.)
Philippines. The letter of resignation was submitted to the
Under established jurisprudence, resignations, in the
secretary of the DILG, an alter ego of the President, the
absence of statutory provisions as to whom they should be
appointing authority. The acceptance of respondents
submitted, should be tendered to the appointing person or
resignation may be inferred from the fact that the DILG
body.[31]Private respondent, therefore, should have
secretary himself appointed him a member of the
submitted his letter of resignation to the President or to his
Sangguniang Panlalawigan of Catanduanes.[27]
alter ego, the DILG secretary. Although he supposedly
In Ortiz vs. COMELEC,[28] we defined resignation as the act of furnished the latter a copy of his letter, there is no
giving up or the act of an officer by which he declines his showing that it was duly received, much less, that it was
office and renounces the further right to use it. It is an acted upon. The third requisite being absent, there was
expression of the incumbent in some form, express or therefore no valid and complete resignation.
implied, of the intention to surrender, renounce, and
Second Issue: Abandonment of Office
relinquish the office and the acceptance by competent and
lawful authority. To constitute a complete and operative While we agree with Respondent Court that the resignation
resignation from public office, there must be: (a) an was not valid absent any acceptance thereof by the proper
intention to relinquish a part of the term; (b) an act of authority, we nonetheless hold that Private Respondent
relinquishment; and (c) an acceptance by the proper Antonio has effectively relinquished his membership in the
authority.[29] The last one is required by reason of Article 238 Sangguniang Bayan due to his voluntary abandonment of
of the Revised Penal Code.[30] said post.

The records are bereft of any evidence that private Abandonment of an office has been defined as the voluntary
respondents resignation was accepted by the proper relinquishment of an office by the holder, with the intention
authority. From the time that he was elected as punong of terminating his possession and control thereof.[32] Indeed,
barangay up to the time he resigned as a member of abandonment of office is a species of resignation; while
Sangguniang Bayan, the governing law was B.P. 337 or the resignation in general is a formal
Local Government Code of 1983. While said law was silent relinquishment, abandonment is a voluntary relinquishment
as to who specifically should accept the resignation of an through nonuser.[33] Nonuser refers to a neglect to use a
appointive member of the Sangguniang Bayan, Sec. 6 of Rule privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to
XIX of its implementing rules states that the [r]esignation of exercise an easement or an office (Blacks Law Dictionary, 6th
sanggunian members shall be acted upon by the sanggunian ed.).
concerned, and a copy of the action taken shall be furnished
Abandonment springs from and is accompanied by
the official responsible for appointing a replacement and the
deliberation and freedom of choice.[34] Its concomitant
Ministry of Local Government. The position shall be deemed
effect is that the former holder of an office can no longer
vacated only upon acceptance of the resignation.
legally repossess it even by forcible reoccupancy.[35]
It is not disputed that private respondents resignation letter
Clear intention to abandon should be manifested by the
was addressed only to the municipal mayor of San Andres,
officer concerned. Such intention may be express or inferred
Catanduanes. It is indicated thereon that copies were
from his own conduct.[36] Thus, the failure to perform the
furnished the provincial governor, the municipal treasurer
duties pertaining to the office must be with the officers
and the DILG. Neither the mayor nor the officers who had
actual or imputed intention to abandon and relinquish the
been furnished copies of said letter expressly acted on it. On
office.[37] Abandonment of an office is not wholly a matter of
hindsight, and assuming arguendo that the aforecited Sec. 6
intention; it results from a complete abandonment of duties
of Rule XIX is valid and applicable, the mayor should have
APPOINTMENT FINALS 15

of such a continuance that the law will infer a functions as member of said Sanggunian, and (4) his receipt
relinquishment.[38] Therefore, there are two essential of the remuneration for such post.
elements of abandonment: first, an intention to abandon
It must be stressed that when an officer is designated to
and, second, an overt or external act by which the intention
another post, he is usually called upon to discharge duties in
is carried into effect. [39]
addition to his regular responsibilities. Indeed, his additional
Petitioner argues that the following clearly demonstrate responsibilities are prescribed by law to inhere, as it were,
private respondents abandonment of his post in the to his original position. A Supreme Court justice, for
Sangguniang Bayan: instance, may be designated member of the House of
Representatives Electoral Tribunal. In some cases, a public
Admittedly, the designation of respondent as member of the
officer may be designated to a position in an acting capacity,
Sangguniang Panlalawigan of Catanduanes was worded
as when an undersecretary is tasked to discharge the
temporary, but his acts more than clearly established his
functions of a secretary for a temporary period.[42] In all
intention to totally abandon his office, indicating an absolute
cases, however, the law does not require the public servant
relinquishment thereof. It bears to emphasize that
to resign from his original post. Rather, the law allows him
respondent actually tendered his resignation and
to concurrently discharge the functions of both offices.
subsequently accepted an ex-officio membership in the
Sangguniang Panlalawigan of Catanduanes. He performed Private respondent, however, did not simultaneously
his duties and functions of said office for almost two (2) discharge the duties and obligations of both
years, and was completely aware of the appointment and positions. Neither did he, at that time, express an intention
assumption on July 18, 1990 of Nenito F. Aquino, who was to resume his office as member of the Sangguniang
then Vice-President of the Association of Barangay Councils Bayan. His overt acts, silence, inaction and acquiescence,
(ABC) of San Andres, Catanduanes, as ex-officio member of when Aquino succeeded him to his original position, show
petitioner Sangguniang Bayan representing the ABC. that Antonio had abandoned the contested office. His
immediate and natural reaction upon Aquinos appointment
xxxxxxxxx
should have been to object or, failing to do that, to file
Moreover, it may be well-noted that ABC Vice President appropriate legal action or proceeding. But he did neither. It
Nenito Aquino assumed respondents former position for is significant that he expressed his intention to resume office
twenty (20) months, without him questioning the term of only on March 31, 1992, after Aquino had been deemed
office of the former if indeed respondents designation as ex- resigned on March 23, 1992, and months after this Court
officio member of the Sangguniang Panlalawigan was only had nullified his designation on August 12, 1991. From his
temporary. Likewise, for almost eight (8) months after passivity, he is deemed to have recognized the validity of
knowledge of the decision in Taule vs. Santos, et. al., Aquinos appointment and the latters discharge of his duties
Ibid., nullifying his designation as representative to the as a member of the Sangguniang Bayan.
Sangguniang Panlalawigan, respondent opted to remain
In all, private respondents failure to promptly assert his
silent, and in fact failed to seasonably act for the purpose of
alleged right implies his loss of interest in the position. His
reassuming his former position. Evidently, respondent had
overt acts plainly show that he really meant his resignation
clearly abandoned his former position by voluntary
and understood its effects. As pointed out by the eminent
relinquishment of his office through non-
[40]
American commentator, Mechem:[43]
user. [Underscoring supplied.]
Public offices are held upon the implied condition that the
We agree with petitioner. Indeed, the following clearly
officer will diligently and faithfully execute the duties
manifest the intention of private respondent to abandon his
belonging to them, and while a temporary or accidental
position: (1) his failure to perform his function as member of
failure to perform them in a single instance or during a short
the Sangguniang Bayan, (2) his failure to collect the
period will not operate as an abandonment, yet if the officer
corresponding remuneration for the position, (3) his failure
refuses or neglects to exercise the functions of the office for
to object to the appointment of Aquino as his replacement
so long a period as to reasonably warrant the presumption
in the Sangguniang Bayan, (4) his prolonged failure to
that he does not desire or intend to perform the duties of
initiate any act to reassume his post in the Sangguniang
the office at all, he will be held to have abandoned it, not
Bayan after the Supreme Court had nullified his designation
only when his refusal to perform was wilful, but also where,
to the Sangguniang Panlalawigan.
while he intended to vacate the office, it was because he in
On the other hand, the following overt acts demonstrate good faith but mistakenly supposed he had no right to hold
that he had effected his intention: (1) his letter of it.
resignation from the Sangguniang Bayan;[41] (2) his
Lastly, private respondent, who remained ABC president,
assumption of office as member of the Sangguniang
claims the legal right to be a member of the Sangguniang
Panlalawigan, (3) his faithful discharge of his duties and
Bayan by virtue of Section 146 of B.P. Blg. 337. However, his
right thereto is not self-executory, for the law itself requires
APPOINTMENT FINALS 16

another positive act -- an appointment by the President or


the secretary of local government per E.O. 342.[44] What
private respondent could have done in order to be able to
reassume his post after Aquinos resignation was to seek a
reappointment from the President or the secretary of local
government. By and large, private respondent cannot claim
an absolute right to the office which, by his own actuations,
he is deemed to have relinquished.[45]

We reiterate our ruling in Aparri vs. Court of Appeals: [46]

A public office is the right, authority, and duty created and


conferred by law, by which for a given period, either fixed by
law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
benefit of the public x x x. The right to hold a public office
under our political system is therefore not a natural right. It
exists, when it exists at all, only because and by virtue of
some law expressly or impliedly creating and conferring it x
x x. There is no such thing as a vested interest or an estate
in an office, or even an absolute right to hold
office. Excepting constitutional offices which provide for
special immunity as regards salary and tenure, no one can
be said to have any vested right in an office or its salary x x
x.

Third Issue: Salary

Having ruled that private respondent had voluntarily


abandoned his post at the Sangguniang Bayan, he cannot be
entitled to any back salaries. Basic is the no work, no
pay[47] rule. A public officer is entitled to receive
compensation for services actually rendered for as long as
he has the right to the office being claimed.[48] When the act
or conduct of a public servant constitutes a relinquishment
of his office, he has no right to receive any salary incident to
the office he had abandoned.[49]

WHEREFORE, the petition is GRANTED and the Assailed


Decision is REVERSED and SET ASIDE. No costs.

SO ORDERED.
APPOINTMENT FINALS 17

[G.R. No. 127631. December 17, 1999] "Subsequently, on February 13, 1996, City Legal Officer
Angel Aguirre, Jr. notified the [respondent] that her answer-
Atty. ANGEL AGUIRRE JR. as City Legal Officer of Manila; Atty.
affidavit was found unsatisfactory for which reason she was
DOMINADOR MAGLALANG, Atty. MA. THERESA BALAGTAS
summoned to appear before the said City Legal Officer for
and Atty. ANALYN T. MARCELO, all members of the Legal
the purpose of conducting a formal investigation.
Panel of the Office of the City Legal Officer of
Manila, petitioners, vs. EVANGELINE C. DE "Two (2) days later or on February 15, 1996, [respondent]
CASTRO, respondents. filed a motion to dismiss. She claimed that she [was] a
subordinate of the Secretary of the Department of
DECISION
Education, Culture and Sports (DECS). Thus, the case should
PANGANIBAN, J.: be endorsed to the Office of the DECS Secretary or its legal
division as nowhere in RA 409, Charter of the City of Manila
The city legal officer of Manila has no disciplinary authority is there a provision conferring upon the Office of the City
over the chief of the Legal Affairs and Complaint Services of Legal Officer jurisdiction to try and investigate personnel of
the Division of City Schools of Manila. Inasmuch as the said the DECS in general, or the Division of City Schools where
official was appointed by and is a subordinate of the regional petitioner is under, in particular.
director of the Department of Education, Culture and Sports,
she is subject to the supervision and control of said "This motion to dismiss of [respondent] was denied in a
director. The power to appoint carries the power to remove resolution of the City Legal Officer dated February 21, 1996
or to discipline. The mere fact that her salary is sourced from citing Sec. 455 b(1) and (V) of the Local Government Code
city funds does not ipso facto place her under the city legal and Section 3(c) of the same code. In the said resolution it
officer's disciplinary jurisdiction, absent any clear statutory was held that the records of the personnel office disclose[d]
basis therefor. that [respondent was] included in the plantilla of the City of
The Case
Manila and therefore her salary derived wholly and mainly
from the funds of the City for which reason she [was] subject
Before this Court is a Petition for Review on to the disciplinary authority of the said City Legal Officer.
Certiorari[1] under Rule 45 of the Rules of Court seeking "Thereafter, on February 26, 1996, [respondent] was
reversal of the October 22, 1996 Decision[2] of the Court of notified to appear before the panel formed by the City Legal
Appeals (CA)[3] in CA-GR SP No. 40183, the dispositive Officer (CLO Panel) to hear administrative case CLO 24-96
portion of which reads: filed against her for grave misconduct and conduct
WHEREFORE, premises considered, the petition is GRANTED unbecoming x x x a public officer.
and the public respondent City Legal Office of Manila is "[Respondent] filed a motion to reconsider the resolution
directed to permanently cease and desist from further dated February 21, 1996. This motion was again denied by
proceeding with Administrative Case CLO No. 24-96.[4] the CLO panel in its order dated March 6, 1996.
Likewise assailed is the CAs December 23, 1996 "Again, [respondent] moved to reconsider the above order
Resolution[5]denying reconsideration. which was likewise denied in the resolution of the CLO panel
The Facts dated March 18, 1996."[7]

The undisputed facts of the case are summarized by the Consequently, respondent elevated the matter to the Court
Court of Appeals as follows: of Appeals via a Petition for Certiorari and Prohibition.

[Respondent][6] Atty. Evangeline C. De Castro is the Chief of Ruling of the Court of Appeals
the Legal Affairs and Complaint Services of the Division of Citing the Administrative Code of 1987,[8] the Court of
City Schools of Manila. On February 1, 1996, [respondent] Appeals ruled that the authority to discipline herein
received a letter from public respondent Angel Aguirre, Jr., respondent rests with the regional director for the National
City Legal Officer of Manila accompanied by copies of Capital Region of the Department of Education, Culture and
alleged complaints against her. [Respondent] was required Sports (DECS), not with the city legal officer of Manila. It also
in the said letter to explain within seventy two (72) hours held that the Local Government Code (LGC) did not repeal
upon receipt why no administrative sanctions shall be the pertinent provisions of the Administrative Code.Hence,
imposed upon her for gross misconduct and conduct absent any contrary provision of the LGC, the CA opined that
unbecoming x x x a public officer in violation of the Civil disciplinary authority over petitioner must remain with the
Service Law, Rules and Regulations. DECS.
"On February 6, 1996, [Respondent] Evangeline de Castro The CA also noted that officers and staff members of the
filed her answer-affidavit which was received on the same Division of City Schools were not among those whom the city
day by the Office of the City Legal Officer. mayor was authorized to appoint under the LGC. Hence, it
ruled that respondent was not an employee of the City of
APPOINTMENT FINALS 18

Manila, and that the city legal officer had no authority to the LGC expressly rescinding the authority of the DECS
investigate her for administrative neglect or misconduct in regional director to appoint and exercise disciplinary
office. authority over first-level employees. On the other hand,
implied repeals are not lightly presumed in the absence of a
Assuming arguendo that the city mayor was authorized to
clear and unmistakable showing of such intention.[13]
make a subsequent appointment to the respondents
position should it become vacant, the CA held that this Furthermore, respondents position as senior legal officer in
power was not retroactive and could not apply to the Division of City Schools is not one of the offices covered
respondent who had been appointed by the regional by the city mayors power of appointment under the LGC.
director of the DECS.
SEC. 454. Officials of the City Government. --- (a) There shall
Dissatisfied, the city legal officer of Manila lodged this be in each city a mayor, a vice-mayor, sangguniang
Petition before this Court on January 21, 1997.[9] panlungsod members, a secretary to the sangguniang
Issue
panlungsod, a city treasurer, a city assessor, a city
accountant, a city budget officer, a city planning and
The solitary issue presented for the Courts consideration is development coordinator, a city engineer, a city health
whether or not the Office of the City Legal Officer of Manila officer, a city civil registrar, a city administrator, a city legal
has jurisdiction to investigate the complaint for grave officer, a city veterinarian, a city social welfare and
misconduct filed against the respondent.[10] development officer, and a city general services officer.
This Courts Ruling (b) In addition thereto, the city mayor may appoint a city
architect, a city information officer, a city agriculturist, a city
The Petition is bereft of merit. population officer, a city environment and natural resources
Sole Issue: Jurisdiction of the City Legal Officer officer, and a city cooperatives officer.

Petitioners contend that respondent is a city employee x x x x x x x x x.[14]


under the supervision of the city mayor, because her salary Moreover, petitioners failed to show a specific provision in
is paid by the City of Manila. They base this argument on the LGC showing that the power to discipline officials in the
Section 455 (b-1-v)[11] of the Local Government Code (LGC), Division of City Schools has been devolved from the regional
which authorizes the city mayor to appoint city employees director of the DECS to the city mayor. All that Section 17 (4)
whose salaries and wages are wholly or mainly paid out of of the Local Government Code states is that the city must
city funds; and on Section 455 (b-1-x),[12] which states that provide support for education and other such services and
the mayor may institute administrative or judicial facilities.
proceedings against erring city officials or employees.
Likewise, Section 455 (b-1-x) of the Local Government Code,
Petitioners contentions are not persuasive. Under Book IV, which provides that the city mayor may cause to be
Chapter V, Section 7(4) of the Administrative Code of 1987, instituted administrative or judicial proceedings against any
the power to appoint and discipline first-level employees, official or employee of the city, is not necessarily
which includerespondent, is specifically lodged with the incompatible with the provisions of the Administrative Code
regional director of the Department of Education, Culture of 1987 authorizing the regional director to discipline
and Sports. national education employees. Nothing prohibits the mayor
xxxxxxxxx from filing complaints against respondent before the DECS.

(4) Appoint personnel to positions in the first level and Petitioners cite paragraph 12, Section 2 (a) of Executive
casual and seasonal employees; and exercise disciplinary Order (EO) 503, which states that devolved personnel are
actions over them in accordance with the Civil Service Law." automatically reappointed by the local chief executive. Since
respondent was deemed reappointed by the city mayor, it
This is also clear in Book V, Section 47 (2) of the same Code; follows that the latter can exercise disciplinary authority
and in Section 32, Rule XIV of the Omnibus Rules over her.
Implementing Book V of the Administrative Code of 1987.
We are not convinced. First, the above provision applies to
SEC. 32. The Secretaries and heads of agencies and devolved personnel, and there is no proof whatsoever that
instrumentalities, provinces, cities, and municipalities shall respondent is one of them. Second, even if respondent can
have jurisdiction to investigate and decide matters involving be considered as a devolved personnel, the cited paragraph
disciplinary action against officers and employees under of EO 503 must not be read in isolation from but in
their jurisdiction. x x x. conjunction with the other paragraphs in Section 2 (a).
We agree with the CA that the LGC did not automatically Thus, paragraph 12 -- along with paragraphs 5, 6, 8, 13 and
repeal the provisions in the 1987 Administrative Code, 14[15]of EO 503 -- deals with safeguards against termination,
contrary to petitioners argument. There is no provision in reduction of pay and diminution in rank of existing
APPOINTMENT FINALS 19

personnel; it is not about the power of the mayor to


discipline personnel of the Division of City Schools. In effect,
the said provision serves more to limit the appointing
authority of the city mayor, whose acts must be
circumscribed by the aforecited conditions. It is not
incompatible and can exist with aforecited provisions of the
Administrative Code. Indeed, it cannot be deemed to have
divested the regional director of his disciplining power.

As to petitioners argument that respondents salary is wholly


or mainly paid out of city funds, suffice it to say that the
source of the wages is not the only criteria in determining
whether the payor may be deemed the employer. In fact,
the most important factor is the control test; that is, who has
the power to supervise and direct the work of the employee
concerned?

Absent any contrary statutory provision, the power to


appoint carries with it the power to remove or to
discipline.[16] Since respondent was appointed by the
regional director of DECS, she may be disciplined or
removed by the latter pursuant to law.

Finally, respondents primary duty is to conduct


investigations of cases involving teaching and nonteaching
personnel of the Division of City Schools of Manila. The
report on the results of her investigations is then submitted
for final evaluation to the DECS regional director, who may
approve, disapprove or allow respondent to modify it. This
fact clearly shows that supervision over respondent is
lodged with the regional director, not the mayor.

All in all, petitioners have not convinced us that the Court of


Appeals committed any reversible error.

WHEREFORE, the Petition is hereby DISMISSED and the


assailed Decision AFFIRMED. Costs against petitioners.

SO ORDERED.
APPOINTMENT FINALS 20

G.R. No. 167472 January 31, 2007 for his failure to implead the OMA Executive Director and
the incumbent of the disputed position.
CIVIL SERVICE COMMISSION, Petitioner,
vs. ENGR. ALI P. DARANGINA, Respondent. Respondent filed a motion for reconsideration.

DECISION In a Resolution dated October 7, 2004, the Court of Appeals


reconsidered its Decision of February 27, 2004, thus:
SANDOVAL-GUTIERREZ, J.:
ACCORDINGLY, our Decision of February 27, 2004 is
For our resolution is the instant Petition for Review
RECONSIDERED and the assailed CSC resolutions are hereby
on Certiorari under Rule 45 of the 1997 Rules of Civil
MODIFIED in that the petitioner is reinstated to his post to
Procedure, as amended, seeking to reverse the Resolutions
finish his 12-month term with backwages from the date of his
of the Court of Appeals dated October 7, 20041 and March
removal until reinstatement.
18, 20052 in CA-G.R. SP No. 71353.
SO ORDERED.
The undisputed facts are:
The CSC filed a motion for reconsideration but it was denied
Engr. Ali P. Darangina, respondent, was a development
by the Court of Appeals in a Resolution dated March 28,
management officer V in the Office of Muslim Affairs (OMA).
2005.
On September 25, 2000, he was extended a temporary
promotional appointment as director III, Plans and Policy Section 27, Chapter 5, Subtitle A, Title I, Book V of the
Services, in the same office. On October 11, 2000, the Civil Administrative Code of 1987, as amended, classifying the
Service Commission (CSC), petitioner, approved this appointment status of public officers and employees in the
temporary appointment effective for one (1) year from the career service, reads:
date of its issuance unless sooner terminated.
SEC. 27. Employment Status. – Appointment in the career
On October 31, 2000, newly appointed OMA Executive service shall be permanent or temporary.
Director Acmad Tomawis terminated the temporary
(1) Permanent status. A permanent appointment shall be
appointment of respondent on the ground that he is not a
issued to a person who meets all the requirements for the
career executive service eligible. Tomawis then appointed
position to which he is being appointed, including
Alongan Sani as director III. But he is not also a career
appropriate eligibility prescribed, in accordance with the
executive service eligible. Thus, the CSC disapproved his
provisions of law, rules and standards promulgated in
appointment, stating that respondent could only be
pursuance thereof.
replaced by an eligible.
(2) Temporary appointment. In the absence of appropriate
On appeal by respondent, the CSC issued Resolution No. 01-
eligibles and it becomes necessary in the public interest to
1543 dated September 18, 2001 sustaining the termination
fill a vacancy, a temporary appointment shall be issued to a
of his temporary appointment but ordering the payment of
person who meets all the requirements for the position to
his salaries from the time he was appointed on September
which he is being appointed except the appropriate civil
25, 2000 until his separation on October 31, 2000.
service eligibility: Provided, That such temporary
Respondent filed a motion for reconsideration. On March appointment shall not exceed twelve months, but the
20, 2002, the CSC issued Resolution No. 02-439 granting the appointee may be replaced sooner if a qualified civil service
same with modification in the sense that respondent should eligible becomes available.
be paid his backwages from the time his employment was
It is clear that a permanent appointment can issue only to a
terminated on October 11, 2000 until September 24,
person who possesses all the requirements for the position
2001, the expiration of his one year temporary appointment.
to which he is being appointed, including the appropriate
On April 3, 2002, respondent filed a motion for partial eligibility.3 Differently stated, as a rule, no person may be
reconsideration, praying for his reinstatement as director III appointed to a public office unless he or she possesses the
and payment of backwages up to the time he shall be requisite qualifications. The exception to the rule is where,
reinstated. in the absence of appropriate eligibles, he or she may be
appointed to it merely in a temporary capacity. Such a
On June 5, 2002, the CSC issued Resolution No. 02-782
temporary appointment is not made for the benefit of the
denying respondent’s motion for partial reconsideration
appointee. Rather, an acting or temporary appointment
being a second motion for reconsideration which is
seeks to prevent a hiatus in the discharge of official functions
prohibited.
by authorizing a person to discharge the same pending the
Respondent then filed a petition for review with the Court selection of a permanent appointee.4 In Cuadra v.
of Appeals, docketed as CA-G.R. SP No. 71353. But in its Cordova,5 this Court defined a temporary appointment as
Resolution of February 27, 2004, the petition was dismissed "one made in an acting capacity, the essence of which lies in
its temporary character and its terminability at pleasure by
APPOINTMENT FINALS 21

the appointing power." Thus, the temporary appointee


accepts the position with the condition that he shall
surrender the office when called upon to do so by the
appointing authority. Under Section 27 (2), Chapter 5,
Subtitle A, Title I, Book V of the same Code, the term of a
temporary appointment shall be 12 months, unless sooner
terminated by the appointing authority. Such pre-
termination of a temporary appointment may be with or
without cause as the appointee serves merely at the
pleasure of the appointing power.6

Under the Revised Qualifications Standards prescribed by


the CSC, career executive service eligibility is a necessary
qualification for the position of director III in Plans and Policy
Services, OMA. It is not disputed that on September 25,
2000, when respondent was extended an appointment, he
was not eligible to the position, not being a holder of such
eligibility. Hence, his appointment was properly designated
as "temporary." Then on October 31, 2000, newly-appointed
OMA Executive Director Tomawis recalled respondent’s
temporary appointment and replaced him by appointing
Alongan Sani. It turned out, however, that Sani is not
likewise qualified for the post. A game of musical chairs then
followed. Sani was subsequently replaced by Tapa Umal,
who in turn, was succeeded by Camad Edres, and later, was
replaced by Ismael Amod. All these appointees were also
disqualified for lack of the required eligibility.

The Court of Appeals ruled that such replacements are not


valid as the persons who replaced respondent are not also
eligible. Also, since he was replaced without just cause, he is
entitled to serve the remaining term of his 12-month term
with salaries.

This Court has ruled that where a non-eligible holds a


temporary appointment, his replacement by another non-
eligible is not prohibited.7

Moreover, in Achacoso8 cited earlier, this Court held that


when a temporary appointee is required to relinquish his
office, he is being separated precisely because his term has
expired. Thus, reinstatement will not lie in favor of
respondent. Starkly put, with the expiration of his term upon
his replacement, there is no longer any remaining term to be
served. Consequently, he can no longer be reinstated.

As to whether respondent is entitled to back salaries, it is not


disputed that he was paid his salary during the entire twelve-
month period in spite of the fact that he served only from
September 25, 2000 to October 31, 2000, or for only one
month and six days. Clearly, he was overpaid.

WHEREFORE, this Court GRANTS the petition


and REVERSES the assailed Resolutions of the Court of
Appeals. Considering that respondent’s employment was
validly terminated on October 31, 2000, he is ordered to
refund the salaries he received from that date up to
September 24, 2001.

No costs. SO ORDERED.
APPOINTMENT FINALS 22

G.R. No. 164185 July 23, 2008 (1) from the date of the elections, to the damage and
prejudice of the government and of public interest.
PEOPLE OF THE PHILIPPINES, Petitioner,
vs. THE SANDIGANBAYAN (FOURTH DIVISION) and CONTRARY TO LAW.8
ALEJANDRO A. VILLAPANDO, Respondents.
The Information was docketed as Criminal Case No. 27465
DECISION and raffled to the Fourth Division of the Sandiganbayan.

QUISUMBING, J.: Upon arraignment on September 3, 2002, Villapando


pleaded not guilty. Meanwhile, the case against Tiape was
This petition for certiorari filed by the Office of the
dismissed after the prosecution proved his death which
Ombudsman through the Office of the Special Prosecutor
occurred on July 26, 2000.9
assails the May 20, 2004 Decision1 of the Sandiganbayan,
Fourth Division, in Criminal Case No. 27465, granting private After the prosecution rested its case, Villapando moved for
respondent Alejandro A. Villapando’s Demurrer to leave to file a demurrer to evidence. The Sandiganbayan,
Evidence2 and acquitting him of the crime of unlawful Fourth Division denied his motion but gave him five days
appointment under Article 2443 of the Revised Penal Code. within which to inform the court in writing whether he will
nonetheless submit his Demurrer to Evidence for resolution
The facts culled from the records are as follows:
without leave of court.10 Villapando then filed a
During the May 11, 1998 elections, Villapando ran for Manifestation of Intent to File Demurrer to Evidence,11 and
Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape was given 15 days from receipt to file his Demurrer to
(now deceased), a relative of Villapando’s wife, ran for Evidence. He filed his Demurrer to Evidence12 on October
Municipal Mayor of Kitcharao, Agusan del Norte. Villapando 28, 2003.
won while Tiape lost. Thereafter, on July 1, 1998, Villapando
In a Decision dated May 20, 2004, the Sandiganbayan,
designated Tiape as Municipal Administrator of the
Fourth Division found Villapando’s Demurrer to Evidence
Municipality of San Vicente, Palawan.4 A Contract of
meritorious, as follows:
Consultancy5 dated February 8, 1999 was executed
between the Municipality of San Vicente, Palawan and Tiape The Court found the "Demurrer to Evidence" impressed with
whereby the former employed the services of Tiape as merit.
Municipal Administrative and Development Planning
Article 244 of the Revised Penal Code provides:
Consultant in the Office of the Municipal Mayor for a period
of six months from January 1, 1999 to June 30, 1999 for a Article 244. Unlawful appointments.–Any public officer who
monthly salary of ₱26,953.80. shall knowingly nominate or appoint to any public office any
person lacking the legal qualifications therefor, shall suffer
On February 4, 2000, Solomon B. Maagad and Renato M.
the penalty of arresto mayor and a fine not exceeding 1,000
Fernandez charged Villapando and Tiape for violation of
pesos. (underscoring supplied)
Article 244 of the Revised Penal Code before the Office of
the Deputy Ombudsman for Luzon.6 The complaint was A dissection of the above-cited provision [yields] the
resolved against Villapando and Tiape and the following following elements, to wit:
Information7 dated March 19, 2002 charging the two with
violation of Article 244 of the Revised Penal Code was filed 1. the offender was a public officer;
with the Sandiganbayan: 2. accused nominated or appointed a person to a public
xxxx office;

That on or about 01 July 1998 or sometime prior or 3. such person did not have the legal qualifications
subsequent thereto, in San Vicente, Palawan, Philippines, [therefor;] and,
and within the jurisdiction of this Honorable Court, the 4. the offender knew that his nominee or appointee did not
above-named accused, ALEJANDRO A. VILLAPANDO, a public have the legal qualifications at the time he made the
officer, being then the Municipal Mayor of San Vicente, nomination or appointment.
Palawan, committing the crime herein charged, in relation
to and taking advantage of his official functions, conspiring Afore-cited elements are hereunder discussed.
and confederating with accused Orlando M. Tiape, did then 1. Mayor Villapando was the duly elected Municipal Mayor
and there wilfully, unlawfully and feloniously appoint of San Vicente, Palawan when the alleged crime was
ORLANDO M. TIAPE as a Municipal Administrator of San committed.
Vicente, Palawan, accused Alejandro A. Villapando knowing
fully well that Orlando Tiape lacks the qualification as he is a 2. Accused appointed Orlando Tiape as Municipal
losing mayoralty candidate in the Municipality of Kitcharao, Administrator of the Municipality of San Vicente, Palawan.
Agusan del Norte during the May 1998 elections, hence is
ineligible for appointment to a public office within one year
APPOINTMENT FINALS 23

3. There appears to be a dispute. This Court is now called It is noteworthy to mention that the prosecution did not
upon to determine whether Orlando Tiape, at the time of allege much less prove that Mayor Villapando’s appointee,
[his] designation as Municipal Administrator, was lacking in Orlando Tiape, lacked any of the qualifications imposed by
legal qualification. Stated differently, does "legal law on the position of Municipal Administrator.
qualification" contemplate the one (1) year prohibition on Prosecution’s argument rested on the assertion that since
appointment as provided for in Sec. 6, Art. IX-B of the Tiape lost in the May 11, 1998 election, he necessarily lacked
Constitution and Sec. 94 (b) of the Local Government Code, the required legal qualifications.
mandating that a candidate who lost in any election shall
It bears stressing that temporary prohibition is not
not, within one year after such election, be appointed to any
synonymous with absence or lack of legal qualification. A
office in the Government?
person who possessed the required legal qualifications for a
The Court answers in the negative. position may be temporarily disqualified for appointment to
a public position by reason of the one year prohibition
In ascertaining the legal qualifications of a particular
imposed on losing candidates. Upon the other hand, one
appointee to a public office, "there must be a law providing
may not be temporarily disqualified for appointment, but
for the qualifications of a person to be nominated or
could not be appointed as he lacked any or all of the
appointed" therein. To illuminate further, Justice Rodolfo
required legal qualifications imposed by law.
Palattao succinctly discussed in his book that the
qualification of a public officer to hold a particular position 4. Anent the last element, this Court deems it unnecessary
in the government is provided for by law, which may refer to to discuss the same.
educational attainment, civil service eligibility or experience:
WHEREFORE, finding the "Demurrer to Evidence" filed by
As the title suggests, the offender in this article is a public Mayor Villapando with merit, the same is hereby GRANTED.
officer who nominates or appoints a person to a public Mayor Villapando is hereby ACQUITTED of the crime
office. The person nominated or appointed is not qualified charged.
and his lack of qualification is known to the party making the
SO ORDERED.13
nomination or appointment. The qualification of a public
officer to hold a particular position in the government is Thus, this petition by the Office of the Ombudsman, through
provided by law. The purpose of the law is to ensure that the the Office of the Special Prosecutor, representing the People
person appointed is competent to perform the duties of the of the Philippines.
office, thereby promoting efficiency in rendering public
service. Villapando was required by this Court to file his comment to
the petition. Despite several notices, however, he failed to
The qualification to hold public office may refer to do so and in a Resolution14 dated June 7, 2006, this Court
educational attainment, civil service eligibility or informed him that he is deemed to have waived the filing of
experience. For instance, for one to be appointed as judge, his comment and the case shall be resolved on the basis of
he must be a lawyer. So if the Judicial and Bar Council the pleadings submitted by the petitioner.
nominates a person for appointment as judge knowing him
to be not a member of the Philippine Bar, such act Petitioner raises the following issues:
constitutes a violation of the law under consideration. I.
In this case, Orlando Tiape was allegedly appointed to the WHETHER THE RESPONDENT COURT ACTED WITH GRAVE
position of Municipal Administrator. As such, the law that ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS
provides for the legal qualification for the position of OF JURISDICTION IN INTERPRETING THAT THE "LEGAL
municipal administrator is Section 480, Article X of the Local DISQUALIFICATION" IN ARTICLE 244 OF THE REVISED PENAL
Government Code, to wit: CODE DOES NOT INCLUDE THE ONE YEAR PROHIBITION
"Section 480. Qualifications, Terms, Powers and Duties.–(a) IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE
No person shall be appointed administrator unless he is a CONSTITUTION AND THE LOCAL GOVERNMENT CODE.
citizen of the Philippines, a resident of the local government II.
unit concerned, of good moral character, a holder of a
college degree preferably in public administration, law, or WHETHER THE RESPONDENT COURT ACTED WITH GRAVE
any other related course from a recognized college or ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS
university, and a first grade civil service eligible or its OF JURISDICTION IN GIVING DUE COURSE TO, AND
equivalent. He must have acquired experience in EVENTUALLY GRANTING, THE DEMURRER TO EVIDENCE.15
management and administration work for at least five (5) Simply, the issue is whether or not the Sandiganbayan,
years in the case of the provincial or city administrator, and Fourth Division, acted with grave abuse of discretion
three (3) years in the case of the municipal administrator. amounting to lack or excess of jurisdiction.
xxx xxx x x x"
APPOINTMENT FINALS 24

Petitioner argues that the Sandiganbayan, Fourth Division hold any other office or employment in the government or
acted with grave abuse of discretion amounting to lack or any subdivision, agency or instrumentality thereof, including
excess of jurisdiction because its interpretation of Article government-owned or controlled corporations or their
244 of the Revised Penal Code does not complement the subsidiaries.
provision on the one-year prohibition found in the 1987
(b) Except for losing candidates in barangay elections, no
Constitution and the Local Government Code, particularly
candidate who lost in any election shall, within one (1) year
Section 6, Article IX of the 1987 Constitution which states no
after such election, be appointed to any office in the
candidate who has lost in any election shall, within one year
government or any government-owned or controlled
after such election, be appointed to any office in the
corporations or in any of their subsidiaries.
government or any government-owned or controlled
corporation or in any of their subsidiaries. Section 94(b) of Section 6, Article IX-B of the 1987 Constitution states:
the Local Government Code of 1991, for its part, states that
except for losing candidates in barangay elections, no Section 6. No candidate who has lost in any election shall,
candidate who lost in any election shall, within one year within one year after such election, be appointed to any
after such election, be appointed to any office in the office in the Government or any Government-owned or
government or any government-owned or controlled controlled corporations or in any of their subsidiaries.
corporation or in any of their subsidiaries. Petitioner argues Villapando’s contention and the Sandiganbayan, Fourth
that the court erred when it ruled that temporary Division’s interpretation of the term legal disqualification
prohibition is not synonymous with the absence of lack of lack cogency. Article 244 of the Revised Penal Code cannot
legal qualification. be circumscribed lexically. Legal disqualification cannot be
The Sandiganbayan, Fourth Division held that the read as excluding temporary disqualification in order to
qualifications for a position are provided by law and that it exempt therefrom the legal prohibitions under Section 6,
may well be that one who possesses the required legal Article IX of the 1987 Constitution and Section 94(b) of the
qualification for a position may be temporarily disqualified Local Government Code of 1991.
for appointment to a public position by reason of the one- Although this Court held in the case of People v.
year prohibition imposed on losing candidates. However, Sandiganbayan16 that once a court grants the demurrer to
there is no violation of Article 244 of the Revised Penal Code evidence, such order amounts to an acquittal and any
should a person suffering from temporary disqualification further prosecution of the accused would violate the
be appointed so long as the appointee possesses all the constitutional proscription on double jeopardy, this Court
qualifications stated in the law. held in the same case that such ruling on the matter shall
There is no basis in law or jurisprudence for this not be disturbed in the absence of a grave abuse of
interpretation. On the contrary, legal disqualification in discretion.1avvphi1
Article 244 of the Revised Penal Code simply means Grave abuse of discretion defies exact definition, but it
disqualification under the law. Clearly, Section 6, Article IX of generally refers to capricious or whimsical exercise of
the 1987 Constitution and Section 94(b) of the Local judgment as is equivalent to lack of jurisdiction. The abuse
Government Code of 1991 prohibits losing candidates within of discretion must be patent and gross as to amount to an
one year after such election to be appointed to any office in evasion of a positive duty or a virtual refusal to perform a
the government or any government-owned or controlled duty enjoined by law, or to act at all in contemplation of law,
corporations or in any of their subsidiaries. as where the power is exercised in an arbitrary and despotic
Article 244 of the Revised Penal Code states: manner by reason of passion and hostility.17

Art. 244. Unlawful appointments. — Any public officer who In this case, the Sandiganbayan, Fourth Division, in
shall knowingly nominate or appoint to any public office any disregarding basic rules of statutory construction, acted with
person lacking the legal qualifications therefore, shall suffer grave abuse of discretion. Its interpretation of the term legal
the penalty of arresto mayor and a fine not exceeding 1,000 disqualification in Article 244 of the Revised Penal Code
pesos. defies legal cogency. Legal disqualification cannot be read as
excluding temporary disqualification in order to exempt
Section 94 of the Local Government Code provides: therefrom the legal prohibitions under the 1987
Constitution and the Local Government Code of 1991. We
SECTION 94. Appointment of Elective and Appointive Local
reiterate the legal maxim ubi lex non distinguit nec nos
Officials; Candidates Who Lost in Election. - (a) No elective
distinguere debemus. Basic is the rule in statutory
or appointive local official shall be eligible for appointment
construction that where the law does not distinguish, the
or designation in any capacity to any public office or position
courts should not distinguish. There should be no distinction
during his tenure.
in the application of a law where none is indicated.
Unless otherwise allowed by law or by the primary functions
of his position, no elective or appointive local official shall
APPOINTMENT FINALS 25

Further, the Sandiganbayan, Fourth Division denied


Villapando’s Motion for Leave to File Demurrer to Evidence
yet accommodated Villapando by giving him five days within
which to inform it in writing whether he will submit his
demurrer to evidence for resolution without leave of court.

Notably, a judgment rendered with grave abuse of


discretion or without due process is void, does not exist in
legal contemplation and, thus, cannot be the source of an
acquittal.18

The Sandiganbayan, Fourth Division having acted with grave


abuse of discretion in disregarding the basic rules of
statutory construction resulting in its decision granting
Villapando’s Demurrer to Evidence and acquitting the latter,
we can do no less but declare its decision null and void.

WHEREFORE, the petition is GRANTED. The Decision dated


May 20, 2004 of the Sandiganbayan, Fourth Division, in
Criminal Case No. 27465, granting private respondent
Alejandro A. Villapando’s Demurrer to Evidence and
acquitting him of the crime of unlawful appointment under
Article 244 of the Revised Penal Code is hereby
declared NULL and VOID. Let the records of this case be
remanded to the Sandiganbayan, Fourth Division, for further
proceedings.

SO ORDERED.
APPOINTMENT FINALS 26

G.R. No. 180917 April 23, 2010 The mayor was to admit later his expectation or assumption
of risk on reimbursement:
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA
ARAÑA, Petitioners, vs. x x x It was my thinking that even if a bidder emerges and
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON gets these 2 projects which were at the time on-going
VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES (although it was also my thinking then that no bidder would
FABIAN, Respondents, possibly bid for these 2 projects as these were cost-
estimated very low-P150,000 for the 2-room school building
DECISION
P72,000 for the fencing) he (bidder) would be reasonable
CARPIO MORALES, J.: enough to reimburse what I had so far spen[t] for the
project. I said "I" because up to the time of the failed 2
Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda biddings I have shouldered the "vale" of the laborers and I
Araña (Glenda) challenge the October 11, 2007 Decision and requisitioned some materials on credit on my own personal
the December 13, 2007 Resolution of the Court of account, and not a single centavo was at the time disbursed
Appeals1 in CA-G.R. SP No. 96889 affirming the Office of the by our municipal treasury until all requirements for
Ombudsman's decision finding them guilty of Simple Neglect negotiated purchase of the materials for the project had
of Duty. been accomplished. As a matter of fact, payments for the
Salumbides and Glenda were appointed in July 2001 as expenses on these 2 projects have been made only starting
Municipal Legal Officer/Administrator and Municipal Budget 19 March 2002. x x x4 (underscoring supplied)
Officer, respectively, of Tagkawayan, Quezon. The construction of the projects commenced without any
Towards the end of 2001, Mayor Vicente Salumbides III (the approved appropriation and ahead of the public bidding.
mayor) saw the urgent need to construct a two-classroom Salumbides was of the opinion that the projects were
building with fence (the projects) for the Tagkawayan regular and legal, based on an earlier project that was
Municipal High School2 (TMHS) since the public school in the "implemented in the same manner, using the same source
poblacion area would no longer admit high school freshmen of fund and for the same reason of urgency" which was
starting school year 2002-2003. On how to solve the allowed "because the building was considered merely
classroom shortage, the mayor consulted Salumbides who temporary as the TMHS is set to be transferred to an 8-
suggested that the construction of the two-classroom hectare lot which the municipal government is presently
building be charged to the account of the Maintenance and negotiating to buy."5
Other Operating Expenses/ Repair and Maintenance of Meanwhile, Aquino suggested to the Sangguniang
Facilities (MOOE/RMF) and implemented "by Bayan the adoption of "model guidelines" in the
administration," as had been done in a previous classroom implementation of infrastructure projects to be executed
building project of the former mayor. "by administration," while Councilor Coleta Sandro (Coleta)
Upon consultation, Glenda advised Salumbides in December sponsored a Resolution to ratify the projects and to
2001, that there were no more available funds that could be authorize the mayor to enter into a negotiated
taken from the MOOE/RMF, but the savings of the municipal procurement. Both actions did not merit the approval of
government were adequate to fund the projects. She added, the Sangguniang Bayan.
however, that the approval by the Sangguniang Bayan of a On May 13, 2002, herein respondents Ricardo Agon, Ramon
proposed supplemental budget must be secured. Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all
The members of the Sangguniang Bayan having already members of the Sangguniang Bayan of Tagkawayan, filed
gone on recess for the Christmas holidays, Glenda and with the Office of the Ombudsman a complaint6 against
Salumbides advised the mayor to source the funds from the Salumbides and Glenda (hereafter petitioners), the mayor,
₱1,000,000 MOOE/RMF allocation in the approved Coleta, Jason and Aquino.
Municipal Annual Budget for 2002.3 The administrative aspect of the case, docketed as Case No.
The mayor thus ordered on January 8, 2002 Municipal OMB-L-A-02-0276-E, charged petitioners et al. with
Engineer Jose Aquino (Aquino) to proceed with the Dishonesty, Grave Misconduct, Gross Neglect of Duty,
construction of the projects based on the program of work Conduct Prejudicial to the Best Interest of the Service, and
and bill of materials he (Aquino) prepared with a total cost violation of the Commission on Audit (COA) Rules and the
estimate of ₱222,000. Local Government Code.

Upon advice of Municipal Planning and Development Officer By Order of June 14, 2002, the Office of the Ombudsman,
Hernan Jason (Jason), the mayor included the projects in the denied the prayer to place petitioners et al. under
list of local government projects scheduled for bidding on preventive suspension pending investigation. By Order
January 25, 2002 which, together with the January 31, 2002 dated February 1, 2005, approved on April 11, 2005, it
public bidding, failed. denied the motion for reconsideration but dropped the
APPOINTMENT FINALS 27

mayor and Coleta, both elective officials, as respondents in surreptitiously submitted a Motion with Appeal which
the administrative case, the 2004 elections having mooted is differentfrom the first set they had submitted. The second
the case. The parties were thereupon directed to submit set of Appeal includes specific Assignment of Errors13 and
their respective verified position papers to which already contains a certification against forum
petitioners, Jason and Aquino complied by submitting a shopping14 embedded in the Verification. The two different
consolidated position paper on May 19, 2005. Verifications were notarized by the same notary public and
bear the same date and document number.15 The rectified
Meanwhile, in response to the subpoena duces
verification with certification, however, was filed beyond the
tecum issued by the Office of the Ombudsman on February
reglementary period.
18, 2005 requiring the regional officer of the COA to submit
the post-audit report on the projects, Celerino Alviar, COA Its lapses aside, the petition just the same merits denial.
State Auditor II claimed by Affidavit of May 23, 2005 that the
Petitioners urge this Court to expand the settled doctrine of
required documents were among those razed by fire on
condonation16 to cover coterminous appointive officials
April 14, 2004 that hit the Office of the Municipal
who were administratively charged along with the reelected
Accountant where they were temporarily stored due to lack
official/appointing authority with infractions allegedly
of space at the Provincial Auditor's Office.1avvphi1
committed during their preceding term.
On October 17, 2005, the Office of the Ombudsman
The Court rejects petitioners' thesis.
approved the September 9, 2005 Memorandum absolving
Jason and Aquino, and finding petitioners guilty of Simple More than 60 years ago, the Court in Pascual v. Hon.
Neglect of Duty, for which they were meted the penalty of Provincial Board of Nueva Ecija17 issued the landmark ruling
suspension from office for a maximum period of six months that prohibits the disciplining of an elective official for a
with a stern warning against a similar repetition. It also wrongful act committed during his immediately preceding
approved on November 2, 2006 the March 27, 2006 term of office. The Court explained that "[t]he underlying
Order7 denying the motion for reconsideration. theory is that each term is separate from other terms, and
that the reelection to office operates as a condonation of
Their recourse to the appellate court having failed,
the officer's previous misconduct to the extent of cutting off
petitioners come before this Court via Rule 45 of the Rules
the right to remove him therefor."18
of Court.
The Court should never remove a public officer for acts done
For non-compliance with the rule on certification against
prior to his present term of office. To do otherwise would be
forum shopping, the petition merits outright dismissal. The
to deprive the people of their right to elect their
verification portion of the petition does not carry a
officers. When the people elect[e]d a man to office, it must
certification against forum shopping.8
be assumed that they did this with knowledge of his life and
The Court has distinguished the effects of non-compliance character, and that they disregarded or forgave his faults or
with the requirement of verification and that of certification misconduct, if he had been guilty of any. It is not for the
against forum shopping. A defective verification shall be court, by reason of such faults or misconduct[,] to practically
treated as an unsigned pleading and thus produces no legal overrule the will of the people.19 (underscoring supplied)
effect, subject to the discretion of the court to allow the
Lizares v. Hechanova, et al.20 replicated the doctrine. The
deficiency to be remedied, while the failure to certify against
Court dismissed the petition in that case for being moot, the
forum shopping shall be cause for dismissal without
therein petitioner "having been duly reelected, is no longer
prejudice, unless otherwise provided, and is not curable by
amenable to administrative sanctions."21
amendment of the initiatory pleading.9
Ingco v. Sanchez, et al.22 clarified that the condonation
Petitioners' disregard of the rules was not the first. Their
doctrine does not apply to a criminal case.23 Luciano v. The
motion for extension of time to file petition was previously
Provincial Governor, et al.,24 Olivarez v. Judge
denied by Resolution of January 15, 200810 for non-
Villaluz,25 and Aguinaldo v. Santos26 echoed the qualified
compliance with the required showing of competent proof
rule that reelection of a public official does not bar
of identity in the Affidavit of Service. The Court, by
prosecution for crimes committed by him prior thereto.
Resolution of March 4, 2008,11 later granted their motion for
reconsideration with motion to admit appeal (Motion with Consistently, the Court has reiterated the doctrine in a string
Appeal) that was filed on February 18, 2008 or the last day of recent jurisprudence including two cases involving a
of filing within the extended period. Senator and a Member of the House of Representatives.27
Moreover, in their Manifestation/Motion12 filed a day later, Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon.
petitioners prayed only for the admission of Mojica29 reinforced the doctrine. The condonation rule was
nine additional copies of the Motion with Appeal "due to applied even if the administrative complaint was not filed
honest inadvertence" in earlier filing an insufficient number before the reelection of the public official, and even if the
of copies. Petitioners were less than candid when they alleged misconduct occurred four days before the elections,
APPOINTMENT FINALS 28

respectively. Salalima did not distinguish as to the date of virtue of the mandate of the electorate. They are elected to
filing of the administrative complaint, as long as the alleged an office for a definite term and may be removed therefrom
misconduct was committed during the prior term, the only upon stringent conditions. On the other
precise timing or period of which Garcia did not further hand, appointive officials hold their office by virtue of their
distinguish, as long as the wrongdoing that gave rise to the designation thereto by an appointing authority. Some
public official's culpability was committed prior to the date appointive officials hold their office in a permanent capacity
of reelection. and are entitled to security of tenure while others serve at
the pleasure of the appointing authority.
Petitioners' theory is not novel.
xxxx
A parallel question was involved in Civil Service Commission
v. Sojor30 where the Court found no basis to broaden the An election is the embodiment of the popular will, perhaps
scope of the doctrine of condonation: the purest expression of the sovereign power of the people.
It involves the choice or selection of candidates to public
Lastly, We do not agree with respondent's contention that
office by popular vote. Considering that elected officials are
his appointment to the position of president of NORSU,
put in office by their constituents for a definite term, x x x
despite the pending administrative cases against him,
complete deference is accorded to the will of the electorate
served as a condonation by the BOR of the alleged acts
that they be served by such officials until the end of the term
imputed to him. The doctrine this Court laid down in
for which they were elected. In contrast, there is no such
Salalima v. Guingona, Jr. and Aguinaldo v. Santos are
expectation insofar as appointed officials are concerned.
inapplicable to the present circumstances. Respondents in
(emphasis and underscoring supplied)
the mentioned cases are elective officials, unlike respondent
here who is an appointed official. Indeed, election expresses The electorate's condonation of the previous administrative
the sovereign will of the people. Under the principle of vox infractions of the reelected official cannot be extended to
populi est suprema lex, the re-election of a public official that of the reappointed coterminous employees, the
may, indeed, supersede a pending administrative case. The underlying basis of the rule being to uphold the will of the
same cannot be said of a re-appointment to a non-career people expressed through the ballot. In other words, there
position. There is no sovereign will of the people to speak is neither subversion of the sovereign will nor
of when the BOR re-appointed respondent Sojor to the post disenfranchisement of the electorate to speak of, in the case
of university president.31 (emphasis and underscoring of reappointed coterminous employees.
supplied)lawph!l
It is the will of the populace, not the whim of one person
Contrary to petitioners' asseveration, the non-application of who happens to be the appointing authority, that could
the condonation doctrine to appointive officials does not extinguish an administrative liability. Since petitioners hold
violate the right to equal protection of the law. appointive positions, they cannot claim the mandate of the
electorate. The people cannot be charged with the
In the recent case of Quinto v. Commission on
presumption of full knowledge of the life and character of
Elections,32 the Court applied the four-fold test in an equal
each and every probable appointee of the elective official
protection challenge33 against the resign-to-run provision,
ahead of the latter's actual reelection.
wherein it discussed the material and substantive
distinctions between elective and appointive officials that Moreover, the unwarranted expansion of
could well apply to the doctrine of condonation: the Pascual doctrine would set a dangerous precedent as it
would, as respondents posit, provide civil servants,
The equal protection of the law clause is against undue favor
particularly local government employees, with blanket
and individual or class privilege, as well as hostile
immunity from administrative liability that would spawn and
discrimination or the oppression of inequality. It is not
breed abuse in the bureaucracy.
intended to prohibit legislation which is limited either in the
object to which it is directed or by territory within which it is Asserting want of conspiracy, petitioners implore this Court
to operate. It does not demand absolute equality among to sift through the evidence and re-assess the factual
residents; it merely requires that all persons shall be treated findings. This the Court cannot do, for being improper and
alike, under like circumstances and conditions both as to immaterial.
privileges conferred and liabilities enforced. The equal
Under Rule 45 of the Rules of Court, only questions of law
protection clause is not infringed by legislation which applies
may be raised, since the Court is not a trier of facts.34 As a
only to those persons falling within a specified class, if it
rule, the Court is not to review evidence on record and
applies alike to all persons within such class, and reasonable
assess the probative weight thereof. In the present case, the
grounds exist for making a distinction between those who
appellate court affirmed the factual findings of the Office of
fall within such class and those who do not.
the Ombudsman, which rendered the factual questions
Substantial distinctions clearly exist between elective officials beyond the province of the Court.
and appointive officials. The former occupy their office by
APPOINTMENT FINALS 29

Moreover, as correctly observed by respondents, the lack of one day to six months. Finding no alleged or established
conspiracy cannot be appreciated in favor of petitioners circumstance to warrant the imposition of the maximum
who were found guilty of simple neglect of duty, for if they penalty of six months, the Court finds the imposition of
conspired to act negligently, their infraction becomes suspension without pay for three months justified.
intentional.35 There can hardly be conspiracy to commit
When a public officer takes an oath of office, he or she binds
negligence.36
himself or herself to faithfully perform the duties of the
Simple neglect of duty is defined as the failure to give proper office and use reasonable skill and diligence, and to act
attention to a task expected from an employee resulting primarily for the benefit of the public. Thus, in the discharge
from either carelessness or indifference.37 In the present of duties, a public officer is to use that prudence, caution,
case, petitioners fell short of the reasonable diligence and attention which careful persons use in the management
required of them, for failing to exercise due care and of their affairs.43
prudence in ascertaining the legal requirements and fiscal
Public service requires integrity and discipline. For this
soundness of the projects before stamping their imprimatur
reason, public servants must exhibit at all times the highest
and giving their advice to their superior.
sense of honesty and dedication to duty. By the very nature
The appellate court correctly ruled that as municipal legal of their duties and responsibilities, public officers and
officer, petitioner Salumbides "failed to uphold the law and employees must faithfully adhere to hold sacred and render
provide a sound legal assistance and support to the mayor inviolate the constitutional principle that a public office is a
in carrying out the delivery of basic services and provisions public trust; and must at all times be accountable to the
of adequate facilities when he advised [the mayor] to people, serve them with utmost responsibility, integrity,
proceed with the construction of the subject projects loyalty and efficiency.44
without prior competitive bidding."38 As pointed out by the
WHEREFORE, the assailed Decision and Resolution of the
Office of the Solicitor General, to absolve Salumbides is
Court of Appeals in CA-G.R. SP No. 96889 are AFFIRMED with
tantamount to allowing with impunity the giving of
MODIFICATION, in that petitioners, Vicente Salumbides, Jr.
erroneous or illegal advice, when by law he is precisely
and Glenda Araña, are suspended from office for three (3)
tasked to advise the mayor on "matters related to upholding
months without pay.
the rule of law."39 Indeed, a legal officer who renders a legal
opinion on a course of action without any legal basis SO ORDERED.
becomes no different from a lay person who may approve
the same because it appears justified.

As regards petitioner Glenda, the appellate court held that


the improper use of government funds upon the direction of
the mayor and prior advice by the municipal legal officer did
not relieve her of liability for willingly cooperating rather
than registering her written objection40 as municipal budget
officer.

Aside from the lack of competitive bidding, the appellate


court, pointing to the improper itemization of the expense,
held that the funding for the projects should have been
taken from the "capital outlays" that refer to the
appropriations for the purchase of goods and services, the
benefits of which extend beyond the fiscal year and which
add to the assets of the local government unit. It added that
current operating expenditures like MOOE/RMF refer to
appropriations for the purchase of goods and services for
the conduct of normal local government operations within
the fiscal year.41

In Office of the Ombudsman v. Tongson,42 the Court


reminded the therein respondents, who were guilty of
simple neglect of duty, that government funds must be
disbursed only upon compliance with the requirements
provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense


punishable by suspension without pay for one month and
APPOINTMENT FINALS 30

G.R. No. 189698 February 22, 2010 assailed Decision on December 2, 2009, hence, had until
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., December 17, 2009 to file a Motion for Reconsideration.
Petitioners, vs. COMMISSION ON ELECTIONS, respondent
The Motion for Reconsideration of COMELEC was timely
RESOLUTION filed. It was filed on December 14, 2009. The corresponding
PUNO, C.J.: Affidavit of Service (in substitution of the one originally
submitted on December 14, 2009) was subsequently filed on
Upon a careful review of the case at bar, this Court resolves December 17, 2009 still within the reglementary period.
to grant the respondent Commission on Elections
(COMELEC) motion for reconsideration, and the movants- ii. Propriety of the Motions for Reconsideration-in-
intervenors motions for reconsideration-in-intervention, of Intervention
this Courts December 1, 2009 Decision (Decision).[1]
Section 1, Rule 19 of the Rules of Court provides:
The assailed Decision granted the Petition for Certiorari and
Prohibition filed by Eleazar P. Quinto and Gerino A. A person who has legal interest in the matter in litigation or
Tolentino, Jr. and declared as unconstitutional the second in the success of either of the parties, or an interest against
proviso in the third paragraph of Section 13 of Republic Act both, or is so situated as to be adversely affected by a
No. 9369,[2] Section 66 of the Omnibus Election Code[3] and distribution or other disposition of property in the custody
Section 4(a) of COMELEC Resolution No. 8678,[4]mainly on of the court or of an officer thereof may, with leave of court,
the ground that they violate the equal protection clause of be allowed to intervene in the action. The court shall
the Constitution and suffer from overbreadth. The assailed consider whether or not the intervention will unduly delay
Decision thus paved the way for public appointive officials to or prejudice the adjudication of the rights of the original
continue discharging the powers, prerogatives and functions parties, and whether or not the intervenors rights may be
of their office notwithstanding their entry into the political fully protected in a separate proceeding.
arena.
In support of their respective motions for reconsideration, Pursuant to the foregoing rule, this Court has held that a
respondent COMELEC and movants-intervenors submit the motion for intervention shall be entertained when the
following arguments: following requisites are satisfied: (1) the would-be
intervenor shows that he has a substantial right or interest
(1) The assailed Decision is contrary to, and/or violative of, in the case; and (2) such right or interest cannot be
the constitutional proscription against the participation of adequately pursued and protected in another proceeding.[7]
public appointive officials and members of the military in
partisan political activity; Upon the other hand, Section 2, Rule 19 of the Rules of Court
(2) The assailed provisions do not violate the equal provides the time within which a motion for intervention
protection clause when they accord differential treatment may be filed, viz.:
to elective and appointive officials, because such differential
treatment rests on material and substantial distinctions and SECTION 2. Time to intervene. The motion for
is germane to the purposes of the law; intervention may be filed at any time before rendition of
(3) The assailed provisions do not suffer from the infirmity judgment by the trial court. A copy of the pleading-in-
of overbreadth; and intervention shall be attached to the motion and served on
(4) There is a compelling need to reverse the assailed the original parties. (italics supplied)
Decision, as public safety and interest demand such reversal.
This rule, however, is not inflexible. Interventions have been
We find the foregoing arguments meritorious. allowed even beyond the period prescribed in the Rule,
when demanded by the higher interest of
I. Procedural Issues justice. Interventions have also been granted to afford
First, we shall resolve the procedural issues on the indispensable parties, who have not been impleaded, the
timeliness of the COMELECs motion for reconsideration right to be heard even after a decision has been rendered by
which was filed on December 15, 2009, as well as the the trial court,[8] when the petition for review of the
propriety of the motions for reconsideration-in-intervention judgment has already been submitted for decision before
which were filed after the Court had rendered its December the Supreme Court,[9] and even where the assailed order has
1, 2009 Decision. already become final and executory.[10] In Lim
v. Pacquing,[11] the motion for intervention filed by the
i. Timeliness of COMELECs Motion for Reconsideration Republic of the Philippines was allowed by this Court to
avoid grave injustice and injury and to settle once and for all
Pursuant to Section 2, Rule 56-A of the 1997 Rules of the substantive issues raised by the parties.
Court,[5] in relation to Section 1, Rule 52 of the same
rules,[6] COMELEC had a period of fifteen days from receipt In fine, the allowance or disallowance of a motion for
of notice of the assailed Decision within which to move for intervention rests on the sound discretion of the
its reconsideration. COMELEC received notice of the court[12] after consideration of the appropriate
[13]
circumstances. We stress again that Rule 19 of the Rules
APPOINTMENT FINALS 31

of Court is a rule of procedure whose object is to make the (2) They are overbroad insofar as they prohibit the
powers of the court fully and completely available for candidacy of all civil servants holding appointive posts: (a)
justice.[14] Its purpose is not to hinder or delay, but to without distinction as to whether or not they occupy
facilitate and promote the administration of justice.[15] high/influential positions in the government, and (b) they
limit these civil servants activity regardless of whether they
We rule that, with the exception of the IBP Cebu City be partisan or nonpartisan in character, or whether they be
Chapter, all the movants-intervenors may properly in the national, municipal or barangay level; and
intervene in the case at bar. (3) Congress has not shown a compelling state interest to
restrict the fundamental right of these public appointive
First, the movants-intervenors have each sufficiently officials.
established a substantial right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a We grant the motions for reconsideration. We now rule that
right to challenge the December 1, 2009 Decision, which Section 4(a) of Resolution 8678, Section 66 of the Omnibus
nullifies a long established law; as a voter, he has a right to Election Code, and the second proviso in the third paragraph
intervene in a matter that involves the electoral process; and of Section 13 of RA 9369 are not unconstitutional, and
as a public officer, he has a personal interest in maintaining accordingly reverse our December 1, 2009 Decision.
the trust and confidence of the public in its system of
government. III. Section 4(a) of COMELEC Resolution 8678 Compliant with
Law
On the other hand, former Senator Franklin M. Drilon and
Tom V. Apacible are candidates in the May 2010 elections Section 4(a) of COMELEC Resolution 8678 is a faithful
running against appointive officials who, in view of the reflection of the present state of the law and jurisprudence
December 1, 2009 Decision, have not yet resigned from their on the matter, viz.:
posts and are not likely to resign from their posts. They stand Incumbent Appointive Official. - Under Section 13 of RA
to be directly injured by the assailed Decision, unless it is 9369, which reiterates Section 66 of the Omnibus Election
reversed. Code, any person holding a public appointive office or
position, including active members of the Armed Forces of
Moreover, the rights or interests of said movants- the Philippines, and officers and employees in government-
intervenors cannot be adequately pursued and protected in owned or -controlled corporations, shall be considered ipso
another proceeding. Clearly, their rights will be foreclosed if facto resigned from his office upon the filing of his certificate
this Courts Decision attains finality and forms part of the of candidacy.
laws of the land.
Incumbent Elected Official. Upon the other hand, pursuant
With regard to the IBP Cebu City Chapter, it anchors its to Section 14 of RA 9006 or the Fair Election Act,[17] which
standing on the assertion that this case involves the repealed Section 67 of the Omnibus Election Code[18] and
constitutionality of elections laws for this coming 2010 rendered ineffective Section 11 of R.A. 8436 insofar as it
National Elections, and that there is a need for it to be considered an elected official as resigned only upon the start
allowed to intervene xxx so that the voice of its members in of the campaign period corresponding to the positions for
the legal profession would also be heard before this Highest which they are running,[19] an elected official is not deemed
Tribunal as it resolves issues of transcendental to have resigned from his office upon the filing of his
importance.[16] certificate of candidacy for the same or any other elected
office or position. In fine, an elected official may run for
Prescinding from our rule and ruling case law, we find that another position without forfeiting his seat.
the IBP-Cebu City Chapter has failed to present a specific and
substantial interest sufficient to clothe it with standing to These laws and regulations implement Section 2(4), Article
intervene in the case at bar. Its invoked interest is, in IX-B of the 1987 Constitution, which prohibits civil service
character, too indistinguishable to justify its intervention. officers and employees from engaging in any electioneering
or partisan political campaign.
We now turn to the substantive issues.
The intention to impose a strict limitation on the
II. Substantive Issues participation of civil service officers and employees in
partisan political campaigns is unmistakable. The exchange
The assailed Decision struck down Section 4(a) of Resolution between Commissioner Quesada and Commissioner Foz
8678, the second proviso in the third paragraph of Section during the deliberations of the Constitutional Commission is
13 of Republic Act (RA) 9369, and Section 66 of the Omnibus instructive:
Election Code, on the following grounds:
MS. QUESADA.
(1) They violate the equal protection clause of the
Constitution because of the differential treatment of xxxx
persons holding appointive offices and those holding
elective positions;
APPOINTMENT FINALS 32

Secondly, I would like to address the issue here as provided


in Section 1 (4), line 12, and I quote: "No officer or employee Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus
in the civil service shall engage, directly or indirectly, in any Election Code) further makes intervention by civil service
partisan political activity." This is almost the same provision officers and employees in partisan political activities an
as in the 1973 Constitution. However, we in the government election offense, viz.:
service have actually experienced how this provision has
been violated by the direct or indirect partisan political SECTION 261. Prohibited Acts. The following shall be guilty of
activities of many government officials. an election offense:

So, is the Committee willing to include certain clauses that xxxx


would make this provision more strict, and which would
deter its violation? (i) Intervention of public officers and employees. Any officer
or employee in the civil service, except those holding
MR. FOZ. Madam President, the existing Civil Service Law political offices; any officer, employee, or member of the
and the implementing rules on the matter are more than Armed Forces of the Philippines, or any police force, special
exhaustive enough to really prevent officers and employees forces, home defense forces, barangay self-defense units
in the public service from engaging in any form of partisan and all other para-military units that now exist or which may
political activity. But the problem really lies in hereafter be organized who, directly or indirectly,
implementation because, if the head of a ministry, and even intervenes in any election campaign or engages in any
the superior officers of offices and agencies of government partisan political activity, except to vote or to preserve
will themselves violate the constitutional injunction against public order, if he is a peace officer.
partisan political activity, then no string of words that we
may add to what is now here in this draft will really The intent of both Congress and the framers of our
implement the constitutional intent against partisan political Constitution to limit the participation of civil service officers
activity. x x x[20] (italics supplied) and employees in partisan political activities is too plain to
be mistaken.
To emphasize its importance, this constitutional ban on civil
service officers and employees is presently reflected and But Section 2(4), Article IX-B of the 1987 Constitution and
implemented by a number of statutes. Section 46(b)(26), the implementing statutes apply only to civil
Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title servants holding apolitical offices. Stated differently, the
I, Book V of the Administrative Code of 1987 respectively constitutional ban does not cover elected officials,
provide in relevant part: notwithstanding the fact that [t]he civil service embraces all
branches, subdivisions, instrumentalities, and agencies
Section 44. Discipline: General Provisions: of theGovernment, including government-owned or
controlled corporations with original charters.[21] This is
xxxx because elected public officials, by the very nature of their
office, engage in partisan political activities almost all year
(b) The following shall be grounds for disciplinary action: round, even outside of the campaign period.[22] Political
partisanship is the inevitable essence of a political office,
xxxx elective positions included.[23]

(26) Engaging directly or indirectly in partisan political The prohibition notwithstanding, civil service officers and
activities by one holding a non-political office. employees are allowed to vote, as well as express their views
on political issues, or mention the names of certain
xxxx candidates for public office whom they support. This is
crystal clear from the deliberations of the Constitutional
Section 55. Political Activity. No officer or employee in the Commission, viz.:
Civil Service including members of the Armed Forces, shall
engage directly or indirectly in any partisan political activity MS. AQUINO: Mr. Presiding Officer, my proposed
or take part in any election except to vote nor shall he use amendment is on page 2, Section 1, subparagraph 4, lines 13
his official authority or influence to coerce the political and 14. On line 13, between the words "any" and "partisan,"
activity of any other person or body. Nothing herein add the phrase ELECTIONEERING AND OTHER; and on line
provided shall be understood to prevent any officer or 14, delete the word "activity" and in lieu thereof substitute
employee from expressing his views on current political the word CAMPAIGN.
problems or issues, or from mentioning the names of his
candidates for public office whom he supports: Provided, May I be allowed to explain my proposed amendment?
That public officers and employees holding political offices
may take part in political and electoral activities but it shall THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino
be unlawful for them to solicit contributions from their may proceed.
subordinates or subject them to any of the acts involving
subordinates prohibited in the Election Code.
APPOINTMENT FINALS 33

MS. AQUINO: The draft as presented by the Committee


deleted the phrase "except to vote" which was adopted in The petitioners in Farias thus brought an equal protection
both the 1935 and 1973 Constitutions. The phrase "except challenge against Section 14, with the end in view of having
to vote" was not intended as a guarantee to the right to vote the deemed-resigned provisions apply equally to both
but as a qualification of the general prohibition against elected and appointive officials. We held, however, that the
taking part in elections. legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant
Voting is a partisan political activity. Unless it is explicitly distinctions between the two classes of officials.
provided for as an exception to this prohibition, it will Consequently, the contention that Section 14 of the Fair
amount to disenfranchisement. We know that suffrage, Election Act, in relation to Sections 66 and 67 of the
although plenary, is not an unconditional right. In other Omnibus Election Code, infringed on the equal protection
words, the Legislature can always pass a statute which can clause of the Constitution, failed muster. We ruled:
withhold from any class the right to vote in an election, if
public interest so required. I would only like to reinstate the The petitioners' contention, that the repeal of Section 67 of
qualification by specifying the prohibited acts so that those the Omnibus Election Code pertaining to elective officials
who may want to vote but who are likewise prohibited from gives undue benefit to such officials as against the
participating in partisan political campaigns or appointive ones and violates the equal protection clause of
electioneering may vote. the constitution, is tenuous.

MR. FOZ: There is really no quarrel over this point, but The equal protection of the law clause in the Constitution is
please understand that there was no intention on the part of not absolute, but is subject to reasonable classification. If
the Committee to disenfranchise any government official or the groupings are characterized by substantial distinctions
employee. The elimination of the last clause of this provision that make real differences, one class may be treated and
was precisely intended to protect the members of the civil regulated differently from the other. The Court has
service in the sense that they are not being deprived of the explained the nature of the equal protection guarantee in
freedom of expression in a political contest. The last phrase this manner:
or clause might have given the impression that a government
employee or worker has no right whatsoever in an election The equal protection of the law clause is against undue favor
campaign except to vote, which is not the case. They are still and individual or class privilege, as well as hostile
free to express their views although the intention is not really discrimination or the oppression of inequality. It is not
to allow them to take part actively in a political campaign.[24] intended to prohibit legislation which is limited either in the
object to which it is directed or by territory within which it is
IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369, to operate. It does not demand absolute equality among
and Section 66 of the Omnibus Election Code Do Not Violate residents; it merely requires that all persons shall be treated
the Equal Protection Clause alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal
We now hold that Section 4(a) of Resolution 8678, Section protection clause is not infringed by legislation which applies
66 of the Omnibus Election Code, and the second proviso in only to those persons falling within a specified class, if it
the third paragraph of Section 13 of RA 9369 are not applies alike to all persons within such class, and reasonable
violative of the equal protection clause of the Constitution. grounds exist for making a distinction between those who
fall within such class and those who do not.
i. Farias, et al. v. Executive Secretary, et al. is controlling
Substantial distinctions clearly exist between elective
In truth, this Court has already ruled squarely on whether officials and appointive officials. The former occupy their
these deemed-resigned provisions challenged in the case at office by virtue of the mandate of the electorate. They are
bar violate the equal protection clause of the Constitution elected to an office for a definite term and may be removed
in Farias, et al. v. Executive Secretary, et al.[25] therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their
In Farias, the constitutionality of Section 14 of the Fair designation thereto by an appointing authority. Some
Election Act, in relation to Sections 66 and 67 of the appointive officials hold their office in a permanent capacity
Omnibus Election Code, was assailed on the ground, among and are entitled to security of tenure while others serve at
others, that it unduly discriminates against appointive the pleasure of the appointing authority.
officials. As Section 14 repealed Section 67 (i.e., the
deemed-resigned provision in respect of elected officials) of Another substantial distinction between the two sets of
the Omnibus Election Code, elected officials are no longer officials is that under Section 55, Chapter 8, Title I,
considered ipso facto resigned from their respective offices Subsection A. Civil Service Commission, Book V of the
upon their filing of certificates of candidacy. In contrast, Administrative Code of 1987 (Executive Order No. 292),
since Section 66 was not repealed, the limitation on appointive officials, as officers and employees in the civil
appointive officials continues to be operative they are service, are strictly prohibited from engaging in any partisan
deemed resigned when they file their certificates of political activity or take (sic) part in any election except to
candidacy. vote. Under the same provision, elective officials, or officers
APPOINTMENT FINALS 34

or employees holding political offices, are obviously


expressly allowed to take part in political and electoral A decision which the case could have turned on is not
activities. regarded as obiter dictum merely because, owing to the
disposal of the contention, it was necessary to consider
By repealing Section 67 but retaining Section 66 of the another question, nor can an additional reason in a decision,
Omnibus Election Code, the legislators deemed it proper to brought forward after the case has been disposed of on one
treat these two classes of officials differently with respect to ground, be regarded as dicta. So, also, where a case presents
the effect on their tenure in the office of the filing of the two (2) or more points, any one of which is sufficient to
certificates of candidacy for any position other than those determine the ultimate issue, but the court actually decides
occupied by them. Again, it is not within the power of the all such points, the case as an authoritative precedent as to
Court to pass upon or look into the wisdom of this every point decided, and none of such points can be regarded
classification. as having the status of a dictum, and one point should not be
denied authority merely because another point was more
Since the classification justifying Section 14 of Rep. Act No. dwelt on and more fully argued and considered, nor does a
9006, i.e., elected officials vis--vis appointive officials, is decision on one proposition make statements of the court
anchored upon material and significant distinctions and all regarding other propositions dicta.[33] (italics supplied)
the persons belonging under the same classification are
similarly treated, the equal protection clause of the ii. Classification Germane to the Purposes of the Law
Constitution is, thus, not infringed.[26]
The Farias ruling on the equal protection challenge stands
The case at bar is a crass attempt to resurrect a dead issue. on solid ground even if reexamined.
The miracle is that our assailed Decision gave it new life. We
ought to be guided by the doctrine of stare decisis et non To start with, the equal protection clause does not require
quieta movere. This doctrine, which is really adherence to the universal application of the laws to all persons or things
precedents, mandates that once a case has been decided without distinction.[34] What it simply requires is equality
one way, then another case involving exactly the same point among equals as determined according to a valid
at issue should be decided in the same manner.[27] This classification.[35] The test developed by jurisprudence here
doctrine is one of policy grounded on the necessity for and yonder is that of reasonableness,[36] which has four
securing certainty and stability of judicial decisions. As the requisites:
renowned jurist Benjamin Cardozo stated in his treatise The (1) The classification rests on substantial distinctions;
Nature of the Judicial Process: (2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
It will not do to decide the same question one way between (4) It applies equally to all members of the same class.[37]
one set of litigants and the opposite way between another.
If a group of cases involves the same point, the parties Our assailed Decision readily acknowledged that these
expect the same decision. It would be a gross injustice to deemed-resigned provisions satisfy the first, third and
decide alternate cases on opposite principles. If a case was fourth requisites of reasonableness. It, however, proffers
decided against me yesterday when I was a defendant, I shall the dubious conclusion that the differential treatment of
look for the same judgment today if I am plaintiff. To decide appointive officials vis--vis elected officials is not germane to
differently would raise a feeling of resentment and wrong in the purpose of the law, because whether one holds an
my breast; it would be an infringement, material and moral, appointive office or an elective one, the evils sought to be
of my rights." Adherence to precedent must then be the rule prevented by the measure remain, viz.:
rather than the exception if litigants are to have faith in the
even-handed administration of justice in the courts.[28] For example, the Executive Secretary, or any Member of the
Cabinet for that matter, could wield the same influence as
Our Farias ruling on the equal protection implications of the the Vice-President who at the same time is appointed to a
deemed-resigned provisions cannot be minimalized as Cabinet post (in the recent past, elected Vice-Presidents
mere obiter dictum. It is trite to state that an adjudication on were appointed to take charge of national housing, social
any point within the issues presented by the case cannot be welfare development, interior and local government, and
considered as obiter dictum.[29] This rule applies to all foreign affairs). With the fact that they both head executive
pertinent questions that are presented and resolved in the offices, there is no valid justification to treat them differently
regular course of the consideration of the case and lead up when both file their [Certificates of Candidacy] for the
to the final conclusion, and to any statement as to the elections. Under the present state of our law, the Vice-
matter on which the decision is predicated.[30] For that President, in the example, running this time, let us say, for
reason, a point expressly decided does not lose its value as President, retains his position during the entire election
a precedent because the disposition of the case is, or might period and can still use the resources of his office to support
have been, made on some other ground; or even though, by his campaign.[38]
reason of other points in the case, the result reached might
have been the same if the court had held, on the particular Sad to state, this conclusion conveniently ignores the long-
point, otherwise than it did.[31] As we held in Villanueva, Jr. v. standing rule that to remedy an injustice, the Legislature
Court of Appeals, et al.:[32] need not address every manifestation of the evil at once; it
APPOINTMENT FINALS 35

may proceed one step at a time.[39] In addressing a societal In fine, the assailed Decision would have us equalize the
concern, it must invariably draw lines and make choices, playing field by invalidating provisions of law that seek to
thereby creating some inequity as to those included or restrain the evils from running riot. Under the pretext of
excluded.[40] Nevertheless, as long as the bounds of equal protection, it would favor a situation in which the evils
reasonable choice are not exceeded, the courts must defer are unconfined and vagrant, existing at the behest of both
to the legislative judgment.[41] We may not strike down a law appointive and elected officials, over another in which a
merely because the legislative aim would have been more significant portion thereof is contained. The absurdity of
fully achieved by expanding the class.[42] Stated differently, that position is self-evident, to say the least.
the fact that a legislative classification, by itself, is
underinclusive will not render it unconstitutionally arbitrary The concern, voiced by our esteemed colleague, Mr. Justice
or invidious.[43] There is no constitutional requirement that Nachura, in his dissent, that elected officials (vis--vis
regulation must reach each and every class to which it might appointive officials) have greater political clout over the
be applied;[44] that the Legislature must be held rigidly to the electorate, is indeed a matter worth exploring but not by
choice of regulating all or none. this Court. Suffice it to say that the remedy lies with the
Legislature. It is the Legislature that is given the authority,
Thus, any person who poses an equal protection challenge under our constitutional system, to balance competing
must convincingly show that the law creates a classification interests and thereafter make policy choices responsive to
that is palpably arbitrary or capricious.[45] He must the exigencies of the times. It is certainly within the
refute all possible rational bases for the differing treatment, Legislatures power to make the deemed-resigned provisions
whether or not the Legislature cited those bases as reasons applicable to elected officials, should it later decide that the
for the enactment,[46] such that the constitutionality of the evils sought to be prevented are of such frequency and
law must be sustained even if the reasonableness of the magnitude as to tilt the balance in favor of expanding the
classification is fairly debatable.[47] In the case at bar, the class. This Court cannot and should not arrogate unto itself
petitioners failed and in fact did not even attempt to the power to ascertain and impose on the people the best
discharge this heavy burden. Our assailed Decision was state of affairs from a public policy standpoint.
likewise silent as a sphinx on this point even while we
submitted the following thesis: iii. Mancuso v. Taft Has Been Overruled

... [I]t is not sufficient grounds for invalidation that we may Finding no Philippine jurisprudence to prop up its equal
find that the statutes distinction is unfair, underinclusive, protection ruling, our assailed Decision adverted to, and
unwise, or not the best solution from a public-policy extensively cited, Mancuso v. Taft.[52] This was a decision of
standpoint; rather, we must find that there is no reasonably the First Circuit of the United States Court of Appeals
rational reason for the differing treatment.[48] promulgated in March 1973, which struck down as
unconstitutional a similar statutory provision. Pathetically,
In the instant case, is there a rational justification for our assailed Decision, relying on Mancuso, claimed:
excluding elected officials from the operation of the deemed
resigned provisions? I submit that there is. (1) The right to run for public office is inextricably linked with
two fundamental freedoms freedom of expression and
An election is the embodiment of the popular will, perhaps association;
the purest expression of the sovereign power of the (2) Any legislative classification that significantly burdens
people.[49] It involves the choice or selection of candidates to this fundamental right must be subjected to strict equal
public office by popular vote.[50] Considering that elected protection review; and
officials are put in office by their constituents for a definite (3) While the state has a compelling interest in maintaining
term, it may justifiably be said that they were excluded from the honesty and impartiality of its public work force, the
the ambit of the deemed resigned provisions in utmost deemed-resigned provisions pursue their objective in a far
respect for the mandate of the sovereign will. In other too heavy-handed manner as to render them
words, complete deference is accorded to the will of the unconstitutional.
electorate that they be served by such officials until the end
of the term for which they were elected. In contrast, there It then concluded with the exhortation that since the
is no such expectation insofar as appointed officials are Americans, from whom we copied the provision in question,
concerned. had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow
The dichotomized treatment of appointive and elective suit.
officials is therefore germane to the purposes of the law. For
the law was made not merely to preserve the integrity, Our assailed Decisions reliance on Mancuso is completely
efficiency, and discipline of the public service; the Legislature, misplaced. We cannot blink away the fact that the United
whose wisdom is outside the rubric of judicial scrutiny, also States Supreme Court effectively overruled Mancuso three
thought it wise to balance this with the competing, yet months after its promulgation by the United States Court of
equally compelling, interest of deferring to the sovereign Appeals. In United States Civil Service Commission, et al. v.
will.[51] (emphasis in the original) National Association of Letter Carriers AFL-CIO, et
al.[53] and Broadrick, et al. v. State of Oklahoma, et al.,[54] the
APPOINTMENT FINALS 36

United States Supreme Court was faced with the issue of any of its agencies, should administer the law in accordance
whether statutory provisions prohibiting federal[55] and with the will of Congress, rather than in accordance with
state[56] employees from taking an active part in political their own or the will of a political party. They are expected to
management or in political enforce the law and execute the programs of the
campaigns were unconstitutional as to warrant facial Government without bias or favoritism for or against any
invalidation. Violation of these provisions results in political party or group or the members thereof. A major
dismissal from employment and possible criminal sanctions. thesis of the Hatch Act is that to serve this great end of
Government-the impartial execution of the laws-it is
The Court declared these provisions compliant with the essential that federal employees, for example, not take
equal protection clause. It held that (i) in regulating the formal positions in political parties, not undertake to play
speech of its employees, the state as employer has interests substantial roles in partisan political campaigns, and not run
that differ significantly from those it possesses in regulating for office on partisan political tickets. Forbidding activities
the speech of the citizenry in general; (ii) the courts must like these will reduce the hazards to fair and effective
therefore balance the legitimate interest of employee free government.
expression against the interests of the employer in
promoting efficiency of public services; (iii) if the employees There is another consideration in this judgment: it is not only
expression interferes with the maintenance of efficient and important that the Government and its employees in fact
regularly functioning services, the limitation on speech is not avoid practicing political justice, but it is also critical that
unconstitutional; and (iv) the Legislature is to be given some they appear to the public to be avoiding it, if confidence in
flexibility or latitude in ascertaining which positions are to be the system of representative Government is not to be eroded
covered by any statutory restrictions.[57] Therefore, insofar to a disastrous extent.
as government employees are concerned, the correct
standard of review is an interest-balancing approach, a Another major concern of the restriction against partisan
means-end scrutiny that examines the closeness of fit activities by federal employees was perhaps the immediate
between the governmental interests and the prohibitions in occasion for enactment of the Hatch Act in 1939. That was
question.[58] the conviction that the rapidly expanding Government work
force should not be employed to build a powerful, invincible,
Letter Carriers elucidated on these principles, as follows: and perhaps corrupt political machine. The experience of
the 1936 and 1938 campaigns convinced Congress that
Until now, the judgment of Congress, the Executive, and the these dangers were sufficiently real that substantial barriers
country appears to have been that partisan political should be raised against the party in power-or the party out
activities by federal employees must be limited if the of power, for that matter-using the thousands or hundreds
Government is to operate effectively and fairly, elections are of thousands of federal employees, paid for at public
to play their proper part in representative government, and expense, to man its political structure and political
employees themselves are to be sufficiently free from campaigns.
improper influences. The restrictions so far imposed on
federal employees are not aimed at particular parties, A related concern, and this remains as important as any
groups, or points of view, but apply equally to all partisan other, was to further serve the goal that employment and
activities of the type described. They discriminate against no advancement in the Government service not depend on
racial, ethnic, or religious minorities. Nor do they seek to political performance, and at the same time to make sure
control political opinions or beliefs, or to interfere with or that Government employees would be free from pressure
influence anyone's vote at the polls. and from express or tacit invitation to vote in a certain way
or perform political chores in order to curry favor with their
But, as the Court held in Pickering v. Board of superiors rather than to act out their own beliefs. It may be
Education,[59] the government has an interest in regulating urged that prohibitions against coercion are sufficient
the conduct and the speech of its employees that differ(s) protection; but for many years the joint judgment of the
significantly from those it possesses in connection with Executive and Congress has been that to protect the rights
regulation of the speech of the citizenry in general. The of federal employees with respect to their jobs and their
problem in any case is to arrive at a balance between the political acts and beliefs it is not enough merely to forbid one
interests of the (employee), as a citizen, in commenting upon employee to attempt to influence or coerce another. For
matters of public concern and the interest of the example, at the hearings in 1972 on proposed legislation for
(government), as an employer, in promoting the efficiency of liberalizing the prohibition against political activity, the
the public services it performs through its employees. Chairman of the Civil Service Commission stated that the
Although Congress is free to strike a different balance than it prohibitions against active participation in partisan political
has, if it so chooses, we think the balance it has so far struck management and partisan political campaigns constitute the
is sustainable by the obviously important interests sought to most significant safeguards against coercion . . .. Perhaps
be served by the limitations on partisan political activities Congress at some time will come to a different view of the
now contained in the Hatch Act. realities of political life and Government service; but that is
its current view of the matter, and we are not now in any
It seems fundamental in the first place that employees in the position to dispute it. Nor, in our view, does the Constitution
Executive Branch of the Government, or those working for forbid it.
APPOINTMENT FINALS 37

application. We do not believe that the overbreadth


Neither the right to associate nor the right to participate in doctrine may appropriately be invoked in this manner here.
political activities is absolute in any event.[60] x x x
xxxx
xxxx
The consequence of our departure from traditional rules of
As we see it, our task is not to destroy the Act if we can, but standing in the First Amendment area is that any
to construe it, if consistent with the will of Congress, so as to enforcement of a statute thus placed at issue is totally
comport with constitutional limitations. (italics supplied) forbidden until and unless a limiting construction or partial
invalidation so narrows it as to remove the seeming threat
Broadrick likewise definitively stated that the assailed or deterrence to constitutionally protected expression.
statutory provision is constitutionally permissible, viz.: Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the
Appellants do not question Oklahoma's right to place even- Court sparingly and only as a last resort. x x x
handed restrictions on the partisan political conduct of state
employees. Appellants freely concede that such restrictions x x x But the plain import of our cases is, at the very least,
serve valid and important state interests, particularly with that facial over-breadth adjudication is an exception to our
respect to attracting greater numbers of qualified people by traditional rules of practice and that its function, a limited
insuring their job security, free from the vicissitudes of the one at the outset, attenuates as the otherwise unprotected
elective process, and by protecting them from political behavior that it forbids the State to sanction moves from
extortion. Rather, appellants maintain that however pure speech toward conduct and that conduct-even if
permissible, even commendable, the goals of s 818 may be, expressive-falls within the scope of otherwise valid criminal
its language is unconstitutionally vague and its prohibitions laws that reflect legitimate state interests in maintaining
too broad in their sweep, failing to distinguish between comprehensive controls over harmful, constitutionally
conduct that may be proscribed and conduct that must be unprotected conduct. Although such laws, if too broadly
permitted. For these and other reasons, appellants assert worded, may deter protected speech to some unknown
that the sixth and seventh paragraphs of s 818 are void in extent, there comes a point where that effect-at best a
toto and cannot be enforced against them or anyone else. prediction-cannot, with confidence, justify invalidating a
statute on its face and so prohibiting a State from enforcing
We have held today that the Hatch Act is not impermissibly the statute against conduct that is admittedly within its
vague.[61] We have little doubt that s 818 is similarly not so power to proscribe. To put the matter another way,
vague that men of common intelligence must necessarily particularly where conduct and not merely speech is
guess at its meaning.[62] Whatever other problems there are involved, we believe that the overbreadth of a statute must
with s 818, it is all but frivolous to suggest that the section not only be real, but substantial as well, judged in relation to
fails to give adequate warning of what activities it proscribes the statute's plainly legitimate sweep. It is our view that s
or fails to set out explicit standards' for those who must 818 is not substantially overbroad and that whatever
apply it. In the plainest language, it prohibits any state overbreadth may exist should be cured through case-by-
classified employee from being an officer or member of a case analysis of the fact situations to which its sanctions,
partisan political club or a candidate for any paid public assertedly, may not be applied.
office. It forbids solicitation of contributions for any political
organization, candidacy or other political purpose and taking Unlike ordinary breach-of-the peace statutes or other broad
part in the management or affairs of any political party or in regulatory acts, s 818 is directed, by its terms, at political
any political campaign. Words inevitably contain germs of expression which if engaged in by private persons would
uncertainty and, as with the Hatch Act, there may be plainly be protected by the First and Fourteenth
disputes over the meaning of such terms in s 818 as partisan, Amendments. But at the same time, s 818 is not a censorial
or take part in, or affairs of political parties. But what was statute, directed at particular groups or viewpoints. The
said in Letter Carriers, is applicable here: there are statute, rather, seeks to regulate political activity in an even-
limitations in the English language with respect to being handed and neutral manner. As indicted, such statutes have
both specific and manageably brief, and it seems to us that in the past been subject to a less exacting overbreadth
although the prohibitions may not satisfy those intent on scrutiny. Moreover, the fact remains that s 818 regulates a
finding fault at any cost, they are set out in terms that the substantial spectrum of conduct that is as manifestly subject
ordinary person exercising ordinary common sense can to state regulation as the public peace or criminal
sufficiently understand and comply with, without sacrifice to trespass. This much was established in United Public
the public interest.' x x x Workers v. Mitchell, and has been unhesitatingly reaffirmed
today in Letter Carriers. Under the decision in Letter Carriers,
xxxx there is no question that s 818 is valid at least insofar as it
forbids classified employees from: soliciting contributions
[Appellants] nevertheless maintain that the statute is for partisan candidates, political parties, or other partisan
overbroad and purports to reach protected, as well as political purposes; becoming members of national, state, or
unprotected conduct, and must therefore be struck down local committees of political parties, or officers or
on its face and held to be incapable of any constitutional committee members in partisan political clubs,
APPOINTMENT FINALS 38

or candidates for any paid public office; taking part in the facts, Letter Carriers and Broadrick cannot be interpreted to
management or affairs of any political party's partisan mean a reversal of Mancuso. x x x (italics in the original)
political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or We hold, however, that his position is belied by a plain
taking an active part in partisan political rallies or meetings; reading of these cases. Contrary to his claim, Letter Carriers,
soliciting votes or assisting voters at the polls or helping in a Broadrick and Mancuso all concerned the constitutionality of
partisan effort to get voters to the polls; participating in the resign-to-run laws, viz.:
distribution of partisan campaign literature; initiating or
circulating partisan nominating petitions; or riding in (1) Mancuso involved a civil service employee who filed as a
caravans for any political party or partisan political candidate for nomination as representative to the Rhode
candidate. Island General Assembly. He assailed the constitutionality of
14.09(c) of the City Home Rule Charter, which
x x x It may be that such restrictions are impermissible and prohibits continuing in the classified service of the city after
that s 818 may be susceptible of some other improper becoming a candidate for nomination or election to any
applications. But, as presently construed, we do not believe public office.
that s 818 must be discarded in toto because some persons
arguably protected conduct may or may not be caught or (2) Letter Carriers involved plaintiffs who alleged that the
chilled by the statute. Section 818 is not substantially Civil Service Commission was enforcing, or threatening to
overbroad and it not, therefore, unconstitutional on its face. enforce, the Hatch Acts prohibition against active
(italics supplied) participation in political management or political
campaigns[63] with respect to certain defined activities in
It bears stressing that, in his Dissenting Opinion, Mr. Justice which they desired to engage. The plaintiffs relevant to this
Nachura does not deny the principles enunciated in Letter discussion are:
Carriers and Broadrick. He would hold, nonetheless, that
these cases cannot be interpreted to mean a reversal (a) The National Association of Letter Carriers, which
of Mancuso, since they pertain to different types of laws and alleged that its members were desirous of, among others,
were decided based on a different set of facts, viz.: running in local elections for offices such as school board
member, city council member or mayor;
In Letter Carriers, the plaintiffs alleged that the Civil Service (b) Plaintiff Gee, who alleged that he desired to, but did not,
Commission was enforcing, or threatening to enforce, the file as a candidate for the office of Borough Councilman in
Hatch Acts prohibition against active participation in political his local community for fear that his participation in a
management or political campaigns. The plaintiffs desired to partisan election would endanger his job; and
campaign for candidates for public office, to encourage and (c) Plaintiff Myers, who alleged that he desired to run as a
get federal employees to run for state and local offices, to Republican candidate in the 1971 partisan election for the
participate as delegates in party conventions, and to hold mayor of West Lafayette, Indiana, and that he would do so
office in a political club. except for fear of losing his job by reason of violation of the
Hatch Act.
In Broadrick, the appellants sought the invalidation for being
vague and overbroad a provision in the (sic) Oklahomas The Hatch Act defines active participation in political
Merit System of Personnel Administration Act restricting the management or political campaigns by cross-referring to the
political activities of the States classified civil servants, in rules made by the Civil Service Commission. The rule
much the same manner as the Hatch Act proscribed partisan pertinent to our inquiry states:
political activities of federal employees. Prior to the
commencement of the action, the appellants actively 30. Candidacy for local office: Candidacy for a nomination or
participated in the 1970 reelection campaign of their for election to any National, State, county, or municipal
superior, and were administratively charged for asking other office is not permissible. The prohibition against political
Corporation Commission employees to do campaign work or activity extends not merely to formal announcement of
to give referrals to persons who might help in the campaign, candidacy but also to the preliminaries leading to such
for soliciting money for the campaign, and for receiving and announcement and to canvassing or soliciting support or
distributing campaign posters in bulk. doing or permitting to be done any act in furtherance of
candidacy. The fact that candidacy, is merely passive is
Mancuso, on the other hand, involves, as aforesaid, an immaterial; if an employee acquiesces in the efforts of
automatic resignation provision. Kenneth Mancuso, a full friends in furtherance of such candidacy such acquiescence
time police officer and classified civil service employee of constitutes an infraction of the prohibitions against political
the City of Cranston, filed as a candidate for nomination as activity. (italics supplied)
representative to the Rhode Island General Assembly. The
Mayor of Cranston then began the process of enforcing the Section 9(b) requires the immediate removal of violators
resign-to-run provision of the City Home Rule Charter. and forbids the use of appropriated funds thereafter to pay
compensation to these persons.[64]
Clearly, as the above-cited US cases pertain to different
types of laws and were decided based on a different set of
APPOINTMENT FINALS 39

(3) Broadrick was a class action brought by Carriers and Broadrick v. Oklahoma. Both dealt with laws
certain Oklahoma state employees seeking a declaration of barring civil servants from partisan political activity. Letter
unconstitutionality of two sub-paragraphs of Section 818 of Carriers reaffirmed United Public Workers v. Mitchell,
Oklahomas Merit System of Personnel Administration Act. upholding the constitutionality of the Hatch Act as to federal
Section 818 (7), the paragraph relevant to this discussion, employees. Broadrick sustained Oklahoma's Little Hatch Act
states that [n]o employee in the classified service shall be a against constitutional attack, limiting its holding
candidate for nomination or election to any paid public to Oklahoma's construction that the Act barred only activity
office Violation of Section 818 results in dismissal from in partisan politics. In Mancuso v. Taft, we assumed that
employment, possible criminal sanctions and limited state proscriptions of candidacy in nonpartisan elections would
employment ineligibility. not be constitutional. Letter Carriers and Broadrick compel
new analysis.
Consequently, it cannot be denied that Letter xxxx
Carriers and Broadrick effectively overruled Mancuso. By no
stretch of the imagination could Mancuso still be held What we are obligated to do in this case, as the district court
operative, as Letter Carriers and Broadrick (i) concerned recognized, is to apply the Courts interest balancing
virtually identical resign-to-run laws, and (ii) were decided approach to the kind of nonpartisan election revealed in this
by a superior court, the United States Supreme Court. It was record. We believe that the district court found more
thus not surprising for the First Circuit Court of Appeals the residual vigor in our opinion in Mancuso v. Taft than remains
same court that decided Mancuso to hold categorically and after Letter Carriers. We have particular reference to our
emphatically in Magill v. Lynch[65] that Mancuso is no longer view that political candidacy was a fundamental interest
good law. As we priorly explained: which could be trenched upon only if less restrictive
alternatives were not available. While this approach may still
Magill involved Pawtucket, Rhode Island firemen who ran be viable for citizens who are not government employees, the
for city office in 1975. Pawtuckets Little Hatch Act prohibits Court in Letter Carriers recognized that the government's
city employees from engaging in a broad range of political interest in regulating both the conduct and speech of its
activities. Becoming a candidate for any city office is employees differs significantly from its interest in regulating
specifically proscribed,[66] the violation being punished by those of the citizenry in general. Not only was United Public
removal from office or immediate dismissal. The firemen Workers v. Mitchell "unhesitatingly" reaffirmed, but the
brought an action against the city officials on the ground Court gave little weight to the argument that prohibitions
that that the provision of the city charter was against the coercion of government employees were a less
unconstitutional. However, the court, fully cognizant drastic means to the same end, deferring to the judgment of
of Letter Carriers and Broadrick, took the position the Congress. We cannot be more precise than the Third
that Mancuso had since lost considerable vitality. It observed Circuit in characterizing the Court's approach as "some sort
that the view that political candidacy was a fundamental of 'balancing' process".[68] It appears that the government
interest which could be infringed upon only if less restrictive may place limits on campaigning by public employees if the
alternatives were not available, was a position which was no limits substantially serve government interests that are
longer viable, since the Supreme Court (finding that the "important" enough to outweigh the employees' First
governments interest in regulating both the conduct and Amendment rights. x x x (italics supplied)
speech of its employees differed significantly from its interest
in regulating those of the citizenry in general) had given little Upholding thus the constitutionality of the law in question,
weight to the argument that prohibitions against the coercion the Magill court detailed the major governmental interests
of government employees were a less drastic means to the discussed in Letter Carriers and applied them to
same end, deferring to the judgment of Congress, and the Pawtucketprovision as follows:
applying a balancing test to determine whether limits on
political activity by public employees substantially served In Letter Carriers[,] the first interest identified by the Court
government interests which were important enough to was that of an efficient government, faithful to the Congress
outweigh the employees First Amendment rights.[67] rather than to party. The district court discounted this
interest, reasoning that candidates in a local election would
It must be noted that the Court of Appeals ruled in this not likely be committed to a state or national platform. This
manner even though the election in Magill was observation undoubtedly has substance insofar as allegiance
characterized as nonpartisan, as it was reasonable for the to broad policy positions is concerned. But a different kind
city to fear, under the circumstances of that case, that of possible political intrusion into efficient administration
politically active bureaucrats might use their official power could be thought to threaten municipal government: not
to help political friends and hurt political foes. Ruled the into broad policy decisions, but into the particulars of
court: administration favoritism in minute decisions affecting
welfare, tax assessments, municipal contracts and
The question before us is whether Pawtucket's charter purchasing, hiring, zoning, licensing, and inspections. Just as
provision, which bars a city employee's candidacy in even a the Court in Letter Carriers identified a second
nonpartisan city election, is constitutional. The issue governmental interest in the avoidance of the appearance
compels us to extrapolate two recent Supreme Court of "political justice" as to policy, so there is an equivalent
decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter interest in avoiding the appearance of political preferment
APPOINTMENT FINALS 40

in privileges, concessions, and benefits. The appearance (or coercion of employees by superiors remains as strong a
reality) of favoritism that the charter's authors evidently factor in municipal elections as it was in Letter Carriers. Once
feared is not exorcised by the nonpartisan character of the again, it is the systematic and coordinated exploitation of
formal election process. Where, as here, party support is a public servants for political ends that a legislature is most
key to successful campaigning, and party rivalry is the norm, likely to see as the primary threat of employees' rights.
the city might reasonably fear that politically active Political oppression of public employees will be rare in an
bureaucrats would use their official power to help political entirely nonpartisan system. Some superiors may be
friends and hurt political foes. This is not to say that the city's inclined to ride herd on the politics of their employees even
interest in visibly fair and effective administration in a nonpartisan context, but without party officials looking
necessarily justifies a blanket prohibition of all employee over their shoulders most supervisors will prefer to let
campaigning; if parties are not heavily involved in a employees go their own ways.
campaign, the danger of favoritism is less, for neither friend
nor foe is as easily identified. In short, the government may constitutionally restrict its
employees' participation in nominally nonpartisan elections
A second major governmental interest identified in Letter if political parties play a large role in the campaigns. In the
Carriers was avoiding the danger of a powerful political absence of substantial party involvement, on the other
machine. The Court had in mind the large and growing hand, the interests identified by the Letter
federal bureaucracy and its partisan potential. The district Carriers Court lose much of their force. While the
court felt this was only a minor threat since parties had no employees' First Amendment rights would normally
control over nominations. But in fact candidates sought outbalance these diminished interests, we do not suggest
party endorsements, and party endorsements proved to be that they would always do so. Even when parties are absent,
highly effective both in determining who would emerge many employee campaigns might be thought to endanger at
from the primary election and who would be elected in the least one strong public interest, an interest that looms larger
final election. Under the prevailing customs, known party in the context of municipal elections than it does in the
affiliation and support were highly significant factors national elections considered in Letter Carriers. The city
in Pawtucket elections. The charter's authors might could reasonably fear the prospect of a subordinate running
reasonably have feared that a politically active public work directly against his superior or running for a position that
force would give the incumbent party, and the incumbent confers great power over his superior. An employee of a
workers, an unbreakable grasp on the reins of power. In federal agency who seeks a Congressional seat poses less of
municipal elections especially, the small size of the a direct challenge to the command and discipline of his
electorate and the limited powers of local government may agency than a fireman or policeman who runs for mayor or
inhibit the growth of interest groups powerful enough to city council. The possibilities of internal discussion, cliques,
outbalance the weight of a partisan work force. Even when and political bargaining, should an employee gather
nonpartisan issues and candidacies are at stake, isolated substantial political support, are considerable. (citations
government employees may seek to influence voters or omitted)
their co-workers improperly; but a more real danger is that
a central party structure will mass the scattered powers of The court, however, remanded the case to the district court
government workers behind a single party platform or slate. for further proceedings in respect of the petitioners
Occasional misuse of the public trust to pursue private overbreadth charge. Noting that invalidating a statute for
political ends is tolerable, especially because the political being overbroad is not to be taken lightly, much less to be
views of individual employees may balance each other out. taken in the dark, the court held:
But party discipline eliminates this diversity and tends to
make abuse systematic. Instead of a handful of employees The governing case is Broadrick, which introduced the
pressured into advancing their immediate superior's doctrine of "substantial" overbreadth in a closely analogous
political ambitions, the entire government work force may case. Under Broadrick, when one who challenges a law has
be expected to turn out for many candidates in every engaged in constitutionally unprotected conduct (rather
election. In Pawtucket, where parties are a continuing than unprotected speech) and when the challenged law is
presence in political campaigns, a carefully orchestrated use aimed at unprotected conduct, "the overbreadth of a
of city employees in support of the incumbent party's statute must not only be real, but substantial as well, judged
candidates is possible. The danger is scarcely lessened by the in relation to the statute's plainly legitimate sweep." Two
openness of Pawtucket's nominating procedure or the lack major uncertainties attend the doctrine: how to distinguish
of party labels on its ballots. speech from conduct, and how to define "substantial"
overbreadth. We are spared the first inquiry
The third area of proper governmental interest in Letter by Broadrick itself. The plaintiffs in that case had solicited
Carriers was ensuring that employees achieve advancement support for a candidate, and they were subject to discipline
on their merits and that they be free from both coercion and under a law proscribing a wide range of activities, including
the prospect of favor from political activity. The district court soliciting contributions for political candidates and
did not address this factor, but looked only to the possibility becoming a candidate. The Court found that this
of a civil servant using his position to influence voters, and combination required a substantial overbreadth approach.
held this to be no more of a threat than in the most The facts of this case are so similar that we may reach the
nonpartisan of elections. But we think that the possibility of
APPOINTMENT FINALS 41

same result without worrying unduly about the sometimes of review.[72] Bart v. Telford[73] pointedly stated that [t]he
opaque distinction between speech and conduct. First Amendment does not in terms confer a right to run for
public office, and this court has held that it does not do so
The second difficulty is not so easily disposed by implication either. Thus, ones interest in seeking
of. Broadrick found no substantial overbreadth in a statute office, by itself, is not entitled to constitutional
restricting partisan campaigning. Pawtucket has gone protection.[74] Moreover, one cannot bring ones action
further, banning participation in nonpartisan campaigns as under the rubric of freedom of association, absent any
well. Measuring the substantiality of a statute's overbreadth allegation that, by running for an elective position, one is
apparently requires, inter alia, a rough balancing of the advancing the political ideas of a particular set of voters.[75]
number of valid applications compared to the number of
potentially invalid applications. Some sensitivity to reality is Prescinding from these premises, it is crystal clear that the
needed; an invalid application that is far-fetched does not provisions challenged in the case at bar, are not violative of
deserve as much weight as one that is probable. The question the equal protection clause. The deemed-resigned
is a matter of degree; it will never be possible to say that a provisions substantially serve governmental interests (i.e., (i)
ratio of one invalid to nine valid applications makes a law efficient civil service faithful to the government and the
substantially overbroad. Still, an overbreadth challenger has people rather than to party; (ii) avoidance of the appearance
a duty to provide the court with some idea of the number of of political justice as to policy; (iii) avoidance of the danger
potentially invalid applications the statute permits. Often, of a powerful political machine; and (iv) ensuring that
simply reading the statute in the light of common employees achieve advancement on their merits and that
experience or litigated cases will suggest a number of they be free from both coercion and the prospect of favor
probable invalid applications. But this case is different. from political activity). These are interests that are
Whether the statute is overbroad depends in large part on important enough to outweigh the non-fundamental right of
the number of elections that are insulated from party rivalry appointive officials and employees to seek elective office.
yet closed to Pawtucket employees. For all the record
shows, every one of the city, state, or federal elections En passant, we find it quite ironic that Mr. Justice Nachura
in Pawtucket is actively contested by political parties. cites Clements v. Fashing[76] and Morial, et al. v. Judiciary
Certainly the record suggests that parties play a major role Commission of the State of Louisiana, et al.[77] to buttress his
even in campaigns that often are entirely nonpartisan in dissent. Maintaining that resign-to-run provisions are valid
other cities. School committee candidates, for example, are only when made applicable to specified officials, he explains:
endorsed by the local Democratic committee.
U.S. courts, in subsequent cases, sustained the
The state of the record does not permit us to find constitutionality of resign-to-run provisions when applied
overbreadth; indeed such a step is not to be taken lightly, to specified or particular officials, as distinguished from all
much less to be taken in the dark. On the other hand, the others,[78] under a classification that is germane to the
entire focus below, in the short period before the election purposes of the law. These resign-to-run legislations were
was held, was on the constitutionality of the statute as not expressed in a general and sweeping provision, and
applied. Plaintiffs may very well feel that further efforts are thus did not violate the test of being germane to the purpose
not justified, but they should be afforded the opportunity to of the law, the second requisite for a valid classification.
demonstrate that the charter forecloses access to a Directed, as they were, to particular officials, they were not
significant number of offices, the candidacy for which by overly encompassing as to be overbroad. (emphasis in the
municipal employees would not pose the possible threats to original)
government efficiency and integrity which Letter Carriers, as This reading is a regrettable misrepresentation
we have interpreted it, deems significant. Accordingly, we of Clements and Morial. The resign-to-run provisions in
remand for consideration of plaintiffs' overbreadth claim. these cases were upheld not because they referred to
(italics supplied, citations omitted) specified or particular officials (vis--vis a general class); the
questioned provisions were found valid precisely because
Clearly, Letter Carriers, Broadrick, and Magill demonstrate the Court deferred to legislative judgment and found that a
beyond doubt that Mancuso v. Taft, heavily relied upon by regulation is not devoid of a rational predicate simply because
the ponencia, has effectively been overruled.[69] As it is no it happens to be incomplete. In fact, the equal protection
longer good law, the ponencias exhortation that [since] the challenge in Clements revolved around the claim that the
Americans, from whom we copied the provision in question, State of Texas failed to explain why some public officials are
had already stricken down a similar measure for being subject to the resign-to-run provisions, while others are not.
unconstitutional[,] it is high-time that we, too, should follow Ruled the United States Supreme Court:
suit is misplaced and unwarranted.[70]
Article XVI, 65, of the Texas Constitution provides that the
Accordingly, our assailed Decisions submission that the right holders of certain offices automatically resign their positions
to run for public office is inextricably linked with two if they become candidates for any other elected office,
fundamental freedoms those of expression and association unless the unexpired portion of the current term is one year
lies on barren ground. American case law has in fact never or less. The burdens that 65 imposes on candidacy are even
recognized a fundamental right to express ones political less substantial than those imposed by 19. The two
views through candidacy,[71] as to invoke a rigorous standard provisions, of course, serve essentially the same state
APPOINTMENT FINALS 42

interests. The District Court found 65 deficient, however, views on controversial topics in a manner that does not
not because of the nature or extent of the provision's interfere with the proper performance of their public duties.
restriction on candidacy, but because of the manner in In today's decision, there is no blanket approval of
which the offices are classified. According to the District restrictions on the right of public employees to become
Court, the classification system cannot survive equal candidates for public office. Nor do we approve any general
protection scrutiny, because Texas has failed to explain restrictions on the political and civil rights of judges in
sufficiently why some elected public officials are subject to particular. Our holding is necessarily narrowed by the
65 and why others are not. As with the case of 19, we methodology employed to reach it. A requirement that a
conclude that 65 survives a challenge under the Equal state judge resign his office prior to becoming a candidate
Protection Clause unless appellees can show that there is no for non-judicial office bears a reasonably necessary relation
rational predicate to the classification scheme. to the achievement of the state's interest in preventing the
actuality or appearance of judicial impropriety. Such a
The history behind 65 shows that it may be upheld consistent requirement offends neither the first amendment's
with the "one step at a time" approach that this Court has guarantees of free expression and association nor the
undertaken with regard to state regulation not subject to fourteenth amendment's guarantee of equal protection of
more vigorous scrutiny than that sanctioned by the the laws. (italics supplied)
traditional principles. Section 65 was enacted in 1954 as a
transitional provision applying only to the 1954 election. Indeed, the Morial court even quoted Broadrick and stated
Section 65 extended the terms of those offices enumerated that:
in the provision from two to four years. The provision also
staggered the terms of other offices so that at least some In any event, the legislature must have some leeway in
county and local offices would be contested at each election. determining which of its employment positions require
The automatic resignation proviso to 65 was not added until restrictions on partisan political activities and which may be
1958. In that year, a similar automatic resignation provision left unregulated. And a State can hardly be faulted for
was added in Art. XI, 11, which applies to officeholders in attempting to limit the positions upon which such
home rule cities who serve terms longer than two years. restrictions are placed. (citations omitted)
Section 11 allows home rule cities the option of extending
the terms of municipal offices from two to up to four years. V. Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Thus, the automatic resignation provision in Texas is a Do Not Suffer from Overbreadth
creature of the State's electoral reforms of 1958. That the
State did not go further in applying the automatic Apart from nullifying Section 4(a) of Resolution 8678,
resignation provision to those officeholders whose terms Section 13 of RA 9369, and Section 66 of the Omnibus
were not extended by 11 or 65, absent an invidious purpose, Election Code on equal protection ground, our assailed
is not the sort of malfunctioning of the State's lawmaking Decision struck them down for being overbroad in two
process forbidden by the Equal Protection Clause. A respects, viz.:
regulation is not devoid of a rational predicate simply
because it happens to be incomplete. The Equal Protection (1) The assailed provisions limit the candidacy of all civil
Clause does not forbid Texas to restrict one elected servants holding appointive posts without due regard for the
officeholder's candidacy for another elected office unless type of position being held by the employee seeking an
and until it places similar restrictions on other officeholders. elective post and the degree of influence that may be
The provision's language and its history belie any notion that attendant thereto;[79] and
65 serves the invidious purpose of denying access to the (2) The assailed provisions limit the candidacy of any and all
political process to identifiable classes of potential civil servants holding appointive positions without due
candidates. (citations omitted and italics supplied) regard for the type of office being sought, whether it be
partisan or nonpartisan in character, or in the national,
Furthermore, it is unfortunate that the dissenters took municipal or barangay level.
the Morial line that there is no blanket approval of
restrictions on the right of public employees to become Again, on second look, we have to revise our assailed
candidates for public office out of context. A correct reading Decision.
of that line readily shows that the Court only meant to
confine its ruling to the facts of that case, as each equal i. Limitation on Candidacy Regardless of Incumbent
protection challenge would necessarily have to involve Appointive Officials Position, Valid
weighing governmental interests vis--vis the specific
prohibition assailed. The Court held: According to the assailed Decision, the challenged provisions
of law are overly broad because they apply indiscriminately
The interests of public employees in free expression and to all civil servants holding appointive posts, without due
political association are unquestionably entitled to the regard for the type of position being held by the employee
protection of the first and fourteenth amendments. Nothing running for elective office and the degree of influence that
in today's decision should be taken to imply that public may be attendant thereto.
employees may be prohibited from expressing their private
APPOINTMENT FINALS 43

Its underlying assumption appears to be that the evils sought overbreadth is more apparent than real. Our exposition on
to be prevented are extant only when the incumbent this issue has not been repudiated, viz.:
appointive official running for elective office holds an
influential post. A perusal of Resolution 8678 will immediately disclose that
the rules and guidelines set forth therein refer to the filing
Such a myopic view obviously fails to consider a different, of certificates of candidacy and nomination of official
yet equally plausible, threat to the government posed by the candidates of registered political parties, in connection with
partisan potential of a large and growing bureaucracy: the the May 10, 2010 National and Local Elections.[83] Obviously,
danger of systematic abuse perpetuated by a powerful these rules and guidelines, including the restriction in
political machine that has amassed the scattered powers of Section 4(a) of Resolution 8678, were issued specifically for
government workers so as to give itself and its incumbent purposes of the May 10, 2010 National and Local Elections,
workers an unbreakable grasp on the reins of power.[80] As which, it must be noted, are decidedly partisan in character.
elucidated in our prior exposition:[81] Thus, it is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive officials vying
Attempts by government employees to wield influence over for partisan elective posts in the May 10, 2010 National and
others or to make use of their respective positions Local Elections. On this score, the overbreadth challenge
(apparently) to promote their own candidacy may seem leveled against Section 4(a) is clearly unsustainable.
tolerable even innocuous particularly when viewed in
isolation from other similar attempts by other government Similarly, a considered review of Section 13 of RA 9369 and
employees. Yet it would be decidedly foolhardy to discount Section 66 of the Omnibus Election Code, in conjunction
the equally (if not more) realistic and dangerous possibility with other related laws on the matter, will confirm that
that such seemingly disjointed attempts, when taken these provisions are likewise not intended to apply to
together, constitute a veiled effort on the part of an elections for nonpartisan public offices.
emerging central party structure to advance its own agenda
through a carefully orchestrated use of [appointive and/or The only elections which are relevant to the present inquiry
elective] officials coming from various levels of the are the elections for barangay offices, since these are the
bureaucracy. only elections in this country which
[84]
involve nonpartisan public offices.
[T]he avoidance of such a politically active public work force
which could give an emerging political machine an In this regard, it is well to note that from as far back as the
unbreakable grasp on the reins of power is reason enough enactment of the Omnibus Election Code in 1985, Congress
to impose a restriction on the candidacies of all appointive has intended that these nonpartisan barangay elections be
public officials without further distinction as to the type of governed by special rules, including a separate rule on
positions being held by such employees or the degree of deemed resignations which is found in Section 39 of the
influence that may be attendant thereto. (citations omitted) Omnibus Election Code. Said provision states:

ii. Limitation on Candidacy regardless of Type of Office Section 39. Certificate of Candidacy. No person shall be
Sought, Valid elected punong barangay or kagawad ng sangguniang
barangay unless he files a sworn certificate of candidacy in
The assailed Decision also held that the challenged triplicate on any day from the commencement of the
provisions of law are overly broad because they are made to election period but not later than the day before the
apply indiscriminately to all civil servants holding appointive beginning of the campaign period in a form to be prescribed
offices, without due regard for the type of elective office by the Commission. The candidate shall state the barangay
being sought, whether it be partisan or nonpartisan in office for which he is a candidate.
character, or in the national, municipal or barangaylevel.
xxxx
This erroneous ruling is premised on the assumption that
the concerns of a truly partisan office and the temptations it Any elective or appointive municipal, city, provincial or
fosters are sufficiently different from those involved in an national official or employee, or those in the civil or military
office removed from regular party politics [so as] to warrant service, including those in government-owned or-controlled
distinctive treatment,[82] so that restrictions on candidacy corporations, shall be considered automatically resigned
akin to those imposed by the challenged provisions can upon the filing of certificate of candidacy for a barangay
validly apply only to situations in which the elective office office.
sought is partisan in character. To the extent, therefore, that Since barangay elections are governed by a separate
such restrictions are said to preclude even candidacies for deemed resignation rule, under the present state of law,
nonpartisan elective offices, the challenged restrictions are there would be no occasion to apply the restriction on
to be considered as overbroad. candidacy found in Section 66 of the Omnibus Election Code,
and later reiterated in the proviso of Section 13 of RA 9369,
Again, a careful study of the challenged provisions and to any election other than a partisan one. For this reason,
related laws on the matter will show that the alleged the overbreadth challenge raised against Section 66 of the
APPOINTMENT FINALS 44

Omnibus Election Code and the pertinent proviso in Section possibility that protected speech of others may be muted
13 of RA 9369 must also fail. [85] and perceived grievances left to fester (due to the possible
inhibitory effects of overly broad statutes) outweighs the
In any event, even if we were to assume, for the sake of possible harm to society in allowing some unprotected
argument, that Section 66 of the Omnibus Election Code and speech or conduct to go unpunished.[95] Facial overbreadth
the corresponding provision in Section 13 of RA 9369 are has likewise not been invoked where a limiting construction
general rules that apply also to elections for nonpartisan could be placed on the challenged statute, and where there
public offices, the overbreadth challenge would still be are readily apparent constructions that would cure, or at
futile. Again, we explained: least substantially reduce, the alleged overbreadth of the
In the first place, the view that Congress is limited to statute.[96]
controlling only partisan behavior has not received judicial
imprimatur, because the general proposition of the relevant In the case at bar, the probable harm to society in permitting
US cases on the matter is simply that the government has an incumbent appointive officials to remain in office, even as
interest in regulating the conduct and speech of its they actively pursue elective posts, far outweighs the less
employees that differs significantly from those it possesses likely evil of having arguably protected candidacies blocked
in connection with regulation of the speech of the citizenry by the possible inhibitory effect of a potentially overly broad
in general.[86] statute.

Moreover, in order to have a statute declared as In this light, the conceivably impermissible applications of
unconstitutional or void on its face for being overly broad, the challenged statutes which are, at best, bold predictions
particularly where, as in this case, conduct and not pure cannot justify invalidating these statutes in toto and
speech is involved, the overbreadth must not only be real, prohibiting the State from enforcing them against conduct
but substantial as well, judged in relation to the statutes that is, and has for more than 100 years been,
plainly legitimate sweep.[87] unquestionably within its power and interest to
proscribe.[97] Instead, the more prudent approach would be
In operational terms, measuring the substantiality of a to deal with these conceivably impermissible applications
statutes overbreadth would entail, among other things, a through case-by-case adjudication rather than through a
rough balancing of the number of valid applications total invalidation of the statute itself.[98]
compared to the number of potentially invalid
applications.[88] In this regard, some sensitivity to reality is Indeed, the anomalies spawned by our assailed Decision
needed; an invalid application that is far-fetched does not have taken place. In his Motion for Reconsideration,
deserve as much weight as one that is probable.[89] The intervenor Drilon stated that a number of high-ranking
question is a matter of degree.[90] Thus, assuming for the Cabinet members had already filed their Certificates of
sake of argument that the partisan-nonpartisan distinction Candidacy without relinquishing their posts.[99] Several
is valid and necessary such that a statute which fails to make COMELEC election officers had likewise filed their
this distinction is susceptible to an overbreadth attack, the Certificates of Candidacy in their respective
overbreadth challenge presently mounted must provinces.[100] Even the Secretary of Justice had filed her
demonstrate or provide this Court with some idea of the certificate of substitution for representative of the first
number of potentially invalid elections (i.e. the number of district of Quezon province last December 14, 2009[101] even
elections that were insulated from party rivalry but were as her position as Justice Secretary includes supervision over
nevertheless closed to appointive employees) that may in all the City and Provincial Prosecutors,[102] who, in turn, act as
probability result from the enforcement of the statute.[91] Vice-Chairmen of the respective Boards of
Canvassers.[103] The Judiciary has not been spared, for a
The state of the record, however, does not permit us to find Regional Trial Court Judge in the South has thrown his hat
overbreadth. Borrowing from the words of Magill v. Lynch, into the political arena. We cannot allow the tilting of our
indeed, such a step is not to be taken lightly, much less to be electoral playing field in their favor.
taken in the dark,[92] especially since an overbreadth finding
in this case would effectively prohibit the State from For the foregoing reasons, we now rule that Section 4(a) of
enforcing an otherwise valid measure against conduct that Resolution 8678 and Section 13 of RA 9369, which merely
is admittedly within its power to proscribe.[93] reiterate Section 66 of the Omnibus Election Code, are not
unconstitutionally overbroad.
This Court would do well to proceed with tiptoe caution,
particularly when it comes to the application of the IN VIEW WHEREOF, the Court RESOLVES to GRANT the
overbreadth doctrine in the analysis of statutes that respondents and the intervenors Motions for
purportedly attempt to restrict or burden the exercise of the Reconsideration; REVERSE and SET ASIDE this Courts
right to freedom of speech, for such approach is manifestly December 1, 2009 Decision; DISMISS the Petition; and ISSUE
strong medicine that must be used sparingly, and only as a this Resolution declaring as not UNCONSTITUTIONAL (1)
last resort.[94] Section 4(a) of COMELEC Resolution No. 8678, (2) the
second proviso in the third paragraph of Section 13 of
In the United States, claims of facial overbreadth have been Republic Act No. 9369, and (3) Section 66 of the Omnibus
entertained only where, in the judgment of the court, the Election Code. SO ORDERED.