Law on Public Officer Case Digest

1I. Intro. A. Definition 1. Laurel G.R. No. 145368 April 12, 2002 SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent. KAPUNAN, J .: On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223 "constituting a Committee for the preparation of the National Centennial Celebration in 1998." The Committee was mandated "to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress." 1 Subsequently, President Fidel V. Ramos issued Executive Order No. 128, "reconstituting the Committee for the preparation of the National Centennial Celebrations in 1988." It renamed the Committee as the "National Centennial Commission." Appointed to chair the reconstituted Commission was Vice-President Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons. 2 Characterized as an "i body," the existence of the Commission "shall terminate upon the completion of all activities related to the Centennial Celebrations." 3 Like its predecessor Committee, the Commission was tasked to "take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress." Per Section 6 of the Executive Order, the Commission was also charged with the responsibility to "prepare, for approval of the President, a Comprehensive Plan for the Centennial Celebrations within six (6) months from the effectivity of" the Executive Order. E.O. No. 128 also contained provisions for staff support and funding: Sec. 3. The Commission shall be provided with technical and administrative staff support by a Secretariat to be composed of, among others, detailed personnel from the Presidential Management Staff, the National Commission for Culture and the Arts, and the National Historical Institute. Said Secretariat shall be headed by a full time Executive Director who shall be designated by the President. Sec. 4. The Commission shall be funded with an initial budget to be drawn from the Department of Tourism and the president’s Contingent Fund, in an amount to be recommended by the Commission, and approved by the President. Appropriations for succeeding years shall be incorporated in the budget of the Office of the President. Subsequently, a corporation named the Philippine Centennial Expo ’98 Corporation (Expocorp) was created. 4 Petitioner was among the nine (9) Expocorp incorporators, who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer. On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate denouncing alleged anomalies in the construction and operation of the Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator Coseteng’s 2 privilege speech was referred to the Committee on Accountability of Public Officers and Investigation (The Blue Ribbon Committee) and several other Senate Committees for investigation. On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating an ad hoc and independent citizens’ committee to investigate all the facts and circumstances surrounding the Philippine centennial projects, including its component activities. Former Senator Rene A.V. Saguisag was appointed to chair the Committee. On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the Committee’s recommendations was "the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid contract that has caused material injury to government and for participating in the scheme to preclude audit by COA of the funds infused by the government for the implementation of the said contracts all in violation… of the anti-graft law." 5 Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended "the further investigation by the Ombudsman, and indictment, in proper cases of," among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code. The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report, recommending: 1. that a formal complaint be filed and preliminary investigation be conducted before the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Peña and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and Regulations; 2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant. 6 In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit and those of his witnesses. On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioning the jurisdiction of said office. In an Order dated June 13, 2000, the Ombudsman denied petitioner’s motion to dismiss. On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the motion was denied in an Order dated October 5, 2000. On October 25, 2000, petitioner filed the present petition for certiorari. On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a resolution finding "probable cause to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEÑA before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594." The resolution also directed that an information for violation of the said 3 law be filed against Laurel and Peña. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but dismissed the charge against Peña. In a Resolution dated September 24, 2001, the Court issued a temporary restraining order, commanding respondents to desist from filing any information before the Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral argument. Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because: A. EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS OF THE ANTI- GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED CORPORATION. B. THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE. C. PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A "PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT. 7 In addition, petitioner in his reply 8 invokes this Court’s decision in Uy vs. Sandiganbayan, 9 where it was held that the jurisdiction of the Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioner’s position was purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him. This last contention is easily dismissed. In the Court’s decision in Uy, we held that "it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan." In its Resolution of February 22, 2000, the Court expounded: The clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan…" And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayan’s jurisdiction clearly serve to limit the Ombudsman’s and Special Prosecutor’s authority to cases cognizable by the Sandiganbayan. [Emphasis in the original.] 4 The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in the same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the rationale for this reversal: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and 5 effective agent of the people in ensuring accountability in public office. A review of the development of our Ombudsman law reveals this intent. [Emphasis in the original.] Having disposed of this contention, we proceed to the principal grounds upon which petitioner relies. We first address the argument that petitioner, as Chair of the NCC, was not a public officer. The Constitution 10 describes the Ombudsman and his Deputies as "protectors of the people," who "shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations." Among the awesome powers, functions, and duties vested by the Constitution 11 upon the Office of the Ombudsman is to "[i]nvestigate… any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient." The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of said law respectively provide: SEC. 13. Mandate. – The Ombudsman and his Deputies, as protectors of the people shall act promptly on complaints file in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government- owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x. The coverage of the law appears to be limited only by Section 16, in relation to Section 13, supra: SEC 16. Applicability. – The provisions of this Act shall apply to all kinds of malfeasance, misfeasance and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office. In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non- feasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations. 12 Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A definition of public officers cited in jurisprudence 13 is that provided by Mechem, a recognized authority on the subject: 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. The individual so invested is a public officer. 14 6 The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. 15 Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary. Mechem describes the delegation to the individual of some of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; – that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. 16 Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. May the functions of the NCC then be described as executive? We hold that the NCC performs executive functions. The executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance." 17 The executive function, therefore, concerns the implementation of the policies as set forth by law. The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports) thereof: Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations. In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial Celebrations in 1998: Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important vehicle for fostering nationhood and a strong sense of Filipino identity; Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values; Whereas, the success of the Centennial Celebrations may be insured only through long- range planning and continuous developmental programming; Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly in communication and information dissemination, is necessary for long-range planning and continuous developmental programming; Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the multisectoral components from the business, cultural, and business 7 sectors to serve as effective instruments from the launching and overseeing of this long-term project; x x x. E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the "need to strengthen the said Committee to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and wider participation from the government and non- government or private organizations." It also referred to the "need to rationalize the relevance of historical links with other countries." The NCC was precisely created to execute the foregoing policies and objectives, to carry them into effect. Thus, the Commission was vested with the following functions: (a) To undertake the overall study, conceptualization, formulation and implementation of programs and projects on the utilization of culture, arts, literature and media as vehicles for history, economic endeavors, and reinvigorating the spirit of national unity and sense of accomplishment in every Filipino in the context of the Centennial Celebrations. In this regard, it shall include a Philippine National Exposition ’98 within Metro Manila, the original eight provinces, and Clark Air Base as its major venues; (b) To act as principal coordinator for all the activities related to awareness and celebration of the Centennial; (c) To serve as the clearing house for the preparation and dissemination of all information about the plans and events for the Centennial Celebrations; (d) To constitute working groups which shall undertake the implementation of the programs and projects; (e) To prioritize the refurbishment of historical sites and structures nationwide. In this regard, the Commission shall formulate schemes (e.g. lease-maintained-and-transfer, build-operate- transfer, and similar arrangements) to ensure the preservation and maintenance of the historical sites and structures; (f) To call upon any government agency or instrumentality and corporation, and to invite private individuals and organizations to assist it in the performance of its tasks; and, (g) Submit regular reports to the President on the plans, programs, projects, activities as well as the status of the preparations for the Celebration. 18 It bears noting the President, upon whom the executive power is vested, 19 created the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2 describes the nature of executive orders: SEC. 2. Executive Orders. – Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. [Underscoring ours.] Furthermore, the NCC was not without a role in the country’s economic development, especially in Central Luzon. Petitioner himself admitted as much in the oral arguments before this Court: MR. JUSTICE REYNATO S. PUNO: 8 And in addition to that expounded by Former President Ramos, don’t you agree that the task of the centennial commission was also to focus on the long term over all socio economic development of the zone and Central Luzon by attracting investors in the area because of the eruption of Mt. Pinatubo. FORMER VICE PRESIDENT SALVADOR H. LAUREL: I am glad Your Honor touched on that because that is something I wanted to touch on by lack of material time I could not but that is a very important point. When I was made Chairman I wanted the Expo to be in Batangas because I am a Batangeño but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery in that area by putting this Expo in Clark Field and so it was done I agreed and Your Honor if I may also mention we wanted to generate employment aside from attracting business investments and employment. And the Estrada administration decided to junk this project there 48, 40 thousand people who lost job, they were employed in Expo. And our target was to provide 75 thousand jobs. It would have really calibrated, accelerated the development of Central Luzon. Now, I think they are going back to that because they had the airport and there are plan to revive the Expo site into key park which was the original plan. There can hardly be any dispute that the promotion of industrialization and full employment is a fundamental state policy. 20 Petitioner invokes the ruling of this Court in Torio vs. Fontanilla 21 that the holding by a municipality of a town fiesta is a proprietary rather than a governmental function. Petitioner argues that the "holding of a nationwide celebration which marked the nation’s 100th birthday may be likened to a national fiesta which involved only the exercise of the national government’s proprietary function." 22 In Torio, we held: [Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the celebration, as claimed, was not to secure profit or gain but merely to provide entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the town, nonetheless it is [a] private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service. As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The basic element, however beneficial to the public the undertaking may be, is that it is government in essence, otherwise, the function becomes private or propriety in character. Easily, no governmental or public policy of the state is involved in the celebration of a town fiesta. Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the Court cautioned that "there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive." Thus, in footnote 15 of Torio, the Court, citing an American 9 case, illustrated how the "surrounding circumstances plus the political, social, and cultural backgrounds" could produce a conclusion different from that in Torio: We came across an interesting case which shows that surrounding circumstances plus the political, social, and cultural backgrounds may have a decisive bearing on this question. The case of Pope v. City of New Haven, et al. was an action to recover damages for personal injuries caused during a Fourth of July fireworks display resulting in the death of a bystander alleged to have been caused by defendants’ negligence. The defendants demurred to the complaint invoking the defense that the city was engaged in the performance of a public governmental duty from which it received no pecuniary benefit and for negligence in the performance of which no statutory liability is imposed. This demurrer was sustained by the Superior Court of New Haven Country. Plaintiff sought to amend his complaint to allege that the celebration was for the corporate advantage of the city. This was denied. In affirming the order, the Supreme Court of Errors of Connecticut held inter alia: Municipal corporations are exempt from liability for the negligent performance of purely public governmental duties, unless made liable by statute…. A municipality corporation, which under permissive authority of its charter or of statute, conducted a public Fourth of July celebration, including a display of fireworks, and sent up a bomb intended to explode in the air, but which failed to explode until it reached the ground, and then killed a spectator, was engaged in the performance of a governmental duty. (99 A.R. 51) This decision was concurred in by three Judges while two dissented. At any rate the rationale of the Majority Opinion is evident from [this] excerpt: "July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our statutes. All or nearly all of the other states have similar statutes. While there is no United States statute making a similar provision, the different departments of the government recognize, and have recognized since the government was established, July 4th as a national holiday. Throughout the country it has been recognized and celebrated as such. These celebrations, calculated to entertain and instruct the people generally and to arouse and stimulate patriotic sentiments and love of country, frequently take the form of literary exercises consisting of patriotic speeches and the reading of the Constitution, accompanied by a musical program including patriotic air sometimes preceded by the firing of cannon and followed by fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. x x x" Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial Celebrations was meant to commemorate the birth of our nation after centuries of struggle against our former colonial master, to memorialize the liberation of our people from oppression by a foreign power. 1998 marked 100 years of independence and sovereignty as one united nation. The Celebrations was an occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle for fostering nationhood and a strong sense of Filipino identity," an opportunity to "showcase Filipino heritage and thereby strengthen Filipino values." The significance of the Celebrations could not have been lost on petitioner, who remarked during the hearing: Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle the love for freedom, love for country, that is the over-all goal that has to make everybody feel proud that he is a Filipino, proud of our history, proud of what our forefather did in their time. x x x. 10 Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. 23 Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. 24 But it is a public office, nonetheless. Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc body" make said commission less of a public office. The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, -- it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer." At the same time, however, this element of continuance can not be considered as indispensable, for, if the other elements are present "it can make no difference," says Pearson, C.J., "whether there be but one act or a series of acts to be done, -- whether the office expires as soon as the one act is done, or is to be held for years or during good behavior." 25 Our conclusion that petitioner is a public officer finds support in In Re Corliss. 26 There the Supreme Court of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an "office of trust" as to disqualify its holder as elector of the United States President and Vice-President. (Under Article II of the United States Constitution, a person holding an office of trust or profit under the United States is disqualified from being appointed an elector.) x x x. We think a Commissioner of the United States Centennial Commission holds an office of trust under the United States, and that he is therefore disqualified for the office of elector of President and Vice-President of the United States. The commission was created under a statute of the United States approved March 3, 1871. That statute provides for the holding of an exhibition of American and foreign arts, products, and manufactures, "under the auspices of the government of the United States," and for the constitution of a commission, to consist of more than one delegate from each State and from each Territory of the United States, "whose functions shall continue until close of the exhibition," and "whose duty it shall be to prepare and superintend the execution of the plan for holding the exhibition." Under the statute the commissioners are appointed by the President of the United States, on the nomination of the governor of the States and Territories respectively. Various duties were imposed upon the commission, and under the statute provision was to be made for it to have exclusive control of the exhibit before the President should announce, by proclamation, the date and place of opening and holding the exhibition. By an act of Congress approved June 1st, 1872, the duties and functions of the commission were further increased and defined. That act created a corporation, called "The Centennial Board of Finance," to cooperate with the commission and to raise and disburse 11 the funds. It was to be organized under the direction of the commission. The seventh section of the act provides "that the grounds for exhibition shall be prepared and the buildings erected by the corporation, in accordance with plans which shall have been adopted by the United States Centennial Commission; and the rules and regulations of said corporation, governing rates for entrance and admission fees, or otherwise affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be fixed and established by the United States Centennial Commission; and no grant conferring rights or privileges of any description connected with said grounds or buildings, or relating to said exhibition or celebration, shall be made without the consent of the United States Centennial Commission, and said commission shall have power to control, change, or revoke all such grants, and shall appoint all judges and examiners and award all premiums." The tenth section of the act provides that "it shall be the duty of the United States Centennial Commission to supervise the closing up of the affairs of said corporation, to audit its accounts, and submit in a report to the President of the United States the financial results of the centennial exhibition." It is apparent from this statement, which is but partial, that the duties and functions of the commission were various, delicate, and important; that they could be successfully performed only by men of large experience and knowledge of affairs; and that they were not merely subordinate and provisional, but in the highest degree authoritative, discretionary, and final in their character. We think that persons performing such duties and exercising such functions, in pursuance of statutory direction and authority, are not to be regarded as mere employees, agents, or committee men, but that they are, properly speaking, officers, and that the places which they hold are offices. It appears, moreover, that they were originally regarded as officers by Congress; for the act under which they were appointed declares, section 7, that "no compensation for services shall be paid to the commissioners or other officers, provided for in this act, from the treasury of the United States." The only other officers provided for were the "alternates" appointed to serve as commissioners when the commissioners were unable to attend. Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a public office, we need no longer delve at length on the issue of whether Expocorp is a private or a public corporation. Even assuming that Expocorp is a private corporation, petitioner’s position as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair. 27 Finally, it is contended that since petitioner supposedly did not receive any compensation for his services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman. Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads: SEC. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: x x x (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. 12 A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as follows: SEC. 2. Definition of terms. – As used in this Act, the term – x x x (b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government as defined in the preceding paragraph. [Emphasis supplied.] It is clear from Section 2 (b), above, that the definition of a "public officer" is expressly limited to the application of R.A. No. 3019. Said definition does not apply for purposes of determining the Ombudsman’s jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989. Moreover, the question of whether petitioner is a public officer under the Anti-Graft and Corrupt Practices Act involves the appreciation of evidence and interpretation of law, matters that are best resolved at trial. To illustrate, the use of the term "includes" in Section 2 (b) indicates that the definition is not restrictive. 28 The Anti-Graft and Corrupt Practices Act is just one of several laws that define "public officers." Article 203 of the Revised Penal Code, for example, provides that a public officer is: x x x any person who, by direct provision of law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of Philippines, or performs in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class. Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987, 29 on the other hand, states: Officer – as distinguished from "clerk" or "employee", refers to a person whose duties not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular person in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function. It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees), one may be considered a "public official" whether or not one receives compensation, thus: "Public Officials" include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service including military and police personnel, whether or not they receive compensation, regardless of amount. Which of these definitions should apply, if at all? Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term "compensation," which is not defined by said law, has many meanings. Under particular circumstances, "compensation" has been held to include allowance for personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts, salary, and wages. 30 13 How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted? Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive any salary, the records do not reveal if he received any allowance, fee, honorarium, or some other form of compensation. Notably, under the by-laws of Expocorp, the CEO is entitled to per diems and compensation. 31 Would such fact bear any significance? Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial court from resolving them. WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Court’s Resolution dated September 24, 2001 is hereby LIFTED. SO ORDERED. In 1991, then President Corazon Aquino a Committee or the preparation of the National Centennial Celebration in 1998. When President Fidel Ramos took over, he reconstituted the said Committee as the National Centennial Commission (NCC). Salvador Laurel was appointed as the chairperson. Subsequently, the Centennial Exposition Project was constructed at the Clark Special Economic Zone. After the centennial celebration, then Senator Ana Dominique Coseteng, in a privilege speech, exposed certain anomalies in the said Centennial Exposition Project. This eventually led to the filing of graft and corrupt practices charges against Laurel. The graft charges were referred to then Ombudsman Aniano Desierto. Laurel questioned the jurisdiction of the Ombudsman as he averred that the NCC is not a public office; that Laurel is not a public officer hence he cannot be charged with graft cases and the Ombudsman has no jurisdiction. Laurel avers that a public office is defined as follows: 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. The individual so invested is a public officer. From the above definition, Laurel insists that he is not a public officer because: 1. He was not delegated any sovereign functions; 2. He did not receive any compensation as chairman of NCC; 3. His office has no security of tenure because the NCC is an ad hoc body which is coterminous upon the happening of the 1998 Centennial Celebration. ISSUE: Whether or not Salvador Laurel is a public officer. HELD: Yes. The Supreme Court ruled: 1. Laurel’s office was delegated with sovereign functions. Based on the executive issuances which constituted and reconstituted the NCC, as well as various executive orders, it can be seen that the NCC was given executive functions, to wit: promote economic development particularly in Central Luzon to attract investors to mitigate the eruption of Mt. Pinatubo, among others. Promotion of industrialization and full employment is a fundamental state policy. 2. Even if Laurel did not receive any compensation it must be remembered that a salary is a usual but not a necessary criterion for determining the nature of the position. It is not 14 conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. Hence, the office of Laurel as NCC Chairman may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. But it is a public office, nonetheless. 3. NCC being defined as an ad hoc body is of no moment. The true test, regardless of the designation by the creating law, is that if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, — it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer. 2. Veterans G. R. No. 155027 February 28, 2006 THE VETERANS FEDERATION OF THE PHILIPPINES represented by Esmeraldo R. Acorda, Petitioner, vs. Hon. ANGELO T. REYES in his capacity as Secretary of National Defense; and Hon. EDGARDO E. BATENGA in his capacity as Undersecretary for Civil Relations and Administration of the Department of National Defense, Respondents. D E C I S I O N CHICO-NAZARIO, J .: This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, with a prayer to declare as void Department Circular No. 04 of the Department of National Defense (DND), dated 10 June 2002. Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate body organized under Republic Act No. 2640, dated 18 June 1960, as amended, and duly registered with the Securities and Exchange Commission. Respondent Angelo T. Reyes was the Secretary of National Defense (DND Secretary) who issued the assailed Department Circular No. 04, dated 10 June 2002. Respondent Edgardo E. Batenga was the DND Undersecretary for Civil Relations and Administration who was tasked by the respondent DND Secretary to conduct an extensive management audit of the records of petitioner. The factual and procedural antecedents of this case are as follows: Petitioner VFP was created under Rep. Act No. 2640, 1 a statute approved on 18 June 1960. On 15 April 2002, petitioner’s incumbent president received a letter dated 13 April 2002 which reads: Col. Emmanuel V. De Ocampo (Ret.) 15 President Veterans Federation of the Philippines Makati, Metro Manila Dear Col. De Ocampo: Please be informed that during the preparation of my briefing before the Cabinet and the President last March 9, 2002, we came across some legal bases which tended to show that there is an organizational and management relationship between Veterans Federation of the Philippines and the Philippine Veterans Bank which for many years have been inadvertently overlooked. I refer to Republic Act 2640 creating the body corporate known as the VFP and Republic Act 3518 creating the Phil. Vets [sic] Bank. 1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under the control and supervision of the Secretary of National Defense." 2. RA 2640 Section 12 ... "On or before the last day of the month following the end of each fiscal year, the Federation shall make and transmit to the President of the Philippines or to the Secretary of National Defense, a report of its proceedings for the past year, including a full, complete and itemized report of receipts and expenditures of whatever kind." 3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans Bank, and for Other Purposes) provides in Section 6 that ... "the affairs and business of the Philippine Veterans Bank shall be directed and its property managed, controlled and preserved, unless otherwise provided in this Act, by a Board of Directors consisting of eleven (11) members to be composed of three ex officio members to wit: the Philippine Veterans Administrator, the President of the Veteran’s Federation of the Philippines and the Secretary of National Defense x x x. It is therefore in the context of clarification and rectification of what should have been done by the DND (Department of National Defense) for and about the VFP and PVB that I am requesting appropriate information and report about these two corporate bodies. Therefore it may become necessary that a conference with your staffs in these two bodies be set. Thank you and anticipating your action on this request. Very truly yours, (SGD) ANGELO T. REYES [DND] Secretary On 10 June 2002, respondent DND Secretary issued the assailed DND Department Circular No. 04 entitled, "Further Implementing the Provisions of Sections 1 2 and 2 3 of Republic Act No. 2640," the full text of which appears as follows: Department of National Defense 16 Department Circular No. 04 Subject: Further Implementing the Provisions of Sections 1 & 2 of Republic Act No. 2640 Authority: Republic Act No. 2640 Executive Order No. 292 dated July 25, 1987 Section 1 These rules shall govern and apply to the management and operations of the Veterans Federation of the Philippines (VFP) within the context provided by EO 292 s-1987. Section 2 – DEFINITION OF TERMS – for the purpose of these rules, the terms, phrases or words used herein shall, unless the context indicates otherwise, mean or be understood as follows: Supervision and Control – it shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of a duty; restrain the commission of acts; approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. Power of Control – power to alter, modify, nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former to that of the latter. Supervision – means overseeing or the power of an officer to see to it that their subordinate officers perform their duties; it does not allow the superior to annul the acts of the subordinate. Administrative Process – embraces matter concerning the procedure in the disposition of both routine and contested matters, and the matter in which determinations are made, enforced or reviewed. Government Agency – as defined under PD 1445, a government agency or agency of government or "agency" refers to any department, bureau or office of the national government, or any of its branches or instrumentalities, of any political subdivision, as well as any government owned or controlled corporation, including its subsidiaries, or other self-governing board or commission of the government. Government Owned and Controlled Corporation (GOCC) – refer to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or through its instrumentalities wholly or, where applicable as in the case of stock corporations, to the extent of at least 50% of its capital stock. Fund – sum of money or other resources set aside for the purpose of carrying out specific activities or attaining certain objectives in accordance with special regulations, restrictions or limitations and constitutes an independent, fiscal and accounting entity. 17 Government Fund – includes public monies of every sort and other resources pertaining to any agency of the government. Veteran – any person who rendered military service in the land, sea or air forces of the Philippines during the revolution against Spain, the Philippine American War, World War II, including Filipino citizens who served in Allied Forces in the Philippine territory and foreign nationals who served in Philippine forces; the Korean campaign, the Vietnam campaign, the Anti-dissidence campaign, or other wars or military campaigns; or who rendered military service in the Armed Forces of the Philippines and has been honorably discharged or separated after at least six (6) years total cumulative active service or sooner separated due to the death or disability arising from a wound or injury received or sickness or disease incurred in line of duty while in the active service. Section 3 – Relationship Between the DND and the VFP 3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans associations and organizations in the Philippines) and their associates and successors are hereby created a body corporate, under the control and supervision of the Secretary of National Defense, under the name, style and title of "Veterans Federation of the Philippines ..." The Secretary of National Defense shall be charged with the duty of supervising the veterans and allied program under the jurisdiction of the Department. It shall also have the responsibility of overseeing and ensuring the judicious and effective implementation of veterans assistance, benefits, and utilization of VFP assets. 3.2 To effectively supervise and control the corporate affairs of the Federation and to safeguard the interests and welfare of the veterans who are also wards of the State entrusted under the protection of the DND, the Secretary may personally or through a designated representative, require the submission of reports, documents and other papers regarding any or all of the Federation’s business transactions particularly those relating to the VFP functions under Section 2 of RA 2640. The Secretary or his representative may attend conferences of the supreme council of the VFP and such other activities he may deem relevant. 3.3 The Secretary shall from time to time issue guidelines, directives and other orders governing vital government activities including, but not limited to, the conduct of elections; the acquisition, management and dispositions of properties, the accounting of funds, financial interests, stocks and bonds, corporate investments, etc. and such other transactions which may affect the interests of the veterans. 3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e. government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the specific purpose for which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be shared by all those exercising authority over the financial affairs, transactions, and operations of the federation; disbursements or dispositions of government funds or property shall invariably bear the approval of the proper officials. Section 4 – Records of the FEDERATION As a corporate body and in accordance with appropriate laws, it shall keep and carefully preserve records of all business transactions, minutes of meetings of stockholders/members of the board of directors reflecting all details about such activity. 18 All such records and minutes shall be open to directors, trustees, stockholders, and other members for inspection and copies of which may be requested. As a body corporate, it shall submit the following: annual report; proceedings of council meetings; report of operations together with financial statement of its assets and liabilities and fund balance per year; statement of revenues and expenses per year; statement of cash flows per year as certified by the accountant; and other documents/reports as may be necessary or required by the SND. Section 5 – Submission of Annual and Periodic Report As mandated under appropriate laws, the following reports shall be submitted to the SND, to wit: a. Annual Report to be submitted not later than every January 31 of the following year. Said report shall consist of the following: 1. Financial Report of the Federation, signed by the Treasurer General and Auditor General; 2. Roster of Members of the Supreme Council; 3. Roster of Members of the Executive Board and National Officers; and 4. Current listing of officers and management of VFP. b. Report on the proceedings of each Supreme Council Meeting to be submitted not later than one month after the meeting; c. Report of the VFP President as may be required by SND or as may be found necessary by the President of the Federation; d. Resolutions passed by the Executive Board and the Supreme Council for confirmation to be submitted not later than one month after the approval of the resolution; e. After Operation/Activity Reports to be submitted not later than one month after such operation or activity; Section 6 – Penal Sanctions As an attached agency to a regular department of the government, the VFP and all its instrumentalities, officials and personnel shall be subject to the penal provisions of such laws, rules and regulations applicable to the attached agencies of the government. In a letter dated 6 August 2002 addressed to the President of petitioner, respondent DND Secretary reiterated his instructions in his earlier letter of 13 April 2002. Thereafter, petitioner’s President received a letter dated 23 August 2002 from respondent Undersecretary, informing him that Department Order No. 129 dated 23 August 2002 directed "the conduct of a Management Audit of the Veterans Federation of the Philippines." 4 The letter went on to state that respondent DND Secretary "believes that the mandate given by said law can be meaningfully exercised if this department can better appreciate the functions, responsibilities and situation on the ground and this can be done by undertaking a thorough study of the organization." 5 19 Respondent Undersecretary also requested both for a briefing and for documents on personnel, ongoing projects and petitioner’s financial condition. The letter ended by stating that, after the briefing, the support staff of the Audit Committee would begin their work to meet the one-month target within which to submit a report. A letter dated 28 August 2003 informed petitioner’s President that the Management Audit Group headed by the Undersecretary would be paying petitioner a visit on 30 August 2002 for an update on VFP’s different affiliates and the financial statement of the Federation. Subsequently, the Secretary General of the VFP sent an undated letter to respondent DND Secretary, with notice to respondent Undersecretary for Civil Relations and Administration, complaining about the alleged broadness of the scope of the management audit and requesting the suspension thereof until such time that specific areas of the audit shall have been agreed upon. The request was, however, denied by the Undersecretary in a letter dated 4 September 2002 on the ground that a specific timeframe had been set for the activity. Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, praying for the following reliefs: 1. For this Court to issue a temporary restraining order and a writ of preliminary prohibitory and mandatory injunction to enjoin respondent Secretary and all those acting under his discretion and authority from: (a) implementing DND Department Circular No. 04; and (b) continuing with the ongoing management audit of petitioner’s books of account; 2. After hearing the issues on notice – a. Declare DND Department Circular No. 04 as null and void for being ultra vires; b. Convert the writ of prohibition, preliminary prohibitory and mandatory injunction into a permanent one. 6 GIVING DUE COURSE TO THE PETITION Petitioner asserts that, although cases which question the constitutionality or validity of administrative issuances are ordinarily filed with the lower courts, the urgency and substantive importance of the question on hand and the public interest attendant to the subject matter of the petition justify its being filed with this Court directly as an original action. 7 It is settled that the Regional Trial Court and the Court of Appeals also exercise original jurisdiction over petitions for certiorari and prohibition. As we have held in numerous occasions, however, such concurrence of original jurisdiction does not mean that the party seeking extraordinary writs has the absolute freedom to file his petition in the court of his choice. 8 Thus, in Commissioner of Internal Revenue v. Leal, 9 we held that: Such concurrence of original jurisdiction among the Regional Trial Court, the Court of Appeals and this Court, however, does not mean that the party seeking any of the extraordinary writs has the absolute freedom to file his petition in the court of his choice. The hierarchy of courts in our judicial system determines the appropriate forum for these petitions. Thus, petitions for the issuance of the said writs against the first level (inferior) courts must be filed with the Regional Trial Court and those against the latter, with the Court of Appeals. A direct invocation of this Court’s original jurisdiction to 20 issue these writs should be allowed only where there are special and important reasons therefor, specifically and sufficiently set forth in the petition. This is the established policy to prevent inordinate demands upon the Court’s time and attention, which are better devoted to matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court’s docket. Thus, it was proper for petitioner to institute the special civil action for certiorari with the Court of Appeals assailing the RTC order denying his motion to dismiss based on lack of jurisdiction. The petition itself, in this case, does not specifically and sufficiently set forth the special and important reasons why the Court should give due course to this petition in the first instance, hereby failing to fulfill the conditions set forth in Commissioner of Internal Revenue v. Leal. 10 While we reiterate the policies set forth in Leal and allied cases and continue to abhor the propensity of a number of litigants to disregard the principle of hierarchy of courts in our judicial system, we, however, resolve to take judicial notice of the fact that the persons who stand to lose in a possible protracted litigation in this case are war veterans, many of whom have precious little time left to enjoy the benefits that can be conferred by petitioner corporation. This bickering for the power over petitioner corporation, an entity created to represent and defend the interests of Filipino veterans, should be resolved as soon as possible in order for it to once and for all direct its resources to its rightful beneficiaries all over the country. All these said, we hereby resolve to give due course to this petition. ISSUES Petitioner mainly alleges that the rules and guidelines laid down in the assailed Department Circular No. 04 expanded the scope of "control and supervision" beyond what has been laid down in Rep. Act No. 2640. 11 Petitioner further submits the following issues to this Court: 1. Was the challenged department circular passed in the valid exercise of the respondent Secretary’s "control and supervision"? 2. Could the challenged department circular validly lay standards classifying the VFP, an essentially civilian organization, within the ambit of statutes only applying to government entities? 3. Does the department circular, which grants respondent direct management control on the VFP, unduly encroach on the prerogatives of VFP’s governing body? At the heart of all these issues and all of petitioner’s prayers and assertions in this case is petitioner’s claim that it is a private non-government corporation. CENTRAL ISSUE: IS THE VFP A PRIVATE CORPORATION? Petitioner claims that it is not a public nor a governmental entity but a private organization, and advances this claim to prove that the issuance of DND Department Circular No. 04 is an invalid exercise of respondent Secretary’s control and supervision. 12 This Court has defined the power of control as "the power of an officer to alter or modify or nullify or set aside what a subordinate has done in the performance of his duties and to substitute the judgment of the former to that of the latter." 13 The power of supervision, on the other hand, means "overseeing, or the power or authority of an officer to see that subordinate officers perform their 21 duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties." 14 These definitions are synonymous with the definitions in the assailed Department Circular No. 04, while the other provisions of the assailed department circular are mere consequences of control and supervision as defined. Thus, in order for petitioner’s premise to be able to support its conclusion, petitioners should be deemed to imply either of the following: (1) that it is unconstitutional/impermissible for the law (Rep. Act No. 2640) to grant control and/or supervision to the Secretary of National Defense over a private organization, or (2) that the control and/or supervision that can be granted to the Secretary of National Defense over a private organization is limited, and is not as strong as they are defined above. The following provision of the 1935 Constitution, the organic act controlling at the time of the creation of the VFP in 1960, is relevant: Section 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned and controlled by the Government or any subdivision or instrumentality thereof. 15 On the other hand, its counterparts in the 1973 and 1987 constitutions are the following: Section 4. The National Assembly shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned or controlled by the government or any subdivision or instrumentality thereof. 16 Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned and controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. 17 From the foregoing, it is crystal clear that our constitutions explicitly prohibit the regulation by special laws of private corporations, with the exception of government-owned or controlled corporations (GOCCs). Hence, it would be impermissible for the law to grant control of the VFP to a public official if it were neither a public corporation, an unincorporated governmental entity, nor a GOCC. 18 Said constitutional provisions can even be read to prohibit the creation itself of the VFP if it were neither of the three mentioned above, but we cannot go into that in this case since there is no challenge to the creation of the VFP in the petition as to permit this Court from considering its nullity. Petitioner vigorously argues that the VFP is a private non-government organization, pressing on the following contentions: 1. The VFP does not possess the elements which would qualify it as a public office, particularly the possession/delegation of a portion of sovereign power of government to be exercised for the benefit of the public; 2. VFP funds are not public funds because – a) No budgetary appropriations or government funds have been released to the VFP directly or indirectly from the Department of Budget and Management (DBM); b) VFP funds come from membership dues; 22 c) The lease rentals raised from the use of government lands reserved for the VFP are private in character and do not belong to the government. Said rentals are fruits of VFP’s labor and efforts in managing and administering the lands for VFP purposes and objectives. A close analogy would be any Filipino citizen settling on government land and who tills the land for his livelihood and sustenance. The fruits of his labor belong to him and not to the owner of the land. Such fruits are not public funds. 3. Although the juridical personality of the VFP emanates from a statutory charter, the VFP retains its essential character as a private, civilian federation of veterans voluntarily formed by the veterans themselves to attain a unity of effort, purpose and objectives, e.g. – a. The members of the VFP are individual members and retirees from the public and military service; b. Membership in the VFP is voluntary, not compulsory; c. The VFP is governed, not by the Civil Service Law, the Articles of War nor the GSIS Law, but by the Labor Code and the SSS Law; d. The VFP has its own Constitution and By-Laws and is governed by a Supreme Council who are elected from and by the members themselves; 4. The Administrative Code of 1987 does not provide that the VFP is an attached agency, nor does it provide that it is an entity under the control and supervision of the DND in the context of the provisions of said code. 5. The DBM declared that the VFP is a non-government organization and issued a certificate that the VFP has not been a direct recipient of any funds released by the DBM. These arguments of petitioner notwithstanding, we are constrained to rule that petitioner is in fact a public corporation. Before responding to petitioner’s allegations one by one, here are the more evident reasons why the VFP is a public corporation: (1) Rep. Act No. 2640 is entitled "An Act to Create a Public Corporation to be Known as the Veterans Federation of the Philippines, Defining its Powers, and for Other Purposes." (2) Any action or decision of the Federation or of the Supreme Council shall be subject to the approval of the Secretary of Defense. 19 (3) The VFP is required to submit annual reports of its proceedings for the past year, including a full, complete and itemized report of receipts and expenditures of whatever kind, to the President of the Philippines or to the Secretary of National Defense. 20 (4) Under Executive Order No. 37 dated 2 December 1992, the VFP was listed as among the government-owned and controlled corporations that will not be privatized. (5) In Ang Bagong Bayani – OFW Labor Party v. COMELEC, 21 this Court held in a minute resolution that the "VFP [Veterans Federation Party] is an adjunct of the government, as it is merely an incarnation of the Veterans Federation of the Philippines. And now to answer petitioner’s reasons for insisting that it is a private corporation: 23 1. Petitioner claims that the VFP does not possess the elements which would qualify it as a public office, particularly the possession/delegation of a portion of sovereign power of government to be exercised for the benefit of the public; In Laurel v. Desierto, 22 we adopted the definition of Mechem of a public office, that it 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." In the same case, we went on to adopt Mechem’s view that the delegation to the individual of some of the sovereign functions of government is "[t]he most important characteristic" in determining whether a position is a public office or not. 23 Such portion of the sovereignty of the country, either legislative, executive or judicial, must attach to the office for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; – that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. 24 The issue, therefore, is whether the VFA’s officers have been delegated some portion of the sovereignty of the country, to be exercised for the public benefit. In several cases, we have dealt with the issue of whether certain specific activities can be classified as sovereign functions. These cases, which deal with activities not immediately apparent to be sovereign functions, upheld the public sovereign nature of operations needed either to promote social justice 25 or to stimulate patriotic sentiments and love of country. 26 As regards the promotion of social justice as a sovereign function, we held in Agricultural Credit and Cooperative Financing Administration (ACCFA) v. Confederation of Unions in Government Corporations and Offices (CUGCO), 27 that the compelling urgency with which the Constitution speaks of social justice does not leave any doubt that land reform is not an optional but a compulsory function of sovereignty. The same reason was used in our declaration that socialized housing is likewise a sovereign function. 28 Highly significant here is the observation of former Chief Justice Querube Makalintal: The growing complexities of modern society, however, have rendered this traditional classification of the functions of government [into constituent and ministrant functions] quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only "because it was better equipped to administer for the public welfare than is any private individual or group of individuals," continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here[,] as almost everywhere else[,] the tendency is undoubtedly towards a greater socialization of economic forces. Here, of course, this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice. 29 (Emphasis supplied.) It was, on the other hand, the fact that the National Centennial Celebrations was calculated to arouse and stimulate patriotic sentiments and love of country that it was considered as a sovereign function in Laurel v. Desierto. 30 In Laurel, the Court then took its cue from a similar case in the United States involving a Fourth of July fireworks display. The holding of the Centennial Celebrations was held to be an executive function, as it was intended to enforce Article XIV of the Constitution which 24 provides for the conservation, promotion and popularization of the nation’s historical and cultural heritage and resources, and artistic relations. In the case at bar, the functions of petitioner corporation enshrined in Section 4 of Rep. Act No. 2640 31 should most certainly fall within the category of sovereign functions. The protection of the interests of war veterans is not only meant to promote social justice, but is also intended to reward patriotism. All of the functions in Section 4 concern the well-being of war veterans, our countrymen who risked their lives and lost their limbs in fighting for and defending our nation. It would be injustice of catastrophic proportions to say that it is beyond sovereignty’s power to reward the people who defended her. Like the holding of the National Centennial Celebrations, the functions of the VFP are executive functions, designed to implement not just the provisions of Rep. Act No. 2640, but also, and more importantly, the Constitutional mandate for the State to provide immediate and adequate care, benefits and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. 32 2. Petitioner claims that VFP funds are not public funds. Petitioner claims that its funds are not public funds because no budgetary appropriations or government funds have been released to the VFP directly or indirectly from the DBM, and because VFP funds come from membership dues and lease rentals earned from administering government lands reserved for the VFP. The fact that no budgetary appropriations have been released to the VFP does not prove that it is a private corporation. The DBM indeed did not see it fit to propose budgetary appropriations to the VFP, having itself believed that the VFP is a private corporation. 33 If the DBM, however, is mistaken as to its conclusion regarding the nature of VFP’s incorporation, its previous assertions will not prevent future budgetary appropriations to the VFP. The erroneous application of the law by public officers does not bar a subsequent correct application of the law. 34 Nevertheless, funds in the hands of the VFP from whatever source are public funds, and can be used only for public purposes. This is mandated by the following provisions of Rep. Act No. 2640: (1) Section 2 provides that the VFP can only "invest its funds for the exclusive benefit of the Veterans of the Philippines;" (2) Section 2 likewise provides that "(a)ny action or decision of the Federation or of the Supreme Council shall be subject to the approval of the Secretary of National Defense." Hence, all activities of the VFP to which the Supreme Council can apply its funds are subject to the approval of the Secretary of National Defense; (3) Section 4 provides that "the Federation shall exist solely for the purposes of a benevolent character, and not for the pecuniary benefit of its members;"1avvphil. net (4) Section 6 provides that all funds of the VFP in excess of operating expenses are "reserved for disbursement, as the Supreme Council may authorize, for the purposes stated in Section two of this Act;" (5) Section 10 provides that "(a)ny donation or contribution which from time to time may be made to the Federation by the Government of the Philippines or any of its subdivisions, 25 branches, offices, agencies or instrumentalities shall be expended by the Supreme Council only for the purposes mentioned in this Act."; and finally, (6) Section 12 requires the submission of annual reports of VFP proceedings for the past year, including a full, complete and itemized report of receipts and expenditures of whatever kind, to the President of the Philippines or to the Secretary of National Defense. It is important to note here that the membership dues collected from the individual members of VFP’s affiliate organizations do not become public funds while they are still funds of the affiliate organizations. A close reading of Section 1 35 of Rep. Act No. 2640 reveals that what has been created as a body corporate is not the individual membership of the affiliate organizations, but merely the aggregation of the heads of the affiliate organizations. Thus, only the money remitted by the affiliate organizations to the VFP partake in the public nature of the VFP funds. In Republic v. COCOFED, 36 we held that the Coconut Levy Funds are public funds because, inter alia, (1) they were meant to be for the benefit of the coconut industry, one of the major industries supporting the national economy, and its farmers; and (2) the very laws governing coconut levies recognize their public character. The same is true with regard to the VFP funds. No less public is the use for the VFP funds, as such use is limited to the purposes of the VFP which we have ruled to be sovereign functions. Likewise, the law governing VFP funds (Rep. Act No. 2640) recognizes the public character of the funds as shown in the enumerated provisions above. We also observed in the same COCOFED case that "(e)ven if the money is allocated for a special purpose and raised by special means, it is still public in character." 37 In the case at bar, some of the funds were raised by even more special means, as the contributions from affiliate organizations of the VFP can hardly be regarded as enforced contributions as to be considered taxes. They are more in the nature of donations which have always been recognized as a source of public funding. Affiliate organizations of the VFP cannot complain of their contributions becoming public funds upon the receipt by the VFP, since they are presumed aware of the provisions of Rep. Act No. 2640 which not only specifies the exclusive purposes for which VFP funds can be used, but also provides for the regulation of such funds by the national government through the Secretary of National Defense. There is nothing wrong, whether legally or morally, from raising revenues through non-traditional methods. As remarked by Justice Florentino Feliciano in his concurring opinion in Kilosbayan, Incorporated v. Guingona, Jr. 38 where he explained that the funds raised by the On-line Lottery System were also public in nature, thus: x x x [T]he more successful the government is in raising revenues by non-traditional methods such as PAGCOR operations and privatization measures, the lesser will be the pressure upon the traditional sources of public revenues, i.e., the pocket books of individual taxpayers and importers. Petitioner additionally harps on the inapplicability of the case of Laurel v. Desierto 39 which was cited by Respondents. Petitioner claims that among the reasons National Centennial Commission Chair Salvador Laurel was considered a public officer was the fact that his compensation was derived from public funds. Having ruled that VFP funds from whatever source are public funds, we can safely conclude that the Supreme Council’s compensation, taken as they are from VFP funds under the term "operating expenses" in Section 6 of Rep. Act No. 2640, are derived from public funds. The particular nomenclature of the compensation taken from VFP funds is not even of relevance here. As we said in Laurel concerning compensation as an element of public office: Under particular circumstances, "compensation" has been held to include allowance for personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts, salary, and wages. 40 26 3. Petitioner argues that it is a civilian federation where membership is voluntary. Petitioner claims that the Secretary of National Defense "historically did not indulge in the direct or ‘micromanagement’ of the VFP precisely because it is essentially a civilian organization where membership is voluntary." 41 This reliance of petitioner on what has "historically" been done is erroneous, since laws are not repealed by disuse, custom, or practice to the contrary. 42 Furthermore, as earlier stated, the erroneous application of the law by public officers does not bar a subsequent correct application of the law. 43 Neither is the civilian nature of VFP relevant in this case. The Constitution does not contain any prohibition, express or implied, against the grant of control and/or supervision to the Secretary of National Defense over a civilian organization. The Office of the Secretary of National Defense is itself a civilian office, its occupant being an alter ego of the civilian Commander-in-Chief. This set-up is the manifestation of the constitutional principle that civilian authority is, at all times, supreme over the military. 44 There being no such constitutional prohibition, the creation of a civilian public organization by Rep. Act No. 2640 is not rendered invalid by its being placed under the control and supervision of the Secretary of National Defense. Petitioner’s stand that the VFP is a private corporation because membership thereto is voluntary is likewise erroneous. As stated above, the membership of the VFP is not the individual membership of the affiliate organizations, but merely the aggregation of the heads of such affiliate organizations. These heads forming the VFP then elect the Supreme Council and the other officers, 45 of this public corporation. 4. Petitioner claims that the Administrative Code of 1987 does not provide that the VFP is an attached agency, and nor does it provide that it is an entity under the control and supervision of the DND in the context of the provisions of said code. The Administrative Code, by giving definitions of the various entities covered by it, acknowledges that its enumeration is not exclusive. The Administrative Code could not be said to have repealed nor enormously modified Rep. Act No. 2640 by implication, as such repeal or enormous modification by implication is not favored in statutory construction. 46 5. Petitioner offers as evidence the DBM opinion that the VFP is a non-government organization in its certification that the VFP "has not been a direct recipient of any funds released by the DBM." Respondents claim that the supposed declaration of the DBM that petitioner is a non-government organization is not persuasive, since DBM is not a quasi-judicial agency. They aver that what we have said of the Bureau of Local Government Finance (BLGF) in Philippine Long Distance Telephone Company (PLDT) v. City of Davao 47 can be applied to DBM: In any case, it is contended, the ruling of the Bureau of Local Government Finance (BLGF) that petitioner’s exemption from local taxes has been restored is a contemporaneous construction of Section 23 [of R.A. No. 7925 and, as such, is entitled to great weight. The ruling of the BLGF has been considered in this case. But unlike the Court of Tax Appeals, which is a special court created for the purpose of reviewing tax cases, the BLGF was created merely to provide consultative services and technical assistance to local governments and the general public on local taxation and other related matters. Thus, the rule that the "Court will not set aside conclusions rendered by the CTA, which is, by the very nature of its function, dedicated exclusively to the study and consideration of tax problems and has necessarily developed an expertise on the 27 subject, unless there has been an abuse or improvident exercise of authority" cannot apply in the case of the BLGF. On this score, though, we disagree with respondents and hold that the DBM’s appraisal is considered persuasive. Respondents misread the PLDT case in asserting that only quasi-judicial agencies’ determination can be considered persuasive. What the PLDT case points out is that, for an administrative agency’s opinion to be persuasive, the administrative agency involved (whether it has quasi-judicial powers or not) must be an expert in the field they are giving their opinion on. The DBM is indeed an expert on determining what the various government agencies and corporations are. This determination is necessary for the DBM to fulfill its mandate: Sec. 2. Mandate. - The Department shall be responsible for the formulation and implementation of the National Budget with the goal of attaining our national socio-economic plans and objectives. The Department shall be responsible for the efficient and sound utilization of government funds and revenues to effectively achieve our country's development objectives. 48 The persuasiveness of the DBM opinion has, however, been overcome by all the previous explanations we have laid so far. It has also been eclipsed by another similarly persuasive opinion, that of the Department of National Defense embodied in Department Circular No. 04. The DND is clearly more of an expert with respect to the determination of the entities under it, and its Administrative Rules and Regulations are entitled to great respect and have in their favor the presumption of legality. 49 The DBM opinion furthermore suffers from its lack of explanation and justification in the "certification of non-receipt" where said opinion was given. The DBM has not furnished, in said certification or elsewhere, an explanation for its opinion that VFP is a non-government organization. THE FATE OF DEPARTMENT CIRCULAR NO. 04 Our ruling that petitioner is a public corporation is determinative of whether or not we should grant petitioner’s prayer to declare Department Circular No. 04 void. Petitioner assails Department Circular No. 04 on the ground that it expanded the scope of control and supervision beyond what has been laid down in Rep. Act No. 2640. Petitioner alleges that "(t)he equation of the meaning of `control’ and `supervision’ of the Administrative Code of 1987 as the same `control and supervision’ under Rep. Act No. 2640, takes out the context of the original legislative intent from the peculiar surrounding circumstances and conditions that brought about the creation of the VFP." 50 Petitioner claims that the VFP "was intended as a self-governing autonomous body with a Supreme Council as governing authority," and that the assailed circular "pre-empts VFP’s original self-governance and autonomy (in) representing veterans organizations, and substitutes government discretion and decisions to that of the veterans’ own determination." 51 Petitioner says that the circular’s provisions practically render the Supreme Council inutile, despite its being the statutory governing body of the VFP. 52 As previously mentioned, this Court has defined the power of control as "the power of an officer to alter or modify or nullify or set aside what a subordinate has done in the performance of his duties and to substitute the judgment of the former to that of the latter." 53 The power of supervision, on the other hand, means "overseeing, or the power or authority of an officer to see that subordinate officers perform their duties." 54 Under the Administrative Code of 1987: 55 28 Supervision and control shall include the authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. x x x The definition of the power of control and supervision under Section 2 of the assailed Department Circular are synonymous with the foregoing definitions. Consequently, and considering that petitioner is a public corporation, the provisions of the assailed Department Circular No. 04 did not supplant nor modify the provisions of Republic Act No. 2640, thus not violating the settled rule that "all such (administrative) issuances must not override, but must remain consistent and in harmony with the law they seek to apply or implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law." 56 Section 3.2 of the assailed department circular, which authorizes the Secretary of National Defense to "x x x personally or through a designated representative, require the submission of reports, documents and other papers regarding any or all of the Federation’s business functions, x x x." as well as Section 3.3 which allows the Secretary of DND to x x x [F]rom time to time issue guidelines, directives and other orders governing vital government activities including, but not limited to, the conduct of elections, the acquisition, management and dispositions of properties, the accounting of funds, financial interests, stocks and bonds, corporate investments, etc. and such other transactions which may affect the interests of the veterans. are merely consequences of both the power of control and supervision granted by Rep. Act No. 2640. The power to alter or modify or nullify or set aside what a subordinate has done in the performance of his duties, or to see to it that subordinate officers perform their duties in accordance with law, necessarily requires the ability of the superior officer to monitor, as closely as it desires, the acts of the subordinate. The same is true with respect to Sections 4 and 5 of the assailed Department Circular No. 04, which requires the preservation of the records of the Federation and the submission to the Secretary of National Defense of annual and periodic reports. Petitioner likewise claims that the assailed DND Department Circular No. 04 was never published, and hence void. 57 Respondents deny such non-publication. 58 We have put forth both the rule and the exception on the publication of administrative rules and regulations in the case of Tañada v. Tuvera: 59 x x x Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules on guidelines to be followed by their subordinates in the performance of their duties. Even assuming that the assailed circular was not published, its validity is not affected by such non- publication for the reason that its provisions fall under two of the exceptions enumerated in Tañada. 29 Department Circular No. 04 is an internal regulation. As we have ruled, they are meant to regulate a public corporation under the control of DND, and not the public in general. As likewise discussed above, what has been created as a body corporate by Rep. Act No. 2640 is not the individual membership of the affiliate organizations of the VFP, but merely the aggregation of the heads of the affiliate organizations. Consequently, the individual members of the affiliate organizations, who are not public officers, are beyond the regulation of the circular. Sections 2, 3 and 6 of the assailed circular are additionally merely interpretative in nature. They add nothing to the law. They do not affect the substantial rights of any person, whether party to the case at bar or not. In Sections 2 and 3, control and supervision are defined, mentioning actions that can be performed as consequences of such control and supervision, but without specifying the particular actions that shall be rendered to control and supervise the VFP. Section 6, in the same vein, merely state what the drafters of the circular perceived to be consequences of being an attached agency to a regular department of the government, enumerating sanctions and remedies provided by law that may be availed of whenever desired. Petitioner then objects to the implementation of Sec. 3.4 of the assailed Department Circular, which provides that – 3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e. government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the specific purpose for which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be shared by all those exercising authority over the financial affairs, transactions, and operations of the federation; disbursements or dispositions of government funds or property shall invariably bear the approval of the proper officials. Since we have also previously determined that VFP funds are public funds, there is likewise no reason to declare this provision invalid. Section 3.4 is correct in requiring the VFP funds to be used for public purposes, but only insofar the term "public purposes" is construed to mean "public purposes enumerated in Rep. Act No. 2640." Having in their possession public funds, the officers of the VFP, especially its fiscal officers, must indeed share in the fiscal responsibility to the greatest extent. As to petitioner’s allegation that VFP was intended as a self-governing autonomous body with a Supreme Council as governing authority, we find that the provisions of Rep. Act No. 2640 concerning the control and supervision of the Secretary of National Defense clearly withholds from the VFP complete autonomy. To say, however, that such provisions render the VFP inutile is an exaggeration. An office is not rendered inutile by the fact that it is placed under the control of a higher office. These subordinate offices, such as the executive offices under the control of the President, exercise discretion at the first instance. While their acts can be altered or even set aside by the superior, these acts are effective and are deemed the acts of the superior until they are modified. Surely, we cannot say that the offices of all the Department Secretaries are worthless positions. In sum, the assailed DND Department Circular No. 04 does not supplant nor modify and is, on the contrary, perfectly in consonance with Rep. Act No. 2640. Petitioner VFP is a public corporation. As such, it can be placed under the control and supervision of the Secretary of National Defense, who consequently has the power to conduct an extensive management audit of petitioner corporation. WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The validity of the Department of National Defense Department Circular No. 04 is AFFIRMED. 30 SO ORDERED. 3. Davao G.R. No. 95237-38 September 13, 1991 DAVAO CITY WATER DISTRICT, CAGAYAN DE ORO CITY WATER DISTRICT, METRO CEBU WATER DISTRICT, ZAMBOANGA CITY WATER DISTRICT, LEYTE METRO WATER DISTRICT, BUTUAN CITY WATER DISTRICT, CAMARINES NORTE WATER DISTRICT, LAGUNA WATER DISTRICT, DUMAGUETE CITY WATER DISTRICT, LA UNION WATER DISTRICT, BAYBAY WATER DISTRICT, METRO LINGAYEN WATER DISTRICT, URDANETA WATER DISTRICT, COTABATO CITY WATER DISTRICT, MARAWI WATER DISTRICT, TAGUM WATER DISTRICT, DIGOS WATER DISTRICT, BISLIG WATER DISTRICT, and MECAUAYAN WATER DISTRICT, petitioners, vs. CIVIL SERVICE COMMISSION, and COMMISSION ON AUDIT, respondents. Rodolfo S. De Jesus for petitioners. Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for CSC. MEDIALDEA, J .:p Whether or not the Local Water Districts formed and created pursuant to the provisions of Presidential Decree No. 198, as amended, are government-owned or controlled corporations with original charter falling under the Civil Service Law and/or covered by the visitorial power of the Commission on Audit is the issue which the petitioners entreat this Court, en banc, to shed light on. Petitioners are among the more than five hundred (500) water districts existing throughout the country formed pursuant to the provisions of Presidential Decree No. 198, as amended by Presidential Decrees Nos. 768 and 1479, otherwise known as the "Provincial Water Utilities Act of 1973." Presidential Decree No. 198 was issued by the then President Ferdinand E. Marcos by virtue of his legislative power under Proclamation No. 1081. It authorized the different local legislative bodies to form and create their respective water districts through a resolution they will pass subject to the guidelines, rules and regulations therein laid down. The decree further created and formed the "Local Water Utilities Administration" (LWUA), a national agency attached to the National Economic and Development Authority (NEDA), and granted with regulatory power necessary to optimize public service from water utilities operations. The respondents, on the other hand, are the Civil Service Commission (CSC) and the Commission on Audit (COA), both government agencies and represented in this case by the Solicitor General. On April 17, 1989, this Court ruled in the case of Tanjay Water District v. Gabaton, et al. (G.R. No. 63742, 172 SCRA 253): 31 Significantly, Article IX (B), Section 2(1) of the 1987 Constitution provides that the Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned and controlled corporations with original charters. Inasmuch as PD No. 198, as amended, is the original charter of the petitioner, Tanjay Water District, and respondent Tarlac Water District and all water districts in the country, they come under the coverage of the Civil Service Law, rules and regulations. (Sec. 35, Art. VIII and Sec. 37, Art. IX of PD No. 807). As an offshoot of the immediately cited ruling, the CSC. issued Resolution No. 90-575, the dispositive portion of which reads: NOW THEREFORE, in view of all the foregoing, the Commission resolved, as it hereby resolves to rule that Local Water Districts, being quasi-public corporations created by law to perform public services and supply public wants, the matter of hiring and firing of its officers and employees should be governed by the Civil Service Law, rules and regulations. Henceforth, all appointments of personnel of the different local water districts in the country shall be submitted to the Commission for appropriate action. (Rollo. p. 22). However, on May 16, 1990, in G.R. No. 85760, entitled "Metro Iloilo Water District v. National Labor Relations Commission, et al.," the Third Division of this Court ruled in a minute resolution: xxx xxx xxx Considering that PD 198 is a general legislation empowering and/or authorizing government agencies and entities to create water districts, said PD 198 cannot be considered as the charter itself creating the Water District. Public respondent NLRC did not commit any grave abuse of discretion in holding that the operative act, that created the Metro Iloilo Water District was the resolution of the Sangguniang Panglunsod of Iloilo City. Hence, the employees of Water Districts are not covered by Civil Service Laws as the latter do (sic) not have original charters. In adherence to the just cited ruling, the CSC suspended the implementation of Resolution No. 90- 575 by issuing Resolution No. 90-770 which reads: xxx xxx xxx NOW, THEREFORE, in view of all the foregoing, the Commission resolved to rule, as it hereby rules, that the implementation of CSC. Resolution No. 575 dated June 27, 1990 be deferred in the meantime pending clarification from the Supreme Court are regards its conflicting decisions in the cases of Tanjay Water District v. Gabaton and Metro Iloilo Water District v. National Labor Relations Commission. (p. 26, Rollo) In the meanwhile, there exists a divergence of opinions between COA on one hand, and the (LWUA), on the other hand, with respect to the authority of COA to audit the different water districts. COA opined that the audit of the water districts is simply an act of discharging the visitorial power vested in them by law (letter of COA to LWUA dated August 13, 1985, pp. 29-30, Rollo). 32 On the other hand, LWUA maintained that only those water districts with subsidies from the government fall within the COA's jurisdiction and only to the extent of the amount of such subsidies, pursuant to the provision of the Government Auditing Code of the Phils. It is to be observed that just like the question of whether the employees of the water districts falls under the coverage of the Civil Service Law, the conflict between the water districts and the COA is also dependent on the final determination of whether or not water districts are government-owned or controlled corporations with original charter. The reason behind this is Sec. 2(1), Article IX-D of the 1987 constitution which reads: Sec. 2(1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to the Government, or any of its subdivisions, agencies or instrumentalities, including government-owned or controlled corporations with original charters, and on a post audit basis. (emphasis supplied) Petitioners' main argument is that they are private corporations without original charter, hence they are outside the jurisdiction of respondents CSC and COA. Reliance is made on the Metro Iloilo case which declared petitioners as quasi-public corporations created by virtue of PD 198, a general legislation which cannot be considered as the charter itself creating the water districts. Holding on to this ruling, petitioners contend that they are private corporations which are only regarded as quasi- public or semi-public because they serve public interest and convenience and that since PD 198 is a general legislation, the operative act which created a water district is not the said decree but the resolution of the sanggunian concerned. After a fair consideration of the parties' arguments coupled with a careful study of the applicable laws as well as the constitutional provisions involved, We rule against the petitioners and reiterate Our ruling in Tanjay case declaring water districts government-owned or controlled corporations with original charter. As early as Baguio Water District v. Trajano, et al., (G.R. No. 65428, February 20, 1984, 127 SCRA 730), We already ruled that a water district is a corporation created pursuant to a special law — P.D. No. 198, as amended, and as such its officers and employees are covered by the Civil Service Law. In another case (Hagonoy Water District v. NLRC, G.R. No. 81490, August 31, 1988, 165 SCRA 272), We ruled once again that local water districts are quasi-public corporations whose employees belong to the Civil Service. The Court's pronoucement in this case, as extensively quoted in the Tanjay case, supra, partly reads: "The only question here is whether or not local water districts are governmkent owned or controlled corporations whose employees are subject to the provisions of the Civil Service Law. The Labor Arbiter asserted jurisdiction over the alleged illegal dismissal of private respondent Villanueva by relying on Section 25 of Presidential decree No. 198, known as the Provincial Water Utilities Act of 1973" which went onto effect in 25 May 1973, and which provides as follows: Exemption from Civil Service. — The district and its employees, being engaged in a proprietary function, are hereby exempt from the provisions of the Civil Service Law. Collective Bargaining shall be available only to personnel below supervisory levels: Provided, however, That the total of all salaries, wages emoluments, benefits or 33 other compensation paid to all employees in any month shall not exceed fifty percent (50%) of average net monthy revenue. Said net revenue representing income from water sales and sewerage service charges, less pro-rata share of debt service and expenses for fuel or energy for pumping during the preceding fiscal year. The Labor Arbiter failed to take into accout the provisions of Presidential Decree No. 1479, which went into effect on 11 June 1978, P.D. No. 1479, wiped away Section 25 of PD 198 quoted above, and Section 26 of PD 198 was renumbered as Section 25 in the following manner: Section 26 of the same decree PD 198 is hereby amended to read as Section 25 as follows: Section 25. Authorization. — The district may exercise all the powers which are expressly granted by this Title or which are necessarily implied from or incidental to the powers and purposes herein stated. For the purpose of carrying out the objectives of this Act, a district is hereby granted the power of eminent domain, the exercise thereof shall, however, be subject to review by the Administration. Thus, Section 25 of PD 198 exempting the employees of water districts from the application of the Civil Service Law was removed from the statute books: xxx xxx xxx We grant the petition for the following reasons: 1. Section 25 of PD No. 198 was repealed by Section 3 of PD No. 1479; Section 26 of PD No. 198 was amended ro read as Sec. 25 by Sec. 4 of PD No. 1479. The amendatory decree took effect on June 11, 1978. xxx xxx xxx 3. The BWD is a corporation created pursuant to a special law — PD No. 198, as amended. As such its officers and employees are part of the Civil Service (Sec. 1, Art. XII-B, [1973] Constitution; PD No. 868). Ascertained from a consideration of the whole statute, PD 198 is a special law applicable only to the different water districts created pursuant thereto. In all its essential terms, it is obvious that it pertains to a special purpose which is intended to meet a particular set of conditions and cirmcumstances. The fact that said decree generally applies to all water districts throughout the country does not change the fact that PD 198 is a special law. Accordingly, this Court's resolution in Metro Iloilo case declaring PD 198 as a general legislation is hereby abandoned. By "government-owned or controlled corporation with original charter," We mean government owned or controlled corporation created by a special law and not under the Corporation Code of the Philippines. Thus, in the case of Lumanta v. NLRC (G.R. No. 82819, February 8, 1989, 170 SCRA 79, 82), We held: The Court, in National Service Corporation (NASECO) v. National Labor Relations Commission, G.R. No 69870, promulgated on 29 November 1988, quoting 34 extensively from the deliberations of 1986 Constitutional Commission in respect of the intent and meaning of the new phrase "with original character," in effect held that government-owned and controlled corporations with original charter refer to corporations chartered by special law as distinguished from corporations organized under our general incorporation statute — the Corporations Code. In NASECO, the company involved had been organized under the general incorporation statute and was a sbusidiary of the National Investment Development Corporation (NIDC) which in turn was a subsidiary of the Philippine National Bank, a bank chartered by a special statute. Thus, government-owned or controlled corporations like NASECO are effectively, excluded from the scope of the Civil Service. (emphasis supplied) From the foregoing pronouncement, it is clear that what has been excluded from the coverage of the CSC are those corporations created pursuant to the Corporation Code. Significantly, petitioners are not created under the said code, but on the contrary, they were created pursuant to a special law and are governed primarily by its provision. No consideration may thus be given to petitioners' contention that the operative act which created the water districts are the resolutions of the respective local sanggunians and that consequently, PD 198, as amended, cannot be considered as their charter. It is to be noted that PD 198, as amended is the source of authorization and power to form and maintain a district. Section 6 of said decree provides: Sec. 6. Formation of District. — This Act is the source of authorization and power to form and maintain a district. Once formed, a district is subject to the provisions of this Act and not under the jurisdiction of any political subdivision, . . . . Moreover, it must be observed that PD 198, contains all the essential terms necessary to constitute a charter creating a juridical person. For example, Section 6(a) provides for the name that will be used by a water district, thus: Sec. 6. . . . To form a district, the legislative body of any city, municipality or province shall enact a resolution containing the following: a) The name of the local water district, which shall include the name of the city, municipality, or province, or region thereof, served by said system, followed by the words "Water District." It also prescribes for the numbers and qualifications of the members of the Board of Directors: Sec. 8. Number and Qualification. — The Board of Directors of a district shall be composed of five citizens of the Philippines who are of voting age and residents within the district. One member shall be a representative of civic-oriented service clubs, one member of representative of professional associations, one member a representative of business, commercial or financial organizations, one member a representative of educational institutions and one member a representative of women's organization. No public official shall serve as director. Provided, however, that if the district has availed of the financial assistance of the Administration, the Administration may appoint any of its personnel to sit in the board of directors with all the rights and privileges appertaining to a regular member for such period as the indebtedness remains unpaid in which case the board shall be composed of six members; (as amended by PDs Nos. 768 and 1479). 35 the manner of their appointment and nominations; Sec. 9. Appointment. — Board members shall be appointed by the appointing authority. Said appointments shall be made from a list of nominees, if any, submitted pursuant to Section 10. If no nominations are submitted, the appointing authority shall appoint any qualified person of the category to the vacant position; Sec.10. Nominations. — On or before October 1 of each even numbered year, the secretary of the district shall contact each known organization, association, or institution being represented by the director whose term will expire on December 31 and solicit nominations from these organizations to fill the position for the ensuing term. One nomination may be submitted in writing by each such organization to the Secretary of the district on or before November 1 of such year: This list of nominees shall be transmitted by the Secretary of the district to the office of the appointing authority on or before November 15 of such year and he shall make his appointment from the list submitted on or before December 15. In the event the appointing authority fails to make his appointments on or before December 15, selection shall be made from said list of nominees by majority vote of the seated directors of the district constituting a quorum. Initial nominations for all five seats of the board shall be solicited by the legislative body or bodies at the time of adoption of the resolution forming the district. Thirty days thereafter, a list of nominees shall be submitted to the provincial governor in the event the resolution forming the district is by a provincial board, or the mayor of the city or municipality in the event the resolution forming the adoption of the district is by the city or municipal board of councilors, who shall select the initial directors therefrom within 15 days after receipt of such nominations; their terms of office: Sec. 11. Term of Office. — Of the five initial directors of each newly formed district, two shall be appointed for a maximum term of two years, two for a maximum term of four years, and one for a maximum term of six years. Terms of office of all directors in a given district shall be such that the term of at least one director, but not more then two, shall expire on December 31 of each even-numbered year. Regular terms of office after the initial terms shall be for six years commencing on January 1 of odd- numbered years. Directors may be removed for cause only, subject to review and approval of the Administration; (as amended by PD 768). the manner of filling up vacancies: Sec. 12. Vacancies. — In the event of a vacancy in the board of directors occurring more than six months before expiration of any director's term, the remaining directors shall within 30 days, serve notice to or request the secretary of the district for nominations and within 30 days, thereafter a list of nominees shall be submitted to the appointing authority for his appointment of a replacement director from the list of nominees. In the absence of such nominations, the appointing authority shall make such appointment. If within 30 days after submission to him of a list of nominees the appointing authority fails to make an appointment, the vacancy shall be filled from such list by a majority vote of the remaining members of the Board of Directors constituting a quorum. Vacancies occurring within the last six months of an unexpired term shall also be filled by the Board in the above manner. The director thus appointed shall serve the unexpired term only; (as amended by PD 768). 36 and the compensation and personal liability of the members of the Board of Directors: Sec. 13. Compensation. — Each director shall receive a per diem, to be determined by the board, for each meeting of the board actually attended by him, but no director shag receive per diems in any given month in excess of the equivalent of the total per diems of four meetings in any given month. No director shall receive other compensation for services to the district. Any per diem in excess of P50.00 shall be subject to approval of the Administration (as amended by PD 768). Sec. 14. Personal Liability. — No director may be held to be personally liable for any action of the district. Noteworthy, the above quoted provisions of PD 198, as amended, are similar to those which are actually contained in other corporate charters. The conclusion is inescapable that the said decree is in truth and in fact the charter of the different water districts for it clearly defines the latter's primary purpose and its basic organizational set-up. In other words, PD 198, as amended, is the very law which gives a water district juridical personality. While it is true that a resolution of a local sanggunian is still necessary for the final creation of a district, this Court is of the opinion that said resolution cannot be considered as its charter, the same being intended only to implement the provisions of said decree. In passing a resolution forming a water district, the local sanggunian is entrusted with no authority or discretion to grant a charter for the creation of a private corporation. It is merely given the authority for the formation of a water district, on a local option basis, to be exercised under and in pursuance of PD 198. More than the aforequoted provisions, what is of important interest in the case at bar is Section 3, par. (b) of the same decree which reads: Sec. 3(b). Appointing authority. — The person empowered to appoint the members of the Board of Directors of a local water district, depending upon the geographic coverage and population make-up of the particular district. In the event that more than seventy-five percent of the total active water service connections of a local water districts are within the boundary of any city or municipality, the appointing authority shall be the mayor of that city or municipality, as the case may be; otherwise, the appointing authority shall be the governor of the province within which the district is located: Provided, That if the existing waterworks system in the city or municipality established as a water district under this Decree is operated and managed by the province, initial appointment shall be extended by the governor of the province. Subsequent appointments shall be as specified herein. If portions of more than one province are included within the boundary of the district, and the appointing authority is to be the governors then the power to appoint shall rotate between the governors involved with the initial appointments made by the governor in whose province the greatest number of service connections exists (as amended by PD 768). The above-quoted section definitely sets to naught petitioners' contention that they are private corporations. It is clear therefrom that the power to appoint the members who will comprise the Board of Directors belongs to the local executives of the local subdivision units where such districts are located. In contrast, the members of the Board of Directors or trustees of a private corporation are elected from among the members and stockholders thereof. It would not be amiss to emphasize 37 at this point that a private corporation is created for the private purpose, benefit, aim and end of its members or stockholders. Necessarily, said members or stockholders should be given a free hand to choose those who will compose the governing body of their corporation. But this is not the case here and this clearly indicates that petitioners are definitely not private corporations. The foregoing disquisition notwithstanding, We are, however, not unaware of the serious repercussion this may bring to the thousands of water districts' employees throughout the country who stand to be affected because they do not have the necessary civil service eligibilities. As these employees are equally protected by the constitutional guarantee to security of tenure, We find it necessary to rule for the protection of such right which cannot be impaired by a subsequent ruling of this Court. Thus, those employees who have already acquired their permanent employment status at the time of the promulgation of this decision cannot be removed by the mere reason that they lack the necessary civil service eligibilities. ACCORDINGLY, the petition is hereby DISMISSED. Petitioners are declared "government-owned or controlled corporations with original charter" which fall under the jurisdiction of the public respondents CSC and COA. SO ORDERED. D. Characteristics 1. Saura Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13403 March 23, 1960 RAMON E. SAURA, plaintiff-appellant, vs. ESTELA P. SINDICO, defendant-appellee. Anacleto Magno for appellant. Espeque and Jalandoni for appellee. REYES, J. B. L., J .: Appeal on issues of law from an order of the Court of First Instance of Pangasinan dismissing plaintiff's complaint for damages. From the records it appears that Ramon E. Saura and Estela P. Sindico were contesting for nomination as the official candidate of the Nacionalista Party in the fourth district of Pangasinan in the congressional elections of November 12, 1957. On August 23, 1957, the parties entered into a written agreement bearing the same date, containing among other matters stated therein, a pledge that — 38 Each aspirant shall respect the result of the aforesaid convention, i.e., no one of us shall either run as a rebel or independent candidate after losing in said convention. In the provincial convention held by the Nacionalista Party on August 31, 1957, Saura was elected and proclaimed the Party's official congressional candidate for the aforesaid district of Pangasinan. Nonetheless, Sindico, in disregard of the covenant, filed, on September 6, 1957, her certificate of candidacy for the same office with the Commission on Elections, and she openly and actively campaigned for her election. Wherefore, on October 5, 1957, plaintiff Saura commenced this suit for the recovery of damages. Upon motion of the defendant, the lower court, in its order of November 19, 1957, dismissed the complaint on the basis that the agreement sued upon is null and void, in tat (1) the subject matter of the contract, being a public office, is not within the commerce of man; and (2) the "pledge" was in curtailment of the free exercise of elective franchise and therefore against public policy. Hence, this appeal. We agree with the lower court in adjudging the contract or agreement in question a nullity. Among those that may not be the subject matter (object) of contracts are certain rights of individuals, which the law and public policy have deemed wise to exclude from the commerce of man. Among them are the political rights conferred upon citizens, including, but not limited to, once's right to vote, the right to present one's candidacy to the people and to be voted to public office, provided, however, that all the qualifications prescribed by law obtain. Such rights may not, therefore, be bargained away curtailed with impunity, for they are conferred not for individual or private benefit or advantage but for the public good and interest. Constitutional and statutory provision fix the qualifications of persons who may be eligible for certain elective public offices. Said requirements may neither be enlarged nor reduced by mere agreements between private parties. A voter possessing all the qualifications required to fill an office may, by himself or through a political party or group, present his candidacy without further limitations than those provided by law. Every voter has a right to be a candidate for public office if he possesses the qualifications required to fill the office. It does not necessarily follow that he can be the candidate of a particular political party. The statute provides when and how one may be a candidate of a political party. If he cannot fill the requirement so as to be the candidates of the political party of his choice, he may still be a candidate at the general election by petition. The right of the voter to vote at the general election for whom he pleases cannot be limited. (Roberts vs. Cleveland, Secretary of State of State of New Mexico, 48 NM 226, 149 P (2d) 120, 153 A.L.R. 635, 637-638) (Emphasis supplied) In common law, certain agreements in consideration of the withdrawal of candidates for office have invariably been condemned by the courts as being against public policy, be it a withdrawal from the race for nomination or, after nomination, from the race for election. (See notes in 37 L. R. A. (N.S.) 289 and cases cited therein; 18 Am. Jur. Sec. 352, pp. 399-400) In the case at hand, plaintiff complains on account of defendant's alleged violation of the "pledge" in question by filing her own certificate o candidacy for a seat in the Congress of the Philippines and in openly and actively campaigning for her election. In the face of the preceding considerations, we certainly cannot entertain plaintiff's action, which would result in limiting the choice of the electors to only those persons selected by a small group or by party boses. The case of Pendleton vs. Pace, 9 S.W. (2nd) 437, cited by the appellant, is clearly inapplicable. The court there only sanctioned the validity of an agreement by the opposing candidates for nomination setting aside and re-submitting the nomination for another primary election on account of the protest 39 or contest filed by the losing candidate in the first primary election. To abandon the contest proceedings, the candidates for nomination agreed to submit again their nomination to the electors in the subsequent primary. Appellant likewise cites and quotes a portion of our ruling in Monsale vs. Nico, 83 Phil., 758; 46 Off. Gaz., 210, to the effect that it is not incompetent or a candidate to withdraw or annul his certificate of candidacy. This is not in point, for while we stated there that he may do so, there being no legal prohibition against such a voluntary withdrawal, it does not follow, nor did we imply anywhere in the decision, that in case there is any agreement or consideration for such a withdrawal, said agreement or consideration should be held valid or given effect. We find it unnecessary to discuss the other points raised by the parties. Wherefore, the order of dismissal appealed from is hereby affirmed. No pronouncement as to costs. 2. Santos G.R. No. L-21624 February 27, 1968 SEGUNDO SANTOS, petitioner, vs. SECRETARY OF LABOR, RAOUL M. INOCENTES, Commissioner of Civil Service, RICARDO TIONGCO and CASHIER, Regional Office No. 4, respondents. Castro M. Baltazar for petitioner. Office of the Solicitor General for respondents. SANCHEZ, J .: Segundo Santos was, for a number of years, employed as Labor Conciliator I (Regional Office No. 4) of the Department of Labor. His monthly pay was P259 per month, or P3,108 per annum. On August 24, 1960, he was extended an appointment (promotion) as Labor Conciliator II (Regional Office No. 3, Manila) with compensation per annum of P3,493, vice Juan Mendoza, Jr., resigned. This appointment, effective September 1, 1960, was approved by the Commissioner of Civil Service on May 14, 1962, and released to the Department of Labor on May 25, 1962. In June of 1962, respondent Secretary of Labor appointed Ricardo Tiongco, one of the respondents, to the same position of Labor Conciliator II. 1 Petitioner's demand for the revocation of respondent Tionco's appointment and payment to him (Santos) of salary differentials was rejected by respondent Secretary of Labor. From the foregoing events stemmed the present petition for mandamus filed on August 20, 1962 three days before Santos actually retired from the service which was an August 23, 1962. 2 The petition prays, inter alia, that respondents be commanded to nullify the appointment of Tiongco, and to uphold as legal and existing petitioner's appointment, as Labor Conciliator II, from September 1, 1960; and that the salary differentials aforesaid be paid petitioner. Respondents seasonably answered the petition. 40 Before the case could be tried on the merits that is, on February 14, 1963, Santos died. A motion to substitute the "Estate of Segundo Santos, deceased." represented by Rodolfo Santos, one of the heirs, was filed. This triggered a move on respondents' part to seek dismissal of the case. The court, on April 10, 1963, dismissed the petition without costs. Hence, this appeal on purely questions of law. 1. The threshold question is this: May the Estate of Segundo Santos, deceased, be substituted in place of petitioner herein? Public office is a public trust. 3 It is personal to the incumbent thereof or appointee thereto. In this sense, it is not property which passes to his heirs. None of the heirs may replace him in that position. It is in this context that we say that the Estate of the deceased Segundo Santos may not press Santos' claim that he be allowed to continue holding office as Labor Conciliator II. Actio personalis moritur cum persona. But jurisdiction of the court had attached before the death of Santos. That jurisdiction continues until the termination of the suit. It is true that what is left is a money claim for salary differentials. But death will not dislodge jurisdiction on that money claim — it subsists. Resolution of this question depends upon the right of Segundo Santos to the position of Labor Conciliator II. We rule that the Estate of the deceased Segundo Santos may be substituted for him in the present proceedings. We do so now.1äwphï 1. ñët 2. We go to the merits. Stripped of unnecessary details, the facts are: On August 24, 1960, petitioner, a second grade eligible, was appointed Labor Conciliator II at an annual compensation of P3,493 effective September 1, 1960. As far as salary is concerned, no law, rule or regulation has been violated. Because, an annual pay of P3,493 is well within the range provided for second grade civil service eligibles. 4 Respondents challenge the legality of petitioner's appointment as Labor Conciliator II. They say that such appointment is within the prohibition set forth in the memorandum circular of the Civil Service Commission dated February 16, 1961, thus: "Employees should not be assigned or promoted to positions the initial rate of the salary allocation of which exceed the maximum allowable for their eligibility." Respondents likewise aver that it was because of this circular, that the appointment of petitioner as Labor Conciliator II was recalled on September 7, 1961. The circular was not violated. And the withdrawal of petitioner's appointment is not a proven fact. What the record clearly discloses is that the original appointment of petitioner as Labor Conciliator II was not taken out of the Civil Service Commission; it was approved by the Commissioner of Civil Service on May 14, 1962 and released to the Secretary of Labor on May 25, 1962. More important now is that the defense of recall has been abandoned by respondents. The case was ready for trial below. They did not go to trial. Instead, they thought it advantageous to them — upon petitioner's death — to submit their case on their motion to dismissed solely on legal grounds, namely, that the death of petitioner extinguished the controversy, and that the remaining claim for damages is ancillary to mandamus and is also abated by death. 41 The money claim here involved, however, descended to Santos' heirs. And, as we have earlier in this opinion stated, his Estate may prosecute that claim to its conclusion. It will not be in harmony with our sense of justice to return this case to the court below — at this stage — just to allow respondents to prove their defense of recall of petitioner's appointment. Respondents had a choice: To go to trial on the merits upon the issues raised in their answer; or, seek to overthrow petitioner's case on legal issues. They did elect the latter. They cannot be permitted once again to return to the lower court for a trial on the merits. 5 Suitors should not normally be allowed to gamble with court proceedings in the hope of obtaining beneficial results. It is unfair that this case should, on respondents' choice, be made to bounce from the lower court to this Court, and back to the lower court and perhaps only to be appealed once again to an appellate court. The ensuing delay, increased cost of litigation, and trouble and anxiety and harassment to be caused to the adverse party, the wastage of the courts' time — these are reasons potent enough to support this view. At all events, petitioner's right to salary differentials and the duty to pay him are both clear. Civil Service approval completed petitioner's appointment, 6 clinched the case for him. 3. The rest is a question of mathematical computation. Petitioner's pay as Labor Conciliator I was at the rate of P259 per month or P3,108 per annum. His increased compensation as Labor Conciliator II from September 1, 1960, to August 23, 1962, the date of his retirement, is at the late of P3,493 per annum, specified in his promotional appointment, and reiterated in the 5th indorsement of the Commissioner of Civil Service to the Secretary of Labor dated May 22, 1962. He is entitled only to the pay set forth in his appointment, and no more — absent a legal adjustment thereof. There is no such adjustment here. Petitioner's salary differentials during the period covered amounts to P761.68. And this should be paid to his Estate. Upon the view we take of this case, we vote to reverse the order of the Court of First Instance of Manila dated April 10, 1963, and to direct the Secretary of Labor and the corresponding Cashier to pay the Estate of the deceased petitioner Segundo Santos the sum of P761.68. No costs. So ordered. 3. Aparri G.R. No. L-30057 January 31, 1984 BRUNO O. APARRI, petitioner, vs. THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration (NARRA), respondents. Enrique D. Tayag for petitioner. Magno B. Pablo and Cipriano A. Tan for respondent Land Authority. 42 MAKASIAR, J .: This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate Appellate Court under BP 129) dated September 24, 1968, affirming the decision of the then Court of First Instance (now Regional Trial Court), the dispositive portion of which is as follows: WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the present petition for mandamus is hereby affirmed, without pronouncement as to costs (p. 50, rec.). The facts of the case are as follows: On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954 — NARRA) approved the following resolution: RESOLUTION NO. 13 (Series of 1960) RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the National Resettlement and Rehabilitation Administration (NARRA) with all the rights, prerogatives and compensation appurtenant thereto to take effect on January 16, 1960); RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.). Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA Board, appointed petitioner Bruno O. Aparri as reflected in the following letter: Manila, Januar y 22, 1960 Mr. Bruno O. Aparri c/o NARRA, Manila SIR: You are hereby appointed as GENERAL MANAGER in the National Resettlement and Rehabilitation Administration (NARRA) with compensation at the rate of TWELVE THOUSAND (P12,000.00) PESOS per annum the appointment to take effect January 16,1960 . . . . REINSTATEMENT ... (p. 2, rec.). The power of the Board of Directors of the NARRA to appoint the general manager is provided for in paragraph (2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit: Sec. 8. Powers and Duties of the Board of Directors. — The Board of Directors shall have the following powers and duties: ... 2) To appoint and fix the term of office of General Manager ..., subject to the recommendation of the Office of Economic Coordination and the approval of the 43 President of the Philippines, .... The Board, by a majority vote of all members, may, for cause, upon recommendation of the Office of Economic Coordination and with the approval of the President of the Philippines, suspend and/or remove the General Manager and/or the Assistant General Manager (p. 46, rec., emphasis supplied). On March 15, 1962, the same Board of Directors approved the following resolution: RESOLUTION NO. 24 (Series of 1962) WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the desire of the Office of the President Malacanang, Manila, to fix the term of office of the incumbent General Manager up to the close of office hours on March 31, 1962, in accordance with the provision of Section 8, sub-section 2 of R.A. No. 1160; NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of Directors hereby fix, as it is hereby fixed, the term of office of the incumbent General Manager of the National Resettlement and Rehabilitation Administration (NARRA) to March 31, 1962 (pp. 6-7, rec., emphasis supplied). Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First Instance of Manila on March 29, 1962. The petition prayed to annul the resolution of the NARRA Board dated March 15, 1962, to command the Board to allow petitioner to continue in office as General Manager until he vacates said office in accordance with law and to sentence the private respondents jointly and severally to pay the petitioner actual damages in the sum of P95,000.00, plus costs. On August 8, 1963, when the case was still pending decision in the lower court, Republic Act No. 3844, otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished the NARRA (Sec. 73, R.A. 3844) and transferred its functions and powers to the Land Authority. On October 21, 1963, the then Court of First Instance of Manila rendered judgment, finding "that this case has become academic by reason of the approval of the Agricultural Land Reform Code (Republic Act No. 3844) and thereby dismissing the instant petition without pronouncement as to costs" (p. 5, rec.). On appeal to the then Court of Appeals, the appellate tribunal speaking through then Mr. Justice Antonio C. Lucero, affirmed the decision of the lower court. in dismissing the petition for mandamus. Pertinent provisions of the decision are as follows: xxx xxx xxx In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the position of General Manager without fixed term and his appointment is, in essence, terminable at the pleasure of the appointing power which, in this case, is the Board of Directors. Where, as in the case at bar, the appointing officer, that is, the Board of Directors, had fixed the term of office of the incumbent Manager to end on March 31, 1962, the replacement of Bruno O. Aparri is not removal but by reason of the term of his office which is one of the recognized modes of terminating official relations. Considering that the term of office of the General Manager of the NARRA is not fixed by law nor has it been fixed by the Board of Directors at the time of his appointment although it had the power to do so, it is obvious that the term of office of herein petitioner Bruno O. Aparri expired on March 31, 1962 and his right to hold the said office was thereby extinguished. In other words, Bruno O. Aparri cessation from 44 office invokes no removal but merely the expiration of the term of office which was within the power of the Board of Directors to fix. Hence, Bruno O. Aparri continues only for so long as the term of his office has not ended (Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals, pp. 48-49, rec., emphasis supplied]. The motion for reconsideration by petitioner in the then Court of Appeals was denied on January 10, 1969. On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then Court of Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack of merit in a resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on February 11, 1969, the petition was given due course (p. 66, rec.). The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of 1962) was a removal or dismissal of petitioner without cause. WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962. 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 exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). 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 (Mechem Ibid., Sec. 64). 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 (42 Am. Jur. 881). The National Resettlement and Rehabilitation Administration (NARRA) was created under Republic Act No. 1160 (approved June 18,1954), which provides that: Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION — ... there is hereby created a corporation to be known as National Resettlement and Rehabilitation Administration hereafter referred to as "NARRA" to perform under the supervision and control of the President of the Philippines, through the Office of Economic Coordinator all the duties and functions of the Bureau of Lands as provided for in Commonwealth Act numbered Six Hundred and Ninety-one, as amended, and such other duties as are hereinafter specified in this Act. It shall be headed by a General Manager and an Assistant Manager who shall be appointed as hereinafter provided (emphasis supplied). Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the NARRA the power "to appoint and fix the term of office of the general manager ... subject to the recommendation of Economic Coordination and the approval of the President of the Philippines" (emphasis supplied). By "appointment" is meant the act of designation by the executive officer, board or body, to whom that power has been delegated, of the individual who is to exercise the functions of a given office (Mechem op. cit., Sec. 102). When the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmationof 45 some other officer or body is required, the Commission can issue or the appointment is complete only when such assent or condition is obtained (People vs. Bissell, 49 Cal. 407). To constitute an "appointment" to office, there must be some open, unequivocal act of appointment on the part of the appointing authority empowered to make it, and it may be said that an appointment to office is made and is complete when the last act required of the appointing authority has been performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment becomes complete when the last act required of the appointing power is performed (State vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65). The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960 — approved on January 15, 1960) of the Board of Directors. A careful perusal of the resolution points out the fact that the appointment is by itself incomplete because of the lack of approval of the President of the Philippines to such appointment. Thus, We note that Resolution No. 13 states: xxx xxx xxx ... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.). Presumably, the Board of Directors of the NARRA expected that such appointment be given approval by the then President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the appointment of petitioner was not complete. The petitioner can, at best, be classified as a de facto officer because he assumed office "under color of a known appointment or election, void because the officer was not eligible or because there was a want of power in the electing body, or by reasons of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am. Rep. 409). However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-approved March 15, 1962) wherein the President submitted to the Board his "desire" to fix the term of office of the petitioner up to the close of office hours on March 31, 1962. The questioned resolution corrected whatever requisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution No. 24, approved by the respondent Board and pursuant to "the desire of the President" legally fixed the term of office of petitioner as mandated by paragraph 2, Section 8 of Republic Act 1160. The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS, secs. 42, 54[1]). According to Mochem, the term of office is the period during which an office may be held. Upon the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties and authority as a pubic officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration of the term for which he was elected or appointed. The question of when this event has occurred depends upon a number of considerations, the most prominent of which, perhaps, are whether he was originally elected or appointed for a definite term or for a term dependent upon some act or event ... (Mechem op. cit., Sec. 384). It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate the statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865, 65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the power to fix the term is vested in the Board of Directors subject to the recommendation of the Office of Economic Coordination and the approval of the President of the Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an expiration of the term of office of the 46 petitioner. The statute is undeniably clear. It is the rule in statutory construction that if the words and phrase of a statute are not obscure or ambiguous, its meaning and the intention of the legislature must be determined from the language employed, and, where there is no ambiguity in the words, there is no room for construction (Black on Interpretation of Laws, Sec. 51). The courts may not speculate as to the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am. St., Rep. 744). The reason for the rule is that the legislature must be presumed to know the meaning of words, to have used words advisedly and to have expressed its intent by the use of such words as are found in the statute (50 Am. Jur. p. 212). Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs. Quitoriano, 50 O.G. 2515). The petitioner in this case was not removed before the expiration of his term. Rather, his right to hold the office ceased by the expiration on March 31, 1962 of his term to hold such office. WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS. SO ORDERED. Facts: On January 15, 1960, private respondent approved the following resolution # 13, hereby appointing Mr. Bruno Aparri, as general manager of NARRA, with all the rights, prerogatives and compensations to take effect on January 116, 1960. On March 15, 1962, the board of directors approved resolution # 24 which stating thereat that the incumbent general manager shall perform his duty up to the close of office hour on March 31, 1962. In accordance with the provisions of section 8, sub-section 2 of RA 1160. It hereby fixes the term of office of the incumbent general manager until march 31, 1962. Petitioner file a mandamus with preliminary injunction with the first instance court. The petition pray for the annulment of the resolution of NARRA board. Issue: Whether or not board resolution No. 24 was a removal or dismissal of petitioner without cause. Held: It was affirmed that the term of office of petitioner expired on March 31, 1962. It is necessary in each case to interpret the word "Term" with the purview of the statutes so as to effectuate the statutory scheme pertaining to the office under examination. In the case at bar, the term of office is not fixed by law. However, the power to fix the term is rested in the board of directors subject to the recommendation of the office of economic coordination and the approval of the president of the philippines. Resolution No. 24 speaks of no removal but an expiration of the term of office of the petitioner. The statute is undeniably clear. "It is the rule in statutory construction that if the words and phrases of a statute are not obscure or ambiguous. Its meaning and intention of the legislative must be determined from the language employed and where there is no ambiguity in words, there is no room for construction. 47 The petitioner in this case was not removed before the expiration of his term rather, his right to hold office ceased by the expiration on March 31, 1962, of his term to hold such office. 4. De la Victoria G.R. Nos. 95275-76 July 23, 1991 SIXTO DE LA VICTORIA, petitioner, vs. COMMISSION ON ELECTIONS, HEIRS OF GENOVEVA S. MEDINA represented by FAUSTINO MESINA, JR., JUAN ALAO and VICTOR S. MESINA, respondents. Constante P. Pimentel, et al. for petitioner. Regulo M. Bantasan for the Intervenor Aquilino Cantiga, Jr. Sixto, Brillantes, Jr. for Heirs of Genoveva S. Mesina. Evergisto B. Escalon for respondents Juan Alao and Victor S. Mesina. GRIÑO-AQUINO, J .:p This petition for certiorari with preliminary injunction and/or restraining order assails the order of the Commission on Elections En Banc (COMELEC, for short) which allowed the substitution of the heirs of a deceased candidate as protestee in the election protest filed by her rival for the office of municipal mayor of Albuera, Leyte, in the local elections on February 1, 1988, and allowed the same heirs to appeal the decision of the Regional Trial Court declaring her rival (the protestant and herein petitioner), as the actual winner in that election. The contenders for the mayorship of Albuera, Leyte in the special local elections held on February 1, 1988 were petitioner Sixto De la Victoria who obtained 5,093 votes, the late Genoveva S. Mesina who obtained 5,103 votes, and Loly C. Fian who garnered 982 votes. On February 3, 1988, the Municipal Board of Canvassers proclaimed Mesina as the duly elected municipal mayor of Albuera, Leyte. Elected and proclaimed vice-mayor was her running-mate, Aquilino Cantiga, Jr. In due time, the defeated mayoral candidate, De la Victoria, filed two pre-proclamation cases (SPC Nos. 88-560 and 88-614) in the COMELEC but even while they were still pending in the commission, he filed on October 21, 1988 in the Regional Trial Court (RTC), Branch 14 in Baybay, Leyte, an election protest Ex Abundante Cautela against Mesina (docketed as Election Protest No. B-44) with claims for damages, attorney's fees, and costs. Mesina filed an Answer with counterclaims for damages and attorney's fees. On July 22, 1989, Mesina died and was substituted as protestee by her Vice-Mayor, Aquilino Cantiga, Jr., who assumed the mayorship by operation of law. Neither Mesina's heirs (the private respondents herein), nor her counsel informed the trial court about her death. On May 16, 1990, De la Victoria withdrew from the COMELEC En Banc, his pre-proclamation complaints (SPC Cases Nos. 88-560 and 88-614). The COMELEC granted his motion. 48 On June 18, 1990, the incumbent Mayor, Aquilino Cantiga, Jr., filed in the Regional Trial Court (RTC) a verified "Petition to Intervene" in the election protest of De la Victoria. On June 20, 1990, De la Victoria filed a "Manifestation/Motion" waiving his claim for damages and costs against the deceased protestee, Mesina. The trial court granted the motion (p. 389, Rollo). On June 22, 1990, counsel for Mesina filed a Notice of Death and Motion for Substitution of the deceased protestee by her heirs, and requested that his motion be set for hearing on July 2, 1990. De la Victoria opposed the motion for substitution on the ground that the heirs of Mesina are not the "real party in interest" and that since he (De la Victoria) had waived his claim for damages against the deceased, her heirs have no more right to intervene in the case or have been "erased from the picture altogether" (Lomugdang vs. Javier, 21 SCRA 402 and Vda. de Mesa vs. Mencias, 18 SCRA 533). On July 2, 1990, the trial court noted the Motion for Substitution filed by the heirs of Mesina and ruled that De la Victoria's waiver of his claim for damages against the said protestee rendered the Motion for Substitution without basis in law, or moot and academic. On July 17, 1990, the trial court promulgated a decision in the Election Protest No. B-44, declaring the protestant, De la Victoria, as the duly elected Mayor of Albuera, Leyte, by a margin of 134 votes over the deceased protestee, Genoveva S. Mesina. Two days later, on July 19, 1990, the heirs of Mesina appealed to the COMELEC by a petition for certiorari and prohibition with preliminary injunction to restrain the trial court from rendering a decision in Election Protest No. B-44 or conducting further proceedings therein. On July 20, 1990, the heirs of Mesina filed in the trial court a Notice of Appeal. De la Victoria filed an "Urgent Motion to Disregard Notice of Appeal" on the ground that the heirs had no standing in the case as they failed to appeal the July 2, 1990 Order of the trial court denying their motion for substitution. The trial court in its Order of July 23, 1990, denied the Notice of Appeal and ordered its expulsion from the record of the case. It held that the intervenor, Vice-Mayor Cantiga, who succeeded the deceased protestee by operation of law, not the "heirs" of the deceased, is the "real party in interest" in the continuation of the election protest after the demise of the protestee. Moreover, upon the waiver by De la Victoria of his claim for damages against Mesina, the latter's heirs had no more legal interest to defend in her behalf. On July 24, 1990, De la Victoria filed a motion for execution of the trial court's decision. It was granted by the court on July 25, 1990. Promptly, on the same day, De la Victoria was sworn into office as the duly elected Mayor of Albuera. As earlier mentioned, the heirs of Mesina appealed that decision to the COMELEC by a petition for certiorari and prohibition with a prayer for the issuance of a writ of preliminary injunction (SPR No. 9- 90). In his Comment on the petition, De la Victoria adverted to the decision dated July 17, 1990 of the trial court which became final and executory when no appeal was taken therefrom. On the same date, the COMELEC denied the heirs' application for a temporary restraining order (TRO), but set the case for hearing before the COMELEC En Banc for "preliminary determination of the sufficiency of the allegations in the main issue raised by said respondents-heirs." De la Victoria opposed the petition. 49 On August 6, 1990, the heirs filed in the COMELEC another petition for certiorari and mandamus (SPR No. 11-90), praying that the execution of the decision of the trial court in Election Protest No. B-44 be stopped. On August 8, 1990, De la Victoria assumed office as Mayor of Albuera, Leyte. On August 13, 1990, the COMELEC issued a status quo Order directing De la Victoria to answer the petition in SPR No. 11-90, and setting the petition for preliminary injunction for hearing on August 23, 1990. On September 27, 1990, the COMELEC set aside the trial court's Order dated July 2, 1990 denying the motion for substitution of the heirs of the deceased protestee, and the Order dated July 23, 1990 which denied due course to the Notice of Appeal of the heirs from its decision dated July 17, 1990. It declared the writ of execution null and void and ordered the elevation to it of the records of the case pursuant to Rule 22 of the COMELEC Rules of Procedure (on appeal from election protest decided by trial courts of general jurisdiction). De la Victoria has come to us for relief through this petition for certiorari with prayer for the issuance of a temporary restraining order (TRO) where the main issues raised are: (1) whether the heirs of the deceased protestee in an election protest may be considered as real party-in-interest even if the vice-mayor has been allowed to intervene and the protestant had waived his claim for damages and costs in the proceedings; and (2) whether said heirs may appeal the decision in the election protest (EPC No. B-44). After careful deliberation, the Court is persuaded that the answer to both questions is no. The late Genoveva Mesina's claim to the contested office was not in any sense a transmissible right that devolved upon her surviving spouse and her children (herein private respondents) after her death. "Public office is personal to the incumbent and is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22 SCRA 848). Private respondents' only interest in the outcome of the case is limited to no more than their interest in defending her against the protestant's claim for damages and costs (which the protestant, herein petitioner, has already waived). They may no longer prosecute her own counter-claim for damages against the protestant for that was extinguished when death terminated her light to occupy the contested office of mayor of Albuera, Leyte. In the case of Vda. de Mesa vs. Mencias, 18 SCRA 533, 545, we ruled: The same cannot, however, be said of the protestee's widow or of the local Liberal Party chapter of Muntinlupa. The protestee's claim to the contested office is not in any sense a right transmitted to his widow or heirs. Said widow's remaining interest in the outcome of the case is limited to no more than the possible award of costs against the deceased protestee. Besides not being such an interest as would justify her substitution for her deceased husband as an indispensable legal representative, the right to such an award if eventually made has already been waived by protestant Argana. This effectively withdraws the widow from the picture altogether. Much less has the local Liberal Party Chapter any claim to substitution. Not being duly incorporated as a juridical person, it can have no personality to sue or be sued as such. And while it conceivably may derive some indirect benefit consequent to the resolution of the contest in favor of the deceased protestee, neither the chapter itself nor the officers thereof would become entitled thereby to any right to the contested office in case of a favorable judgment, nor, for that matter, do they stand to sustain 50 any direct prejudice in case of an adverse one. No basis therefore exist upon which to predicate their claim to substitution. (Emphasis supplied). This ruling was not a mere obiter as the COMELEC erroneously supposed. Vice Mayor Aquilino Cantiga's accession, by operation of law, to the position of Municipal Mayor upon the death of Mesina on July 22, 1989, automatically made him the real party-in-interest in the election contest for his right to hold the office of municipal mayor is in jeopardy of being lost should De la Victoria win Ms protest. Thus did this Court hold in Lomugdang vs. Javier, 21 SCRA 403: The vice-mayor elect has the status of a real party-in-interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the office of mayor that becomes vacant if the one duly elected cannot assume the post. This ruling was reiterated in Unda vs. COMELEC (G.R. No. 94090, October 19, 1990): Now under the Local Government Code, the vice-mayor stands next in line of succession to the mayor in case of a permanent vacancy in the latter's position. Upon the death of the protestee mayor in the case at bar, petitioner, as then incumbent vice-mayor, succeeded by operation of law to the vacated office and is ordinarily entitled to occupy the same for the unexpired term thereof. The outcome of the election contest necessarily and primarily bears upon his right to his present position and he is the person directly concerned in the fair and regular conduct of the election in order that the true will of the electorate will be upheld. His status as a real party-in-interest in the continuation of said case cannot thus be disputed. (Emphasis supplied.) On the procedural aspects of the case, we find the following observations of the Solicitor General in his Consolidated Comment dated January 8, 1991, to be well taken: . . . respondent COMELEC acted with grave abuse of discretion in giving due course to the [private respondents'] petitions for certiorari filed in SPR Nos. 9-90 and 11-90 filed on August 6, 1990 to set aside the final and executory decision of the trial court promulgated on July 18, 1990, far beyond the 5-day period allowed by [Section 22, Rule 35] Comelec Rules of Procedure, (p. 410, Rollo.) Respondent COMELEC further gravely abused its discretion by issuing a "permanent" and final injunction to prevent the execution of said final and executory Decision dated July 17, 1990 of the trial court, without the required bond contrary to its own Rule 30, Section 4, COMELEC Rules of Procedure. (p. 411, Rollo.) However, these issues have been rendered moot and academic by the COMELEC's order of January 23, 1991 dismissing the "reinstated" appeal of the private respondents (p. 447, Rollo), for failure to file their Appellant's Brief on December 9, 1990, the last day for filing the same, their Motion for Extension of Time to File said Appellant's Brief having been previously denied by the COMELEC for being a prohibited pleading under Section 1(c) of Rule 13 of the COMELEC Rules of Procedure, in relation to Section 9(b) Rule 22 of the COMELEC Rules of Procedure, The COMELEC's dismissal order reads: 51 Consequently, the dismissal of the herein appeal case pursuant to the Comelec Rules of Procedure renders the decision of the Regional Trial Court of Leyte, Branch XIV dated July 17, 1990, as FINAL AND EXECUTORY. (pp. 459-460, Rollo.) On January 28, 1991, petitioner De la Victoria reassumed the office of Mayor of Albuera, Leyte (p. 460, Rollo). WHEREFORE, finding merit in the petition for certiorari, the same is hereby GRANTED, with costs against private respondents. The proclamation of Sixto de la Victoria as mayor of Albuera, Leyte, is upheld. SO ORDERED. 5. Mathay G.R. No. 124374 December 15, 1999 ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents. G.R. No. 126354 December 15, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents. G.R. No. 126366 December 15, 1999 ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents. YNARES-SANTIAGO, J .: Before this Court are three, consolidated petitions 1 filed under Rule 45 of the Revised Rules of Court. The facts behind the consolidated petitions are undisputed. During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents 2 to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972. 52 On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs. Tuvera 3 the presidential decree is deemed never "in force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . . ." 4 On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety ("DPOS"). At the heart of these petitions is Section 3 of the Ordinance which provides: Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights and other benefits. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. (Emphasis ours). Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992. On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed. The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents' appointments became the seed of discontent from which these three consolidated petitions grew. We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly. G.R. No. 124374 and G.R. No. 126366 After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990, 5 and ordering their reinstatement to their former positions in the DPOS. 6 Petitioner brought petitions for certiorari to this Court, 7 to annul the resolutions but, in accordance with Revised Administrative 53 Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari. In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS. We agree with petitioner. The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments." 8 We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive. 9 The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio inius est exclusio alterius. 10 Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases, 11 we have consistently ruled that the Civil Service Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140. 54 The Ordinance refers to the "personnel of the CSU", the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created DPOS, there is therefore no room left for the exercise of discretion. In Farinas vs. Barba, 12 we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the power of appointment is a discretionary power. When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new appointment. 13 This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. In Apurillo vs. Civil Service Commission, we held that "appointment is essentially a discretionary power and must be performed by the officer in which it is vested." 14 The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A. Mathay, Jr., to reinstate private respondents. Petitioner similarly assails as error the Court of Appeals' ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance. In its decision of March 21, 1996 the Court of Appeals held: It is clear however, that Ordinance No. NC-140, absorbing the "present personnel of the Civil Security Agent Unit" in the DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents were still holders of de jure appointments as permanent regular employees at the time, and therefore, by operation of said Ordinance private respondents were automatically absorbed in the DPOS effectively as of March 27, 1990. 15 (Emphasis ours.) The decision is based on the wrong premise. Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as petitioner correctly points out, 16 the private respondents' appointments in the defunct CSU — were invalid ab initio. Their seniority and permanent status did not arise since they have no valid appointment. For then to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended an original appointment, subject again to the attesting power of the Civil Service Commission. Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Emphasis ours). It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it. 17 Since Presidential Decree 51 creating the CSU never became law, it could not be a source of rights. Neither could it impose 55 duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed. In Debulgado vs. Civil Service Commission 18 we held that "a void appointment cannot give rise to security of tenure on the part of the holder of the appointment." While the Court of Appeals was correct when it stated that "the abolition of an office does not mean the invalidity of appointments thereto," 19 this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law. At the most, private respondents held temporary and contractual appointments. The non- renewal of these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service Commission 20 we treated temporary appointments as follows: The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto. (Emphasis ours.) Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to be absorbed. 21 We note that Section 1 of Ordinance NC-140 provides: There is hereby established in the Quezon City Government the Department of Public Order and Safety whose organization, structure, duties, functions and responsibilities are as provided or defined in the attached supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance. A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible. Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an "abandonment" or "waiver" of such positions. It escapes us how one can "relinquish" or "renounce" a right one never possessed. A person waiving must actually have the right which he is renouncing. G.R. 126354 In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to "reinstate" Jovito C. Labajo to the DPOS. 56 The standing of petitioner Civil Service Commission to bring this present appeal is questionable. We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal. Basic is the rule that "every action must be prosecuted or defended in the name of the real party in interest." 22 A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. In Ralla vs. Ralla we defined interest as "material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental interest." 23 As a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action. In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement. We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro Dacoycoy 24 which overturned our rulings in Paredes vs. Civil Service Commission 25 Mendez vs. Civil Service Commission 26 and Magpale vs. Civil Service Commission. 27 In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system. The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be over emphasized. The subject of the present case, on the other hand, is "reinstatement." We fail to see how the present petition, involving as it does the reinstatement or non- reinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply. To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judical body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review." 28 In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated functions is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies," 29 not to litigate. Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354. WHEREFORE, the petitions of Ismael A. Mathay in G.R. No. 124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE. 57 The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED. No costs. SO ORDERED. In November 1972, Presidential Decree No. 51 was signed into law. PD 51 created a Civil Service Unit (CSU) office in cities. Pursuant to said law, then Quezon City mayor Brigido Simon appointed officers in the QC- CSU. Meanwhile, an ordinance in QC was passed providing, among others, that the personnel of the CSU shall be automatically absorbed into the QC Department of Public Order and Safety (QC-DPOS). During the term of the next mayor, Ismael Mathay, Jr., it was determined that PD 51 never became a law because it was never published. Mathay then did not renew the contracts of the QC-CSU personnel, at the same time, they were not reappointed to the QC-DPOS. Mathay was then sued by the QC-CSU personnel before the Civil Service Commission (CSC). Eventually, the CSC Commissioner ruled that based on the QC ordinance, Mathay should reinstate the CSU-personnel to QC-DPOS. ISSUE: Whether or not the decision of the CSC Commissioner is correct. HELD: No. The ordinance is invalid for when it provided for automatic absorption of the QC-CSU personnel to the QC-DPOS, it divested the mayor the power to choose as to who should fill said office. Just like in the national government, the local sanggunian can only create an office, it cannot choose the personnel who should fill such office – that is a power vested in the local chief executive (mayor). This is also clearly provided for in the Local Government Code. The power to appoint is vested in the local chief executive. The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. On the other hand, the CSC Commissioner cannot order the mayor to reinstate the QC-CSU personnel to the QC-DPOS. Such would be an encroachment of the mayor’s right to choose as to who should be appointed. Further, the CSU never came into existence for it has no legal basis to speak of. It created no right hence the QC-CSU cannot invoke any. It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it. E. de jure and de facto officers 1. Tuanda G.R. No. 110544 October 17, 1995 REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners, vs. THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA ESTRELLANES, respondents. 58 KAPUNAN, J .: Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for suspension of their arraignment. The present controversy arose from the following antecedents: On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private respondents Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17 February 1989, respectively. Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of said designations. The latter, however, in a letter dated 20 March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize private respondents as sectoral representatives. On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July 1991. Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to declare null and void the designations of private respondents as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the Department of Local Government, et al." On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus: INFORMATION The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019, as amended, committed as follows: That during the period from February 1989 to February 1991 and subsequent thereto, in the Municipality of Jimalalud, Negros Oriental, and within the jurisdiction of this Honorable Court, accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO G. FABURADA, Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A. VILLANUEVA while in the performance of their 59 official functions and taking advantage of their public positions, with evident bad faith, manifest partiality, and conspiring and confederating with each other did, then and there, wilfully and unlawfully cause undue injury to Sectoral Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay despite demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS (P108,900.00) representing respectively their per diems, salaries and other privileges and benefits, and such undue injury continuing to the present to the prejudice and damage of Bartolome Binaohan and Delia Estrellanes. CONTRARY TO LAW. 1 On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in Criminal Case No. 16936 on the ground that a prejudicial question exists in Civil Case No. 9955 pending before the Regional Trial Court of Dumaguete City. 2 On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void ab initio the designations issued by the Department of Local Government to the private respondents as sectoral representatives for having been done in violation of Section 146 (2) of B.P. Blg. 337, otherwise known as the Local Government Code. 3 The trial court expounded thus: The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663, along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792, 87935, 88072, and 90205) all promulgated on August 24, 1990, ruled that: B.P. Blg. 337 explicitly required that before the President (or the Secretary of the Department of Local Government) may appoint members of the local legislative bodies to represent the Industrial and Agricultural Labor Sectors, there must be a determination to be made by the Sanggunian itself that the said sectors are of sufficient number in the city or municipality to warrant representation after consultation with associations and persons belonging to the sector concerned. The Supreme Court further ruled — For that matter, the Implementing Rules and Regulations of the Local Government Code even prescribe the time and manner by which such determination is to be conducted by the Sanggunian. Consequently, in cases where the Sanggunian concerned has not yet determined that the Industrial and Agricultural Labor Sectors in their particular city or municipality are of sufficient number to warrant representation, there will absolutely be no basis for the designation/appointments. In the process of such inquiry as to the sufficiency in number of the sector concerned to warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to 60 consult with associations and persons belonging to the sector concerned. Consultation with the sector concerned is made a pre-requisite. This is so considering that those who belong to the said sector are the ones primarily interested in being represented in the Sanggunian. In the same aforecited case, the Supreme Court considers such prior determination by the Sanggunian itself (not by any other person or body) as a condition sine qua non to a valid appointment or designation. Since in the present case, there was total absence of the required prior determination by the Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations of private defendants as sectoral representatives null and void. This verdict is not without precedence. In several similar cases, the Supreme Court invariably nullified the designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not complied with. Just to cite one case, the Supreme Court ruled: There is no certification from the Sangguniang Bayan of Valenzuela that the sectors concerned are of sufficient number to warrant representation and there was no consultation whatsoever with the associations and persons belonging to the Industrial and Agricultural Labor Sectors. Therefore, the appointment of private respondents Romeo F. Bularan and Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No. 86394, August 24, 1990). 4 Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA- G.R. CV No. 36769, where the same is currently pending resolution. Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for suspension of proceedings filed by petitioners. Said respondent Sandiganbayan: Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros Oriental, it appears, nevertheless, that the private complainants have been rendering services on the basis of their respective appointments as sectoral members of the Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental; and that their said appointments enjoy the presumption of regularity. Having rendered such services, the private complainants are entitled to the salaries attached to their office. Even assuming arguendo that the said Regional Trial Court shall later decide that the said appointments of the private complainants are null and void, still the private complainants are entitled to their salaries and compensation for service they have actually rendered, for the reason that before such judicial declaration of nullity, the private complainants are considered at least de facto public officers acting as such on the basis of apparently valid appointments issued by competent authorities. In other words, regardless of the decision that may be rendered in Civil Case No. 9955, the private complainants are entitled to their withheld salaries for the services they have actually rendered as sectoral representatives of the said Sangguniang Bayan. Hence, the decision that may be rendered by the Regional Trial Court in Civil Case No. 9955 would not be determinative of the innocence or guilt of the accused. WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack of merit. 61 SO ORDERED. 5 Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the decision promulgated by the trial court nullifying the appointments of private respondents but it was, likewise, denied in an order issued by respondent Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the said motion were a mere rehash of petitioners' original motion to hold the case in abeyance. 6 The dispositive portion of its order reads as follows: WHEREFORE, in view of the foregoing, the arraignment of the accused which was scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado Estrellanes are, however, hereby ordered to show cause in writing within ten (10) days from service hereof why they should not be cited for contempt of court for their failure to appear in court today for arraignment. In case of an adverse resolution on the motion to quash which is to be filed by the counsel for the defense, set this case for arraignment, pre-trial and trial on January 4 & 5, 1993, on all dates the trial to start at 8:30 o'clock in the morning. SO ORDERED. 7 On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the issuance of an extended resolution. 8 No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent Sandiganbayan set the arraignment of petitioners on 30 June 1993. The dispositive portion of the order reads: WHEREFORE, considering the absence of the accused from the scheduled hearing today which We deem to be excusable, reset this case for arraignment on June 30, 1993 and for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the trial to start at 8:30 o'clock in the morning. Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Considering that the accused come all the way from Himalalud, Negros Oriental, no postponement will be allowed. SO ORDERED. 9 Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent Sandiganbayan the following errors: A. The Respondent Court committed grave abuse of discretion in denying petitioners' motions for the suspension of the proceedings in Criminal Case No. 16936 in spite of the pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No. 36769; B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend the proceedings that would entail a retrial and rehearing by it of the basic issue involved, i.e., the validity of the appointments of private respondents and their 62 entitlement to compensation which is already pending resolution by the Court of Appeals in C.A. G.R. CV No. 36769; and C. The Respondent Court committed grave abuse of discretion and/or acted without or in excess of jurisdiction in effectively allowing petitioners to be prosecuted under two alternative theories that private respondents are de jure and/or de facto officers in violation of petitioners' right to due process. 10 In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents' designation as sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial question justifying suspension of the proceedings in the criminal case against petitioners. A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it may proceed (see Art. 36, Civil Code) because a decision on that point is vital to the eventual judgment in the criminal case. Thus, the resolution of the prejudicial question is a logical antecedent of the issues involved in said criminal case. 11 A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. 12 It is a question based on a fact distinct and separate from "the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case." 13 The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. 14 It has two essential elements: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. 15 Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA- G.R. CV No. 36769, constitutes a valid prejudicial question to warrant suspension of the arraignment and further proceedings in the criminal case against petitioners. All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt that the facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are closely related. The filing of the criminal case was premised on petitioners' alleged partiality and evident bad faith in not paying private respondents' salaries and per diems as sectoral representatives, while the civil action was instituted precisely to resolve whether or not the designations of private respondents as sectoral representatives were made in accordance with law. 63 More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to proceed with the criminal action. Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due to their refusal, allegedly in bad faith and with manifest partiality, to pay private respondents' salaries as sectoral representatives. This refusal, however, was anchored on petitioners' assertion that said designations were made in violation of the Local Government Code (B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals uphold the trial court's decision declaring null and void private respondents' designations as sectoral representatives for failure to comply with the provisions of the Local Government Code (B.P. Blg. 337, sec. 146[2]), the charges against petitioners would no longer, so to speak, have a leg to stand on. Petitioners cannot be accused of bad faith and partiality there being in the first place no obligation on their part to pay private respondents' claims. Private respondents do not have any legal right to demand salaries, per diems and other benefits. In other words, the Court of Appeals' resolution of the issues raised in the civil action will ultimately determine whether or not there is basis to proceed with the criminal case. Private respondents insist that even if their designations are nullified, they are entitled to compensation for actual services rendered. 16 We disagree. As found by the trial court and as borne out by the records, from the start, private respondents' designations as sectoral representatives have been challenged by petitioners. They began with a petition filed with the Office of the President copies of which were received by private respondents on 26 February 1989, barely eight (8) days after they took their oath of office. 17 Hence, private respondents' claim that they have actually rendered services as sectoral representatives has not been established. Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents' designations are finally declared invalid, they may still be considered de facto public officers entitled to compensation for services actually rendered. The conditions and elements of de facto officership are the following: 1) There must be a de jure office; 2) There must be color of right or general acquiescence by the public; and 3) There must be actual physical possession of the office in good faith. 18 One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where there is no de jure office, although there may be a de facto officer in a de jure office. 19 WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May 1993 of respondent Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding with the arraignment and trial of petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769. SO ORDERED. 2. Lino Luna G.R. No. L-13744 November 29, 1918 64 JOSE LINO LUNA, petitioner-appellant, vs. EULOGIO RODRIGUEZ, respondent-appellant; SERVANDO DE LOS ANGELES, respondent. Ramon Diokno and Agapito Ygnacio for petitioner. Sumulong & Estrada for respondent. JOHNSON, J .: It appears from the record that an election for the office of governor of the Province of Rizal was held on the 6th day of June, 1916. At said election Jose Lino Luna, Eulogio Rodriguez and Servando de los Angeles were candidates for said office. The election was closed, the votes cast in the various municipalities were counted, and a return was made by the inspectors of said municipalities to the provincial board of canvassers, who, after a canvass of said returns, proclaimed the following result: (a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c) Servando de los Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having received a plurality of said votes, was duly elected governor of said province. Against said proclamation Jose Lino Luna presented a protest in the Court of First Instance. Upon said protest issue was joined, hearing was had and a decision was rendered which was, on appeal, set aside and a new trial ordered. (Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. Rep., 186.) Complying with said order, a new trial was had at which the Honorable William E. McMahon, judge, presided. Additional evidence was adduced. After a consideration of all of the facts and the evidence adduced at both trials, Judge McMahon reached the conclusion that the ballots cast for the various candidates were as indicated in the returns of the inspectors of the various municipalities except those in the municipality of Taytay and Binangonan. In the municipality of Taytay, Judge McMahon found from the evidence that 50 ballots cast for Eulogio Rodriguez should not have been counted for him, and ordered that number of votes deducted from his total. In the municipality of Binangonan, Judge McMahon found that the inspectors did not close the polls at 6 o'clock p.m., and that a large number of persons voted after that time, and directed that the total vote of Eulogio Rodriguez should be reduced by the number of such votes, without ascertaining how many had been cast for Rodriguez and how many for Luna. By deducting the said votes in the municipality of Taytay and those cast after six o'clock p.m. in the municipality of Binangonan, Judge McMahon concluded that Jose Lino Luna had received a plurality of the legal votes cast at said election and ordered the provincial board of canvassers to correct its canvass accordingly. From that conclusion both parties to the contest appealed to this court and made several assignments of error. Considering all of said assignments of error, we find that they present, in fact, but three questions: (1) What is the effect of holding the polls open after the hour fixed for closing the election? (2) What is the effect of assistance rendered by the inspectors of the election to incapacitated persons, without first requiring of such persons an oath to the effect that they are incapacitated to prepare their own ballots? (3) What is the effect of a failure on the part of the authorities to provide proper voting booths? 65 With reference to the first question, the law provides that "at all the elections held under the provisions of this Act the polls shall be open from seven o'clock in the morning until six o'clock in the afternoon, during which period not more than one member of the board of inspectors shall be absent at one time, and then for not to exceed twenty minutes at one time." (Sec. 21 of Act No. 1582; sec. 11 of Act No. 2045; sec. 543 of Act No. 2657, and sec. 445 of Act No. 2711.) Are the provisions with reference to the time of opening and closing the polls mandatory? It is admitted in the present case that the polls were not closed at 6 p.m. The record shows that at 6 p.m. a large number of voters had not yet been able to vote and that, for that reason, an agreement was made between some of the candidates for office who were present and the board of inspectors, to the effect that the polls should be kept open in order that such electors might vote. No objection whatever to that agreement was made by any person at that time. One of the reasons why all of the voters of the municipality had not voted before 6 p.m. was that the board of inspectors failed to have the list of voters properly prepared at 7 a.m., and therefore but few of the voters were able to vote before eleven or eleven-thirty in the morning. That failure, on the part of the board of inspectors, made it impossible for many of the voters of the municipality of Binangonan to vote before the regular time for the closing of the polls. Shall the ballot of an innocent voter, who is prevented, through no fault of his, from casting the same before 6 p.m. be annulled for the simple reason that the polls were kept open, after the hour designated by the law, for the purpose of giving such voter an opportunity to vote? Experience and observation has taught legislatures and courts that, at the time of a hotly contested election, the partisan spirit of ingenious and unscrupulous politicians will lead them beyond the limits of honesty and decency and by the use of bribery, fraud and intimidation, despoil the purity of the ballot and defeat the will of the people at the polls. Such experience has led the legislatures to adopt very stringent rules for the purpose of protecting the voter in the manner of preparing and casting his ballot to guard the purity of elections. (Paulino vs. Cailles, 37 Phil. Rep., 825.) The infinite ingenuity of violent partisan spirit in evading the rules and regulation of elections and the use of bribery, fraud and intimidation has made necessary the establishment of elaborate and rigid rules and regulations for the conduct of elections. The very elaborateness of these rules has resulted in their frequent violation and the reports of the courts are replete with cases in which the result of an election has been attacked on the ground that some provision of the law has not been complied with. Presumably, all the provisions of the election laws have a purpose and should therefore be observed. (Detroit vs. Rush, 82 Mich., 532; 10 L. R. A., 171; 9 R. C. L., 1091; Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72.) It has been announced in many decisions that the rules and regulations, for the conduct of elections, are mandatory before the election, but when it is sought to enforce them after the election they are held to be directory only, if that is possible, especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any fault on their part. (Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72; Jones vs. State, 153 Ind., 440.) In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when the Election Law does not provide that a departure from a prescribed form will be fatal and such departure has been due to an honest mistake or misrepresentation of the Election Law, and such departure has not been used as a means for fraudulent practices and it is clear that there has been a free and honest expression of the popular will, the law will be held to be directory and such departure will be considered a harmless irregularity. However, the irregularities may be so numerous as not to be attributed to ignorance or honest mistake, but to a design to defeat the will of the voters or to such careless 66 disregard of the law as to amount not only to laches but to fraudulent intent. In such cases, the election officers should be punished, the election should be declared null and a new election held. It has been held, therefore, very generally, that the provisions of a statute as to the manner of conducting the details of an election are not mandatory, but directory merely, and irregularities, in conducting an election and counting the votes, not proceeding from any wrongful intent and which deprives no legal voter of his vote, will not vitiate an election or justify the rejection of the entire votes of a precinct. (Behrensmeyer vs. Kreitz, 135 Ill., 591; Hankey vs. Bowman, 82 Minn., 328; Sprague vs. Norway, 31 Cal., 173; Webre vs. Wilton, 29 La. Ann., 610.) The purpose of an election is to give the voters a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest; and for that purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that is done and no frauds have been committed, the ballots should be counted and the election should not be declared null. Innocent voters should not be deprived of their participation in the affairs of their government for mere irregularities on the part of the election officers, for which they are in no way responsible. A different rule would make the manner and method of performing a public duty of greater importance than the duty itself. (Loomis vs. Jackson, 6 W. Va., 613.) The errors and irregularities which warrant the rejection of ballots and the annulment of an election and thus deprive lawful voters of their legal right to vote, should be such as to fully justify that result. (The People vs. Cook, 8 N. Y., 67; 59 Am. Dec., 451.) It has been held that even great irregularities on the part of election officers will not of necessity vitiate an election, where no fraud is committed or attempted, or no illegal vote was polled was no legal voter was deprived of his vote. (Morris vs. Vanlaningham, 11 Kan., 269.) No complaint is made that any fraud was committed nor that any person voted who had no right to vote, by reason of the fact that the polls were kept open after the hour fixed by the law. It is admitted that the polls were kept open after the hour, by the consent of all parties concerned, for the reasons and purposes above indicated. In view of such facts, should the vote of the innocent voter be annulled and he thereby deprived of his participation in the affairs of the government when he was guilty of no illegal act? If the inspectors may, for one reason or another, prevent the opening of the polls or delay the commencement of the voting until 11 o'clock in the morning and then close the polls in the evening so as to prevent all those who desire to vote from voting, without incurring criminal liability for a violation of the election laws, the same motives will induce them to delay the opening of the polls until later and thus prevent any to vote except those whom they desire. The polls should be opened and closed in strict accord with the provisions of the law. Voters who do not appear and offer to vote within the hours designated by the law should not be permitted to vote after the time for closing the polls has arrived. Upon the other hand, if the voter is prevented, during the voting hours, from voting, and is not permitted to vote by reason of the failure of the inspectors to do their duty, then, certainly, in the absence of some fraud, neither such votes nor the entire vote of the precinct should be annulled simply because some votes were cast after the regular hour. (People vs. Prewett, 124 Cal., 7; Packwood vs. Brownell, 121 Cal., 478; Pickett vs. Russell, 42 Fla., 116.) The decisions in the various States of the United States are not uniform upon the effect of a failure to open and close polls at the time specified by the law. In some States such a provision has been held to be mandatory, in others directory. The decisions seem to be based upon the language of the particular statutes discussed. 67 We are not inclined to the belief that the legislature intended that a failure to comply with the law in this jurisdiction should render the entire election void, nor nullify the votes cast after the period mentioned in the law, unless the polls were kept open after the hour for the purpose of permitting some fraud to be committed, or for the purpose of permitting some person to vote who had not appeared during the regular voting hours. The section of the law which we are discussing provides that 'not more than one member of the board of inspectors shall be absent at one time and then for not to exceed twenty minutes at one time." Suppose that the evidence showed that two of the inspectors were absent at one time and for a period longer than twenty minutes, would the courts be justified in holding that the entire election was void, in the absence of fraud, for the reason? There is little justification for holding that one provision of said section is mandatory and the other directory. Our conclusion upon the first question, in view of the foregoing, is that in the present case there seems to be no justification, under the facts, there being no fraud committed, for annulling the votes of innocent voters who were permitted by the election inspectors to cast their votes in a legal manner after the regular hour for closing the polls. In this conclusion, however, we do not desire to be understood to have decided that in no case should the courts not annul and set aside an election, where fraud is clearly proved, for a violation of the section under discussion. When the polls are kept open after the hour prescribed by the law for the purpose of defeating the will of the people, such a violation of the law should result in annulling and setting aside the election of that precinct. No such facts exist in the present case. It is true, perhaps, that a number of the votes cast after the hour for closing the polls were sufficient to change the result of the election, but the result would have been the same had those same voters been permitted to vote, except for the negligence of the inspectors, during the regular hours for voting. There seems to be no more reason for annulling the votes cast, after the hour for closing the election, than for annulling the election for the reason that the inspectors failed to provide the means for voting at the time fixed for opening the polls in the morning. We are firmly of the opinion that instead of depriving the innocent voters of their right to participate in the affairs of their government for irregularities committed by the election inspectors, the latter should be proceeded against in a criminal action for failure, on their part, to comply with the law and be punished in accordance with section 29 of Act No. 1592; section 2632 of Act No. 2657 and section 2639 of Act No. 2711. The various and numerous provisions of the Election Law are adopted to assist the voters in their participation in the affairs of the government, and not to defeat that object. When the voters have honestly cast their ballots, the same should not be nullified simply because the officers appointed, under the law to direct the election and guard the purity of elections, have not done their duty. The law provides a remedy, by criminal action, against them. They should be prosecuted, and the will of the honest voter, as expressed through his ballot, should be protected and upheld.lawphi1.net It may be noted in this relation that, under the law, the polls are kept open from 7 a.m. until 6 p.m. or, for a period of eleven hours only. In the municipality of Binangonan the record shows that there were 375 analfabetos (illiterate persons) and 164 other voters. The law requires an analfabeto to take an oath and that the oath shall be filed. Naturally the inspectors require some time in (a) ascertaining whether or not the voter is in fact an analfabeto; (b) in administering, preparing, signing and filing the oath. Suppose one minute only is allowed for that work. Then two inspectors must accompany such a voter to the booth, there assist him in preparing his ballot and then return to their position occupied by them as inspectors. We do not think that work could be accomplished in less than another minute and it would more than likely occupy nearer two minutes. But admitting that it could be accomplished in one minute, we have, at least, two minutes occupied by two inspectors for each analfabeto. There 68 being 375 analfabetos, it would require 750 minutes to vote, or 12 ½ hours. If the inspectors had strictly complied with the law, not all of the analfabetos of said municipality could have voted in the eleven hours provided by the law, not to say anything of the time necessarily occupied with the 164 other voters of the municipality who would, at least, occupy one minute each of the time of the inspectors, or nearly 2 1/2 hours more. With reference to this particular question of the time necessary for each analfabeto to vote, some of the judges have estimated that it would take, at least, five minutes of the time of the inspectors for each analfabeto. (Hontiveros vs. Mobo, R. G. No. 13959, p. 230, post.) From the foregoing, it was practically an impossibility for all of the voters of said municipality to have voted in the eleven hours prescribed by the law even though the polls had been opened promptly at 7 a.m. instead of at nearly 11 a.m. The above time is computed upon the theory that no time whatever is lost, that the voters arrive one immediately after another and that no time is lost waiting for the arrival of the voters. With reference to the second question above presented, the law provides that: A voter otherwise qualified who declares that he can not write, or that from blindness or other physical disability he is unable to prepare his ballot, may make an oath to the effect that he is so disabled and the nature of his disability and that he desires the inspectors to assist him in the preparation of such ballot. The board shall keep a record of all such oaths taken and file the same with the municipal secretary with the other records of the board after the election. Two of the inspectors, each of whom shall belong to a different political party, shall ascertain the wishes of the voter, and one of them shall prepare the ballot of the voter in proper form according to his wishes, in the presence of the other inspector, and out of view of any other person. The information this obtained shall be regarded as a privileged communication. (Section 12, Act No. 2045; section 550, Act No. 2657; section 453, Act No. 2711.) Said quoted section provides the method by which a person who cannot prepare his ballot may be assisted. The conditions are: (a) That he must make an oath to the effect that he is disabled and the nature of his disability together with the fact that he desires the inspectors to assist him in the preparation of his ballot; (b) That a record of said oath shall be filed with the municipal secretary with the other records of the board of inspectors after the election; and (c) When said oath is taken, then two of the inspectors, each of whom shall belong to different political party, may assist him in the preparation of his ballot. In view of said conditions, what shall be the effect of a failure to comply therewith? Suppose, for example, that the voter is incapacitated; that the board of inspectors are fully aware of that fact; that they failed to require of him the oath; that they failed to keep on file the oath taken, or that one inspector only assisted said voter in the preparation of his ballot, or that two assisted him which belonged to the same party, shall the ballot of such an incapacitated person be rejected? Shall all of the votes of the precinct be nullified because of the failure of the inspectors to comply strictly with the letter of the law? We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep., 825) that the ballots of incapacitated persons who voted without taking the oath or were assisted by one inspector alone, or by two belonging to the same party, should not be counted if such ballots could be identified. We 69 further held that, in the absence of fraud, all of the ballots of the precinct should not be invalidated by the mere fact that the inspectors did not comply with their duty. Innocent voters should not be deprived of their participation in an election for a violation of the law for which they were in no way responsible and which they could not prevent.lawphil .net The incapacitated persons mentioned in said section above noted are usually persons who are unable to acquaint themselves with the provisions of the law. They are, therefore, absolutely dependent upon the advice and counsel of others. Generally, they have no idea whatever as to the form and requirements in casting their ballots. Their ignorance, however, does not relieve them from their responsibility under the law, nor from the effect of their failure to comply therewith. (Manalo vs. Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G. No. 12382 decided March 15, 1917, not published; Paulino vs. Cailles, R. G. No. 12763, 37 Phil. Rep., 825.) The law intended that those votes only who are incapacitated in some way should be assisted. To insure a compliance with the law an oath of incapacity is required. To prove that only such persons have received assistance, the election board is required to keep a record of such oath. To guarantee that such voters should not be imposed upon, the law wisely provided that two inspectors of different political faith should assist them. Upon the other hand, if the inspectors have failed or declined to perform a duty or obligation imposed upon them by the Election Law, they may be punished. The record shows that in many of the municipalities of the Province of Rizal, during the election in question, a great many incapacitated persons voted without taking the oath required and were assisted by one inspector only in the preparation of their ballots. But, in view of the fact that such ballots have not been identified they cannot be rejected. The voter cannot be punished. The remedy is by a criminal action against the inspectors for a failure to comply with the law. (Section 29, Act No. 1582; section 2632, Act No. 2657; section 2639, Act No. 2711.) Said section (2632) provides, among other things, that any member of a board of registration, or board of inspectors, or board of canvassers who willfully declines or fails to perform any duty or obligation imposed by the Election Law, shall be punished by imprisonment for not less than one month nor more than one year, or by a fine of not less than P200 nor more than P500 or both. With reference to the third question above indicated, relating to what is the effect of a failure on the part of the authorities to provide proper voting booths, it may be said that we have held in the case of Gardiner vs. Romulo (26 Phil. Rep., 521) that the requirements of the Election Law providing for the location of polling stations and the construction of booths and guard rails for the latter may be departed from in some particulars and yet preserve, in substantial form, the secrecy which the law requires. But the failure to provide doors and guard rails for the booths and the placing of the writing shelf so that it faces the side instead of the rear of the booths are, combined, a fatal disregard of the law, inasmuch as such an arrangement does not offer, even in substantial form, the secrecy and seclusion which, according to the purpose and spirit of the Election Law, is its most mandatory requirement. Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and section 415 of Act 2711, provides that there shall be in each polling place, during each election, a sufficient number of voting booths, not less than one for every fifty voters, in the election precinct. Said section further provides how such voting booths, not less than one every fifty voters, in the election precinct. Said section further provides how such voting booths shall be constructed. The purpose of said provisions is to furnish each voter an opportunity to prepare his ballot in secrecy. Suppose the board of inspectors does not prepare the voting booth in exactly the form prescribed by law, what shall be the effect? Support, the example, that they construct a booth less than one meter square as is provided by the law but yet sufficiently large to enable the voter to enter and to prepare his ballot in secrecy; or 70 suppose that the door swinging outward to the booth shall extend to the floor instead of within fifty centimeters of the floor; or suppose that the shelf upon which the voter shall prepare his ballot shall be less than thirty centimeters wide, shall the entire election be declared null and void for such failures when it is admitted and proved, beyond question, that even with such defects in the fulfillment of the requirements of the election law they were in fact constructed in a manner which provided the voter a complete opportunity to prepare his ballot in absolute secrecy? While there is no provision in the law, relating to the construction of booths, they shall be constructed in such manner as to afford the voter an opportunity to prepare his ballot in secret, that must be the primary and ultimate object of having the booths constructed in the manner indicated. When we held that the law requiring the preparation of the booths in a particular manner was mandatory, we did not mean to hold that unless they were prepared in exact conformity with the law, that the election would be nullified. We simply held that if they were not constructed in a manner which afforded the voters an opportunity to prepare their ballots in secret, the election would be declared null and void on that account. If, however, upon the other hand, the booths were so constructed, even though not in strict accord with the provisions of the law, as to afford each voter an opportunity to prepare his ballot in secret, the election should not be declared null and void. Secrecy is the object of the booth. An opportunity to prepare his ballot in private is the purpose of the provision. When the booth affords that protection, the purpose of the law is fulfilled. To hold otherwise — to establish a different rule — would make the manner of performing a public duty more important than the performance of the duty itself. In the present case, while there is some conflict in the evidence, and while the proof clearly shows that the booths were not constructed in strict accordance with the provisions of the law, we are of the opinion that a large preponderance of the evidence shows that the booths were constructed (defectively perhaps) in a manner which afforded each voter an opportunity to prepare his ballot in absolute secrecy. That being true, we find no reason for changing or modifying the conclusion of the lower court. The defendant-appellant alleges, and attempts to establish the fact, that in the municipality of San Felipe Nery many irregularities were committed which should invalidate the election. For example, he alleges the different columns of the polling list were not properly filled. Even granting that fact, the voter was in no way responsible. The voter not being responsible, his ballot should not be nullified on that account. Filling the different columns of the polling list is a duty imposed upon the election officers. If they fail to perform their duty they are responsible; and as we have frequently said, the ballots of innocent voters should not be nullified for a failure on the part of election officers to perform their duty in accordance with the provisions of the law. The remedy is a criminal action against the inspectors if they have violated the law and not to nullify the votes of innocent voters. The defendant-appellant further alleges that in the municipality of San Felipe Nery, a number of voters voted who were not residents of said municipality. That question was presented to the court below, and upon a full consideration he refused to nullify the election in said municipality upon the grounds alleged. While it is true that the proof shows that some grave irregularities were committed by the board of inspectors, we are not persuaded that the evidence is sufficient to justify this court in nullifying the entire vote of said municipality. In view of that conclusion, we deem it unnecessary to discuss the other allegations of the defendant-appellant with reference to the striking out of certain allegations in his answer. The lower court, after hearing the evidence and after examining the ballots cast in the municipality of Taytay, found that 50 ballots which had been counted for the defendant-appellant should not be counted for him and ordered that the total vote of the defendant-appellant should be reduced by that number. The defendant-appellant in fact admits that the said 50 votes should be deducted from his 71 total vote. In view of that admission of the defendant-appellant, we deem it unnecessary to discuss the reasons therefor. Upon the various errors assigned, our conclusions are: (1) That the total votes cast in the municipality of Binangonan should be counted for the respective candidates; that for the special reason given, the board of inspectors was justified in keeping the polls open after the hour for closing. But this conclusion must not be interpreted to mean that under other circumstances and other conditions, where the polls are kept open after the hour for fraudulent purposes, that such act on the part of the inspectors might not nullify the entire election (Gardiner vs. Romulo, 26 Phil. Rep., 521); (2) That while it is irregular for the board of inspectors to permit incapacitated voters to vote without taking the oath and for one inspector only to assist such voters, yet the ballots of the innocent voters should not be nullified on that account; that the ballots of such persons only should be annulled when identified; (3) That inasmuch as the voting booths in the municipality of Antipolo were prepared in a manner and form which permitted the voter to prepare his ballot in absolute secrecy, the vote of that municipality should not be nullified; and (4) That the judgment of the lower court reducing the total vote of the defendant-appellant by fifty identified fraudulent ballots counted for him, in the municipality of Taytay, should be affirmed. As a result of the count of the ballots, cast in the various municipalities by the provincial board of inspectors, Eulogio Rodriguez received 4,321 votes, Jose Lino Luna received 4,157 votes and Servando de los Angeles received 3,576 votes. Servando de los Angeles did not protest the election. From all of the foregoing, the total votes of Eulogio Rodriguez must be reduced by 50 votes, leaving him a total of 4,271 only, or a clear majority of 114 votes. Therefore, with the modification herein indicated, the judgment of the lower court is affirmed as modified, and it is hereby ordered and decreed that the record be immediately returned to the lower court with direction that a judgment be entered directing and ordering the provincial board of inspectors to amend its count accordingly. It is so ordered, without any finding as to costs. 3. Regala G.R. No. 90213 March 22, 1990 AGUSTIN P. REGALA, represented by his daughter, TERESITA F. REGALA, petitioner, vs. THE COURT OF APPEALS and ORVILLE ODICTA, respondents. Manuel O. Padama for petitioner. Fernandez & Velasco Law Offices for private respondent. 72 CRUZ, J .: This case involves the interpretation of Rule 3, Section 21, of the Rules of Court on the effect of the defendant's death on a claim filed against him for recovery of money, debt or interest thereon when he dies before final judgment on the claim is rendered by the regional trial court. On 23 November 1988, private respondent Orville Odicta filed against Agustin Regala in the Regional Trial Court of Manila a complaint for recovery of the sum of P503,048.00, representing the balance of the purchase price of assorted knocked-down motor vehicles and spare parts. 1 On 10 March 1989, Judge Artemon D. Luna granted the motion of the plaintiff for the issuance of a writ of preliminary attachment against the properties of the defendant. 2 Trial commenced in due time, but while the defense was presenting its evidence, Regala died on 7 June 1989. 3 The trial court was informed of his death, but in its order dated 14 June 1989, 4 it gave the defendant 10 days within which "to make a formal offer of his documentary evidence and rest his case," subject to comment or objection from the plaintiff. At the same time, it allowed both parties to submit simultaneous memoranda, if desired, within 30 days, after which "the case shall be ready for decision;" and required the plaintiff to comment within 5 days on the defendant's Urgent Motion to Discharge Attachment. On 19 June 1989 the defense filed an Omnibus Motion for reconsideration of the said order and for the dismissal of the complaint pursuant to the above cited rule. 5 This motion was denied in the order of the trial court dated 23 June 1989. 6 Teresita F. Regala, in representation of her deceased father, then went to the Court of Appeals in a petition for certiorari and mandamus with preliminary injunction to question the said orders of the trial court. Her petition was dismissed on the finding that the trial court had not acted with grave abuse of discretion amounting to excess of jurisdiction. 7 Before us now, the petitioner argues that the respondent court itself erred in sustaining the orders of the trial court denying dismissal of the complaint before it and maintaining the writ of preliminary attachment notwithstanding the death of the defendant. In affirming the questioned orders, the respondent court, relying on the case of Macondray & Co., Inc. v. Dungao, 8 held that the complaint in question came under the exception to Section 21, Rule 3, of the Rules of Court, which it said was not absolute. Thus — The rule, Section 21, Rule 3, Revised Rules of Court, is not absolute for in the case of Macondray & Co., Inc. vs. Dungao (11 SCRA 72), the Supreme Court held that the "attachment levied on some properties of the defendant, on the plaintiff's motion, to secure payment of its money claim, might constitute an exception to the general rule on claims that do not survive, as provided for in Section 21 of Rule 3, Rules of Court. But after the discharge of the attachment upon the filing of a bond by the surety company, the property attached became free from any specific lien and reverted to its previous condition." In the light of the aforesaid ruling, considering that there is an attachment against the properties of the defendant Agustin Regala in the case at bar, the same, although an action for recovery of sum of money, and ordinarily does not survive upon the death of the party, should not be dismissed. Apparently, the respondent court had not taken into account the much later case of Malolos v. Asia Pacific Finance Corporation, 9 decided only on January 7, 1987, where the Court ruled through Justice Edgardo L. Paras: There is no question that the action in the Court below is for collection or recovery of money. 73 It is already a settled rule that an action for recovery of money for collection of a debt is one that does not survive and upon the death of the defendant the case should be dismissed to be presented in the manner especially provided in the Rules of Court (Villegas and Santos v. Zapanta and Zorilla, 104 Phil. 1973). This is explicitly provided in Sec. 21, Rule 3 of the Rules of Court which states that: Sec. 21. Where claim does not survive. — Then the action is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided in these rules. Said provision of the Rules was in turn interpreted by the Supreme Court in Dy v. Enage (70 SCRA 117 [1976]) stating that "The language of Section 21 of Rule 3 is too clear in this respect as to require any interpretation or construction. It very explicitly says that "when the action for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner specially provided by the rules; meaning, Section 5 of Rule 86 and its related provisions." Earlier, Secs. 119 and 700 of Act 190 (Code of Civil Procedure) from which this Rule was derived were interpreted by the Supreme Court in Pabico v. Jaranilla, et al. (60 Phil. 247, 251) to be mandatory in character and confers no jurisdiction upon the Court. (Moran, Comments on the Rules of Court, 1970 ed., p. 215). The reason for the dismissal of the case is that upon the death of the defendant a testate or intestate proceeding shall be instituted in the proper court wherein all his creditors must appear and file their claims which shall be paid proportionately out of the property left by the deceased (1 Moran, Comments on the Rules of Court, 1979 ed., p. 219). The purpose of the rule is to avoid useless duplicity of procedure — the ordinary action must be wiped out from the ordinary court (Ignacio v. Pampanga Bus Co., May 23 1963, 20 SCRA 126). In the case of Macondray v. Dungao, supra, cited by private respondent to support its position, does not fall squarely with the case at bar. In the above-cited case, the facts are as follows: (1) the promissory note executed by defendant Dungao represented the purchase price of the car and trucks which said defendant bought from Macondray on installment; (2) a writ of attachment was issued on August 16, 1949, but this was later on dissolved on September 21, 1949, when the defendant put up a surety bond; and (3) the promissory note sued upon in the cited case was secured by a mortgage on personal property and the proper action should have been a foreclosure of mortgage. In the present case, the money claim arose out of a pure and simple debt, which as aforementioned, under the provisions of Rule 3, Sec. 21 of the Rules of Court shall be dismissed and must be brought before the probate court (1 Moran, Comments on the Rules of Court, 1970 ed., pp. 215- 216). In the light of the foregoing considerations, the conclusion is inevitable that the trial court deviated from the procedure laid down by the above-mentioned provisions of the Rules. The fact that a writ of attachment has been issued cannot provide an excuse for such deviation, as a writ of attachment is a remedy ancillary to the principal proceedings. (Gruenberg v. Court of Appeals, 138 SCRA 471 [1985]). Consequently, if it is mandatory, under Rule 3, Sec. 21 of the Rules of Court that the principal proceeding or action be dismissed for non-survival of the money claim, the purpose of the 74 attachment winch is to secure the outcome of the trial n•longer exists and so with the reasons for the issuance of the writ in this case, insofar as the deceased debtor is concerned. Corollary thereto, it has been held that a court order which violates the Rules constitutes grave abuse of discretion as it wrecks the orderly procedure prescribed for the settlement of claims against deceased persons designed to protect the interests of the creditors of the decedent. Allowing the private respondent to attach petitioners' properties for the benefit of her claim against the estate would give an undue advantage over other creditors against the estate. (Gruenberg v. Court of Appeals, supra citing Dy v. Enage, supra). Therefore, under the same principle, a writ of attachment already issued in connection with a money claim which has to be dismissed because of the death of the defendant before final judgment cannot provide an exception to the general rule, and must accordingly be dissolved. Conformably to the above ruling, we hold that as the complaint filed against Agustin P. Regala was for a sum of money, the trial court lost jurisdiction there over upon his death on 7 June 1989, before final judgment thereon could be rendered. Consequently, such claim must now be dismissed, without prejudice to its being filed against the estate of the deceased defendant in the appropriate probate proceedings. WHEREFORE, the decision of the respondent court dated 18 September 1989 is REVERSED and the respondent judge of the Regional Trial Court of Manila is ordered to DISMISS Civil Case No. 88- 46969. The Register of Deeds of Valenzuela, Metro Manila, is directed to CANCEL the Notice of Levy made on the defendant's properties pursuant to the Order of Attachment issued in the said case. Costs against the private respondents. SO ORDERED. 4. Menzon G.R. No. 90762 May 20, 1991 LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner, vs. LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO LUNA, respondents. Zozimo G. Alegre for petitioner. The Provincial Attorney for respondents. R E S O L U T I O N GUTIERREZ, JR., J .:p This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting Vice-Governor and, therefore, his 75 designation was invalid. In this motion, the primary issue is the right to emoluments while actually discharging the duties of the office. The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte. On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988. On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution reads: WHEREAS, the circumstances obtaining at present in the Office of the Vice- Governor is that there is no permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of the Vice-Governor after he took his oath of office to said position. WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law. WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio L. Granados and the Honorable Renato M. Rances. RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-Governor of Leyte. (Rollo, p. 27) The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion. On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion. The pertinent portion of the letter reads: This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to Provincial Administrator Tente U. Quintero dated June 22, 1989, which 76 states in substance, that "there is no succession provided for in case of temporary vacancy in the office of the vice-governor and that the designation of a temporary vice-governor is not necessary. We hold the view that the designation extended by the Secretary of Local Government in favor of one of the Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of the vice-governor during the pendency of the electoral controversy in the Office of the Governor, does not contradict the stand we have on the matter. The fact that the Sangguniang Panlalawigan member was temporarily designated to perform the functions of the vice-governor could not be considered that the Sangguniang member succeeds to the office of the latter, for it is basic that designation is merely an imposition of additional duties to be performed by the designee in addition to the official functions attached to his office. Furthermore, the necessity of designating an official to temporarily perform the functions of a particular public office, would depend on the discretion of the appointing authority and the prevailing circumstances in a given area and by taking into consideration the best interest of public service. On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the Sangguniang Member to act as vice-governor temporarily. (Rollo, p. 31) In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. The letter states: In view thereof, please correct previous actions made by your office and those of the Sangguniang Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of such. (Rollo, p. 32) On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier request. Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor. Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte. In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte. During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice- Governor. 77 On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon. On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while acting as the Vice-Governor of Leyte. On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while he was acting as such. The petitioner interposes the following reason for the allowance of the motion for reconsideration: THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND EQUITY. The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether or not the Secretary of Local Government has the authority to make temporary appointments? The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting Vice-Governor, the power to appoint is net vested in the Secretary of Local Government. Absent any provision in the Local Government Code on the mode of succession in case of a temporary vacancy in the Office of the Vice-Governor, they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and was thus for it solely to resolve. The arguments are of doubtful validity. The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61) Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice- Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority. 78 Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government had the authority to designate the petitioner. We hold in the affirmative. The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting. The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the Commission on Elections. The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was ever intended by the Local Government Code. Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor. The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and reconsidered his previous position and acknowledged the need for an acting Vice- Governor. It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise. A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government. In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing. Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case 79 where for about two years there was only an acting Governor steering the leadership of the province of Leyte, the urgency of filling the vacancy in the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial problems and to serve as the buffer in case something might happen to the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any political considerations. The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor. The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz: Section 49: In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained the highest number of votes in the election immediately preceding, . . . shall assume the office for the unexpired term of the Vice-Governor. . . . By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the temporary appointment. In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. 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 color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the 80 acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice- Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice- Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974]) WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which the petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be retained by him. SO ORDERED. 5. Dimandaal G.R. No. 122197 June 26, 1998 ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON AUDIT, respondent. MARTINEZ, J .: This petition for certiorari seeks the reversal of the decision of the Commission on Audit dated September 7, 1995, 1 the dispositive portion of which reads, to wit: Foregoing premises considered, the instant appeal cannot be given due course. Accordingly, the disallowance in question in the total amount of P52,908.00 is hereby affirmed. Considering that the claim for the RATA differential in the amount of P8,400.00 is devoid of any legal basis, the same is also disallowed. Hence, appellant Zosimo M. Dimaandal is hereby directed to refund the salary and RATA differential in the amount of P61,308.00 he had received from the Provincial Government of Batangas. 2 The undisputed facts: On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position of Supply Officer III, was designated Acting Assistant Provincial Treasurer for Administration by then Governor Vicente A. Mayo of Batangas. Pursuant to the designation, petitioner filed a claim for the difference in salary and Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total amount of P61,308.00. However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What was allowed was only the amount of P8,400.00 which corresponds to the difference in the allowances attached to the designation and the position occupied by the appellant. The disallowances was premised on the following reasons: 81 1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the instant case as the power to fill the position of Assistant Provincial Treasurer rests on the Secretary of Finance. 2. The designation is temporary in nature and does not amount to the issuance of an appointment as could entitle the designee to receive the salary of the position to which he is designated (Opinion of the Director, Office for Legal Affairs, Civil Service Commission dated January 25, 1994). On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting reconsideration of the subject disallowance, interposing the following reasons: 1. That Section 2077 of the Revised Administrative Code is applicable in the instant case as the same provides that the Governor General or the officer having the power to fill-up a temporary absence or disability in the provincial office has the power to order or authorize payment of compensation to any government officer or employee designated or appointed temporarily to fill the place; 2. That the budget containing an appropriation for the position of Assistant Provincial Treasurer for Administration was already approved by the Provincial Board; and 3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer for Administration was no longer performing the duties and functions of Supply Officer III. The Provincial Auditor, however, denied the request for reconsideration. Appellant was required to refund the amount of P52,908.00 which was disallowed. Petitioner appealed to the respondent Commission on Audit which sustained the stand of the Provincial Auditor of Batangas as valid and proper. The respondent Commission was of the view that the petitioner was merely designated as an Assistant Provincial Treasurer for Administration in addition to his regular duties. As such, he is not entitled to receive an additional salary. The Commission further opined that petitioner was likewise not entitled to receive the difference in RATA provided for under the Local Budget Circular issued by the Department of Budget and Management considering that the party designating him to such position is not the "duly competent authority," provided for under Section 471 of the Local Government Code. Notably, petitioner was appointed as Assistant Provincial Treasurer for Administration by the Secretary of Finance only on July 8, 1994. Thus, the respondent Commission not only affirmed the disallowance of the amount of P52,908.00 but likewise disallowed the claim for the RATA differential in the amount of P8,400.00, for being devoid of any legal basis. Petitioner was, therefore, directed to refund the salary and RATA differential in the amount of P61,308.00. Hence, this petition. The issue here is whether or not an employee who is designated in an acting capacity is entitled to the difference in salary between his regular position and the higher position to which he is designated. Petitioner avers that the respondent Commission's decision is "probably not in accordance with applicable decisions of the Supreme Court." 3 He cites the cases of Cui, et. al. vs. Ortiz, et. al., 4 April 82 29, 1960; and, Menzon vs. Petilla, May 20, 1991, 5 which laid down the rule that de facto officers are entitled to salary for services actually rendered. Petitioner contends that he may be considered as a de facto officer by reason of services rendered in favor of the Province of Batangas. He then posits the view that to disallow his compensation and in the process allow the Province of Batangas to keep and enjoy the benefits derived from his services actually rendered would be tantamount to deprivation of property without due process of law, and impairment of obligation of contracts duly enshrined in the Constitution. On the other hand, the respondent Commission, through the Office of the Solicitor General, maintains that decisions cited by petitioner do not find application in petitioner's case. In the case of Menzon, what was extended was an appointment to the vacant position of Vice-Governor. Here, what was extended to petitioner was not appointment but a mere designation. Thus, the nature of petitioner's designation and in the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make the ruling on de facto officers applicable in this case. We find the petition to be without merit. We are not persuaded by petitioner's insistence that he could still claim the salary and RATA differential because he actually performed the functions pertaining to the office of Acting Assistant Provincial Treasurer and, therefore, entitled to the salary and benefits attached to it despite the fact that the Governor of Batangas had no authority to designate him to the said position. The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government Code which mandates that: Sec. 471. Assistant Treasurers. — (a) An Assistant treasurer may be appointed by the Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the governor or mayor, subject to civil service law, rules and regulations. xxx xxx xxx In fact, the appointing officer is authorized by law to order the payment of compensation to any government officer or employee designated or appointed to fill such vacant position, as provided under Section 2077 of the Revised Administrative Code which states that: Sec. 2077. Compensation for person appointed to temporary service. xxx xxx xxx In case of the temporary absence or disability of a provincial officer or in case of a vacancy in a provincial office, the President of the Philippines or officer having the power to fill such position may, in his discretion, order the payment of compensation, or additional compensation, to any Government officer or employee designated or appointed temporarily to fill the place, but the total compensation paid shall not exceed the salary authorized by law for the position filled. Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor even designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office. That power resides in the President of the Philippines or the Secretary of Finance. 83 Necessarily, petitioner's designation as Assistant Provincial Treasurer for Administration by Governor Mayo Being defective, confers no right on the part of petitioner to claim the difference in the salaries and allowances attached to the position occupied by him. Moreover, what was extended to petitioner by Governor Mayo was merely a designation not an appointment. The respondent Commission clearly pointed out the difference between an appointment and designation, thus: There is a great difference between an appointment and designation. While an appointment is the selection by the proper authority of an individual who is to exercise the powers and functions of a given office, designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA 125). Designation is mere imposition of new or additional duties on the officer or employee to be performed by him in a special manner. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position (COA Decision NO. 95-087 dated February 2, 1995). As such, there being no appointment issued, designation does not entitle the officer designated to receive the salary of the position. For the legal basis of an employee's right to claim the attached thereto is a duly issued and approved appointment to the position (Opinion dated January 25, 1994 of the Office for Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr., Designation). 6 This Court has time and again ruled that: Although technically not binding and controlling on the courts, the construction given by the agency or entity charged with the enforcement of a statute should be given great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so if such construction, as in the case at bar, has been uniform, and consistent, and has been observed and acted on for a long period of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central vs. Collector of Customs, 51 Phil. 143). 7 We see no justifiable reason to sustain petitioner's argument that non-payment of his salary differential and RATA would be a violation of his constitutional right against deprivation of property without due process of law and the non-impairment of obligation of contracts clause in the Constitution. The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the appointment or designation thereof was made in accordance with law. Considering that petitioner's designation was without color of authority, the right to the salary or an allowance due from said office never existed. Stated differently, in the absence of such right, there can be no violation of any constitutional right nor an impairment of the obligation of contracts clause under the Constitution. The nature of petitioner's designation and the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make him a de facto officer. A de facto officer is defined as one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. It is 84 likewise defined as one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer. 8 Then a de facto officer is one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular. 9 Petitioner invokes in his favor the ruling in Menzon vs. Petilla, 10 that a de facto officer is entitled to receive the salary for services actually rendered. However, his reliance on the Menzon case is misplaced. In Menzon, what was extended was an appointment to the vacant position of Vice-Governor, in petitioner's case, he was designated. The 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 petitioner's case. In Cui, this Court held: Petitioners' appointment 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 appointment 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 as "de facto" officers and entitled to salaries for services actually rendered. Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July 8, 1994. Petitioner's claim that the appointment retro-acts to his assumption of office is not confirmed by the express phraseology of the appointment itself, which states: Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority. 12 The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify petitioner's retention of the excess amount of P61,308.00, which corresponds to the amount disallowed and ordered refunded by COA representing the salary and RATA in excess of what was due him in 1993. WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit. 85 SO ORDERED. 6. Cui DOMINGO CUI, ET AL., petitioners-appellants, vs. LUCIO ORTIZ, ETC., respondents-appellants. Asst. Provincial Fiscal Ananias V. Maribao for respondents-appellants. Jesus P. Garcia and Jose F. Remotigue for petitioners-appellants. PARAS, C. J.: chanrobles vi rtual law li brary The present appeal originated from a petition for a writ of mandamus to compel respondent mayor to sign the payroll and approve the salaries accruing to petitioners, and to reinstate petitioners to their former positions.chanroblesvi rtualawlibrary chanrobles vi rtual law library Petitioners were civil service eligibles appointed by the then Mayor of Ronda, Cebu, Fortunato Villalon, on December 1 and 12, 1955, petitioner Maribao as Chief of Police, and petitioners Cui, Yusores and Beynosa as patrolmen of the said municipality. On January 16, 1956, the newly elected mayor, above respondent, served notice to petitioners advising them of the termination of their service. In that very month, respondent appointed a new Chief of Police and three new policemen to take the place of petitioners. He also sent a telegram to the President of the Philippines withdrawing the appointments of petitioners. Petitioners after said date of January 16, 1956, continued in the service by reporting to the PC detachment at Damangug, Cebu.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary The trial court rendered judgment ordering the incumbent mayor, respondent, to approve the payment of petitioners' salaries from January 16, 1956 to July 18, 1956, but kept silent as to the reinstatement, which the court evidently did not deem proper.chanroblesvirtualawli brary chanrobles virtual law l ibrary Both petitioners and respondents appealed from the aforesaid decision, petitioners insisting in their reinstatement and accrued salaries until reinstatement; respondents assigning as error the payment of salaries from January 16 to July 18, 1956.chanroblesvi rtualawlibrary chanrobles vi rtual law library Section 14, Ex. Order No. 175 series of 1938 governs the appointments to the police force of the municipality. It says: 14. Hereafter, appointments to and promotion in the municipal, city and provincial police service shall be made in accordance with Civil Service Rules and Regulations by the respective city or municipal mayor or governor, with the approval of the President of the Philippines pending designation of the 86 Department Head who is to exercise supervision over local police force, except in cases of Chief of Police of Chartered cities which is governed by special provisions of law. The selection of appointees shall be made whenever possible from the list of eligibles in the corresponding city or municipality, if there are any, and in the negative case, from the general list of eligibles in the province. Pending approval of the appointment by the President, the appointee may assume office and receive salary for services actually rendered until the appointment is finally acted upon. Petitioners' appointments on December 1 and 12, 1956 by the then mayor of the municipality were legal and in order, the appointing power 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 as "de facto" officers and entitled to salaries for services actually rendered.chanroblesvi rtualawlibrary chanrobles virtual law library Petitioners' appointments when respondent took office were not complete. Their recall and withdrawal having been based on lack of residence in the municipality concerned is proper. Respondent cannot be charged with discriminate removal of petitioners in view of their incomplete appointment to the office.chanroblesvirtualawl ibrary chanrobles vi rtual law li brary It is of record that the office of the President disapproved petitioner Maribao's appointment on July 18, 1950. It is in fact liberal construction for this Court (as for the lower court) to consider said date of July 18, 1956 as the final disapproval of appointments of the other petitioners.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary Wherefore, the decision appealed from is the without costs. So ordered.chanroblesvi rtualawlibrary chanrobles virtual law l ibrary 7. Sampayan MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., and LEONARDO G. TIOZON, Petitioners, G. R. No. 103903 September 11, 1992 87 -versus- RAUL A. DAZA, HON. CAMILO SABIO, as Secretary of the House of Representatives, MR. JOSE MARIA TUAÑO, as Officer-in-Charge, General Services Division of the House of Representatives, MRS. ROSALINDA G. MEDINA, as Chief Accountant of the House of Representatives and the HON. COMMISSION ON AUDIT, Respondents. R E S O L U T I O N ROMERO, J.: On February 18, 1992, petitioners, residents of the second Congressional District of Northern Samar, filed the instant Petition for Prohibition seeking to disqualify respondent Raul Daza, then incumbent congressman of the same congressional district, from continuing to exercise the functions of his office, on the ground that the latter is a greencard holder and a lawful permanent resident of the United States since October 16, 1974. Petitioners allege that Mr. Daza has not, by any act or declaration, renounced his status as permanent resident, thereby violating Section 68 of Batas Pambansa Bilang 881 [Omnibus Election Code] and Section 18, Article XI of the 1987 Constitution.cralaw On February 25, 1992, We required respondents to comment. On March 13, 1992, respondents, through the Solicitor General, filed a motion for extension of time to file their comment for a period of thirty days or until April 12, 1992. Reacting to the said motion, petitioners on March 30, 1992, manifested their opposition to the 30- day extension of time stating that such extension was excessive and prayed that respondent instead be granted only 10 days to file their comment. On May 5, 1992, the Court noted the manifestation and opposition.cralaw 88 On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a petition before the COMELEC to disqualify respondent Daza from running in the recent May 11, 1992 elections on the basis of Section 68 of the Omnibus Election Code (SPC 92-084) and that the instant petition is concerned with the unlawful assumption of office by respondent Daza from June 30, 1987 until June 30, 1992. [1] On April 10, 1992, respondent Congressman Daza filed his comment denying the fact that he is a permanent resident of the United States; that although he was accorded a permanent residency status on October 8, 1980 an evidenced by a letter order of the District Director, US Immigration and Naturalization Service, Los Angeles, U.S.A., [2] he had long waived his status when he returned to the Philippines on August 12, 1985. [3] On April 13, 1992, public respondent Camilo Sabio, Secretary General of the House of Representatives, Mr. Jose Mari Tuaño, an OIC of the General Services Division, Mrs. Rosalinda G. Medina, as Chief Accountant of the House of Representatives and Commission on Audit, filed their comment. They contend that if indeed Congressman Daza is a greencard holder and a permanent resident of the United States of America, then he should be removed from his position as Congressman. However, they opined that only Congressman Daza can best explain his true and correct status as a greencard holder. Until he files his comment to the petition, petitioners' prayer for temporary restraining order and writ of preliminary injunction should not be granted. [4] Eight [8] days later, respondent Daza, reacting to the petition before the COMELEC [SPC 92-084] and hypothesizing that the case before the COMELEC would become moot should this Court find that his permanent resident status ceased when he was granted a US non-immigrant visa, asked this Court to direct the COMELEC to dismiss SPC No. 92-084. [5] On May 5, 1992, petitioners filed their reply. On May 21, 1992, this Court gave due course to the petition and required the parties to file their respective memoranda.cralaw The central issue to be resolved in this case is whether or not respondent Daza should be disqualified as a member of the House of Representatives for violation of Section 68 of the Omnibus Election Code. Petitioners insist that Congressman Daza should be disqualified from exercising the functions of his office being a permanent resident alien of the United States at the time when he filed his certificate of candidacy for the May 11, 1987 Elections. To buttress their contention, petitioners cite the recent case of Caasi v. Court of Appeals. [6] 89 In support of their charge that respondent Daza is a greencard holder, petitioners presented to Us a letter from the United States Department of Justice, Immigration and Naturalization Service [INS] which reads: [7] File No. A20 988 618 Date: Nov. 5, 199 1LOS914732 Geraghty, O'Loughlin and Kenney Attn: David C. Hutchinson 386 N. Nasbasha StreetSt. Paul, Minn. 55102-1308 SUBJECT: Daza, Raul A. Your request was received in this office on ________________; please note the paragraph(s) checked below: xxx xxx xxx 10. [XX] Other remarks: Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful Permanent Resident on Oct. 16, 1974. As far as we know object (sic) still has his greencard. No he has not applied for citizenship. Sinerely, (sic) Sgd.District Director Form G-343 (Rev. 8-20-82)N We vote to dismiss the instant prohibition case. First, this case is already moot and academic for it is evident from the manifestation filed by petitioners dated April 6, 1992 [8] that they seek to unseat respondent from his position as Congressman for the duration of his term of office commencing June 30, 1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualification of its members. Since petitioners challenge the qualifications of Congressman Daza, the appropriate remedy should have been to file a petition to cancel respondent Daza's certificate of candidacy before the election [9] or a quo warranto case with the House Electoral Tribunal within ten [10] days after Daza's proclamation. [10] Third, a writ of prohibition can no longer be 90 issued against respondent since his term has already expired. A writ or prohibition is not intended to provide for acts already consummated. [11] Fourth, as a de facto public officer, [12] respondent cannot be made to reimburse funds disbursed during his term of office because his acts are as valid as those of a de jure officer. Moreover, as a de facto officer, he is entitled to emoluments for actual services rendered. [13] ACCORDINGLY, the Court resolved to DISMISS the instant petition for being moot and academic.cralaw SO ORDERED.cralaw 213 SCRA 807  HRET has exclusive jurisdiction over election contests and qualifications of members of Congress  Remedies against a disqualified House of Representative candidate: (1) cancellation of certificate of candidacy filed with COMELEC before election; (2) quo warranto case filed with HRET after proclamation FACTS: Petitioners filed a petition seeking to disqualify Daza, then incumbent congressman of their congressional district in Makati, from continuing to exercise the functions of his office on the ground that the latter is a greencard holder and a lawful permanent resident of the United States. They also alleged that Mr. Daza has not by any act or declaration renounced his status as permanent resident thereby violating the Omnibus Election Code (Section 68) and the 1987 Constitution (section 18, Article III). Respondent Congressman filed his Comment denying the fact that he is a permanent resident of the United States as evidenced by a letter order of the US Immigration and Naturalization Service, Los Angeles, U.S.A, he had long waived his status when he returned to the Philippines on August 12, 1985. ISSUE:  Whether or not respondent Daza should be disqualified as a member of the House of Representatives for violation of Section 68 of the Omnibus Election Code RULING: The Supreme Court vote to dismiss the instant case, first, the case is moot and academic for it is evident from the manifestation filed by petitioners dated April 6, 1992, that they seek to unseat the respondent from his position as Congressman for the duration of his term of office commencing June 30, 1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests relating to the election returns and qualification of its members. The petitioner’s appropriate remedy should have been to file a petition to cancel respondent Daza’s 91 certificate of candidacy before the election or a quo warranto case with the House of Electoral Tribunal within ten days after Daza’s proclamation. 8. Jalosjos G.R. No. 205033 June 18, 2013 ROMEO G. JALOSJOS, Petitioner, vs. THE COMMISSION ON ELECTIONS, MARIA ISABELLE G. CLIMACO-SALAZAR, ROEL B. NATIVIDAD, ARTURO N. ONRUBIA, AHMAD NARZAD K. SAMPANG, JOSE L. LOBREGAT, ADELANTE ZAMBOANGA PARTY, AND ELBERT C. ATILANO, Respondents. D E C I S I O N PERLAS-BERNABE, J .: Assailed in this petition for certiorari 1 file under Rule 64 in relation to Rule 65 of the Rules of Court is the Commission on Elections' (COMELEC) En Bane Resolution No. 9613 2 dated January 15, 2013, ordering the denial of due course to and/or cancellation of petitioner Romeo G. Jalosjos' certificate of candidacy (CoC) as a mayoralty candidate for Zamboanga City. The Facts On November 16, 2001, the Court promulgated its Decision in G.R. Nos. 132875-76, entitled "People of the Philippines v. Romeo G. Jalosjos," convicting petitioner by final judgment of two (2) counts of statutory rape and six (6) counts of acts of lasciviousness. 4 Consequently, he was sentenced to suffer the principal penalties of reclusion perpetua and reclusion temporal 5 for each count, respectively, which carried the accessory penalty of perpetual absolute disqualification pursuant to Article 41 of the Revised Penal Code (RPC). 6 On April 30, 2007, then President Gloria Macapagal Arroyo issued an order commuting his prison term to sixteen (16) years, three (3) months and three (3) days (Order of Commutation). After serving the same, he was issued a Certificate of Discharge From Prison on March 18, 2009. 7 On April 26, 2012, 8 petitioner applied to register as a voter in Zamboanga City. However, because of his previous conviction, his application was denied by the Acting City Election Officer of the Election Registration Board (ERB), prompting him to file a Petition for Inclusion in the Permanent List of Voters (Petition for Inclusion) before the Municipal Trial Court in Cities of Zamboanga City, Branch 1 (MTCC). 9 Pending resolution of the same, he filed a CoC 10 on October 5, 2012, seeking to run as mayor for Zamboanga City in the upcoming local elections scheduled on May 13, 2013 (May 2013 Elections). In his CoC, petitioner stated, inter alia, that he is eligible for the said office and that he is a registered voter of Barangay Tetuan, Zamboanga City. On October 18, 2012, 11 the MTCC denied his Petition for Inclusion on account of his perpetual absolute disqualification which in effect, deprived him of the right to vote in any election. Such denial was affirmed by the Regional Trial Court of Zamboanga City, Branch 14 (RTC) in its October 31, 2012 Order 12 which, pursuant to Section 138 13 of Batas Pambansa Bilang 881, as amended, otherwise known as the "Omnibus Election Code" (OEC), was immediately final and executory. Meanwhile, five (5) petitions were lodged before the COMELEC’s First and Second Divisions (COMELEC Divisions), praying for the denial of due course to and/or cancellation of petitioner’s 92 CoC. Pending resolution, the COMELEC En Banc issued motu proprio Resolution No. 9613 14 on January 15, 2013, resolving "to CANCEL and DENY due course the Certificate of Candidacy filed by Romeo G. Jalosjos as Mayor of Zamboanga City in the May 13, 2013 National and Local Elections" due to his perpetual absolute disqualification as well as his failure to comply with the voter registration requirement. As basis, the COMELEC En Banc relied on the Court’s pronouncement in the consolidated cases of Dominador Jalosjos, Jr. v. COMELEC and Agapito Cardino v. COMELEC 15 (Jalosjos, Jr. and Cardino). Hence, the instant petition. Issues Before the Court Submitted for the Court’s determination are the following issues: (a) whether the COMELEC En Banc acted beyond its jurisdiction when it issued motu proprio Resolution No. 9613 and in so doing, violated petitioner’s right to due process; and (b) whether petitioner’s perpetual absolute disqualification to run for elective office had already been removed by Section 40(a) of Republic Act No. 7160, otherwise known as the "Local Government Code of 1991" (LGC). The Court’s Ruling The petition is bereft of merit. At the outset, the Court observes that the controversy in this case had already been mooted by the exclusion of petitioner in the May 2013 Elections. Nevertheless, in view of the doctrinal value of the issues raised herein, which may serve to guide both the bench and the bar in the future, the Court takes this opportunity to discuss on the same. A. Nature and validity of motu proprio issuance of Resolution No. 9613. Petitioner claims that the COMELEC En Banc usurped the COMELEC Divisions’ jurisdiction by cancelling motu proprio petitioner’s CoC through Resolution No. 9613, contrary to Section 3, Article IX-C of the 1987 Philippine Constitution (Constitution) which reads: SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis and underscoring supplied) Concomitantly, he also claims that his right to procedural due process had been violated by the aforementioned issuance. The Court is not persuaded. The above-cited constitutional provision requiring a motion for reconsideration before the COMELEC En Banc may take action is confined only to cases where the COMELEC exercises its quasi-judicial power. It finds no application, however, in matters concerning the COMELEC’s exercise of administrative functions. The distinction between the two is well-defined. As illumined in Villarosa v. COMELEC: 16 93 The term ‘administrative’ connotes, or pertains, to ‘administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things. It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon. While a ‘quasi-judicial function’ is a term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. (Emphasis and underscoring supplied) Crucial therefore to the present disquisition is the determination of the nature of the power exercised by the COMELEC En Banc when it promulgated Resolution No. 9613. The foregoing matter is not without established precedent. In Jalosjos, Jr. and Cardino, the Court held that the COMELEC’s denial of due course to and/or cancellation of a CoC in view of a candidate’s disqualification to run for elective office based on a final conviction is subsumed under its mandate to enforce and administer all laws relating to the conduct of elections. Accordingly, in such a situation, it is the COMELEC’s duty to cancel motu proprio the candidate’s CoC, notwithstanding the absence of any petition initiating a quasi-judicial proceeding for the resolution of the same. Thus, the Court stated: 17 Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law. Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and regulations relative to the conduct of an election." The disqualification of a convict to run for public office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of the enforcement and administration of "all laws" relating to the conduct of elections. To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering from perpetual special disqualification will result in the anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer all laws" relating to the conduct of elections if it does not motu proprio bar from running for public office those suffering from perpetual special disqualification by virtue of a final judgment. (Emphasis and underscoring supplied) In Aratea v. COMELEC (Aratea), 18 the Court similarly pronounced that the disqualification of a convict to run for public office, as affirmed by final judgment of a competent court, is part of the enforcement and administration of all laws relating to the conduct of elections. 19 Applying these principles to the case at bar, it is clear that the COMELEC En Banc did not exercise its quasi-judicial functions when it issued Resolution No. 9613 as it did not assume jurisdiction over 94 any pending petition or resolve any election case before it or any of its divisions. Rather, it merely performed its duty to enforce and administer election laws in cancelling petitioner’s CoC on the basis of his perpetual absolute disqualification, the fact of which had already been established by his final conviction. In this regard, the COMELEC En Banc was exercising its administrative functions, dispensing with the need for a motion for reconsideration of a division ruling under Section 3, Article IX-C of the Constitution, the same being required only in quasi-judicial proceedings. Lest it be misunderstood, while the denial of due course to and/or cancellation of one’s CoC generally necessitates the exercise of the COMELEC’s quasi-judicial functions commenced through a petition based on either Sections 12 20 or 78 21 of the OEC, or Section 40 22 of the LGC, when the grounds therefor are rendered conclusive on account of final and executory judgments – as when a candidate’s disqualification to run for public office is based on a final conviction – such exercise falls within the COMELEC’s administrative functions, as in this case. In this light, there is also no violation of procedural due process since the COMELEC En Banc would be acting in a purely administrative manner. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. 23 As petitioner’s disqualification to run for public office had already been settled in a previous case and now stands beyond dispute, it is incumbent upon the COMELEC En Banc to cancel his CoC as a matter of course, else it be remiss in fulfilling its duty to enforce and administer all laws and regulations relative to the conduct of an election. Equally compelling is the fact that the denial of petitioner’s Petition for Inclusion as a registered voter in Zamboanga City had already attained finality by virtue of the RTC’s Order dated October 31, 2012. In this accord, petitioner’s non-compliance with the voter registration requirement under Section 39(a) of the LGC 24 is already beyond question and likewise provides a sufficient ground for the cancellation of his CoC altogether. B. Petitioner’s right to run for elective office. It is petitioner’s submission that Article 30 of the RPC was partially amended by Section 40(a) of the LGC and thus, claims that his perpetual absolute disqualification had already been removed. The argument is untenable. Well-established is the rule that every new statute should be construed in connection with those already existing in relation to the same subject matter and all should be made to harmonize and stand together, if they can be done by any fair and reasonable interpretation. 25 On the one hand, Section 40(a) of the LGC, applicable as it is to local elective candidates, provides: SEC. 40. Disqualifications. – The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (Emphasis and underscoring supplied) And on the other hand, Article 30 of the RPC reads: 95 ART. 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular office or to be elected to such office. 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this Article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held. (Emphasis and underscoring supplied) Keeping with the above-mentioned statutory construction principle, the Court observes that the conflict between these provisions of law may be properly reconciled. In particular, while Section 40(a) of the LGC allows a prior convict to run for local elective office after the lapse of two (2) years from the time he serves his sentence, the said provision should not be deemed to cover cases wherein the law 26 imposes a penalty, either as principal or accessory, 27 which has the effect of disqualifying the convict to run for elective office. An example of this would be Article 41 of the RPC, which imposes the penalty of perpetual 28 absolute 29 disqualification as an accessory to the principal penalties of reclusion perpetua and reclusion temporal: ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties. - The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis and underscoring supplied) In this relation, Article 30 of the RPC, as earlier cited, provides that the penalty of perpetual absolute disqualification has the effect of depriving the convicted felon of the privilege to run for elective office. To note, this penalty, as well as other penalties of similar import, is based on the presumptive rule that one who is rendered infamous by conviction of a felony, or other base offense indicative of moral turpitude, is unfit to hold public office, 30 as the same partakes of a privilege which the State grants only to such classes of persons which are most likely to exercise it for the common good. 31 Pertinently, it is observed that the import of Article 41 in relation to Article 30 of the RPC is more direct and specific in nature – insofar as it deprives the candidate to run for elective office due to his conviction – as compared to Section 40(a) of the LGC which broadly speaks of offenses involving moral turpitude and those punishable by one (1) year or more of imprisonment without any consideration of certain disqualifying effects to one’s right to suffrage. Accordingly, Section 40(a) of the LGC should be considered as a law of general application and therefore, must yield to the more definitive RPC provisions in line with the principle of lex specialis derogat generali – general legislation must give way to special legislation on the same subject, and generally is so interpreted as to embrace only cases in which the special provisions are not applicable. In other words, where two statutes are of equal theoretical application to a particular case, the one specially designed therefor should prevail. 32 96 In the present case, petitioner was sentenced to suffer the principal penalties of reclusion perpetua and reclusion temporal which, pursuant to Article 41 of the RPC, carried with it the accessory penalty of perpetual absolute disqualification and in turn, pursuant to Article 30 of the RPC, disqualified him to run for elective office. As discussed, Section 40(a) of the LGC would not apply to cases wherein a penal provision – such as Article 41 in this case – directly and specifically prohibits the convict from running for elective office. Hence, despite the lapse of two (2) years from petitioner’s service of his commuted prison term, he remains bound to suffer the accessory penalty of perpetual absolute disqualification which consequently, disqualifies him to run as mayor for Zamboanga City. Notably, Article 41 of the RPC expressly states that one who is previously convicted of a crime punishable by reclusion perpetua or reclusion temporal continues to suffer the accessory penalty of perpetual absolute disqualification even though pardoned as to the principal penalty, unless the said accessory penalty shall have been expressly remitted in the pardon. 33 In this case, the same accessory penalty had not been expressly remitted in the Order of Commutation or by any subsequent pardon and as such, petitioner’s disqualification to run for elective office is deemed to subsist. Further, it is well to note that the use of the word "perpetual" in the aforementioned accessory penalty connotes a lifetime restriction and in this respect, does not depend on the length of the prison term which is imposed as its principal penalty. Instructive on this point is the Court’s ruling in Lacuna v. Abes, 34 where the court explained the meaning of the term "perpetual" as applied to the penalty of disqualification to run for public office: The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961. But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence. (Emphasis and underscoring supplied) Likewise, adopting the Lacuna ruling, the Court, in the more recent cases of Aratea, 35 Jalosjos, Jr. and Cardino, 36 held: Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office perpetually." The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted to hold any public office during the period of his [perpetual special] disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public office perpetually. (Emphasis underscoring supplied) All told, applying the established principles of statutory construction, and more significantly, considering the higher interests of preserving the sanctity of our elections, the Court holds that Section 40(a) of the LGC has not removed the penalty of perpetual absolute disqualification which 97 petitioner continues to suffer.1âwphi1 Thereby, he remains disqualified to run for any elective office pursuant to Article 30 of the RPC. WHEREFORE, the petition is DISMISSED. SO ORDERED.