FUNA vs Ermita

Facts:
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as
Undersecretary of the Department of Transportation and Communications (DOTC), vice Agustin R. Bengzon. Bautista was designated
as Undersecretary for Maritime Transport of the department under Special Order No. 2006-171 dated October 23, 2006.

On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as
Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary.

On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition
challenging the constitutionality of Bautista’s appointment/designation, which is proscribed by the prohibition on the President, Vice-
President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment.

On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA vice Vicente T.
Suazo, Jr. and she assumed her duties and responsibilities as such on February 2, 2009.

Issue: Whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary
for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for
Cabinet Members and their deputies and assistants.

Held:

Ratio:
Finally, the Court similarly finds respondents’ theory that being just a “designation,” and temporary at that, respondent
Bautista was never really “appointed” as OIC Administrator of MARINA, untenable. In Binamira v. Garrucho, Jr., we distinguished
between the terms appointment and designation, as follows:

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the
functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the
person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes
merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism
is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three
Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of
Representatives. It is said that appointment is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a
specified public office. That is the common understanding of the term. However, where the person is merely designated and not
appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing
authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of
tenure on the person named.

Clearly, respondents’ reliance on the foregoing definitions is misplaced considering that the above-cited case addressed the issue
of whether petitioner therein acquired valid title to the disputed position and so had the right to security of tenure. It must be
stressed though that while the designation was in the nature of an acting and temporary capacity, the words “hold the office” were
employed. Such holding of office pertains to both appointment and designation because the appointee or designate performs the
duties and functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible offices, refers
to the holding of the office, and not to the nature of the appointment or designation, words which were not even found in Section 13,
Article VII nor in Section 7, paragraph 2, Article IX-B. To “hold” an office means to “possess or occupy” the same, or “to be in
possession and administration,” which implies nothing less than the actual discharge of the functions and duties of the office.

WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-Charge, Office of the
Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC Undersecretary for Maritime
Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution and therefore,
NULL and VOID.
Obiasca v Basallote 2010 | Corona, J.
2003, City Schools Division Superintendent appointed respondent to Admin Officer II.
Later, the Oyardo, new CSDS, advised the school principal Gonzales that the papers of applications for the position of Admin Officer II,
including those of respondent, were being returned and that a school ranking should be accomplished and submitted for review.
Respondent was then advised by HRMO Diaz that her appointment could not be forwarded to CSC for her failure to submit the position
description form. She tried to obtain Gonzales’ signature but the latter refused despite repeated requests. When she informed Oyard,
she was advised to return to her former teaching position of Teacher I.
Meanwhile, Oyardo appointed petitioner to same position of Admin Officer II which appointment was sent and attested by the CSC.
After learning this, respondent filed a complaint with Ombudsman against Oyardo, Gonzales and Diaz.
Oyardo and Gonzales was held administratively liable for withholding information from respondent on the status of her appointment,
and suspended them from the service for three months.

Respondent also filed a protest with CSC Regional Office but was dismissed. CSC granted her appeal, approved her appointment and
recalled petitioner’s appointment.
Petitioner then went to CA. CA denied her petition for certiorari.

W/N the deliberate failure of the appointing authority (or other responsible officials) to submit respondent’s appointment paper to
the CSC within 30 days from its issuance made her appointment ineffective and incomplete. No.

Petitioner contends: respondent was not validly appointed to the position of Administrative Officer II because her appointment was
never attested by the CSC.
- She relies on Section 9(h) of PD 807;
- She argues that respondent’s appointment became effective on the day of her appointment but it subsequently ceased to be
so when the appointing authority did not submit her appointment to the CSC for attestation within 30 days;

SC: No.
Procedural:
- CSC resolution dated November 29, 2005
recalling petitioner’s appointment and approving that of respondent has long become final and executory.
- Petitioner did not file a petition for reconsideration of the CSC resolution dated November 29, 2005 before filing a petition
for review in the CA. Such fatal procedural lapse on
petitioner’s part allowed the CSC resolution dated November 29, 2005 to become final and executory;

Substantive:

1. Section 9(h) of PD 807 Already Amended by Section 12 Book V of EO 292

- Section 12, Book V of EO 292 amended Section 9(h) of PD 807 by deleting the requirement that all appointments subject
to CSC approval be submitted to it within 30 days;
o As a rule, an amendment by the deletion of certain words or phrases indicates an intention to change its meaning;
o The word, phrase or sentence excised should accordingly be consideredinoperative;
- Under Section 9(h) of PD 807, appointments not submitted within 30 days to the CSC become ineffective, no such
specific adverse effect is contemplated under Section 12 (14) and (15) of EO 292; certainly, the two provisions are
materially inconsistent with each other;
- There being no requirement in EO 292 that appointments should be submitted to the CSC for attestation within 30 days
from issuance, it is doubtful by what authority the CSC imposed such condition under Section 11, Rule V of the Omnibus
Rules;

2. Undisputed that respondent’s appointment was not submitted to the CSC, not through her own fault but because of HRMO
Diaz’s unjustified refusal to sign it on the feigned and fallacious ground that respondent’s position description form had not
been duly signed by the principal;
- Court cannot look the other way and make respondent suffer the malicious consequences of Gonzales’s and Oyardo’s
malfeasance.
Otherwise, the Court would be recognizing a result that is unconscionable and unjust by effectively validating the following inequities:
o respondent, who was vigilantly following up her appointment paper, was left to hang and dry;
o to add insult to injury, not long after Oyardo advised her to return to her teaching position, she (Oyardo) appointed
petitioner in respondent’s stead;

Respondent’s papers were in order

 - no doubt that, had the appointing authority only submitted respondent’s appointment to the CSC within the said 30
days from its issuance, the CSC would (and could ) have approved it;
3. Favis case: tolerance, acquiescence or mistake of the proper officials, resulting in the no
observance of the pertinent rules on the matter does not render the legal requirement, on the necessity
of approval by the Commissioner of Civil Service of appointments, ineffective and unenforceable;
- Above not applicable here;
- This case shows that the lack of CSC approval was not due to any negligence on
respondent’s part. Neither was it due to the "tolerance, acquiescence or mistake of the
proper officials." Rather, the underhanded machinations of Gonzales and Oyardo, as well
as the gullibility of Diaz, were the major reasons why respondent’s appointment was not
even forwarded to the CSC.

Article 1186 of the Civil Code, "[t]he condition shall be deemed fulfilled when the obligor voluntarily
prevents its fulfillment."
- Applying this to the appointment process in the civil service, unless the appointee
himself is negligent in following up the submission of his appointment to the CSC for
approval, he should not be prejudiced by any willful act done in bad faith by the appointing
authority to prevent the timely submission of his appointment to the CSC;
4. In appointing petitioner, the appointing authority effectively revoked the previous
appointment of respondent and usurped the power of the CSC to withdraw or revoke an
appointment that had already been accepted by the appointee.

Denied.
Tarrosa vs Singson Digest
Constitutional Law Case Digests0 Comments

Facts:

Gabriel C. Singson was appointed Governor of the Bangko Sentral by President Fidel
V. Ramos. Jesus Armando Tarrosa, as a "taxpayer", filed a petition for prohibition
questioning the appointment of Singson for not having been confirmed by the
Commission on Appointments (CA). Tarrosa invoked Section 6 of Republic Act No.
7653 which provides that the Governor of the BSP if appointed is subject to the
confirmation of the CA.

In his comment, Singson claimed that the Congress exceeded its legislative powers in
requiring the confirmation by the CA of the appointment of the Governor of the
Bangko Sentral. He contended that an appointment to the said position is not
among the appointments which have to be confirmed by the Commission on
Appointments, citing Section 16 of Article VI of the Constitution.

Issues:

1. Whether or not Tarrosa has the locus standi to challenge the appointment.
2. Whether or not the Governor of the BSP is subject to COA’s confirmation.

Held:

1. Tarrosa has no legal standing to question the appointment. The petition is in the
nature of a quo warranto proceeding as it seeks the ouster of respondent Singson
and alleges that the latter is unlawfully holding or exercising the powers of Governor
of the Bangko Sentral. Such a special civil action can only be commenced by the
Solicitor General or by a "person claiming to be entitled to a public office or position
unlawfully held or exercised by another."
In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), the court held that the petitioner
therein, who did not aver that he was entitled to the office of the City Engineer of
Cabanatuan City, could not bring the action for quo warranto to oust the respondent
from said office as a mere usurper.

Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the
question of title to an office, which must be resolved in a quo warranto proceeding,
may not be determined in a suit to restrain the payment of salary to the person
holding such office, brought by someone who does not claim to be the one entitled
to occupy the said office.

2. Appointment to the position of the Governor of the BSP is not one of those that
need confirmation by the Commission on Appointments. Congress cannot by
law expand the confirmation powers of the Commission on Appointments and
require confirmation of appointment of other government officials not expressly
mentioned in the first sentence of Section 16 of Article VII of the
Constitution. (Tarrosa vs. Singson, G.R. No. 111243, May 25, 1994)

PD 807 Sec 24 and 25

Section 24. Personnel Actions. All appointments in the career service shall be made only
according to merit and fitness, to be determined as far as practicable by competitive
examinations. A non-eligible shall not be appointed to any position in the civil service
whenever there is a civil service eligible actually available for and ready to accept
appointment.

As used in this Decree, any action denoting the movement or progress of personnel in the
civil service shall be known as personnel action. Such action shall include appointment
through certification, promotion, transfer, reinstatement, re-employment, detail,
reassignment, demotion, and separation. All personnel actions shall be in accordance with
such rules, standards, and regulations as may be promulgated by the Commission.

(a) Appointment through certification. An appointment through certification to a

position in the civil service, except as herein otherwise provided, shall be issued to a
person who has been selected from a list of qualified persons certified by the
Commission from an appropriate register of eligibles, and who meets all the other
requirements of the position.
 All such persons must serve a probationary period of six months following their
original appointment and shall undergo a thorough character investigation in order to
acquire permanent civil service status. A probationer may be dropped from the
service for unsatisfactory conduct or want of capacity any time before the expiration
of the probationary period: Provided, That such action is appealable to the
Commission.

(b) Promotion. A promotion is a movement from one position to another with an

increase in duties and responsibilities as authorized by law and usually accompanied
by an increase in pay. The movement may be from one department or agency to
another, or from one organizational unit to another in the same department or
agency.

(c) Transfer. A transfer is a movement from one position to another which is of

equivalent rank, level, or salary without break in service involving the issuance of an
appointment.

It shall be considered disciplinary when made in the interest of public service, in

which case, the employee concerned shall be informed of the reasons therefore. If
the employee believes that there is no justification for the transfer, he may appeal his
case to the Commission.

The transfer may be from one department or agency to another or from one
organizational unit to another in the same department or agency: Provided, however,
That any movement from the non-career service to the career service shall not be
considered a transfer.

(d) Reinstatement. Any person who has been permanently appointed to a position in
the career service and who has, through no delinquency or misconduct, been
separated therefrom, may be reinstated to a position in the same level for which he is
qualified.

(e) Re-employment. Names of persons who have been appointed permanently to

positions in the career service and who have been separated as a result of reduction
in force and/or reorganization, shall be entered in a list from which selection for
reemployment shall be made.

(f) Detail. A detail is the movement on an employee from one agency to another
without the issuance of an appointment and shall be allowed, only for a limited period
in the case of employees occupying professional, technical and scientific positions. If
the employee believes that there is no justification for the detail, he may appeal his
case to the Commission. Pending appeal, the decision to detail the employee shall
be executory unless otherwise ordered by the Commission.

(g) Reassignment. An employee may be reassigned from one organizational unit to

another in the same agency: Provided, That such reassignment shall not involve a
reduction in rank, status or salary.

Section 25. Employment Status. Appointment in the career service shall be permanent or
temporary.
 (a) Permanent status. A permanent appointment shall be issued to a person who
meets all the requirements for the positions to which he is being appointed, including
the appropriate eligibility prescribed, in accordance with the provisions of law, rules
and standards promulgated in pursuance thereof.

(b) Temporary appointment. In the absence of appropriate eligibles and it becomes

necessary in the public interest to fill a vacancy, a temporary appointment shall be
issued to a person who meets all the requirements for the positions to which he is
being appointed except the appropriate civil service eligibility: Provided, That such
temporary appointment shall not exceed twelve months, but the appointee may be
replaced sooner if a qualified civil service eligible becomes available.

RA7160 Section 89

SECTION 89. Prohibited Business and Pecuniary Interest. – (a) It shall be

unlawful for any local government official or employee, directly or indirectly, to:

(1) Engage in any business transaction with the local government unit in which
he is an official or employee or over which he has the power of supervision, or
with any of its authorized boards, officials, agents, or attorneys, whereby money
is to be paid, or property or any other thing of value is to be transferred, directly
or indirectly, out of the resources of the local government unit to such person or
firm;

(2) Hold such interests in any cockpit or other games licensed by a local
government unit;

(3) Purchase any real estate or other property forfeited in favor of such local
government unit for unpaid taxes or assessment, or by virtue of a legal process
at the instance of the said local government unit;

(4) Be a surety for any person contracting or doing business with the local
government unit for which a surety is required; and

(5) Possess or use any public property of the local government unit for private
purposes.

(b) All other prohibitions governing the conduct of national public officers relating
to prohibited business and pecuniary interest so provided for under Republic Act
Numbered Sixty-seven thirteen (R.A. No. 6713) otherwise known as the “Code of
Conduct and Ethical Standards for Public Officials and Employees” and other
laws shall also be applicable to local government officials and employees.

wylie v. rarang 209 SCRA 357 (1992)

WYLIE v. RARANG (28 May 1992)
Petitioners: M.H. Wylie and Capt. James Williams
Respondents: Aurora I. Rarang and the IAC
Nature: Petition for review
Ponente: Gutierrez, Jr.

AT THE NAVAL BASE. In Feb. 1978, M.H. Wylie was the assistant administrative officer and Capt. James
Williams was the commanding officer of the US Naval Base in Subic Bay, Olongapo City. Aurora I. Rarang
was employed as a merchandise control guard in the Office of the Provost Marshal.

THE “POD”. Wylie, in his capacity as asst. admin. officer, supervised the publication of the Naval Base
station’s “Plan of the Day” (POD), which featured important announcements, necessary precautions, and
general matters of interest to military personnel. One of its regular features was the “action line inquiry.”

THE CAUSE OF THIS MESS. On Feb. 3, 1978, the POD published, under the “NAVSTA Action Line Inquiry,”
the ff:
Question: I have observed that Merchandise Control inspector/ inspectress are (sic) consuming for their
own benefit things they have confiscated from Base Personnel. The observation is even more aggravated
by consuming such confiscated items as cigarettes and food stuffs PUBLICLY. This is not to mention
‘Auring’ who is in herself, a disgrace to her division and to the Office of the Provost Marshal. In lieu of this
observation, may I therefore, ask if the head of the Merchandise Control Division is aware of this
malpractice?

Answer: Merchandise Control Guards and all other personnel are prohibited from appropriating
confiscated items for their own consumption or use. Two locked containers are installed at the Main Gate
area for deposit of confiscated items and the OPM evidence custodian controls access to these
containers. Merchandise Control Guards are permitted to eat their meals at their worksite due to heavy
workload. Complaints regarding merchandise control guards procedure or actions may be made directly
at the Office of the Provost Marshal for immediate and necessary action….

Rarang was the “Auring” referred to here, as she was the only one with that name in the Office of the
Provost Marshall, and Wylie’s letter of apology for the “inadvertent” publication was also conclusive proof
of this.

AN ACTION FOR DAMAGES was instituted by Rarang against Wylie, Williams, and the US Naval Base. She
prayed for P300K moral damages, exemplary damages, and P50K attorney’s fees.

RARANG’S ALLEGATIONS: the article constituted false, injurious, and malicious defamation and libel
tending to impeach her honesty, virtue and reputation exposing her to public hatred, contempt and
ridicule; and that the libel was published and circulated in the English language and read by almost all the
U.S. Naval Base personnel.

WYLIE, WILLIAMS, THE NAVAL BASE FILED A MOTION TO DISMISS, BASED ON THESE GROUNDS:
1. Wylie and Williams acted in the performance of their official functions as officers of the US Navy and
are immune from suit;
2. The US Naval Base is an instrumentality of the US government which cannot be sued without its
consent; and
3. lack of jurisdiction over the subject matter and the parties.

MOTION DENIED.

THE TC’S DECISION: the acts of Wylie and Williams weren’t official acts of the US government in the
operation and control of the Base but personal and tortious acts which are exceptions to the general rule
that a sovereign country can’t be sued in the court of another country without its consent. Thus their acts
weren’t imputable against the US government but were done in their individual and personal capacities.
They were ordered to pay Rarang P100K moral and exemplary damages, and P30K attorney’s fees.
However, the suit against the US Naval Base was dismissed.

BOTH PARTIES APPEALED. Wylie and Williams asserted that they are immune from suit since the
publication was made in their official capacities as officers of the U. S. Navy, and that they did not
intentionally and maliciously cause the publication. Rarang appealed as she wasn’t satisfied with the
award.

THE IAC MODIFIED THE TC’S DECISION: Rarang was awarded P175K moral damages and P60K exemplary
damages.

WYLIE AND WILLIAMS’ ARGUMENT in this Petition for Review: they made the publication in the
performance of their official functions as administrative assistant (Wylie) and commanding officer
(Williams) of the US Navy and were, therefore, immune from suit for their official actions.

ISSUE: WON Wylie and Williams are liable for the published article in the POD. Does the grant of rights,
power, and authority to the US under the RP-US Bases Treaty cover immunity of its officers from crimes
and torts?
HELD: YES and NO respectively.

THE PRINCIPLE OF STATE IMMUNITY FROM SUIT, QUOTING US v. GUINTO: The rule that a state may not
be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of
the generally accepted principles of international law that we have adopted as part of the law of our land
under Article II, Section 2…Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of incorporation … As applied to the local
state, the doctrine of state immunity is based on the justification given by Justice Holmes that ‘there can
be no legal right against the authority which makes the law on which the right depends! (Kawanakoa v.
Polybank) There are other practical reasons for the enforcement of the doctrine. In the case of the foreign
state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par
in parem, non habet imperium . All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary disposition would, in the language of a celebrated case, ‘unduly vex the peace of
nations.’ (Da Haber v. Queen of Portugal)

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable
to complaints filed against officials of the state for acts allegedly performed by them in the discharge of
their duties. The rule is that if the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state itself although it has not been
formally impleaded (Garcia v. Chief of Staff). In such a situation, the state may move to dismiss the
complaint on the ground that it has been filed without its consent.

The doctrine is sometimes derisively called ‘the royal prerogative of dishonesty’ because of the privilege it
grants the state to defeat any legitimate claim against it by simply invoking its non-suability. That is hardly
fair, at least in democratic societies, for the state is not an unfeeling tyrant unmoved by the valid claims of
its citizens. In fact, the doctrine is not absolute and does not say the state may not be sued under any
circumstance. On the contrary, the rule says that the state may not be sued without its consent, which
clearly imports that it may be sued if it consents. The consent of the state to be sued may be manifested
expressly or impliedly. Express consent may be embodied in a general law or a special law. Consent is
implied when the state enters into a contract it itself commences litigation…The above rules are subject
to qualification. Express consent is effected only by the will of the legislature through the medium of a
duly enacted statute. (Rep. v. Purisima)… not all contracts entered into by the government will operate as
a waiver of its non-suability; distinction must be made between its sovereign and proprietary acts (US v.
Ruiz). As for the filing of a complaint by the government, suability will result only where the government is
claiming affirmative relief from the defendant. (Lim v. Brownell)

THE NATURE AND EXTENT OF IMMUNITY FROM SUIT, ALSO UNDER US v. GUINTO: In the case of the US,
the customary rule of international law on state immunity is expressed with more specificity in the RP-US
Bases Treaty …

The petitioners also rely heavily on Baer v. Tizon… to support their position that they are not suable, the
US not having waived its sovereign immunity from suit. It is emphasized that in Baer, the Court held:

“The invocation of the doctrine of immunity from suit of a foreign state without its consent is
appropriate… insofar as alien armed forces are concerned, the starting point is Raquiza v. Bradford, a
1945 decision. In dismissing a habeas corpus petition for the release of petitioners confined by American
army authorities, Justice Hilado cited Coleman v. Tennessee, where it was explicitly declared: ‘It is well
settled that a foreign army, permitted to march through a friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place.’
Two years later, in Tubb and Tedrow v. Griess, this Court relied on Raquiza v. Bradford and cited in
support excerpts from the works of the authoritative writers … Accuracy demands the clarification that
after the conclusion of the Philippine-American Military Bases Agreement, the treaty provision should
control on such matter, the assumption being that there was a manifestation of the submission to
jurisdiction on the part of the foreign power whenever appropriate. More to the point is Syquia v. Almeda
Lopez … It was the ruling that respondent Judge acted correctly considering that the ‘action must be
considered as one against the U.S. Government.’ The opinion of Justice Montemayor continued: ‘It is clear
that the courts of the Philippines including the Municipal Court of Manila have no jurisdiction over the
present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the
very beginning of the action. The U.S. Government has not given its consent to the filing of this suit which
is essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit
against his own Government without the latter’s consent but it is of a citizen filing an action against a
foreign government without said government’s consent, which renders more obvious the lack of
jurisdiction of the courts of his country. The principles of law behind this rule are so elementary and of
such general acceptance that we deem it unnecessary to cite authorities in support thereof.”

The above observations do not confer on the US a blanket immunity for all acts done by it or its agents in
the Philippines. Neither may the other petitioners claim that they are also insulated from suit in this
country merely because they have acted as agents of the US in the discharge of their official functions.
There is no question that the US, like any other state, will be deemed to have impliedly waived its non-
suability if it has entered into a contract in its proprietary or private capacity. It is only when the contract
involves its sovereign or governmental capacity that no such waiver may be implied … In the words of
Justice Vicente Abad Santos:

“The traditional rule of immunity excepts a State from being sued in the courts of another State without
its consent or waiver. This rule is a necessary consequence of the principles of independence and equality
of States. However, the rules of International Law are not petrified; they are constantly developing and
evolving. And because the activities of states have multiplied, it has been necessary to distinguish them-
between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts
(jure gestionis). The result is that State immunity now extends only to acts jure imperii... The restrictive
application of State immunity is proper only when the proceedings arise out of commercial transactions of
the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said
to have descended to the level of an individual and can thus be deemed to have tacitly given its consent
to be sued only when it enters into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions.”
The other petitioners in the cases before us all aver they have acted in the discharge of their official
functions as officers or agents of the US. However, this is a matter of evidence. The charges against them
may not be summarily dismissed on their mere assertion that their acts are imputable to the US, which
has not given its consent to be sued. In fact, the defendants are sought to be held answerable for
personal torts in which the US itself is not involved. If found liable, they and they alone must satisfy the
judgment.

SUMMARY OF THE EVENTS. The POD was published under the direction and authority of the commanding
officer. The administrative assistant, among his other duties, is tasked to prepare and distribute the POD.
The NAVSTA Action Line Inquiry is a regular feature of the POD , which was to provide personnel access to
the Commanding Officer on matters they feel should be brought to his attention for correction or
investigation . According to Wylie, the action line naming “Auring” was received about 3 weeks prior to
the article’s publication. It was forwarded to the Provost Marshal for comment, and the response “…
included a short note stating that if the article was published, to remove the name.” This note was
forwarded to the executive officer and to the commanding officer for approval. The approval of the
commanding officer was forwarded to the office of the Administrative Assistant for inclusion in the POD.
A clerk typist in the office of the Administrative Assistant prepared the smooth copy of the POD and
Wylie, the administrative assistant signed the smooth copy of the POD but failed to notice the reference
to “Auring” in the action line inquiry.

As the article implied that Rarang was consuming and appropriating confiscated items, she was
investigated by her supervisor. Before the article came out, she had been the recipient of commendations
by her superiors for honesty in the performance of her duties.

PART OF OFFICIAL FUNCTIONS. Wylie and Williams actively participated in screening the features and
articles in the POD as part of their official functions. Under the rule that US officials in the performance of
their official functions are immune from suit, then it should follow that they may not be held liable for the
questioned publication.

BUT: TAKE NOTE THAT THEY WERE SUED IN THEIR PERSONAL CAPACITIES for their alleged tortious acts in
publishing a libelous article. And our laws and, we presume, those of the US don’t allow the commission
of crimes in the name of official duty, and these aren’t covered by the immunity agreement.

CHAVEZ v. SANDIGANBAYAN on the law on immunity from suit of public officials is applicable here: the
general rule is that public officials can be held personally accountable for acts claimed to have been
performed in connection with official duties where they have acted ultra vires or where there is showing
of bad faith… A mere invocation of the immunity clause does not ipso facto result in the charges being
automatically dropped. In the case of PCGG v. Peña, Chief Justice Teehankee added a clarification of the
immunity accorded PCGG officials under Section 4(a) of Exec. Order No. I as follows:

…First, the main opinion does not claim absolute immunity for the members of the Commission, The cited
section … provides the Commission’s members immunity from suit thus: ‘No civil action shall lie against
the Commission or any member thereof for anything done or omitted in the discharge of the task
contemplated by this order.’ No absolute immunity like that sought by Mr. Marcos in his Constitution for
himself and his subordinates is herein involved. It is understood that the immunity granted the members
of the Commission by virtue of the unimaginable magnitude of its task to recover the plundered wealth
and the State’s exercise of police power was immunity from liability for damages in the official discharge
of the task granted the members of the Commission much in the same manner that judges are immune
from suit in the official discharge of the functions of their office.

Immunity from suit cannot institutionalize irresponsibility and nonaccountability nor grant a privileged
status not claimed by any other official of the Republic. Where the petitioner exceeds his authority as
Solicitor General, acts in bad faith, or … ‘maliciously conspir(es) with the PCGG commissioners in
persecuting respondent Enrile by filing against him an evidently baseless suit in derogation of the latter’s
constitutional rights and liberties’, there can be no question that a complaint for damages does not confer
a license to persecute or recklessly injure another. The actions governed by Articles 19, 20, 21, and 32 of
the Civil Code on Human Relations may be taken against public officers or private citizens alike.

ARGUMENT: that Williams as commanding officer is far removed in the chain of command from the
offensive publication and it would be asking too much to hold him responsible for everything which goes
wrong on the base.

WHILE THIS IS TRUE AS A GEN. RULE, FOR THIS CASE NO. The records show that the offensive publication
was sent to the commanding officer for approval and he approved it. Art. 2176 prescribes a civil liability
for damages caused by a person’s act or omission constituting fault or negligence. “Fault” or “negligence”
in this Article covers not only acts “not punishable by law” but also acts criminal in character, whether
intentional or voluntary or negligent. ” Moreover, Art. 2219(7) provides that moral damages may be
recovered in case of libel, slander or any other form of defamation. In effect, the offended party in these
cases is given the right to receive from the guilty party moral damages for injury to his feelings and
reputation in addition to punitive or exemplary damages .

ULTRA VIRES ACT CAN’T BE PART OF OFFICIAL DUTY. Indeed the imputation of theft contained in the POD
is a defamation against Rarang’s character and reputation. Wylie himself admitted that the Office of the
Provost Marshal explicitly recommended the deletion of the name if the article was published, but they
were negligent because under their direction they issued the publication without deleting the name. Such
act or omission is ultra vires and cannot be part of official duty. It was a tortious act which ridiculed
Rarang, and as a result she suffered besmirched reputation, serious anxiety, wounded feelings and social
humiliation, specially so, since the article was baseless and false. Wylie and Williams alone, in their
personal capacities, are liable for the damages they caused.

WHEREFORE, the petition is hereby DISMISSED. The questioned decision and resolution of the IAC are
AFFIRMED.

FACTS OF THE CASE: On 15 March 1978, Private Respondent Visitacion’s late

mother Marciana Vda. De Coronado (Vda. De Coronado) and the Municipality of
Nagcarlan, Laguna (represented by the then Municipal Mayor Crisostomo P.
Manalang) entered into a lease contract whereby the Municipality allowed the
use and enjoyment of property comprising of a lot and a store located at the
corner of Coronado and E. Fernandez Sts. at Poblacion, Nagcarlan, Laguna, in
favor of the respondent’s mother for a period of twenty (20) years beginning on
15 March 1978 until 15 March 1998, extendible for another 20 years. The lease
contract provided that the late Vda. De Coronado could build a firewall on her
rented property which must be at least as high as the store; and in case of
modification of the public market, she or her heir/s would be given preferential
rights. Visitacion took over the store when her mother died sometime in 1984.
From then on up to January 1993, Visitacion secured the yearly Mayor’s permits.
Sometime in 1986, a fire razed the public market of Nagcarlan. Upon Visitacion’s
request for inspection on 15 May 1986, District Engineer Marcelino B. Gorospe
(Engineer Gorospe) of the then Ministry of Public Works and Highways, Regional
Office No. IV-A, found that the store of Visitacion remained intact and stood
strong. This finding of Engineer Gorospe was contested by the Municipality of
Nagcarlan. The Sangguniang Bayan of Nagcarlan, Laguna issuedResolution No.
183 authorizing Mayor Comendador to demolish the store being occupied by
Visitacion using l e g a l m e a n s . M a y o r C o m e n d a d o r r e l y i n g o n t
h e strength of Sangguniang Bayan Resolution Nos. 183and 156 authorized the
demolition of the store with Asilo and Angeles supervising the work.Visitacion,
filed with a case for damages before the R T C . S p o u s e s B o m b a s i , t h e
r e a f t e r , f i l e d a c r i m i n a l complaint a g a i n s t M a y o r C o m e n d a d
o r , A s i l o a n d Angeles for violation of Sec. 3(e) of Republic Act No. 3019
otherwise known as the "Anti-Graft and CorruptPractices Act" before the Office of
the Ombudsman.S a n d i g a n b a y a n r e n d e r e d a d e c i s i o n , f i n d i n
g t h e accused Demetrio T. Comendador and Paulino S. Asilo, Jr. guilty beyond
reasonable doubt of violation of Sec.3(e) of Republic Act. No. 3019 The counsel
for the late Mayor also filed its Motion for R e c o n s i d e r a t i o n a l l e g i n g t
h a t t h e d e a t h o f t h e l a t e Mayor had totally extinguished both his criminal
and civil liability. The Sandiganbayan granted the extinction of the criminal
liability is concerned and denied

the e x t i n c t i o n o f t h e c i v i l l i a b i l i t y h o l d i n g t h a t t h e c i v i l
action is an independent civil action. Hence, these Petitions for Review on
Certiorari. ISSUES 1. WON the accused is guilty of violating RA 3019 2 WON the
actual damages prayed for is unconscionable DECISION The Supreme Court
sustain the Sandiganbayanin its finding of criminal and civil liabilities against
petitioner Asilo and petitioner Mayor Comendador. The elements of the offense
are as follows: (1) that the accused are public officers or private persons charged
in conspiracy with them; (2) that said public officers commit the prohibited acts
during the performance of their official duties or in relation to their public
positions; (3) that they caused undue injury to any party, whether the
Government or a private party;(4) OR that such injury is caused by giving
unwarranted benefits, advantage or preference to the other party; and (5) that the
public officers have acted with manifest partiality, evident bad faith or gross
inexcusable negligence. Clearly, the demolition of plaintiff’s store was carried out
without a court order, and notwithstanding are straining order which the plaintiff
was able to obtain. The demolition was done in the exercise of official DUTIES
WHICH apparently was attended by evident bad faith, manifest partiality or gross
inexcusable negligence as there is nothing in the two (2)resolutions which gave
the herein accused the authority to demolish plaintiff’s store. The accused public
officials were devoid of any power to demolish the store. A closer look at the
contested resolutions reveals that Mayor Comendador was only authorized to file
an unlawful detainer case in case of resistance to obey the order or to demolish
the building using legal means. Clearly, the act of demolition without legal order
in this case was not among those provided by the resolutions, as indeed, it is a
legally impossible provision.2.The amount of actual damages prayed for is
unconscionable. To seek recovery of actual damages, it is necessary to prove
the actual amount of loss with a reasonable degree of certainty, premised upon
competent proof and on the best evidence obtainable. n this case, the Court finds
that the only evidence presented to prove the actual damages incurred was the
itemized list of damaged and lost items prepared by Engineer Cabrega,an
engineer commissioned by the Spouses Bombasi to estimate the costs. The
amount claimed by the respondent-claimant’s witness as to the actual amount of
DAMAGES” should be admitted with extreme caution considering that, because it
was a bare assertion, it should be supported by independent evidence."Whatever
claim the respondent witness would allege must be appreciated in consideration
of his particular self-interest. There must still be a need for the examination of the
documentary evidence presented by the claimants to support its claim with
regard to the actual amount of damages. The price quotation made by Engineer
Cabrega presented as an exhibit partakes of the nature of hearsay evidence
considering that the person who issued them was not presented as a WITNESS.

CASE DIGEST: OMBUDSMAN V. COURT OF

APPEALS
G.R. No. 172224. January 26, 2011

OFFICE OF THE OMBUDSMAN, petitioner, vs. COURT OF APPEALS

and DINAH C. BARRIGA, respondents.

FACTS:

Pua, a Municipal Councilor of Carmen, Cebu, filed a complaint with the Office
of the Deputy Ombudsman for Visayas, alleging thatVillamor, Municipal
Mayor; Bebelia C. Bontia (Bontia), Municipal Treasurer; and respondent
Dinah C. Barriga (Barriga), Municipal Accountant, all public officials of
Carmen, Cebu, entered into several irregular and anomalous transactions in
their official capacity. These transactions pertained to the handling of the
trust fund of the Municipality of Carmen, Cebu in the Central Visayas Water
and Sanitation Project. Villamor and Barriga denied Pua's allegations.

Subsequently, the Deputy Ombudsman for Visayas found Barriga guilty of

misconduct and she was suspended from service for 6 months. The case had
become moot and academic with respect
to Villamor and Bontia because Villamor was no longer the incumbent mayor
of Carmen, Cebu and Bontia had already been dismissed from government
service.

Upon review, petitioner Office of the Ombudsman modified the decision and
found Barriga guilty of conduct prejudicial to the best interest of the service
and imposed on her the penalty of suspension for one year. The motion for
reconsideration was denied and the petition for review with the Court of
Appeals was denied for lack of merit.

The Office of the Ombudsman then directed the municipal mayor of Carmen,
Cebu to implement the decision. Barriga filed a petition for review with the
CA but it was denied. The case went up to the Supreme Court which denied
the petition. The motion for reconsideration and a second motion for
reconsideration were also denied.

The Office of the Ombudsman advised the mayor again to implement the
decision. Barriga then requested that the implementation of the penalty of
one-year suspension be held in abeyance pending the issuance of the entry of
judgment. This was denied. WhileBarriga's petition for review was with the
CA, the Supreme Court already issued the entry of judgment
and Barriga's suspension from service was implemented by the mayor.
Meanwhile, Barriga's earlier appeal to the CA was dismissed but upon motion
for reconsideration, the orders of the Office of the Ombudsman were declared
null and void. The CA explained that the acts of petitioner went beyond mere
recommendation but rather imposed upon the mayor to implement the order
of suspension which runcounter to its authority. The appellate court said that
the immediate implementation of the Office of the Ombdusmans order was
premature pending resolution of the appeal. Since Republic Act No. 6770 or
the Ombudsman Act of 1989 gives parties the right to appeal then such right
also generally carries with it the right to stay these decisions pending appeal.
Thus, the CA concluded that the acts of petitioner cannot be permitted nor
tolerated.

ISSUE: Whether the Court of Appeals gravely abused its discretion in nullifying
the orders of the Office of the Ombudsman to the municipal mayor of Carmen,
Cebu for the immediate implementation of the penalty of suspension from
service of respondent Barriga even though the case was pending on appeal.

HELD: The petition is meritorious.

POLITICAL LAW Administrative Law; Ombudsman

The Office of the Ombudsman submits that it is possessed with jurisdiction to

entertain an administrative complaint against a public official and if found
guilty, has the authority to impose a penalty and implement the decision. It
explains that the implementation of administrative sanctions over erring
public officials is not merely advisory in nature but is actually mandatory
within the bounds of law. It is absurd for the Ombudsman to only recommend
a penalty to a head of office, in this case, a municipal mayor, since political
independence is the element that provides integrity to its quasi-judicial
findings. Petitioner adds that a municipal mayor has no authority to adopt or
reject petitioners decision, as if in review, where no such recourse is provided
by law.

Also, according to Section 7, Rule III of Administrative Order No. 7 as

amended by Administrative Order No. 17, when a public official has been
found guilty of an administrative charge by the Office of the Ombudsman and
the penalty imposed is suspension for more than a month, just like in the
present case, an appeal may be made to the CA. However, such appeal shall
not stop the decision from being executory and the implementation of the
decision follows as a matter of course.

Barriga appealed to the CA the decision to suspend her for one year and it
then reached the Supreme Court, which denied the appeal. The decision
became final on October 28, 2004. But in order to delay the
implementation Barriga once again elevated the case to the CA, which then
ruled in her favor by nullifying the Ombudsman's order for implementation.

The CA is incorrect. The provision in the Rules of Procedure of the Office of

the Ombudsman is clear that an appeal by a public official from a decision
meted out by the Ombudsman shall not stop the decision from
being executory. In Office of the Ombudsman v. Court of Appeals
and Macabulos, we held that decisions of the Ombudsman are
immediately executory even pending appeal in the CA.

GRANTED.
IN RE FIRST INDORSEMET FROM HONORABLE RAUL M. GONZALEZ DATED 16 MARCH 1988
REQUESTING HONORABLE JUSTICE MARCELO B. FERNAN TO COMMENT ON AN ANONYMOUS
LETTER-COMPLAINT.
A.M. No. 88-4-5433
DIGEST BY: Reynaldo R. Badulis Jr.
Submitted: November 25, 2016

FACTS OF THE CASE

The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr. Raul M. Gonzalez,
"Tanodbayan/Special; Prosecutor" forwarding to Mr. Justice Marcelo B. Fernan a "letter-complaint, dated
14 December 1987 with enclosure of the Concerned Employees of the Supreme Court," together with a
telegram of Miguel Cuenco, for "comment within ten (10) days from receipt hereof." Mr. Justice Fernan
had brought this 1st Indorsement to the attention of the Court en banc in view of the important implications
of policy raised by said 1st Indorsement.

Gonzales was the Tanodbayan or Special Prosecutor. He forwarded to Mr. Justice Marcelo B. Fernan a
letter-complaint. The letter was said to be from concerned employees of the SC (an anonymous letter).

The letter was originally addressed to Gonzales referring to the charges for disbarment sought by Mr.
Miguel Cuenco against Justice Fernan, and asking him (Gonzales) to do something about it.
The Court furnished to Mr. Raul M. Gonzales a copy of the per curiam Resolution in which, the Court
Resolved to dismiss the charges made by complaint Cuenco against Mr.Justice Fernan for utter lack of
merit. In the same Resolution, the Court Resolved to require complainant Cuenco to show cause why he
should not be administratively dealt with for making unfounded serious accusations against Mr. Justice
Fernan. Upon request of Mr. Cueco, the Court had granted him an extension of up to 30 March 1988, Mr.
Cuenco filed a pleading which appears to be an omnibus pleading relating to, inter alia, Administrative
Case No. 3135. Insofar as Administrative Case No. 3135 is concerned, the Court treated this pleading as a
Motion for Reconsideration. By a per curiam Resolution dated 15 April 1988, the Court denied with
finality Mr Cuenco's Motion for Reconsideration.

ISSUE
Whether or not a Supreme Court justice can be disbarred during his term of office.

HELD
A public officer (such as Justice Fernan) who under the Constitution is required to be a Member of the
Philippine Bar as a qualification for the office held by him and who may be removed from office only by
impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further,
such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan, or any
other court, with any offense which carries with it the penalty of removal from office.

Another reason why the complaint for disbarment should be dismissed is because under the Constitution,
members of the SC may be removed only by impeachment. The above provision proscribes removal from
office by any other method. Otherwise, to allow such public officer who may be removed solely by
impeachment to be charged criminally while holding his office with an office that carries the penalty of
removal from office, would be violative of the clear mandate of the Constitution.

The effect of impeachment is limited to the loss of position and disqualification to hold any office of honor,
trust or profit under the Republic. Judgment in cases of impeachment shall not extend further than removal
from office and disqualification to hold any office. But the party convicted shall nevertheless be held liable
and subject to prosecution, trial and punishment according to law.

The court is not saying that its Members or other constitutional officers are entitled to immunity from
liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other
supposed misbehavior. What the court is saying is that there is a fundamental procedural requirement that
must be observed before such liability may be determined and enforced. A member of the Supreme Court
must first be removed from office, via the constitutional route of impeachment, and then only may he be
held liable either criminally or administratively (that is, disbarment), for any wrong or misbehavior that
may be proven against him in appropriate proceedings.

IMPORTANT LAWS/STATUTES/PROVISIONS/SECTIONS
1987 Philippine Constitution, Article XI, Section 3

Garcia v Sandiganbayan

GR No. 155574, 20 Nov 2006

Chico-Nazario, J.:

FACTS:

Various information were filed with the Sandiganbayan against Timoteo

Garcia, Gilbert Nabo and Nery Tagupa for violation of Sec 3(b) RA 3019 on
14 Aug 1997. The information alleged that on 9-10 Jan 1993, in Cagayan de
Oro, the accused, being public officers of LTO, conspired with each other to
borrow a specific car from Oro Asian Automotive Corp. (the Company), which
is engaged in the business of vehicle assembly and dealership. The other 56
information are similarly worded except for the dates and types of vehicles.

On 22 Aug 1997, Sandiganbayan issued orders for the arrest of the

accused. On 17 Aug 1998, when arraigned, petitioner and Tagupa pleaded
not guilty, while Nabo remained at large.

Evidence of Prosecution:

Estanislao Yungao, employed as a drier and liaison officer of the

Company, had to officially report to the LTO all the engine and chassis
numbers prior to the assembly of any motor vehicle. The Company had to
secure a Conduct Permit for the road testing of vehicles assembled. After
road testing, vehicles had to be registered with the LTO. Garcia, as the
Director of LTO CDO, was the approving authority. By reason thereof, Garcia
would regularly summon Yungao to his office to tell him to inform either
Aurora or Alonzo Chiong, the owners of the Company, the he would borrow a
vehicle in visiting his farm because he could not use the assigned government
vehicle for his own use during weekends in going to his farm. When Yungao
could not be contacted, Garcia would personally call the Company and talk to
the owners to borrow the vehicle. Although there was a Regulation Officer
before whom the request is to be presented, Yungao was often told to go
straight up to the office of Garcia. Yungao testitfied that the names and
signatures of the persons who actually received the vehicles were reflected
on the faces of the delivery receipts but did not recognize the signatures
because Yungao was not present when the vehicles were taken.

Ma Lourdes Miranda was present when Yungao testified. The parties

agreed to enter into stipulations prior to her presentation that Miranda was the
mother of a child Jane, who was run over and killed in a vehicular accident;
that the driver was Nabo; that Miranda discovered the vehicle and numerous
delivery receipts in the files of the Company; that such led to the institution of
the subject criminal cases against accused.

Aurora Chiong, the VP and Gen Manager of the Company, recounted

that Garcia had a farm and would borrow a vehicle from the Company on a
weekly basis by asking her directly or through Yungao. Each time Garcia
would borrow, the Company would issue a delivery receipt which would
usually be sign by Chiong. On several occasions, Chiong had seen Nabo
affixing his signature on the delivery receipt before taking out the vehicles.
She also testified that Garcia would return the vehicle in the after of the same
day and that there was only once when Garcia returned the car the day after
– when the car met an accident involving the death of Jane, the daughter or
Miranda. It was clarified that the cars borrowed by Garcia were all company
service cars and not newly assembled vehicles.

Garcia’s defense:

He testified that he was the Reg Dir of LTO and denied borrowing any
motor vehicle from the Company arguing that his signatures never appeared
in the Delivery Receipts submitted by prosecution. He added that he warned
his subordinates against the borrowing of vehicles from their friends but they
merely turned a deaf ear. Lastly, his driver Nabo had, on several occasions,
driven motor vehicles and visited him at his farm, and that he rode with him in
going home without allegedly knowing that the vehicles driven by Nabo were
merely borrowed from Nabo’s friends.

On 6 May 2002, Sandiganbayan convicted petitioner on 56 counts of

violation of Sec 3(b) RA 3019, Tagupa was acquitted for lack of evidence,
while the cases of Nabo, who remained at large, were archived.

ISSUES:
 W/N petitioner is guilty under Sec 3(b) RA 3019.

W/N petitioner is guilty of direct briber.

W/N petitioner is guilty of indirect bribery.

HELD:

No. The Court held that the prosecution failed to proved the existence of
all (absence of the 4th) the elements of Sec 3(b) RA 3019 [PROMO]:

1. The offender is a public officer;

2. He requested or received a gift, present, share, percentage or benefit;
3. He made the request or receipt on behalf of the offender or any other
person;
4. The request or receipt was made in connection with a contract or
transaction with the government;
5. He has the right to intervene, in an official capacity under the law, in
connection with a contract or transaction.

In the case at bar the prosecution did not specify what transactions the
Company had with the LTO that petitioner intervened in when he allegedly
borrowed the vehicles from the Company. It is insufficient that petitioner
admitted that the Company has continually transacted with his office.

To establish the existence of the 4th element, the relation of the fact of
requesting and receiving, and that of the transaction involved must be clearly
shown. The allegation that the Company regularly transacts with Garcia for
the registration of their vehicles will not suffice

No. The Court ruled that there is utter lack of evidence adduced by the
prosecution showing that petitioner committed any of the 3 acts of direct
bribery [CUR]:

1. By agreeing to perform, or by performing, in consideration of any offer,

promise gift or present an act constituting a crime, in connection with
the performance of his official duties;
2. By accepting a gift in consideration of the execution of an act which
does not constitute a crime but is unjust, in connection with the
performance of his official duties;
3. By agreeing to refrain, or by refraining, from doing something which is
his official duty to do, in consideration of any gift or promise.
 The two witnesses did not mention anything about petitioner asking for
something in exchange for his performance of, or abstaining to perform, an
act in connection with his official duty. In fact Atty. Aurora Chiong testified
that the Company complied with all the requirements without asking for any
intervention from petitioner.

No. Indirect bribery is committed by a public officer who shall accept gifts
offered to him by reason of his office. The essential ingredient is that the
public officer must have accepted the gift or material consideration. In the
case at bar, the prosecution was not able to show that petitioner truly
borrowed and received the vehicles. The prosecution claims that petitioner
received the vehicles via his representative. Contrary, the Court held that the
delivery receipts o not sufficiently prove that petitioner received the vehicles
considering that his signatures do not appear therein in addition, the
prosecution failed to establish that it was petitioner’s representatives who
picked up the vehicles. If the identity of the person who allegedly picked up
the vehicle is uncertain, there can also be no certainty that it was petitioner
who received the vehicles in the end.

The Court ruled that the findings of fact of the Sandiganbayan are
binding and conclusive except [SM – GMW - P]:

1. When the conclusion is a finding grounded entirely on speculation,

surmises and conjectures;
2. The inference made is manifestly mistaken;
3. There is a grave abuse of discretion;
4. The judgment is based on misapprehension of facts;
5. Said findings of facts are conclusions without citation of specific
evidence on which they are based;
6. Findings of facts are premised on the absence of evidence on the
record.

Nonetheless, the Court held that the ruling of the Sandiganbayan is

grounded on speculation, surmise, and conjectures and not supported by
evidence on record.

G.R. No. 174321 : OCTOBER 22, 2013

ROLANDO GANZON, Petitioner, v. FERNANDO ARLOS,

Respondent.

BERSAMIN, J.:
FACTS:

The DILG Regional Office in Port San Pedro, Iloilo City held its Christmas
party on December 17, 1999 at the office parking lot.When the Christmas
party was about to end at 7:30 in the evening, respondent Fernando Arlos
(Arlos), then the OIC Provincial Director of DILG, left to get some
documents from the Office of the Operations Division located at the second
floor of the building. While Arlos was making his way to the stairs, Ganzon
suddenly approached and pulled out a short firearm of unknown caliber
from his waist and with no provocation pointed the firearm at Arlos. rlos
parried Ganzon firearm-wielding hand and tried to proceed towards the
stairs, but Ganzon blocked his path, pushed him back, and again pointed
the firearm at Arloschest. Sensing that Ganzon would shoot him then,
Arlos quickly warded off Ganzon firearm-wielding hand. At that instant,
the firearm exploded and the bullet hit the floor. Ganzon again aimed the
firearm at Arlos, prompting the latter to run away as fast as he could.
Ganzon followed Arlos, and when they got to the gate of the building,
Ganzon once more pushed him back and pointed the firearm at him,
saying:atay ka!Ganzon held the firearm close to his waistline to conceal it
from the view of the other people present at the time.

Arlos filed an administrative charge against Ganzon. Ganzon denied the

charge and elected to undergo a formal investigation.

The Civil Service Commission (CSC) Regional Office rendered its decision
finding Ganzon guilty of grave misconduct.

Upon appeal, the CA affirmed the decision of the CSC.

ISSUE: Whether or not Ganzon is guilty of grave misconduct?

HELD: Ganzon is guilty of grave misconduct.

POLITICAL LAW: misconduct committed with the performance

of official duties

The Court stressed in Largo v. Court of Appeals the criteria that an act, to
constitute a misconduct, must not be committed in his private capacity and
should bear a direct relation to and be connected with the performance of
his official duties.
Ganzon acts met the criteria in Largo v. Court of Appeals. To begin with, he
was not acting in a private capacity when he acted menacingly towards
Arlos, it being clear that his resentment of his poor performance rating,
surely a matter that concerned his performance of duty, motivated his
confronting the latter. Moreover, it did not matter that his acts were
committed outside of office hours, because they were intimately connected
to the office of the offender. An act is intimately connected to the office of
the offender if it is committed as the consequence of the performance of
the office by him, or if it cannot exist without the office even if public office
is not an element of the crime in the abstract. This was the thrust in Alarilla
v. Sandiganbayan, with the Court citing ample jurisprudence.

In Alarilla v. Sandiganbayan, one of the two main issues was whether the
crime of grave threats charged against the accused had been committed in
relation to his office. The resolution of the issue would determine whether
or not it was the Sandiganbayan that had jurisdiction to try him. The
accused contended that it was not established that the crime charged had
been committed by him while in the discharge of or as the consequence of
his official functions as municipal mayor. He pointed out that public office
was not an essential ingredient of grave threats, the crime charged, which
could be committed with the same facility by a public officer and a private
individual alike. The Court resolved that the crime charged was properly
within the jurisdiction of the Sandiganbayan because the amended
information contained allegations showing that Alarilla had taken
advantage of his official functions as municipal mayor when he committed
the crime of grave threats against the complainant, a municipal councilor,
by aiming a gun at and threatening to kill the latter on the occasion of a
public hearing during which the latter delivered a privilege speech critical
of Alarilla administration. The Court explained that the crime charged was
intimately connected with the discharge of Alarilla official functions
because the crime charged was Alarilla response to the complainant attack
against his performance as a mayor; and that if Alarilla was not the mayor,
e would not have been irritated or angered by whatever private
complainant might have said during said privilege speech.

Considering that Ganzon resented the poor performance rating he had

received, and his resentment caused his aggressive confrontation of Arlos,
it definitely appears that Ganzon offense could not be separated from his
performance of duty. Indeed, underAlarilla v. Sandiganbayan and its
progenitor rulings, an act that is the consequence of the discharge of the
employee official functions or the performance of his duties, or that is
relevant to his office or to the discharge of his official functions is justly
considered as service-related.

The fact that the acts of Ganzon were committed within the premises of the
DILG Regional Office No. 6 strengthens our view that such acts could not
but be connected to Ganzon public employment. Verily, the Court has
regarded the commission of offensive overt acts by public officials and
employees within the premises of their public offices to be deserving of
administrative reprobation.

After being duly found guilty of grave misconduct, Ganzon was rightly
meted the penalty of dismissal from the service for his first offense
conformably with the Revised Uniform Rules on Administrative Cases in
the Civil Service. The Court AFFIRMS the decision promulgated by
the Court of Appeals.

LAUREL V CSC

DOCTRINE:

It is the nature of the position which finally determines whether a position is primarily
confidential, policy determining or highly technical. Executive pronouncements can be
no more than initial determinations that are not conclusive in case of conflict. And it must
be so or else it would then lie within the discretion of the Chief Executive to deny to any
officer, by executive fiat, the protection of Section 4, Article XII of the Constitution.

Not being primarily confidential, appointment thereto must, inter alia, be subject to the
rule on nepotism.

FACTS :

Petitioner Jose P. Laurel is the duly elected Governor of the Province of Batangas. Upon
assuming office, he appointed his brother, Benjamin Laurel, as Senior Executive
Assistant in the Office of the Governor. It is a non-career service position which belongs
to the personal and confidential staff of an elective official.

December 1980: the position of Provincial Administrator of Batangas became vacant due
to the resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of qualified
applicants and so as not to prejudice the operation of the Provincial Government,
petitioner designated his brother, as Acting Provincial Administrator effective 2 January
1981 and to continue until the appointment of a regular Provincial Administrator, unless
the designation is earlier revoked.

April 1981: Petitioner issued his brother a promotional appointment as Civil Security
Officer, a position which the Civil Service Commission classifies as primarily
confidential under PD 868. January 1983: private respondent Sangalang wrote a letter to
CSC and alleges that: (1) the position in question is a career position, (2) the appointment
violates civil service rules, and (3) since the Governor authorized said appointee to
receive representation allowance, he violated the Anti-Graft and Corrupt Practices Act.
He then asks that the matter be investigated.

Petitioners assert that they did not violate the provision prohibiting nepotism under
Section 49 of PD 807 because both the positions of Senior Executive Assistant and Civil
Security Officer are primarily confidential in nature.July 1983: CSC issued Resolution
No. 83-358 which revoked the designation of Benjamin as Acting Provincial
Administrator on the ground that it is nepotic.

ISSUES:

1. Whether or not the position of Provincial Administrator primarily confidential

2. Whether or not the rule on nepotism apply to designation

3. Whether or not the petitioner legally and validly designate his brother as Acting
Provincial Administrator, a career position

4. Whether or not a private citizen who does not claim any better right to a position file a
verified complaint with the Civil Service Commission to denounce a violation by an
appointing authority of the Civil Service Law and rules

HELD:

1. NO. As correctly maintained by the public respondent and the Solicitor General, the
position of Provincial Administrator is embraced within the Career Service under Section
5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of
Position Descriptions.

a. It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A.
2260), it is the nature of the position which finally determines whether a position is
primarily confidential, policy determining or highly technical. Executive pronouncements
can be no more than initial determinations that are not conclusive in case of conflict. And
it must be so or else it would then lie within the discretion of the Chief Executive to deny
to any officer, by executive fiat, the protection of Section 4, Article XII of the
Constitution.

b. Not being primarily confidential, appointment thereto must, inter alia, be subject to
the rule on nepotism.

2. YES. The sole ground invoked by petitioner for exemption from the rule on
nepotism is that the rule does not apply to designation — only to appointment. He
changed his mind only after the public respondent, in its Resolution No. 83-358, ruled
that the “prohibitive mantle on nepotism would include designation, because what cannot
be done directly cannot be done indirectly” and, more specifically, only when he filed his
motion to reconsider said resolution. Strictly speaking, estoppel has bound petitioner to
his prior admission.

a. But even if estoppel were not to operate against him, or regardless thereof, his claim
that the position of Provincial Administrator is primarily confidential, is without merit.

b. By legal contemplation, the prohibitive mantle on nepotism would include

designation, because what cannot be done directly cannot be done indirectly.

c. The rule admits of no distinction between appointment and designation.

3. NO. As correctly ruled by the public respondent, petitioner cannot legally and
validly designate Benjamin Laurel as Acting Provincial Administrator, a career position,
because Section 24(f) of R.A. No. 2260 provides that no person appointed to a position in
the non-competitive service (now non-career) shall perform the duties properly belonging
to any position in the competitive service (now career service).

a. Petitioner could not legally and validly appoint his brother Benjamin Laurel to said
position because of the prohibition on nepotism under Section 49 of P.D. No. 807. They
are related within the third degree of consanguinity and the case does not fall within any
of the exemptions provided therein.

4. YES. Any citizen of the Philippines may bring that matter to the attention of the
Civil Service Commission for appropriate action conformably with its role as the central
personnel agency to set standards and to enforce the laws and rules governing the
selection, utilization, training and discipline of civil servants, with the power and function
to administer and enforce the Constitutional and statutory provisions on the merit system.
a. Moreover, Section 37 of the decree expressly allows a private citizen to directly file
with the Civil Service Commission a complaint against a government official or
employee, in which case it may hear and decide the case or may deputize any department
or agency or official or group of officials to conduct an investigation. The results of the
investigation shall be submitted to the Commission with recommendation as to the
penalty to be imposed or other action to be taken.

b. This provision gives teeth to the Constitutional exhortation that a public office is a
public trust and public officers and employees must at all times be, inter alia, accountable
to the people. An ordinary citizen who brings to the attention of the appropriate office
any act or conduct of a government official or employee which betrays the public interest
deserves nothing less than the praises, support and encouragement of society. The
vigilance of the citizenry is vital in a democracy.

SECTION 49. Nepotism. — (a) All appointments in the national, provincial, city and
municipal governments or in any branch or instrumentality thereof, including
government-owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the bureau or office, or of the
persons exercising immediate supervision over him, are hereby prohibited.

As used in this Section, the word “relative” and members of the family referred to are
those related within the third degree either of consanguinity or affinity.

(b) The following are exempted from the operation of the rules on nepotism: (1) persons
employed in a confidential capacity, (2) teachers, (3) physicians, and (4) members of the
Armed Forces of the Philippines: Provided, however, That in each particular instance full
report of such appointment shall be made to the Commission.
 CHAPTER IV

Disciplinary Actions

SECTION 60. Grounds for Disciplinary Actions. – An elective local official may be
disciplined, suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction

of duty;

(d) Commission of any offense involving moral turpitude or an offense punishable

by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the
case of members of the sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status
of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated
above by order of the proper court.

SECTION 61. Form and Filing of Administrative Complaints. – A verified

complaint against any erring local elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city,
an independent component city or component city shall be filed before the Office
of the President;

(b) A complaint against any elective official of a municipality shall be filed before
the sangguniang panlalawigan whose decision may be appealed to the Office of
the President; and

(c) A complaint against any elective barangay official shall be filed before the
sangguniang panlungsod or sangguniang bayan concerned whose decision shall
be final and executory.
SECTION 62. Notice of Hearing. – (a) Within seven (7) days after the
administrative complaint is filed, the Office of the President or the sanggunian
concerned, as the case may be, shall require the respondent to submit his
verified answer within fifteen (15) days from receipt thereof, and commence the
investigation of the case within ten (10) days after receipt of such answer of the
respondent.

(b) When the respondent is an elective official of a province or highly urbanized

city, such hearing and investigation shall be conducted in the place where he
renders or holds office. For all other local elective officials, the venue shall be the
place where the sanggunian concerned is located.

(c) However, no investigation shall be held within ninety (90) days immediately
prior to any local election, and no preventive suspension shall be imposed within
the said period. If preventive suspension has been imposed prior to the 90-day
period immediately preceding local election, it shall be deemed automatically
lifted upon the start of aforesaid period.

SECTION 63. Preventive Suspension. – (a) Preventive suspension may be

imposed:

(1) By the President, if the respondent is an elective official of a province, a

highly urbanized or an independent component city;

(2) By the governor, if the respondent is an elective official of a component city or

municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at any time after the issues are
joined, when the evidence of guilt is strong, and given the gravity of the offense,
there is great probability that the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records
and other evidence: Provided, That, any single preventive suspension of local
elective officials shall not extend beyond sixty (60) days: Provided, further, That
in the event that several administrative cases are filed against an elective official,
he cannot be preventively suspended for more than ninety (90) days within a
single year on the same ground or grounds existing and known at the time of the
first suspension.

(c) Upon expiration of the preventive suspension, the suspended elective official
shall be deemed reinstated in office without prejudice to the continuation of the
proceedings against him, which shall be terminated within one hundred twenty
(120) days from the time he was formally notified of the case against him.
However, if the delay in the proceedings of the case is due to his fault, neglect, or
request, other than the appeal duly filed, the duration of such delay shall not be
counted in computing the time of termination of the case.

(d) Any abuse of the exercise of the power of preventive suspension shall be
penalized as abuse of authority.

SECTION 64. Salary of Respondent Pending Suspension. – The respondent

official preventively suspended from office shall receive no salary or
compensation during such suspension; but upon subsequent exoneration and
reinstatement, he shall be paid full salary or compensation including such
emoluments accruing during such suspension.

SECTION 65. Rights of Respondent. – The respondent shall be accorded full

opportunity to appear and defend himself in person or by counsel, to confront
and cross-examine the witnesses against him, and to require the attendance of
witnesses and the production of documentary evidence in his favor through the
compulsory process of subpoena or subpoena duces tecum.

SECTION 66. Form and Notice of Decision. – (a) The investigation of the case
shall be terminated within ninety (90) days from the start thereof. Within thirty
(30) days after the end of the investigation, the Office of the President or the
sanggunian concerned shall render a decision in writing stating clearly and
distinctly the facts and the reasons for such decision. Copies of said decision
shall immediately be furnished the respondent and all interested parties.

(b) The penalty of suspension shall not exceed the unexpired term of the
respondent or a period of six (6) months for every administrative offense, nor
shall said penalty be a bar to the candidacy of the respondent so suspended as
long as he meets the qualifications required for the office.

(c) The penalty of removal from office as a result of an administrative

investigation shall be considered a bar to the candidacy of the respondent for any
elective position.

SECTION 67. Administrative Appeals. – Decisions in administrative cases may,

within thirty (30) days from receipt thereof, be appealed to the following:

(a) The sangguniang panlalawigan, in the case of decisions of the sangguniang

panlungsod of component cities and the sangguniang bayan; and

(b) The Office of the President, in the case of decisions of the sangguniang
panlalawigan and the sangguniang panlungsod of highly urbanized cities and
independent component cities.

Decisions of the Office of the President shall be final and executory.

SECTION 68. Execution Pending Appeal. – An appeal shall not prevent a
decision from becoming final or executory. The respondent shall be considered
as having been placed under preventive suspension during the pendency of an
appeal in the event he wins such appeal. In the event the appeal results in an
exoneration, he shall be paid his salary and such other emoluments during the
pendency of the appeal.

RA3019

Section 13. Suspension and loss of benefits. Any public officer against whom any criminal
prosecution under a valid information under this Act or under the provisions of the Revised
Penal Code on bribery is pending in court, shall be suspended from office. Should he be
convicted by final judgment, he shall lose all retirement or gratuity benefits under any law,
but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits
which he failed to receive during suspension, unless in the meantime administrative
proceedings have been filed against him.

Ricardo Gloria vs. Court of Appeals Case Digest

● Even if the DECS Secretary is an alter ego of the president, he cannot invoke the
President’s immunity from suit in a case filed against him because the questioned acts
are not the acts of the President but merely those of a department secretary. Moreover,
presidential decisions may be questioned before the courts where there is grave abuse
of discretion or that the President acted without or in excess of jurisdiction.

● Indefinite reassignment is violative of the security of tenure.

Facts:

In 1989, Dr. Bienvenido Icasiano was appointed by Pres. Cory Aquino as Schools
Division Superintendent of Quezon City.

In 1994, upon recommendation of DECS Secretary Ricardo T. Gloria, Icasiano was

reassigned as Superintendent of the Marikina Institute of Science and Technology
(MIST) to fill up the vacuum created by the retirement of its Superintendent in 1994.
Pres. Ramos approved the recommendation.

Sec. Gloria transmitted a copy of the recommendation to Director Rosas for

implementation.
Icasiano filed a TRO and preliminary mandatory injunction enjoining the implementation
of his reassignment. The Court of Appeals granted the petition holding that the indefinite
reassignment is violative of Icasiano’s right to security of tenure.

The Sec. Gloria argued that the filing of the case is improper because the same attacks an
act of the President, in violation of the doctrine of presidential immunity from suit.

Issues:

1. May heads of executive department invoke the president's immunity from suit?

2. Is Icasiano's reassignment violative of his security of tenure?

Held:

1. No. Even if the DECS Secretary is an alter ego of the President, he cannot invoke the
President’s immunity from suit in a case filed against him because the questioned acts are
not the acts of the President but merely those of a department Secretary. Furthermore,
presidential decisions may be questioned before the courts where there is grave abuse of
discretion or that the President acted without or in excess of jurisdiction.

2. After a careful study, the Court upholds the finding of the respondent court that the
reassignment of petitioner to MIST "appears to be indefinite". The same can be inferred
from the Memorandum of Secretary Gloria for President Fidel V. Ramos to the effect that
the reassignment of private respondent will "best fit his qualifications and experience"
being "an expert in vocational and technical education." It can thus be gleaned that
subject reassignment is more than temporary as the private respondent has been described
as fit for the (reassigned) job, being an expert in the field. Besides, there is nothing in the
said Memorandum to show that the reassignment of private respondent is temporary or
would only last until a permanent replacement is found as no period is specified or fixed;
which fact evinces an intention on the part of petitioners to reassign private respondent
with no definite period or duration. Such feature of the reassignment in question is
definitely violative of the security of tenure of the private respondent. As held in Bentain
vs. Court of Appeals (209 SCRA 644):
 "Security of tenure is a fundamental and constitutionally guaranteed feature of our civil
service. The mantle of its protection extends not only to employees removed without
cause but also to cases of unconsented transfers which are tantamount to illegal
removals (Department of Education, Culture and Sports vs. Court of Appeals, 183 SCRA
555; Ibanez vs. COMELEC, 19 SCRA 1002; Brillantes vs. Guevarra, 27 SCRA 138).

While a temporary transfer or assignment of personnel is permissible even without the

employee’s prior consent, it cannot be done when the transfer is a preliminary step
toward his removal, or is a scheme to lure him away from his permanent position, or
designed to indirectly terminate his service, or force his resignation. Such a transfer
would in effect circumvent the provision which safeguards the tenure of office of those
who are in the Civil Service (Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109
Phil. 116)."

Having found the reassignment of private respondent to the MIST to be violative of his
security of tenure, the order for his reassignment to the MIST cannot be countenanced.
CA decision affirmed. (Ricardo T. Gloria vs. Court of Appeals, G.R. No. 119903. August
15, 2000)

GR NO. 135805, dated 29-Apr-1999

FACTS:
Pedro Dacoycoy, respondent, is the vocational school administrator of Balicuatro College of Arts
and Trades in Northern Samar. After formal investigation by the CSC, he was found guilty of
nepotism on two counts. CSC imposed on him the penalty of dismissal from the service.

Respondent filed motion for reconsideration, anchoring on the the argument that he was not the
appointing or the recommending authority. CA reversed CSC's resolution ruling that the
respondent did not appoint his 2 sons, therefore he is not guilty of nepotism.

ISSUE:
Whether or not respondent is guilty of nepotism.

DECISION:
Yes. The law (Sec 59 Nepotism, (1) ) defines nepotism as all appointments to the national, provincial, city and
municipal governments or in any branch or instrumentality thereof, including government owned or controlled
corporations, made in favor of a relative of the
1. appointing or
2. recommending authority, or of the
3. chief of the bureau or office, or of
4. the persons exercising immediate supervision over him.
The word "relative" and members of the family referred to are those related within the third degree either of
consanguinity or of affinity.

CSC found respondent guilty of nepotism as a result of the appointment of his 2 sons Rito, a
driver and Ped, a utility worker, as their are under his immediate supervision and control as the
school administrator
PUBLIC INTEREST CENTER V. ELMA

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies
or assistants shall not, unless otherwise provided in this Constitution, hold any other
office or employment during their tenure. They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of
the President shall not during his tenure be appointed as members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned or controlled
corporations and their subsidiaries. (Art. VII, 1987 Constitution)

Sec. 7. No elective official shall be eligible for appointment or designation in any

capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. (Art. IX-B, 1987 Constitution)

Facts:

Elma was appointed as Chairman of the PCGG on 30 October 1998. Thereafter,

during his tenure as PCGG Chairman, he was appointed as Chief Presidential Legal
Counsel (CPLC). He accepted the second appointment, but waived any renumeration
that he may receive as CPLC.

Petitioner questions Elma's concurrent appointments as PCGG Chairman and CPLC.

They contend that the appointments contravene Section 13, Article VII and Section 7,
par. 2, Article IX-B of the 1987 Constitution. Petitioners also maintained that
respondent Elma was holding incompatible offices.

Elma alleged that the strict prohibition against holding multiple positions provided
under Section 13, Article VII of the 1987 Constitution applies only to heads of
executive departments, their undersecretaries and assistant secretaries; it does not
cover other public officials given the rank of Secretary, Undersecretary, or Assistant
Secretary.

He also claimed that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that
should be applied in his case. This provision, according to him, would allow a public
officer to hold multiple positions if (1) the law allows the concurrent appointment of
the said official; and (2) the primary functions of either position allows such
concurrent appointment. Since there exists a close relation between the two
positions and there is no incompatibility between them, the primary functions of
either position would allow respondent Elma's concurrent appointments to both
positions. He further add that the appointment of the CPLC among incumbent public
officials is an accepted practice.

Issues:

1. Can the PCGG Chairman concurrently hold the position of CPLC?

2. Is the strict prohibition under Section 13, Article VII of the 1987 Constitution
applicable to the PCGG Chairman or to the CPLC?

3. Does the ruling that the concurrent appointments as PCGG Chairman and CPLC
are unconstitutional, for being incompatible offices, render both appointments void?

4. Is there a need to refer the case to the Court en banc?

Held:

1. No. The concurrent appointment to these offices is in violation of Section 7, par.

2, Article IX-B of the 1987 Constitution, since these are incompatible offices. An
incompatibility exists between the positions of the PCGG Chairman and the CPLC.
The duties of the CPLC include giving independent and impartial legal advice on the
actions of the heads of various executive departments and agencies and to review
investigations involving heads of executive departments and agencies, as well as
other Presidential appointees. The PCGG is, without question, an agency under the
Executive Department. Thus, the actions of the PCGG Chairman are subject to the
review of the CPLC. As CPLC, respondent Elma will be required to give his legal
opinion on his own actions as PCGG Chairman and review any
investigation conducted by the Presidential Anti-Graft Commission, which may
involve himself as PCGG Chairman. In such cases, questions on his impartiality will
inevitably be raised. This is the situation that the law seeks to avoid in imposing the
prohibition against holding incompatible offices.

2. The strict prohibition under Section 13, Article VII of the 1987 Constitution is not
applicable to the PCGG Chairman nor to the CPLC, as neither of them is a secretary,
undersecretary, nor an assistant secretary, even if the former may have the same rank
as the latter positions.

Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is
applicable to the present case, the defect in respondent Elma's concurrent
appointments to the incompatible offices of the PCGG Chairman and the CPLC would
even be magnified when seen through the more stringent requirements imposed by
the said constitutional provision. The said section allows the concurrent holding of
positions only when: (1) provided for under the Constitution, such
as Section 3, Article VII, authorizing the Vice-President to become a member of the
Cabinet; or (2) the second post is required by the primary functions of the first
appointment and is exercised in an ex-officio capacity [which denotes an act done in
an official character, or as a consequence of office, and without any other
appointment or authority than that conferred by the office]. Although respondent
Elma waived receiving renumeration for the second appointment, the primary
functions of the PCGG Chairman do not require his appointment as CPLC.

Appointment to the position of PCGG Chairman is not required by the primary

functions of the CPLC, and vice versa. The primary functions of the PCGG Chairman
involve the recovery of ill-gotten wealth accumulated by former President Ferdinand
E. Marcos, his family and associates, the investigation of graft and corruption cases
assigned to him by the President, and the adoption of measures to prevent the
occurrence of corruption. On the other hand, the primary functions of the CPLC
encompass a different matter, that is, the review and/or drafting of legal orders
referred to him by the President. And while respondent Elma did not
receive additional compensation in connection with his position as CPLC, he did not
act as either CPLC or PGCC Chairman in an ex-officio capacity. The fact that
a separate appointment had to be made for respondent Elma to qualify as CPLC
negates the premise that he is acting in an ex-officio capacity.

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does
not apply to respondent Elma since neither the PCGG Chairman nor the CPLC is
a Cabinet secretary, undersecretary, or assistant secretary. Even if this Court assumes,
arguendo, that Section 13, Article VII is applicable to respondent Elma, he still could
not be appointed concurrently to the offices of the PCGG appointments in question
are not covered by Section 13, Article VII of the 1987 Constitution, said appointments
are still prohibited under Section 7, Article IX-B, which covers all appointive
and elective officials, due to the incompatibility between the primary functions of the
offices of the PCGG Chairman and the CPLC. (Public Interest Center vs. Elma, G. R. No.
138965, June 30, 2006)

3. The ruling that the concurrent appointments as PCGG Chairman and CPLC are
unconstitutional, for being incompatible offices, does not render both appointments
void. Following the common-law rule on incompatibility of offices, respondent Elma
had, in effect, vacated his first office as PCGG Chairman when he accepted the
second office as CPLC.

4. There also is no merit in the respondents’ motion to refer the case to the Court en
banc. What is in question in the present case is the constitutionality of respondent
Elma’s concurrent appointments, and not the constitutionality of any treaty, law or
agreement. The mere application of constitutional provisions does not require the
case to be heard and decided en banc. (Public Interest Center vs. Elma, G.R. No.
138965, March 5, 2007)