Cases for PubOff Carlota August 23

download Cases for PubOff Carlota August 23

of 33

Transcript of Cases for PubOff Carlota August 23

  • 7/31/2019 Cases for PubOff Carlota August 23

    1/33

    FIRST DIVISION

    REPUBLIC OF THE PHILIPPINES G.R. No. 149356

    represented by the Department ofTrade and Industry,

    Petitioner,

    Present:

    PUNO, C.J., Chairperson,

    - versus - CARPIO,CORONA,

    AZCUNA, and

    LEONARDO-DE

    CASTRO,JJ.

    WINSTON T. SINGUN, Promulgated:

    Respondent. March 14, 2008

    x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

    D E C I S I O N

    CARPIO,J.:

    The Case

  • 7/31/2019 Cases for PubOff Carlota August 23

    2/33

    This is a petition for review on certiorari[1]

    of the 1 August

    2001 Decision[2]

    of the Court of Appeals in CA-G.R. SP No. 64953. The 1 August

    2001 Decision affirmed Civil Service Commission (CSC) Resolution Nos.

    002651[3]

    and 010843[4]

    dated 27 November 2000 and 27 April 2001,

    respectively. CSC Resolution No. 002651 held that respondent Winston

    T. Singuns (respondent) resignation was inoperative and inefficacious and ordered

    the payment of his salaries and other benefits from 1 January 2000. CSC

    Resolution No. 010843 denied petitioners motion for reconsideration.

    The Facts

    Petitioner Republic of the Philippines (petitioner) is represented by the

    Department of Trade and Industry, Regional Office No. 2 (DTI-RO2). Respondent

    was the former Chief Trade and Industry Development Specialist of DTI-

    RO2, Cagayan Province.

    In a letter[5]

    dated 20 October 1999, respondent wrote Regional Director

    Jose Hipolito (Director Hipolito) signifying his intention to apply for an 8 month

    leave of absence starting 16 November 1999 until 31 July 2000. Respondent also

    signified his intention to retire from the service on 1 August 2000. On 4

    November 1999, respondent filed his application for leave of absence and early

    retirement.[6]

    Director Hipolito denied the request.

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn1
  • 7/31/2019 Cases for PubOff Carlota August 23

    3/33

    On 8 November 1999, respondent again filed an application for leave of

    absence and resignation.[7]

    In a memorandum dated 9 November

    1999, Director Hipolito endorsed the application to Assistant

    Secretary Zenaida C.Maglaya (Assistant Secretary Maglaya) for comment.[8]

    On 12 November 1999, without waiting for Assistant

    Secretary Maglayas comment, respondent again filed an application for leave of

    absence but for a shorter period from 16 November 1999 until 14 January

    2000.[9]

    Respondent also signified his intention to resign effective at the close of

    office hours on 14 January 2000. According to Director Hipolito, he immediately

    approved respondents application for leave of absence and resignation and he

    reiterated said approval in a memorandum[10]

    dated the same day. In a

    letter[11]

    dated 23 November 1999, Director Hipolito also notified Regional

    Director Jose T. Soria (Atty. Soria) of the Civil Service Commission, Regional

    Office No. 2 (CSC-RO2) of his acceptance of respondents resignation.

    Then on 14 January 2000, at about 4:00 p.m., the DTI-RO2 received, through

    facsimile, Memorandum Order No. 20[12]

    issued by Undersecretary Ernesto

    M. Ordoez (Undersecretary Ordoez) detailing respondent to the Office of the

    Undersecretary for Regional Operations effective 17 January 2000.

    On 17 January 2000, the DTI-RO2 received respondents 14 January 2000

    letter[13]

    informing Director Hipolitothat he was reconsidering his earlier letter of

    resignation and that he decided to wait until he could qualify for early retirement.

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn7
  • 7/31/2019 Cases for PubOff Carlota August 23

    4/33

  • 7/31/2019 Cases for PubOff Carlota August 23

    5/33

    because it was imposed by Director Hipolito as a condition for the approval of his

    application for leave of absence. Respondent explained that he did not intend to

    resign on 14 January 2000 as his original intention was to resign on 1 August

    2000 after completing 15 years of service in the government. Respondent also

    stated that his resignation was ineffective because he was not notified of its

    acceptance for he did not receive a copy of his approved resignation letter and

    Director Hipolitos memorandum accepting his application for

    resignation. Respondent added that even assuming he was duly notified of its

    acceptance, his resignation was still made under duress and, therefore, no amount

    of acceptance would make it valid.

    On 2 March 2000, Undersecretary Ordoez required Director Hipolito to

    comment on respondents 23 February 2000 letter. Undersecretary Ordoez asked

    Director Hipolito to submit documentary evidence to show that respondent

    received a copy of Director Hipolitos formal acceptance in writing of respondents

    letter of resignation and that respondent was employed by PRBC during his leave

    of absence.

    On 28 March 2000, respondent demanded from Director Hipolito the

    payment of his salaries and other benefits from 1 December 1999 to 31 March

    2000.

  • 7/31/2019 Cases for PubOff Carlota August 23

    6/33

    On 5 April 2000, Undersecretary Ordoez ordered Director Hipolito to

    advise him as to respondents request for the payment of his unpaid

    salaries. Undersecretary Ordoez also asked Director Hipolito to support his claim

    that respondent was considered resigned effective 14 January 2000 with a ruling

    from the CSC.

    In a letter[17]

    dated 18 April 2000, Atty. Soria asked Director Hipolito to

    comment on respondents 14 April 2000 letter[18]requesting for the reconsideration

    of CSC-RO2 Opinion No. LO-000202. In his

    comment,[19]

    Director Hipolito denied that he forced, intimidated, threatened, and

    unduly pressured respondent to resign. DirectorHipolito also insisted that

    respondent received a copy of the 12 November 1999 memorandum regarding the

    acceptance of his resignation.

    On 5 June 2000, the CSC-RO2 rendered Decision No. A-000601[20]denying

    respondents motion for reconsideration. CSC-RO2 ruled that respondent was

    considered resigned as of 14 January 2000 because the detail order made no

    mention that its issuance meant that the acceptance of the resignation was

    revoked. CSC-RO2 added that since Undersecretary Ordoez was not the

    appointing authority, he had no power to accept respondents withdrawal of his

    resignation.

    Respondent appealed to the CSC.

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn17
  • 7/31/2019 Cases for PubOff Carlota August 23

    7/33

    The Ruling of the Civil Service Commission

    On 27 November 2000, the CSC rendered Resolution No. 002651 declaring

    respondents resignation inoperative and inefficacious. The CSC also ordered the

    payment of respondents salaries and other benefits from 1 January 2000. The

    CSC ruled:

    There is no dispute thatSinguntendered his resignation to

    Regional DirectorHipolitoto take effect onJanuary 14, 2000. But it is

    likewise undisputed that on the very day that his cessation from office is

    to take effect, DTI UndersecretaryOrdoezordered his detail to his

    Office. This act of UndersecretaryOrdoez, who is the immediate

    supervisor of Regional DirectorHipolito, is a tacit, if not express,

    repudiation and revocation of the ostensible acceptance by the latter of

    the supposed resignation ofSingun. This, in effect, can be construed as

    if no acceptance was ever made on the tender of resignation ofSingun.

    Finally, even on the assumption thatSingunstender of

    resignation was indeed accepted, such acceptance is inoperative and

    inefficacious. This is so simply because there is no showing from therecords thatSingunwas duly informed of said acceptance. In fact, there

    is no mention whatsoever thatSingunwas informed of the acceptance of

    his resignation. This being the case, it cannot be concluded

    thatSingunhad, either impliedly or expressly, surrendered, renounced,

    or relinquished his office. In explaining this precept, the Commission in

    CSC Resolution No. 00-2394 datedOctober 18, 2000, held:

    It is explicit that resignation, as a mode of

    terminating the employees official relations, is pre-

    conditioned on the (i) written notice of the concernedemployee to sever his employment tie coupled with an act

    of relinquishing the office; and, (ii) acceptance by the

    appointing authority for which the employee shall have

    been properly notified...[21]

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn21
  • 7/31/2019 Cases for PubOff Carlota August 23

    8/33

    On 15 December 2000, petitioner filed a motion for reconsideration. Two

    supplemental motions for reconsideration were subsequently filed on 12 January

    2001[22]

    and 11 April 2001.[23]

    In Resolution No. 010843,[24]

    the CSC denied

    petitioners motion for reconsideration.

    Petitioner appealed to the Court of Appeals.[25]

    The Ruling of the Court of Appeals

    On 1 August 2001, the Court of Appeals denied petitioners appeal and

    affirmed CSC Resolution Nos. 002651 and 010843. The Court of Appeals

    declared that there was substantial evidence to support the CSCs finding that

    respondents resignation was inoperative and inefficacious. The Court of Appeals

    stated that findings of fact of an administrative agency must be respected, as long

    as such findings are supported by substantial evidence, even if such evidence might

    not be overwhelming or preponderant. The Court of Appeals said the fact of

    resignation cannot be presumed by the petitioners simple expedient of relying on

    memoranda or letters merely showing the purported approval of resignation which

    bore his signature, because to constitute a complete and operative act of

    resignation, the officer or employee must show a clear intention to relinquish or

    surrender his position.[26]

    The Court of Appeals also ruled that respondents alleged act of accepting

    employment with PRBC did not amount to abandonment of office. The Court of

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn22
  • 7/31/2019 Cases for PubOff Carlota August 23

    9/33

    Appeals held that abandonment is inconsistent with respondents (1) motion for

    reconsideration of CSC-RO2s Opinion No. LO-000202, (2) appeal questioning

    CSC-RO2s Decision No. A-000601, and (3) bringing the matter to the National

    Office of the CSC for resolution.

    The Court of Appeals also declared that petitioner was not denied due

    process because the essence of due process in administrative proceedings is an

    opportunity to explain ones side or an opportunity to seek reconsideration of the

    action or ruling complained of. In this case, petitioner was able to file a motion for

    reconsideration and two supplemental motions for reconsideration.

    Hence, this petition for review with prayer for a temporary restraining order.

    On 8 October 2001, the Court issued a temporary restraining order enjoining

    the CSC from enforcing the 1 August 2001 Decision of the Court of Appeals and

    respondent from assuming office at the DTI-RO2, CagayanProvince.[27]

    The Issues

    Petitioner raises the following issues:

    1. Whether respondent validly resigned from DTI-RO2 effective 14 January

    2000; and

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn27
  • 7/31/2019 Cases for PubOff Carlota August 23

    10/33

    2. Whether the detail order issued by Undersecretary Ordoez effectively

    withdrew respondents resignation.

    The Courts Ruling

    The petition has no merit.

    The Final Act of a Resignations Acceptance

    is the Notice of Acceptance

    Resignation implies an expression of the incumbent in some form, express or

    implied, of the intention to surrender, renounce, and relinquish the office and the

    acceptance by competent and lawful authority.[28]

    To constitute a complete and

    operative resignation from public office, there must be: (a) an intention to

    relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by

    the proper authority.[29]

    Petitioner maintains that respondents resignation was complete because all

    the elements of a complete and operative resignation were present. On the other

    hand, respondent claims that his resignation was not complete because there was

    no valid acceptance of his offer to resign since he was not duly informed of its

    acceptance.

    In our jurisdiction, acceptance is necessary for resignation of a public officer

    to be operative and effective. Without acceptance, resignation is nothing and the

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn28
  • 7/31/2019 Cases for PubOff Carlota August 23

    11/33

    officer remains in office.[30]

    Resignation to be effective must be accepted by

    competent authority, either in terms or by something tantamount to an acceptance,

    such as the appointment of the successor.[31]

    A public officer cannot abandon his

    office before his resignation is accepted, otherwise the officer is subject to the

    penal provisions of Article 238[32]

    of the Revised Penal Code.[33]

    The final or

    conclusive act of a resignations acceptance is the notice of acceptance.[34] The

    incumbent official would not be in a position to determine the acceptance of his

    resignation unless he had been duly notified therefor.[35]

    In this case, the Court of Appeals and the CSC declared that there was

    nothing in the records to show that respondent was duly informed of the

    acceptance of his resignation. There was no indication that respondent received a

    copy of his 12 November 1999 application for leave of absence and resignation as

    accepted by Director Hipolito. Neither was there any indication that respondent

    received Director Hipolitos 12 November 1999 Memorandum informing him of

    the acceptance of his resignation. Therefore, we affirm the ruling of the Court of

    Appeals that respondents resignation was incomplete and inoperative because

    respondent was not notified of the acceptance of his resignation.

    Petitioners contention that respondent knew that his resignation was

    accepted because respondent had notice that his application for leave of absence

    was approved does not deserve any merit. As respondent explained, there is a

    specific form used for an application of leave of absence and the approval of his

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn30http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn30http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn30http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn32http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn32http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn33http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn33http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn33http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn34http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn34http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn34http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn35http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn35http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn35http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn35http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn34http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn33http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn32http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn30
  • 7/31/2019 Cases for PubOff Carlota August 23

    12/33

    application for leave of absence does not necessarily mean the acceptance of his

    resignation.

    On respondents alleged employment with the PRBC, the Court notes that if

    respondent was employed by PRBC, it was undertaken during his approved leave

    of absence. It does not have any connection with the acceptance of his

    resignation. We agree with the findings and conclusions of the Court of Appeals

    that this does not amount to abandonment. If respondent was indeed employed by

    PRBC during his approved leave of absence and he violated Civil Service rules,

    then the proper case should be filed against him.

    Resignation may be

    Withdrawn before its Acceptance

    Until the resignation is accepted, the tender or offer to resign is

    revocable.[36] And the resignation is not effective where it was withdrawn before it

    was accepted.[37]

    In this case, since respondents resignation was not finally and conclusively

    accepted as he was not duly notified of its acceptance, respondent could validly

    withdraw his resignation. There was no need for Director Hipolito to accept the

    withdrawal of resignation since there was no valid acceptance of the application of

    resignation in the first place. Undersecretary Ordoez also validly issued the detail

    order as respondent had not effectively resigned from DTI-RO2.

    http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn36http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn36http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn36http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn37http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn37http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn37http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn37http://sc.judiciary.gov.ph/jurisprudence/2008/march2008/149356.htm#_ftn36
  • 7/31/2019 Cases for PubOff Carlota August 23

    13/33

    WHEREFORE, we DENY the petition and AFFIRM the 1 August

    2001 Decision of the Court of Appeals. WeLIFT the temporary restraining order

    enjoining the Civil Service Commission from enforcing the 1 August

    2001Decision of the Court of Appeals and respondent Winston T. Singun from

    assuming office at the Department of Trade and Industry, Regional Office No.

    2, Cagayan Province.

    FIRST DIVISION

    PUBLIC INTEREST CENTER

    INC., LAUREANO T.

    ANGELES, and JOCELYN P.

    CELESTINO,Petitioners,

    - versus -

    MAGDANGAL B. ELMA, asChief Presidential Legal

    Counsel and as Chairman of the

    Presidential Commission on

    Good Government, and

    RONALDOZAMORA, as

    Executive Secretary,Respondents.

    G. R. No. 138965

    Present:

    PANGANIBAN, CJ,*

    Chairman,

    YNARES-SANTIAGO,**

    AUSTRIA-MARTINEZ,

    CALLEJO, SR., and CHICO-NAZARIO, JJ.

    Promulgated:

    June 30, 2006

    x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

    D E C I S I O N

    CHICO-NAZARIO,J.:

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn1
  • 7/31/2019 Cases for PubOff Carlota August 23

    14/33

    This is an original action for Certiorari, Prohibition, andMandamus, with a

    Prayer for Temporary Restraining Order/Writ of Preliminary Injunction filed on 30

    June 1999.[1]

    This action seeks to declare as null and void the concurrent

    appointments of respondent Magdangal B. Elma as Chairman of the Presidential

    Commission on Good Government (PCGG) and as Chief Presidential Legal

    Counsel (CPLC) for being contrary to Section 13,[2]

    Article VII and Section 7, par.

    2,[3]

    Article IX-B of the 1987 Constitution. In addition, the petitioners further seek

    the issuance of the extraordinary writs of prohibition and mandamus, as well as a

    temporary restraining order to enjoin respondent Elma from holding and

    discharging the duties of both positions and from receiving any salaries,

    compensation or benefits from such positions during the pendency of this

    petition.[4]

    Respondent Ronaldo Zamora was sued in his official capacity as

    Executive Secretary.

    On 30 October 1998, respondent Elma was appointed and took his oath of

    office as Chairman of the PCGG. Thereafter, on 11 January 1999, during his tenure

    as PCGG Chairman, respondent Elma was appointed CPLC. He took his oath of

    office as CPLC the following day, but he waived any remuneration that he may

    receive as CPLC.[5]

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn3
  • 7/31/2019 Cases for PubOff Carlota August 23

    15/33

    Petitioners cited the case ofCivil Liberties Union v. Executive Secretary[6]

    to

    support their position that respondent Elmas concurrent appointments as PCGG

    Chairman and CPLC contravenes 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.

    Citing the Resolution[7]

    in Civil Liberties Union v. Executive Secretary,

    respondents allege 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.

    Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987

    Constitution that should be applied in their case. This provision, according to the

    respondents, 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. Respondents also

    alleged that 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 Elmas concurrent appointments to both positions. Respondents

    further add that the appointment of the CPLC among incumbent public officials is

    an accepted practice.

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn8
  • 7/31/2019 Cases for PubOff Carlota August 23

    16/33

    The resolution of this case had already been overtaken by supervening

    events. In 2001, the appointees of former President Joseph Estrada were replacedby the appointees of the incumbent president, Gloria Macapagal Arroyo. The

    present PCGG Chairman is Camilo Sabio, while the position vacated by the last

    CPLC, now Solicitor General AntonioNachura, has not yet been filled. There no

    longer exists an actual controversy that needs to be resolved. However, this case

    raises a significant legal question as yet unresolved - whether the PCGG Chairman

    can concurrently hold the position of CPLC. The resolution of this question

    requires the exercise of the Courts judicial power, more specifically its exclusive

    and final authority to interpret laws. Moreover, the likelihood that the same

    substantive issue raised in this case will be raised again compels this Court to

    resolve it.[8]

    The rule is that courts will decide a question otherwise moot and

    academic if it is capable of repetition, yet evading review.[9]

    Supervening events, whether intended or accidental, cannot prevent the

    Court from rendering a decision if there is a grave violation of the

    Constitution. Even in cases where supervening events had made the cases moot,

    this Court did not hesitate to resolve the legal or constitutional issues raised to

    formulate controlling principles to guide the bench, bar, and public.[10]

    The merits of this case may now be discussed.

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn10
  • 7/31/2019 Cases for PubOff Carlota August 23

    17/33

    The issue in this case is whether the position of the PCGG Chairman or that

    of the CPLC falls under the prohibition against multiple offices imposed by

    Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987

    Constitution, which provide that:

    Art. VII .

    x x x x

    Section 13. The President, Vice-President, the Members of the

    Cabinet, and their deputies or assistants shall not, unless otherwiseprovided in this Constitution, hold any other office or employment

    during their tenure. x x x

    Art. IX-B.

    x x x x

    Section 7. No elective official shall be eligible for appointment or

    designation in any capacity to any public officeor 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.

    To harmonize these two provisions, this Court, in the case ofCivil Liberties

    Union v. Executive Secretary,[11]

    construed the prohibition against multiple offices

    contained in Section 7, Article IX-B and Section 13, Article VII in this manner:

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn13
  • 7/31/2019 Cases for PubOff Carlota August 23

    18/33

    [T]hus, while all other appointive officials in the civil service are

    allowed to hold other office or employment in the government during

    their tenure when such is allowed by law or by the primary functions of

    their positions, members of the Cabinet, their deputies and assistants

    may do so only when expressly authorized by the Constitution itself. In

    other words, Section 7, Article IX-B is meant to lay down the generalrule applicable to all elective and appointive public officials and

    employees, while Section 13, Article VII is meant to be the exception

    applicable only to the President, the Vice-President, Members of the

    Cabinet, their deputies and assistants.

    The general rule contained in Article IX-B of the 1987 Constitution permits

    an appointive official to hold more than one office only if allowed by law or by

    the primary functions of his position. In the case ofQuimson v.Ozaeta,[12]

    this

    Court ruled that, [t]here is no legal objection to a government official occupying

    two government offices and performing the functions of bothas long as there is

    no incompatibility. The crucial test in determining whether incompatibility exists

    between two offices was laid out in People v. Green[13]

    - whether one office is

    subordinate to the other, in the sense that one office has the right to interfere with

    the other.

    [I]ncompatibility between two offices, is an i nconsistency in the

    functions of the two; x x x Where one office is not subordinate to

    the other, nor the relations of the one to the other such as are

    inconsistent and repugnant, there is not that incompatibility fromwhich the law declares that the acceptance of the one is the

    vacation of the other. The force of the word, in its application to

    this matter is, that from the nature and relations to each other, of

    the two places, they ought not to be held by the same person, fromthe contrariety and antagonism which would result in the attempt by

    one person to faithfully and impartially discharge the duties of one,

    toward the incumbent of the other. x x x The offices mustsubordinate, one [over] the other, and they must, per se , have the

    right to interfere, one with the other, before they are incompatible

    at common law. x x x

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn14
  • 7/31/2019 Cases for PubOff Carlota August 23

    19/33

    In this case, an incompatibility exists between the positions of

    the PCGG Chairman and the CPLC. The duties of the CPLC includ e

    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. In Memorandum Order No. 152, is sued on 9 July 2004, the

    Office of the President, in an effort to promote efficiency and

    effective coordination, clearly delineated and specified the functions

    and duties of its senior officers as such:

    SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall

    advise and provide the President with legal assistance on matters

    requiring her action, including matters pertaining to legislation.

    The CPLC shall have the following duties and functions:

    a. Exercise administrative supervision over the Office of the CPLC;

    b. Review and/or draft legal orders referred to her by the President on the

    following matters that are subject of decisions of the President;

    1. Executive Orders, proclamations, administrative orders,

    memorandum orders, and other legal documents

    initiated by the President;

  • 7/31/2019 Cases for PubOff Carlota August 23

    20/33

    2. Decision on investigation involving Cabinet

    Secretaries, agency heads, or Presidential appointees

    with the rank of Secretary conducted by the Presidential

    Anti-Graft Commission (PAGC);[14]

    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.

    Having thus ruled that Section 7, Article IX-B of the 1987 Constitution

    enjoins the concurrent appointments of respondent Elma as PCGG Chairman and

    CPLC inasmuch as they are incompatible offices, this Court will proceed to

    determine whether such appointments violate the other constitutional provisionregarding multiple offices, Section 13, Article VII of the 1987 Constitution.

    While Section 7, Article IX-B of the 1987 Constitution applies in general to

    all elective and appointive officials, Section 13, Article VII, thereof applies in

    particular to Cabinet secretaries, undersecretaries and assistant secretaries. In the

    Resolution in Civil Liberties Union v. Executive Secretary,[15]

    this Court already

    clarified the scope of the prohibition provided in Section 13, Article VII of the

    1987 Constitution. Citing the case ofUS v. Mouat[16]

    , it specifically identified the

    persons who are affected by this prohibition as secretaries, undersecretaries and

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn16
  • 7/31/2019 Cases for PubOff Carlota August 23

    21/33

    assistant secretaries; and categorically excluded public officers who merely have

    the rank of secretary, undersecretary or assistant secretary.

    Another point of clarification raised by the Solicitor General refers to the

    persons affected by the constitutional prohibition. The persons cited in

    the constitutional provision are the Members of the Cabinet, their

    deputies and assistants. These terms must be given their common and

    general acceptation as referring to the heads of the executive

    departments, their undersecretaries and assistant secretaries. Public

    officials given the rank equivalent to a Secretary, Undersecretary, or

    Assistant Secretary are not covered by the prohibition, nor is the

    Solicitor General affected thereby. (Underscoring supplied.)

    It is clear from the foregoing that 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.

    It must be emphasized, however, that despite the non-applicability of

    Section 13, Article VII of the 1987 Constitution to respondent Elma, he remains

    covered by the general prohibition under Section 7, Article IX-B and his

    appointments must still comply with the standard of compatibility of officers laid

    down therein; failing which, his appointments are hereby pronounced in violation

    of the Constitution.

    Granting that the prohibition under Section 13, Article VII of the 1987

    Constitution is applicable to the present case, the defect in respondent Elmas

  • 7/31/2019 Cases for PubOff Carlota August 23

    22/33

    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. In

    the aforecited case Civil Liberties Union v. Executive Secretary,[17]

    the Court

    stressed that the language of Section 13, Article VII is a definite and unequivocal

    negation of the privilege of holding multiple offices or employment. The Court

    cautiously allowed only two exceptions to the rule against multiple offices: (1)

    those provided for under the Constitution, such as Section 3, Article VII,

    authorizing the Vice-President to become a member of the Cabinet; or (2) posts

    occupied by the Executive officials specified in Section 13, Article VII without

    additional compensation in an ex-officio capacity as provided by law and as

    required by the primary functions of said officials office. The Court further

    qualified that additional duties must not only be closely related to, but must be

    required by the officials primary functions. Moreover, the additional post must be

    exercised in an ex-officiocapacity, 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.[18] Thus, it will not suffice that no

    additional compensation shall be received by virtue of the second appointment, it is

    mandatory that the second post is required by the primary functions of the first

    appointment and is exercised in an ex-officio capacity.

    With its forgoing qualifications, it is evident that even Section 13, Article

    VII does not sanction this dual appointment. Appointment to the position of

    PCGG Chairman is not required by the primary functions of the CPLC, and vice

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn19
  • 7/31/2019 Cases for PubOff Carlota August 23

    23/33

    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.[19]

    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.[20]

    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 Chairman

    and CPLC because neither office was occupied by him in an ex-

    officio capacity, and the primary functions of one office do not require

    an appointment to the other post. Moreover, even if the appointments

    http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/june2006/G.%20R.%20No.%20138965.htm#_ftn21
  • 7/31/2019 Cases for PubOff Carlota August 23

    24/33

    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.

    WHEREFORE, premises considered, this Court partly GRANTS this

    petition and declares respondentMagdangal B. Elmas concurrent appointments asPCGG Chairman and CPLC as UNCONSTITUTIONAL. No costs.

    G.R. No. 133132. February 15, 2001

    ALEXIS C. CANONIZADO, EDGAR DULA TORRES and ROGELIOA. PUREZA, petitioners,

    vs.HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON.EMILIA T. BONCODIN as Secretary of Budget and Management,JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME and VIRGINIAU. CRISTOBAL,respondents.

    RESOLUTION

    GONZAGA-REYES, J.:

    Respondents are seeking a reconsideration of the Courts 25 January2000 decision, wherein we declared section 8 of Republic Act No.8551 (RA 8551) to be violative of petitioners constitutionallymandated right to security of tenure. As a consequence of our ruling,we held that petitioners removal as Commissioners of the NationalPolice Commission (NAPOLCOM) and the appointment of new

  • 7/31/2019 Cases for PubOff Carlota August 23

    25/33

    Commissioners in their stead were nullities and ordered thereinstatement of petitioners and the payment of full backwages to becomputed from the date they were removed from office. 1

    Some of the errors assigned by the Solicitor General, acting in behalfof respondents, in the motion for reconsideration have been more thanadequately discussed and disposed of by this Court and hence, do notmerit further attention.

    Respondents insist that the Court should take judicial notice of thenPresident Estradas appointment of Alexis C. Canonizado to theposition of Inspector General of the Internal Affairs Service (IAS) ofthe Philippine National Police (PNP) on 30 June 1998, and of

    Canonizados acceptance and of his having qualified for such positionby taking his oath on 2 July 1998 before then Department of Interiorand Local Government Undersecretary Ronaldo Puno and again, on 7July 1998, this time before the President, since these partake ofofficial acts of the Executive Department, which are matters ofmandatory judicial notice, pursuant to section 1 of Rule 129 of theRules of Court. 2 By accepting such position, respondents contend thatCanonizado is deemed to have abandoned his claim for reinstatementto the NAPOLCOM since the offices of NAPOLCOM Commissioner

    and Inspector General of the IAS are incompatible.

    Although petitioners do not deny the appointment of Canonizado asInspector General, they maintain that Canonizados initiation andtenacious pursuance of the present case would belie any intention toabandon his former office. Petitioners assert that Canonizado shouldnot be faulted for seeking gainful employment during the pendency ofthis case. Furthermore, petitioners point out that from the timeCanonizado assumed office as Inspector General he never received

    the salary pertaining to such position, annexing to their comment acertification issued by the Finance Service Office of the PNP statingthis fact. 3

    Abandonment of an office is the voluntary relinquishment of an officeby the holder, with the intention of terminating his possession andcontrol thereof. 4 In order to constitute abandonment of office, it must

  • 7/31/2019 Cases for PubOff Carlota August 23

    26/33

    be total and under such circumstances as clearly to indicate anabsolute relinquishment. 5 There must be a complete abandonment ofduties of such continuance that the law will infer arelinquishment. 6 Abandonment of duties is a voluntary act; 7 it springs

    from and is accompanied by deliberation and freedom ofchoice. 8 There are, therefore, two essential elements ofabandonment: first, an intention to abandon and second, an overt orexternal act by which the intention is carried into effect. 9

    Generally speaking, a person holding a public office may abandonsuch office by nonuser or acquiescence. 10Non-user refers to a neglectto use a right or privilege or to exercise an office. 11 However,nonperformance of the duties of an office does not constitute

    abandonment where such nonperformance results from temporarydisability or from involuntary failure to perform. 12 Abandonment mayalso result from an acquiescence by the officer in his wrongful removalor discharge, for instance, after a summary removal, an unreasonabledelay by an officer illegally removed in taking steps to vindicate hisrights may constitute an abandonment of the office. 13 Where, whiledesiring and intending to hold the office, and with no willful desire orintention to abandon it, the public officer vacates it in deference to therequirements of a statute which is afterwards declared

    unconstitutional, such a surrender will not be deemed anabandonment and the officer may recover the office. 14

    By accepting the position of Inspector General during the pendency ofthe present case - brought precisely to assail the constitutionality ofhis removal from the NAPOLCOM - Canonizado cannot be deemed tohave abandoned his claim for reinstatement to the latter position. Firstof all, Canonizado did not voluntarily leave his post as Commissioner,but was compelled to do so on the strength of section 8 of RA 8551,

    which provides

    Upon the effectivity of this Act, the terms of office of the currentCommissioners are deemed expired which shall constitute a bar totheir reappointment or an extension of their terms in the Commissionexcept for current Commissioners who have served less than two (2)

  • 7/31/2019 Cases for PubOff Carlota August 23

    27/33

    years of their terms of office who may be appointed by the Presidentfor a maximum terms of two (2) years.

    In our decision of 25 January 2000, we struck down the abovequoted

    provision for being violative of petitioners constitutionally guaranteedright to security of tenure. Thus, Canonizado harbored no willful desireor intention to abandon his official duties. In fact, Canonizado,together with petitioners Edgar Dula Torres and Rogelio A. Pureza,lost no time disputing what they perceived to be an illegal removal; afew weeks after RA 8551 took effect on 6 March 1998, petitionersinstituted the current action on 15 April 1998, assailing theconstitutionality of certain provisions of said law. The removal ofpetitioners from their positions by virtue of a constitutionally infirm act

    necessarily negates a finding of voluntary relinquishment.1wphi1.nt

    The next issue is whether Canonizados appointment to andacceptance of the position of Inspector General should result in anabandonment of his claim for reinstatement to the NAPOLCOM. It is awell settled rule that he who, while occupying one office, acceptsanother incompatible with the first, ipso factovacates the first officeand his title is thereby terminated without any other act orproceeding. 15 Public policy considerations dictate against allowing the

    same individual to perform inconsistent and incompatible duties.16

    Theincompatibility contemplated is not the mere physical impossibility ofone persons performing the duties of the two offices due to a lack oftime or the inability to be in two places at the same moment, but thatwhich proceeds from the nature and relations of the two positions toeach other as to give rise to contrariety and antagonism should oneperson attempt to faithfully and impartially discharge the duties of onetoward the incumbent of the other. 17

    There is no question that the positions of NAPOLCOM Commissionerand Inspector General of the IAS are incompatible with each other. Aspointed out by respondents, RA 8551 prohibits any personnel of theIAS from sitting in a committee charged with the task of deliberatingon the appointment, promotion, or assignment of any PNPpersonnel, 18 whereas the NAPOLCOM has the power of control andsupervision over the PNP. 19 However, the rule on incompatibility of

  • 7/31/2019 Cases for PubOff Carlota August 23

    28/33

    duties will not apply to the case at bar because at no point didCanonizado discharge the functions of the two offices simultaneously.Canonizado was forced out of his first office by the enactment ofsection 8 of RA 8551. Thus, when Canonizado was appointed as

    Inspector General on 30 June 1998, he had ceased to discharge hisofficial functions as NAPOLCOM Commissioner. As a matter of fact, itwas on this same date that Leo S. Magahum and Cleofe M. Factoranwere appointed as NAPOLCOM Commissioners by then PresidentEstrada, to join Romeo L. Cairme and Jose Percival L. Adiong - whowere earlier appointed and given a term extension, respectively, bythen President Ramos - thereby completing the appointments of thefour regular members of the NAPOLCOM, pursuant to section 4 20 ofthe amendatory law. Thus, to reiterate, the incompatibility of duties

    rule never had a chance to come into play for petitioner neveroccupied the two positions, of Commissioner and Inspector General,nor discharged their respective functions, concurrently.

    At this juncture, two cases should be mentioned for their factualcircumstances almost nearly coincide with that of petitioners. The firstis Tan v. Gimenez 21 wherein petitioner Francisco Tan, a public schoolteacher, was required to resign by the Commissioner of Civil Servicefor gross misconduct. Tan appealed to the Civil Service Board of

    Appeals, which reversed the decision of the Commissioner andacquitted him of the charge. During the pendency of Tans appeal, heworked as a clerk in the Office of the Provincial Treasurer of Leyte.The Court held that accepting this second position did not constituteabandonment of his former position because -

    [h]e was ordered to resign from the service with prejudice toreinstatement pursuant to the decision of the Commissioner of CivilService and by virtue thereof was prevented from exercising the

    functions of his position and receiving the correspondingcompensation therefor. While thus deprived of his office andemoluments thereunto appertaining the petitioner had to find means tosupport himself and his family. The fact that during the time his appealwas pending and was thus deprived of his office and salary, he soughtand found employment in another branch of the government does not

  • 7/31/2019 Cases for PubOff Carlota August 23

    29/33

    constitute abandonment of his former position. To deny him the rightto collect his back salaries during such period would be tantamount topunishing him after his exoneration from the charge which caused hisdismissal from the service. x x x

    Very similar to Tan is the case of Gonzales v. Hernandez. 22 In this1961 case, petitioner Guillermo Gonzales sought reinstatement to hisformer position as attorney-general of the Investigation and SecretService Division of the Department of Finance. As in Tan, Gonzaleswas compelled to resign from office by the Commissioner of CivilService, who found him guilty of disreputable conduct. During thependency of his appeal with the Civil Service Board of Appeals,petitioner applied for and accepted employment as an emergency

    helper in the Government Service Insurance System. The Board ofAppeals eventually modified the Commissioners finding by loweringthe penalty from removal from office to suspension of two monthswithout pay. In response to the question of whether Gonzales wasdeemed to have abandoned his position by accepting another positionin the GSIS, the Court held that

    Plaintiffs position in the GSIS was temporary in nature, during theperiod of an emergency only. He had the right to live during the

    pendency of his appeal and naturally the right to accept any form ofemployment. In any case as the court below found, this temporaryemployment is not incompatible with his old position; he could resignthis temporary position any time as soon as his case has beendefinitely decided in his favor.

    x x x

    Although the Court found that the second position accepted byGonzales was only temporary in nature, the rule on incompatibility ofduties makes no such distinction between a permanent or temporarysecond office. Moreover, the Court still invoked the rationalepreviously cited in Tan - that petitioners right to live justified hisacceptance of other employment during the pendency of his appeal.The Court held that Gonzaless second position was notincompatible with the first since he could resign from the second

  • 7/31/2019 Cases for PubOff Carlota August 23

    30/33

    position when the case is finally decided in his favor and before he re-assumes his previous office.

    As in the Tan and Gonzales cases, Canonizado was compelled to

    leave his position as Commissioner, not by an erroneous decision, butby an unconstitutional provision of law. Canonizado, like thepetitioners in the above mentioned cases, held a second office duringthe period that his appeal was pending. As stated in the Commentfiled by petitioners, Canonizado was impelled to accept thissubsequent position by a desire to continue serving the country, inwhatever capacity. 23 Surely, this selfless and noble aspirationdeserves to be placed on at least equal footing with the worthy goal ofproviding for oneself and ones family, either of which are sufficient to

    justify Canonizados acceptance of the position of Inspector General.A contrary ruling would deprive petitioner of his right to live, whichcontemplates not only a right to earn a living, as held in previouscases, but also a right to lead a useful and productive life.Furthermore, prohibiting Canonizado from accepting a second positionduring the pendency of his petition would be to unjustly compel him tobear the consequences of an unconstitutional act which under nocircumstance can be attributed to him. However, before Canonizadocan re-assume his post as Commissioner, he should first resign as

    Inspector General of the IAS-PNP.

    Respondents also raise some questions regarding the execution ofthe Courts decision. They cite the fact that because there are threepetitioners who were ordered reinstated and four persons currentlyacting as NAPOLCOM commissioners, namely Romeo L. Cairme,Jose Percival L. Adiong, 24 Leo S. Magahum and Cleofe M.Factoran, 25 it is unclear who of the current commissioners will bereplaced by petitioners. Respondents point out that the execution of

    the decision becomes particularly complicated when it comes toAdiong, who was a member of the NAPOLCOM under Republic ActNo. 6975 (RA 6975), but was removed therefrom and subsequentlyre-appointed for a two-year term, pursuant to RA 8551. According torespondents, given Adiongs peculiar situation, it is unclear whetherthe latter should also be entitled to reinstatement as a result of the

  • 7/31/2019 Cases for PubOff Carlota August 23

    31/33

    assailed decision. 26 Adiong, on his own behalf, filed a Motion forClarification 27 with this Court contending that, if the Court shoulduphold the declaration of nullity of section 8 of RA 8551, then he isalso entitled to reinstatement to the NAPOLCOM pursuant to his

    appointment under RA 6975.

    An unconstitutional act is not a law; it confers no rights, imposes noduties, and affords no protection. 28Therefore, the unavoidableconsequence of the Courts declaration that section 8 of RA 8551violates the fundamental law is that all acts done pursuant to suchprovision shall be null and void, including the removal of petitionersand Adiong from their positions in the NAPOLCOM and theappointment of new commissioners in their stead. When a regular

    government employee is illegally dismissed, his position does notbecome vacant and the new appointment made in order to replacehim is null and void ab initio. 29 Rudimentary is the precept that therecan be no valid appointment to a non-vacant position. 30 Accordingly,

    Adiongs appointment on 11 March 1998 for a term of two years,pursuant to section 8 of RA 8551, is null and void. However, he shouldnow be permitted to enjoy the remainder of his term under RA 6975.Therefore, based on our foregoing disquisition, there should no longerbe any doubt as to the proper execution of our 25 January 2000

    decision all the Commissioners appointed under RA 8551 should beremoved from office, in order to give way to the reinstatement ofpetitioners and respondent Adiong.

    Respondents insist that the present case is similar to a quo warrantoproceeding since petitioners prayed for the removal of the incumbentcommissioners and for their reinstatement. Therefore, they claim thatMagahum and Factoran should have been impleaded as respondentsand given the opportunity to defend their positions. 31 We disagree.

    First and foremost, the petition filed before this Court sought a rulingon the constitutionality of sections 4 and 8 of RA 8551. The inevitableconsequence of this Courts declaration that section 8 of said law isunconstitutional is the removal of Adiong, Cairme, Magahum andFactoran from the NAPOLCOM and the reinstatement thereto ofpetitioners, including Adiong, although under his original appointment

  • 7/31/2019 Cases for PubOff Carlota August 23

    32/33

    under RA 6975. As discussed earlier, an unconstitutional law is not alaw at all; it is in legal contemplation, as inoperative as though it hadnever been passed. There being no vacancy created in the first placein the office of the NAPOLCOM, the appointments of Magahum,

    Factoran, Cairme and Adiong pursuant to RA 8551 are legal nullities,which cannot be the source of any rights. 32 It is noted that Magahumand Factoran were appointed after more than two months from thetime the present petition was filed with the Court, which explains whythey were originally not impleaded. Had they been interested indefending the validity of their appointments, Magahum and Factorancould have filed a motion to intervene with this Court. It is highlyimprobable that they were not aware of the present petition since theircolleagues, Cairme and Adiong, were respondents therein. The fact

    that they did not intervene could only mean that they were willing to bebound by the Courts decision in this case. In addition, it is noted thatrespondents did not raise this issue when they filed their comment tothe petition on 21 September 1998, even though at that time bothMagahum and Factoran were already appointed, albeit invalidly, to theNAPOLCOM. Only after the promulgation of our 25 January 2000decision did respondents belatedly insist that Magahum and Factoranshould be made parties to this case. It is not for a party to participatein the proceedings, submit his case for decision and accept the

    judgment if it is favorable to him but attack it for any reason when it isadverse. 33

    In the event that the Court should affirm its decision, respondents praythat the Court apply the ruling in Mayor v. Macaraig 34 which providedthat

    In G.R. No. 91547, and G.R. No. 91730, the removal of petitionersRosario G. Encarnacion, Daniel M. Lucas, Jr., Ceferino E. Dulay, and

    Conrado Maglaya as Commissioners of the NLRC is ruledunconstitutional and void; however, to avoid displacement of any ofthe incumbent Commissioners now serving, it not appearing that anyof them is unfit or has given cause for removal, and conformably to thealternative prayer of the petitioners themselves, it is ORDERED thatsaid petitioners be paid all salaries, benefits and emoluments accruing

  • 7/31/2019 Cases for PubOff Carlota August 23

    33/33

    to them for the unexpired portions of their six-year terms and allowedto enjoy retirement benefits under applicable laws, pursuant to RA No.910 and this Courts Resolution in Ortiz v. Commission on Elections,G.R. No. 79857, 161 SCRA 812;

    x x x

    We cannot grant respondents prayer for the application of theabovequoted dispositive portion of Mayor in G.R. No. 91547 and G.R.No. 91730 to the case at bar based on one crucial point of distinction

    unlike in Mayor, petitioners herein did not make any alternativeprayer for the payment of the salaries, benefits, and emolumentsaccruing to them for the unexpired portions of their terms in lieu of

    reinstatement. Contrary to respondents contention, the general prayerof petitioners for such other reliefs just and equitable cannot bedeemed as an alternative to their specific prayer for reinstatement. Weagree with petitioners view that any remedy necessarily included inthis general phrase should be consistent with the specific prayers ofpetitioners.1wphi1.nt

    Finally, respondents contend that the re-appointment of petitionersunder RA 6975 violates section 16 35 of such law. 36 Once again,

    respondents did not raise this issue in their comment to the petition,and are therefore estopped from doing so at this late stage. Moreover,the validity of the appointments under RA 6975 was never the issue inthis case and accordingly, the Court will not pass upon the same.

    WHEREFORE, respondents motion for reconsideration is herebyDENIED. However, it is hereby clarified that our 25 January 2000decision mandates the reinstatement of Jose Percival L. Adiong to theNAPOLCOM, together with petitioners herein, pursuant to hisappointment under RA 6975.

    SO ORDERED.