ELECTION LAW AND LAW ON PUBLIC OFFICERS

1. POWERS OF THE COMMISSION ON ELECTIONS

There is no ground for questioning the discretion of the Commission on Elections in deciding the petition for
annulment of election returns on the basis merely of affidavits and counter-affidavits and without presentation of
oral testimony, where the petitioner himself, in Ligot v. Commission on Elections, agreed "to have the matter heard
and decided on affidavits and counter-affidavits", thus waiving his right to examine the affiants. At any rate, Such
action on the part of the Commission does not amount to such whimsical use of discretion as to border upon abuse
of it. The law in fact affords a wide latitude of discretion to the Commission in the exercise of its Constitutional duty
to insure free and honest elections.

Consistently, the findings of fact by the Commission will be respected by the Supreme Court if these are
substantially supported by the record, particularly where, as in Moore v. Commission on Elections, the question
involved relates clearly to whether the questioned election returns were prepared by one and the same hand, or
whether the returns bore the genuine signature of the poll clerk-which are issues of physical facts and the
conclusions drawn therefrom-and the Commission had made physical examination of said returns in the
determination of its findings . It is a principle in administrative law that findings of fact by administrative agencies
created by ordinary legislation will not be disturbed by the courts except when no evidence at all, or no substantial
evidence, supports such findings. Certainly, it cannot be said that such Constitutional body as the Commission on
Elections was intended to be placed on a level lower than that of statutory administrative agencies.

In defining the jurisdiction of the Supreme Court with respect to decisions or orders of the Commission, the
Constitution uses the term review, not appeal. This should mean that the Supreme Court cannot review the findings
of fact of the Commission, as issues on review by certiorari are limited to questions of law. Indeed the Supreme
Court has previously ruled that it cannot review the findings of fact of the Commission on the basis of section 9 of
Commonwealth Act No. 657 which provides that any decision or order of the Commission "may be reviewed by the
Supreme Court by writ of certiorari". Accordingly, since the issue raised by the petitioner in Lucman v. Dimaporo in
his "appeal by certiorari" was whether or not elections had been held in certain precincts (which is decidedly one of
fact), the Supreme Court found occasion in this case to stress that "We do not propose, however, to pass upon the
question thus raised by Respondent, the same being one of fact which is not proper in the proceedings before Us,
whether the same be regarded as an original action for certiorari or as an appeal by certiorari."

The sweeping statement in Lucman that "equally ministerial is the function of the Commission in the exercise of its
supervisory power" over the provincial boards of canvassers finds clarification in Antony, Jr. v. Commission on
Elections, where it is distinctly pointed out that the immediate supervision of the Commission over the provincial
boards of canvassers implies the authority to require the board to consider only genuine returns and necessarily to
also require it to "exclude from the canvass any returns that were actually the product of coercion, even if they be
clean on their face".

Nowhere in the law can the Commission justify its order prohibiting a candidate for delegate to the Constitutional
Convention from the use of taped political jingles. This action cannot find legality in the provision of the
Constitutional Convention Act which makes unlawful for candidates "to purchase, produce, request or distribute
sample ballots, or electoral propaganda gadgets such as pens, lighters, fans (of whatever nature) , flashlights, athletic
goods or materials, wallets, bandanas, shirts, hats, matches, cigarettes, and the like, whether of domestic or foreign
origin". By the principle of ejusdem generis, the Commission cannot hang on to the phrase "and the like" as
including the use of taped political jingles, because the general words following the specific enumeration in the
provision at law quoted above can apply only to things of the same kind or class thus specifically enumerated. In
Mutuc v. Commission on Elections, it is stressed that the Commission's interpretation must be voided on account of a
more serious consideration, namely, that such construction raises a grave doubt about the statute's validity in that it
infringes on the candidate's right to free speech. A statute should be interpreted to assure conformity, rather than
repugnance, to constitutional prescriptions.

II. VOTER'S QUALIFICATION

In a proceeding for the exclusion of a name from the permanent list of voters provided under Republic Act No.
3588, it is error for the Court of First Instance to dismiss the petition for exclusion on the theory that the nature of
such proceeding being summary, it has no jurisdiction "to inquire into the citizenship" of a voter thus listed. Rather,
as ruled in Ozamiz v. Zosa,1o the court's authority to order the inclusion in or exclusion from the list of voters
necessarily entails the power to inquire into and settle all questions necessary for the exercise of such authority,
including the question of citizenship of the person whose name is sought to be excluded from the voter's list. It is
true that so vital a matter as the political status of a person cannot be settled by a summary proceeding. But what is
to be stressed is that the question of citizenship in such a proceeding relates only to the right to remain in the list of
voters for the elections in relation to which the proceeding had been held. Both with respect to the nationality of the
person concerned and his right to vote in general, the decision in the exclusion proceeding does not constitute res
adjudicata. In fact, in any other election, to which the particular proceeding does not relate, that decision is certainly
not conclusive on his right to be registered as a voter.

III. CANDIDACY REQUIREMENTS

Under section 37 of the Revised Election Code a certificate of candidacy may not be given due course "if it is shown
that said certificate has been presented and filed to cause confusion among the electors by the similarity of the
names of the registered candidates or by other means which demonstrate that the candidate has no bonafide intention
to run for the, office for which the certificate of candidacy has been filed". One who is thus barred from candidacy is
called a nuisance candidate. The Fernandez v. Fernandez ruling makes the inference that a certificate had been filed
to cause such confusion and that the candidate had no intention, from the following circumstances: (a) that in
contrast to the petitioner Fernandez who has resided in Laguna since 1945, had run for representative for the second
district of that province in the elections of 1946, 1949, and 1953, and for senator in 1957. 1959 and 1965, had
practised law in that province for more than two decades, the said candidate (also named Fernandez) was born in
Manila, had resided in San Juan, Riza1 since the end of the war, keeps vast business interests in the Greater Manila
area; and (b) that in the general elections of November 11, 1969, he voted in San Juan, Rizal. The earliest time he
could have transferred his residence to Laguna was on November 12, 1969. The period from November 12, 1969 to
November 10, 1970. the date of the election in which the said candidate sought the office of delegate to the
Constitutional Convention, covers only 363 days, or two days short of the one-year residence qualification for a
candidate for delegate. On account of his high educational attainment. he should be aware that his alleged residence
in Laguna is deficient with respect to his candidacy and therefore his insistence to fun for such office showed no
intention other than to cause confusion among the electorates by the similarly of his and the petitioner's surnames.

In Fernandez., the Supreme Court observes that "the respondent Fernandez, thru counsel, admitted unequivocally
during the oral argument that, the said respondent having voted in San Juan , Rizal on November 11, 1969, the
earliest time that he could have transferred his residence to Laguna was on November 12. 1970. And the period of
time from that date up to November 10, 1970 (the date of the coming elections) encompasses a total of 363 days, or
2 days short of the one· year residence qualification for a candidate for delegate.” From this the Court concludes:
"This unequivocal and categorical admission on the part of the respondent Fernandez, in view of the peculiar
circumstances here obtaining, amounts to the disqualification being patent on the face of the certificate of
candidacy." On this account, the Court reiterates the rule that where the disqualification is patent on the face of the
certificate of candidacy, the Commission on Elections should refuse to give due course to the certificate. But equally
patent from the circumstances of the case is the fact that the certificate by itself does not show the candidate's
disqualification. It was only on the basis of thc disclosures in the course of the hearing with the presentation of other
re/ewlllt dOCIImel1ls, in relation to the contcnts of the certificate of candidacy that respondent's disqualification
became patent. 111at the disqualification is patent on thc face of the certificate docs not necessari ly mean that such
disqualification must obvio usly appear in the contents of the certificate itself. Even whcre the disqualifica tion is
written on thc face of the certificate, the ci rcumstances of the case, as in Fernandez, may amoullt to
"disqualification being patent on the face of the certificate of candidacy". (Italicized supplied)

In section 27 of the Revised Election C~e, the fiUng of .a certificate of candidacy with respect 10 an office "other
than the on ~ ' which he is actually holding" has the effect of resignation from office on the part of any elective
provincial, municipal or city offica!. Once the certificate is filed, said the Supreme Court in a previous case, the
office is forfeited forever and nothing save a new election can restore the ousted official. Such forfeiture results
automatically and is permanently effective upon the filing of the certificate. Even if the certificate is withdrawn with
the approval of the Commission on Elections, the forfeiture stays. Legaspi v. Espino clarifies the point that the loss
of office refers to the one to which the official concerned has been elected, and it is of no moment that at the time of
filing of the certificate he is under suspension from such office.

IV. ELECTION CONTRIBUTIONS: SCOPE OF SECTION 56 OF ELECTION CODE

Section 56 of the Revised Election Code forbids foreigners to "aid any candidate, directly or indirectly, or to take
part in or to influence in any manner any election". Gatchalian v. Commission on Elections15 rules that term "any
election" in section 56 covers election of delegates to the Constitutional Convention of 1971 as provided under
Resolution of both Houses No.2, March 16, 1971 as amended by Resolution No.4, June 7, 1970 and implemented
by Republic Act No. 6132.

Section 8 of Republic Act No. 6132 enumerates the prohibited acts relating to the election for delegates to the
Convention and imports into that law the prohibitions in the Revised Election Code when it provides that such
enumeration is "in addition to and supplementing the prohibited acts provided for in the Revised Election Code."
One such prohibition in the Ele(;tion Code is section 56. Also, section 2 of Resolution No. 2 particularly calls for the
application of the Revised Election Code when it provides that election of delegates to the Constitutional
Convention "shall be held ... in accordance with the Revised Election Code."

Accordingly, this should also make clear that the term "foreigner" as used in section 56 includes both natural and
juridical persons. For under section 39 (D) of the Code, the term "person" includes an individual, partnership,
committee, association, corporation, and any other organization or group of persons. This provision directly relates
io contributions from or expenditure by any person for the purpose of influencing or attempting to influence the
election of candidates. Gatcltalian implies tha,t the evil legislated against in section 56 relates more to juridical
persons. The ruling says: It should not be disputed that juridical persons or organized groups-whetiler civic,
fraternal, religious, professional, trade, or laborhave more funds than individuals with which to subsidize a
candidate. Consequently, the influence of a juridical person or organized gr?UP, which is a contributor or donor, is
greater than that of any natural person. Furthermore, any juridical person or organized group has morc interests to
protect than any of its component members or stockholders. And if the interest of the individual stockholders Of
mcmbt':r<; of the juridical person Of organized group were also to be considered, because usually the stockholders
or members have common cause with their corporation or organized group, such artificial person or organized group
together with its members will be under a more compelling Tnotivalion to aid candidates or to influence the conduct
as well as the outcome of the election-even to frustrate the holding of the election if it is necessary to protect, if not
enhance their interests."

The term "any candidate" in section 56 comprehends some candidates or all candidates. The prohibition just the
same applies with eg ual force where the contributions by foreigners in the form of financing of billboards of tho
Commission on Elections for use by candidates for delegates to the Constitutional Convention, are, in the language
of the Commission's resolution, "not made in aid or support of any particular candidate in a particular district and
that the allocation of space [in {he billboards] for the candidates is 111lowed by lottery, nor would it in ;!fly way infl
uence the result of the election".

Carellalian further points out that contributions from foreign individuals or entities. which would go into the making
of Comelec billboard for candidates. definitely violate section 56 because tnereby they participate in, or aid, dircctly
or indirectly, the election. "The fact that alien donors have no direct participation in the distribution or allocation of
the Come\ec bLllboard s, does not inevitably mean that they have no participation in the election nor exercise any
influence in the same ... The influence therefore that may be exerted jointly by the donors on all the candidates is
correspondingly as great, because all the candidates benefited thereby will naturally be grateful to the donors for
such needed materials for their publ i.city or propaganda. This is even worse than supporting a single candidate . . .
The contribution or donation, no matter how small, can affect the thinking or attitude of the victorious candidates in
dea ling with matters involving foreigners. and morc so when the sum total of al l these donations is to be taken into
account. The aggregate IOtal will certainly generate a gre..lter influence on the triumphant candidates than the
contribution of one foreigner considered separately or individually."

Thus, the resolution of the Commission on Elections to lhe effect that "donations of billboards to the Commission by
foreigne rs or companies or corporations owned or controlled by foreigners are not. –covered by the provisions of
Section 56 of the Revised E l e~ tion Code': is therefore patently null and void. This holds true with the
Commission's resolution providing that the prohibition in section 46 of the Revised Election Code does not cover
the campaign for funds by the Advertising Council of the Philippines during the 120 days immediately preceding a
regular or special election and that "donations and contributions for the above campaign may be received from
foreigners, companies or corporations owned and/or controlled wholly or partially by foreigners."

V. CANVASSING OF VOTES

To be valid, the canvass of votes must be complete. An incomplete canvass is illegal and cannot be made the basis of
a proclamation. The Revised Election Code reguires the board of inspectors to make a complete statement of the
counting of votes. And obviously, the board of inspectors has failed to comply with this prescription where they
forgot to write the name of a candidate on the returns, making the canvass incomplete.

Section 154 ·of the Revised Election Code prohibits the board from making "any alteration or amendment" in any
statement of the· result of the election, except upon order of the competent court. A contrary rule, the Supreme Court
pointed out in a previous case, would place the fortunes of the candidates for a given position at the whim of
inspectors, or any person for that matter. In this light, the act of the chairman of the board of inspectors in writing the
figure "75", representing the number of votes, over the figure "0" in the returns, without his initial to indicate the
change is an unwarranted a1.teration. And, as pointed out in Tiglao v. Commission On' Elections,2o the illegal effect
cannot be changed even if the Commission has ruled that the case is not one of tampering, but merely correction.

The Commission has no authority to review much less set aside the returns as corrected upon order of the competent
court, even if, as shown in Tiglao, the reason of the Commission in doing so is to avoid the absurd effect of the
correction, namely, that as thus corrected the returns show 273 excess votes on their face. Iudicial action on the
petition for correction of returns on the basis of section 154 is final and executory for the purpose of the canvass in
question. The proceeding ends there and there is no appeal from the court's order which gives way to proclamation
and the proper electoral contest case.

The correction proceeding under section 154 is summary, available before the proclamation of the result of the
election. The law does not require that the correction must of necessity be ordered by the judge; the matter is
addressed to the court's discretion.

Tiglao interprets section ] 54 as now requiring th at in accordance with the requirement of due process, all
candidates affected should be notified of the hearing. Lack of such notice to a party adversely affected will result in
nullity of the judicial action in the correction proceeding. In so ruling, Tiglao expressly overrules the doctrine set
forth in Gumpal v. Court of Ph·st Instance of Isabela 24 according to which section 154 does not require notice to
the candidates effected as a prerequisite to correction of returns. Discarding previous rulings,25 Tiglao also declares
th at in correction proceedings the court may open the ballot box and conduct a summary recount of the ballots in all
cases where it is satisfied that the integrity of the ballot box and its contents has been duly preserved.

Judicial recount is available under section 163 of the Revised Election Code where "it appears to the provincial
board of canvassers that another copy or other authentic copies of th e statement from an election precinct submitted
to the board give to a candidate a different number of votes and the difference affects the result of the election". It is
upon motion of the board of inspectors or of any candidate affected! that the Court of First Instance of the province
may proceed to recount the votes cast in the precinct "for the sole. purpose of determining which is the true
statement or which is the true result of the count of the votes cast in said precinct for the office in question". Abrigo
v. Commission on Elections26 presents the questions whether the court may assume the authority under section 163
if there is no averment that the canvassing board or the Commission on Elections itself has found a discrepancy
between two authentic copies of the election returns. The authority of the court, says the AbrioQ ruling, is
preconditioned on, first, the averment that a discrepancy exists between two or more genuine returns; second, the
alleged discrepancy being brought to the attention of the board of canvassers third, the board ruling that such a
discrepancy exists; and fourth , the difference in the number of vo te$ affects the result of the election. If the
question of discrepancy is not brought to the attention of the board of canvassers in the process of canvass, the court
has no authority to order the recount of the votes. These conditions are not met where, in order to show discrepancy,
a candidate presented to the board photographs of copies of returns which reflect apparent alterations and tampering
of the original retlU"ns. Said photograph8 are not the authentic copies of the returns called for by section 163. In his
failure to produce the copies of the returns themselves, he did not give the board the opportunity to rule on the
question of discrepancy.

To ward off the possibility of concurrence of the powers of the Comsian on Elections and the Court of First Instance
with respect to the authority defined in section 163, Lingad v. Aguilar 27 once more reiterates that "whenever any
conflicting, inconsistent, contradictory or discrepant copies of election returns for the same precincts are extant and
are presented or available to the board of canvassers, it is the board of canvassers, in the first instance, and the
Comelec, on appeal, that have the exclusive authority . . . to determine whether or not all such copies are authentic
and, in the negative case, the board of canvassers should disregard the nonauthentic ones, and must base its canvass
only on the authentic ones, and it is on.ly in the affirmative case, that is, when the board or the Comelec or this
[Supreme] Court holds that the discrepant returns are all authentic that the jurisdiction of the courts ·of first instance
to conduct judicial recount begins". It is the function of the board of canvassers and the Commission, and not of the
court, to rule on the authenticity of the copies of the election returns. This function or power the board and the
Commission cannot delegate to the court of first instance much less renounce.

Under the terms of section 163, it is clear that the basis of the recount should be the authentic returns. If the copy of
the returns is found to be falsifi ed or in any way not authentic, there is no basis for recount. Thus a ruling has
pointed out that it is well within the power of the court of first
instance to receive evidence on the allegation that the copy of the return
involved bad been falsified, before proceeding with the recount.29
Judicial recount applies only where the discrepancy exists between the
returns and any of its authentic copies, or among those copies authorized
to be prepared under section 150 and to be distributed under section 152
of the Revised Election Code.30 As stressed again in B/}'ioria v. Abalos,31
recount is. not proper where the difference is between the election return
and the tally board or sheet,32 or where the case involves the additional
27 G.R. No. 31478, January 23, 1970. See Ong' v. Commission on -Elections.
O.R. No. 28415, January 29, 19<68. -
28 See also Abrigo v_ Commission on Elections, supra, note 26. - .
29 Diaz v. Reyes, G.R. No. 25502;. ·Fe-briJary- 28,1966 .. · .
30 Parlade v. Qu:iCho; ·G,R. ·.·No. ·16259,' Decembet29, 1959;; ·Lawson, v:<Escalona.
G:R': .No. :: 2254'0;,' July :3-1,. 1964:. .. ~ "'," - ... . ,' , : '
.. : . 31 0.R: NO', ' 28457; : April - 30; 1970: - .. . , __ . __
32 See also Lawson v, Escalona, supm, note · 30 . and ' -Rosca ·:'V, Ali~pa)a ,; ·G.'R.
o. 22088, July 30, 1964.
242 PHILIPPINE LAW JOURNAL [VOL. 46
copies given to the two major political parties under the authority of the
Commission on Elections.33
VI. STATISTICAL IMPROBABILITY
The doctrine of statistical improbability as enunciated in the Lagumbay
ruling 34 empowers the Commission on Elections to annul election returns
which appear contrary to "statistical probabilities". This the Supreme Court
has applied to a peculiar situation : all the registered voters in fifty precincts
appeared to have voted for each and every senatorial candidate of one
political party, so that all the candidates of the opposing party did not receive
any vote at all. Finding this impossible to believe, Lagumbay rejects
said returns as "utterly improbable and clearly incredible" and rules accordingly
that these returns should be excluded from the canvass of votes.
The Supreme Court has emphasized the restrictive application of this doctrine,
saying in a previous case that "a conclusion that an election return
is obviously manufactured or false [under the Lagumbay ruling] and consequently
should be disregarded in the canvass must be approached with
extreme caution, and only upon convincing proof . . . . Any possible
explanation, one which is acceptable to a reasonable man in the light of
experience and the probabilities of the situation, should suffice to avoid
nullification" .35 Thus there is no justification for extending this doctrine
to a case where although in a number of precincts the petitioner, a Nacionalista
candidate for governor, did not obtain a single vote, his Liberal
opponent getting all the votes, other Nacionalista candidates for other positions
received some votes, and in some precincts the votes tallied did not
equal the votes received by the Liberal candidates.36 And the mere fact
that the number of votes cast exceeded the number of voters does not
call for the application of the doctrine. 37 Ilarde v. Commission on Elections38
points out that instances where a senatorial candidate obtained all the
votes cast or an overwhelming majority in his stronghold areas as against
a much lesser number of votes cast for his opponent do not at all justify
the exclusion of returns for reason of statistical improbability.
As a measure of restricting the application of the doctrine, the Supreme
Court has established the requirement that the question of statistical improbability
or whether the return is obviously a manufactured one must be
33 See also Acuna v. Golez, G.R. No. 25399, January 27, 1966 and Palarca v.
Arrieta, G.R. No. 22224, October 24, 1966: Calo v. Enage, G.R. No. 28349, December
28, 1967.
34 Lagumbay v. Commission on Elections, G.R. No. 25444, January 31 , 19066.
35 Estrada v. Navarro, G.R. No. 2R340, December 29, 1967.
36 S:angki v. Commis&i(Jn on Elections, G.R. No. 2R359, December 26, 1967.
37 Demafiles v. Commission on Elections, G.R. No. 28396, December 29, 1967;
Estrada v. Navarro, supra, note 35.
38 G.R. No. 31446, January 23, 1970.
1971] POLITICAL LAW 243
decided on the basis of the data found on the face of the return, and
evidence aliunde may not be resorted to.39 Where the return shows
nothing on its face from which the canvassers might infer that it does
not speak the truth and that it is only when the return is compared with
the certificate of the election Tegistrar that a discrepancy appears as to the
number of registered voters, the claim of statistical improbability, or that
the return is obviously manufactured, is inadmissible.40 Although in one
case41 the Supreme Court resorted to evidence outside the return (in the
form of minutes of voting), Villalon v. Commission on Elections42 makes
it clear that this could not be invoked in future cases to support the case
of statistical improbability by means of evidence aliunde because in that
case this was done "for the pmpose of showing that the factual presumption
of statistical improbability did not hold, ... and not to serve as basis
or evidence of the alleged statistical improbability". And Villalon goes
on to stress that a conclusion of statistical improbability may be drawn only
from what appears on the face of the election return, although evidence
aliunde may be admitted but only to overcome an alleged case of statistical
improbability.
Not until Sinsuat v. PendalUrl 43 has the Supreme Court found an occasion
in which the doctrine laid down in the Lagumbay case is "squarely
applicable". As in the Lagumbay case, the situation in Sinsuat is the
unique uniformity of tallies of all the votes reported cast in favor of all
the candidates belonging to one party and the systematic blanking of all
the opposing candidates.
VII. ApPRECIATION OF BALLOTS
Since an election protest involves public interest, questions relating to
the validity of ballots cannot be decided alone on the basis of the admission
of the parties or their counsels; these questions are to be determined by
the court or electoral tribunal on the basis of its own examination of the
ballots themselves. Says the Supreme Court in Garcia v. Court of Appeals'!4
"To sanction the idea that the court or electoral tribunal is duty bound to
accept the admission of a party in an election case regarding the validity or
invalidity of a ballot involved in the case would be to leave to the parties,
or to their counsel; the determination of the result of the election. The
practice would open the door to collusions or compromises which could affect
the decision of the election case -
39 Tagoranao v. Commission 011 Elections, G.R. No. 28598, March 12, 1968.
40 Demafiles v. Commission on Elections, supra, note 37.
41 Estrada v. Navarro, SUptra, note 35.
42 G.R. No. 32008, August 31, 1970.
43 G.R. No. 31501, June 30, 1970.
44 G.R. No. 31775, December 28, 1970.
244· PHILIPPINE LAW JOURNAL [VOL. -46 ,
and the decision may not reflect the true expression of the will of the
electorate" .
VIII. BARRIO ELECTION
The 2-week prescriptive period, counted from proclamation, for filing
of elec,tion protest in section 174 of the Revised Election Code applies
to election of barrio officials. As section 2 of the Code dearly provides,
the Code governs "all elections of public offices" in the Philippines. Enunciated
in the Facotelo case,45 this ruling is reiterated by Ab,esamis v. R eyes.46
LA W OF PUBLIC OFFICERS
I. ApPOlNTMENT
A. Appointment of non_eligible
Under section 23 of the Civil Service Act, non-eligible employees who
"upon the approval of the Act have rendered five years or more of continuous
and satisfactory service in a classified position" and who are
otherwise qualified may be allowed to continue holding their positions provided
that these conditions are met: (a) that they must have been given
qualifying examination within a year from the approval of said Act; (b) that
they either failed in said examination or failed or refuses to take it; and
(c) that they could only be replaced by those who have appropriate civil
service eligibility. Where the employee had rendered service for more than
five years, for example, seven years as in Pie/ago v. Echavez,47 the requirement
that his service be continuous and satisfactory should apply to the
entire length of service, that is, to the whole length of seven years, and
not merely to the first five years of such service. Says the Pielago opinion:
"The entire length of service actually rendered must be continuously satisfactory
and not only a part thereof. For the Act does not countenance
inefficiency or negligence in the service at any time nor does it set a time
limit to efficiency and satisfactory service for a certain period and allow
inefficiency or unsatisfactory service after that period."
B. Temporary appoimment
A temporary appointment is terminable at any time as the appointee
holds office at the pleasure of the appointing power. The fact that the appointee
does not have any civil service eligibility, as it appears in Ramos
v. RomualdeZ,48 makes his appointment temporary, and the description of
45 >FaIcotelo v. Gali, G.R. No. 24190, January 8, 1968. .
460.R. No. 23435, January 30, 1970.
47 G.R. No. 26600, May 2~, 1970.
48 G.R. No. 27946, April 30, 1970.
1971] POLITICAL LAW 245
the said appointment as "probational" and its approval by the Commissioner
of Civil Service as such does not in any way give it the status of permanent
or probation al appointment, "because such appointment and such approval
is a violation of the Civil Service Act". In seeking to lend some degree
of permanence to the appointment in question, it would be of no avail to
argue that under the ciTcumstances the said appointment may be considered
as a provisional one. For a provisional appointment is one where
the appointee possesses civil service eligibility but other than the one appropriate
for the position to' which he was appointed. As in Ramos the appointee
is without any civil service eligibility, his appointment can be no
more than temporary. That being his situation his separation from service
is properly characterized as termination, not removal.
While temporary employees hold office at the pleasure of the appoint~
ing power, their appointment may be protected by some special provision
of law. One such protection is afforded by Republic Act No. 1363, which
extends the privileges set forth in Republic Act No. 65. Under Republic Act
No. 1363, the "policy of the Government is to give preference, other considerations
being equal, to persons who are veterans". Section 5 of this law provides
that for a war veteran to be entitled to preference "it must be shown
that he has approximately the same qualifications as other applicants. It is
not intended that a war veteran shall have priority over civil service eligibles
unless he himself is of the same or higher civil service eligibility". Sermonia
v. Santaccra 49 applies this preference in favor of war veterans who are
not civil service eligibles as against those who were appointed in their place
but were neither civil service eligibles nor war veterans.
II. TENURE OF OFFICE
A. Temporary detail
There is no ground at all by which, in Tecson v. Salas,50 the temporary
detail of a Superintendent of Dredging in the Bureau of Public
Works to the Office of the President can be attacked as removal without
cause, for it is obvious that the official concerned remains in office, the
directive issued for this purpose even specifying that he remained as Superintendent
of Dredging in that Bureau. Under the circumstances, it does
not even constitute a transfer, and even if it could be viewed as one, the
same is certainly not objectionable under the Civil Service Act so long as
it does not involve reduction in rank or salary as is the case of said temporary
detail. As against the objection of the officer concerned, the
overriding power of control of the President over all executive departments,
49 G.R. No. 28749, April 24, 1970.
50 G.R. No. 27524, July 31, 1970.
246 PHILIPPINE LAW JOURNAL [VOL. 46
i.~i,l i'
bureaus and offices certainly covers the authority to order the detail of a
government officer or employee from one office to another in the interest of
public service.
B. Transfer
,
I!
One who holds the appointment of "Dean, College of Education, University
of the Philippines" for a fixed term of five years enjoys security
of tenure in relation to that specific station and cannot be transferred without
his consent to any other position before the end of his term. His
transfer to the office of the university president as special assistant with
the rank of dean amounts to removal, without benefit of due process. Under
the circumstances in Sta. Maria v. Lopez,5l it cannot be pretended that
this is merely a. case of transfer to another position without reduction in
salary or rank, in the interest of public service, as permitted by section 32
of the Civil Service Act, where it appears (a) that the appointment in
question relates to a particular or fixed station, and "the rule that outlaws
unconsented trans£ers as anathema to security of tenure applies only to
an officer who is a.ppointed-not merely assigned- to a particular station;
(b) that the transfer here in fact constitutes a demotion because it moved
the university officer from an academic position of learning, ability and
scholarship to a less exalted position of a special assistant whose work
was merely to assist the university president, because the position of deanship
involves the making of authoritative decisions on the incumbent's own
name and responsibility whereas a special assistant performs no more than
staff functions, and because the deanship, created by law, cannot be abolished
by the U.P. Board of Regents but the position of a special assistant
was merely a creation of the university president; and (c) that against the
claim of the university administration, the transfer was not in fact made
"in the interest of public service" but was made "as a price to buy the
peace of the students and induce them to return to their classes"-appearing
therefore as an act of expediency by wbich the university administration
"could have an easy way to climb out of difliculties" posed by student
activism.
C. Confidential position
The position involved in Besa v. Philippine National Bank 52 is that
of Chief Legal Counsel of the respondent Bank, with the rank of vice_
president. The Court's opinion in this case justifies the transfer of the
incumbent "to the office of the President [of the Bank] as Consultant on
Legal Matters, without change in salary and other privileges". In answer to
51 G.R. No. 30773, February 18, 1070.
62 G.R. No. 26838, May 29, 1970.
1971] POLITlCAL LAW 247
petitioner's invocation of the constitutional guarantee against removal without
cause, the opinion goes on to say that "It certainly finds no application
when the duration of one's term depends on the will of the appointing
power. That is so where the position held is highly confidential in character.
Such is the case of the Chief Legal Counsel of respondent Bank".
An obiter in De los Santos v. Mallari ruling 53 is to the effect that
occupants of policy-determining, primarily confidential and highly technical
positions may be dismissed at pleasure. But this received clarification in
later cases which hold that these positions are within the Constitutional
protection that no officer or employee shall be removed or suspended except
for cause as provided by law. 54 Tn Ingles v. Mutuc 55 we find a strong reiteration
of such protection, as against the theory advanced by the respondent
Executive Secretary that since the employees concerned were occupying
primarily confidential positions their removal is left to the pleasure of the
appointing power. But just the same, how this protection is actualized has
remained problematical. In Ingles the Supreme Comt said that while primarily
confidential officers and employees may not be removed from office
witbout cause, their appointment may be terminated by loss of confidence.
If they are eased out of office by reason of loss of confidence, this could
not be considered dismissal or removal. It is simply a case of expiration
oj the term oj office. Note that a primarily confidential officer or employee
holds office at the pleasure of the appointing power, in the sense that the
expiration of his term depends on the will of the appointing power. This
is the essence of the evil to which the Constitutional protection of security
of tenure addresses itself. If a primarily confidential officer or employee is
not protected from the vicissitudes of the pleasure of the appointing power,
what is the real and effective meaning of the Court's pronouncement that
primarily confidential positions are protected by the security of tenure clause
of the Constitution?
The Besa ruling is emphatic that "the constitutional provision against
removal without cause . . . finds no application when the duration -of one's
term depends on the will of the appointing power", which is the case with
primarily confidential positions. If this is true what is left of the Court's
ruling that these positions are within the protection of the security of tenure
clause in the Constitution?
True, that when expiration of the term of office takes place, the
incumbent, in the language of Ingles, "is not 'removed' or 'dismissed' from
office-his term has merely 'expired' " . In relation to the realities of administration,
there may not even be a case of removal with respect to a
53 87 Phil. 289 (1950).
64 Const. , art. XlI, sec. 4.
65 G.R. No. 20390, November 29, 1968.
248 PHILIPPINE LAW JOURNAL [VOL. 46
primarily confidential position; the administration will always try to find
cause for the expiration of the term of office of a primarily confidential
officer or employee. Thus, we can say that his protection is not actual but
merely seman tical.
Ill. BENEFITS AND PRIVILEGES
A. Promotion
A civil service officer or employee cannot seek promotion by invoking
the next-in-rank rule where it is clear, as in Del Rosario v. Subido,56 that his
position, as it appears in the organizational chart and as found by the Commissioner
of Civil Service, is lower than that of the officer whose promotion
he is contesting. Even if the aspirant to the position occupies a place equivalent
to those occupied by other members of the civil service, this alone
does not entitle him to occupy such position. The appointing power still
is given a wide latitude of discretion as to who is best suited for the position.
B. Back salary
While it is true that section 35 of the Civil Service Act authorizes the
payment of back salaries during the period of suspension of a member of
the civil service who is subsequently ordered restored to his position, the
requirement for payment of such salaries is that the officer or employee
concerned be exonerated from the charges which caused his suspension.
Where, as in Yaf[cia v. City of Baguio,57 the employee, ordered dismissed
from service by the Commissioner of Civil Service, merely suffered a fine
equivalent to 6 months' salary upon appeal to the Civil Service Board of
Appeals, the case is clear that he is not entitled to payment of back salaries
beoause he was not exonerated. The Civil Service Board of Appealsr in
fact affirmed his guilt but modified the penalty. So that his "separation
from work pending appeal remained valid and effective until it is set aside and
modified with the imposition of the lesser penalty, by the appeals board".
IV. PROHIBITION
A. Against strike.
Section 28(c) of the Civil Service Act provides that employees in the
government, including any political subdivision or instrumentalities thereof,
":sha11 not strike for the purpose of securing changes in their terms and
conditions of employment", although it allows them to "belong to any
labor organization which does not impose the obligation to strike or to join
56 G.R. No. 300-91, January 30, 1970.
57 G.R. No. 27562, May 29, 1970.
1971] POLITICAL LAW 249
strikes".58 As is obvious from the phraseology of the law, the prohibition
is not absolute; even if the employees are performing governmental functions
the prohibition is with respect only to the obligation not to strike. They
are however allowed self-organization or to be affiliated with a labor organization
subject to that prohibition.59
Section 28 further limits the scope of the prohibition in that it expressly
provides that it "shall apply only to employees employed in governmental
functions and not to those employed in proprietary functions of the Government
including, but not limited to, government corporations".60
Under Republic Act No. 2266, the Auditor General appoints, and determines
the salaries and number of, personnel to assist his representatives
in government-owned and controlled corporations (which perform proprietary
functions). Republic Act No. 3838 makes the Government Corporate
Counsel the principal law officer of all government-owned and controlled
corporations and he exercises control and supervision over all legal divisions
of such corporations. From this, Confederation of Unions in Government
Corporations and Offices (CUGCO) v. &lbido 61 makes the inference that
the auditing staffs of government corporations are under the office of the
Auditor General and their legal staff, under the office of the Government
Corporate Counsel. In brief, they do not partake of the proprietary character
of government corporations. They are considered as "employees em_
ployed in governmental functions" and are therefore subject to the prohibitory
terms of section 28. Accordingly, the members of the auditing force,
as well as those of the legal staffs, of government-owned and controlled
corporations have no ground in questioning the legality of the circular of
the Commissioner of Civil Service which rules that the auditing and legal
staffs of government corporations are prohibited from joining labor unions
imposing the obligation to strike or to join strikes.
V. SUSPENSION
With the approval of the Police Act of 1966 (Republic Act No. 4864),
the power to appoint and suspend members of the police force is vested in
the municipal or city mayor.62 In Ruiz v. Carreon 63 this power was in-
58 See also section 11 of the Industrial Peace Act (Rep. Act No. 875 [1953]) and
the Magna Carta of Public School Teachers (Rep. Act No. 4670 [1966] . A standard
provisiOn) of Appropriatoin Acts prohibits the payment of salaries to any officer ()If
employee who engages in a strike against the Government, or who is a member of an
organization of government employees that asserts the right to strike. See, for example,
Rep. Act. 4642, {l965), sec. 19.
59 See Angat River Irrigation System v. Angat River Workers' Union, 102 Phil.
789 (1957).
60 See Government Serv;ce Insurance System v. Castillo, 98 Phil. 876 (1956),
with, respe\:t to the same proviso in section 11 of the Industrial Peace Act.
61 G.R. No. 22723, April 30, 1970.
62 Secs. 8 & 16.
63 G.R. No. 29707, March 30, 1970.
250 PHILIPPINE LAW JOURNAL [VOL. 46
voked by the mayor of Dagupan City when he suspended the chief of
police upon the filing of certain criminal charges against the latter. On the
other hand, it is clear that the petitioner chief of police was appointed in
1966 by the President and his appointment was confirmed by the Commission
on Appointments pursuant to section 19 of the charter of the City
of Dagupan. May a chief of police appointed by the President be suspended
by a city mayor?
Under the Police Act itself, there is an intent to exclude appointments
made by the President before the approval of that law. Thus, section 8
provides that the power to appoint the chief of police in accordance with
existing city charter "shall continue to be vested in the President until December
31, 1967", and in its last paragraph it makes clear that its provisions
"shall be without prejudice: to the tenure of the incumbent chiefs of
police . .. and those holding office in January, 1968 in accordance with
existing laws and/ or civil service rules and regulations". More directly,
Ruiz resorts to the provisions of the Police Manual issued by the Office of
the President upon recommendation of the Police Commission, pursuant to
the Police Act. Reference to the Police Manual is justified in that it is "the
official interpretation and implementation of said Act by the very agency
created therein to take charge of its administration and enforcement. As
such, it is entitled to great weight and consideration, and should be respeced
by courts of justice, unless clearly erroneous". Section 3, Rule XIII
of the Police Manual makes clear that "All chiefs of police and other police
officers appointed by the President and confirmed by the Commission on
Appointments, shall continue to enjoy their status as presidential appointees
and may be suspended or removed only for cause by order of the President
(italics by the Ruiz opinion)".
VI. ABOLITION OF OFFICE
Settled is the rule that to be valid abolition of office must be made in
good faith. Where it is attended with bad faith, abolition amounts to removal
without cause.64 In Canonigo v. Ramiro,65 the following circumstances
constitute bad faith: (a) that three days after the assumption of office
the city employees concerned required the minor employees to tender their
"courtesy resignation" on the pretext that this should give the new city
administration "a free hand"; and (b) that soon after the positions in
question were abolished the municipal board "created various positions and
appropriated several thousand pesos for improvements and salaries of officials
and employees".66