casao

                                           OMBUDSMAN V. APOLONIO

                                            (GR. No 165132, March 7,2012)

BRION, J.:

FACTS:

Through a petition for review on certiorari,

[1] petitioner Office of the Ombudsman (Ombudsman) seeks the reversal of the decision

[2] dated March 23, 2004 of the Court of Appeals (CA) in CA-G.R. SP No. 73357 and the resolution dated August 23, 2004, which dismissed the Ombudsman’s Motion for Reconsideration.  The assailed decision annulled and set aside the decision of the Ombudsman dated August 16, 2002

[3] (docketed as OMB ADM-0-01-0405), finding Dr. Nellie R. Apolonio guilty of grave misconduct and dishonesty.

Dr. Apolonio served as the Executive Officer of the National Book Development Board (NBDB) from 1996 to August 26, 2002.  As NBDB’s executive officer, Dr. Apolonio supervised NBDB’s Secretariat and managed its day-to-day affairs.

In December 2000, NBDB’s Governing Board approved the conduct of a Team Building Seminar Workshop for its officers and employees.  The workshop was scheduled to be a two-day event, to be held on December 20-21, 2000.

On March 29, 1995, the Department of Budget and Management (DBM) issued National Budget Circular No. 442[6] prescribing a P900.00 limit for each participant per day in any seminar/workshop/conference undertaken by any government agency.  In compliance with the circular, the NBDB disbursed the amount of P108,000.00 to cover the P1,800.00 allowance of the 60 employees for the two-day event.

Prior to the conduct of the workshop, some of the employees/participants approached Dr. Apolonio to ask whether a part of their allowance, instead of spending the entire amount on the seminar, could be given to them as cash. Dr. Apolonio consulted Rogelio Montealto,[8] then Finance and Administrative Chief of NBDB, about the proposal and the possible legal repercussions of the proposal.  Concluding the proposal to be legally sound and in the spirit of the yuletide season, Dr. Apolonio approved the request.[9] Thus, after the end of the workshop, SM gift cheques were distributed to the participants in lieu of a portion of their approved allowance.

ISSUES:

(1) Does the Ombudsman have the power to directly impose the penalty of removal from office against public officials?

(2) Do Dr. Apolonio’s acts constitute Grave Misconduct?

HELD:

(1) The Ombudsman has the power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee, in the exercise of its administrative disciplinary authority.  The challenge to the Ombudsman’s power to impose these penalties, on the allegation that the Constitution only grants it recommendatory powers, had already been rejected by this Court.

The Court first rejected this interpretation in Ledesma v. Court of Appeals,[37] where the Court, speaking through Mme. Justice Ynares-Santiago, held:

The creation of the Office of the Ombudsman is a unique feature of the 1987 Constitution. The Ombudsman and his deputies, as protectors of the people, are mandated to act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations. Foremost among its powers is the authority to investigate and prosecute cases involving public officers and employees, thus:

Section 13.  The Office of the Ombudsman shall have the following powers, functions, and duties:

  (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989, was passed into law on November 17, 1989 and provided for the structural and functional organization of the Office of the Ombudsman.  RA 6770 mandated the Ombudsman and his deputies not only to act promptly on complaints but also to enforce the administrative, civil and criminal liability of government officers and employees in every case where the evidence warrants to promote efficient service by the Government to the people.

The authority of the Ombudsman to conduct administrative investigations as in the present case is settled. Section 19 of RA 6770 provides:

SEC. 19. Administrative Complaints. – The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:

   (1)  Are contrary to law or regulation;

   (2) Are unreasonable, unfair, oppressive or discriminatory;

   (3) Are inconsistent with the general course of an agency’s functions, though in accordance with law;

   (4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

   (5) Are in the exercise of discretionary powers but for an improper purpose; or

   (6) Are otherwise irregular, immoral or devoid of justification.

The point of contention is the binding power of any decision or order that emanates from the Office of the Ombudsman after it has conducted its investigation.  Under Section 13(3) of Article XI of the 1987 Constitution, it is provided:

Section 13.  The Office of the Ombudsman shall have the following powers, functions, and duties:

x x x x

   (3.)  Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(2) When Dr. Apolonio approved the purchase of the gift cheques using a portion of the workshop’s budget, her act did not amount to technical malversation.  Moreover, if her acts did, in fact, constitute technical malversation, the Ombudsman ought to have filed a criminal case against her for violation of Article 220 of the Revised Penal Code.

Thus, we hold that Dr. Apolonio is guilty of simple misconduct.  Although her actions do not amount to technical malversation, she did violate Section 89 of PD 1445 when she approved the cash advance that was not authorized by the NBDB’s Governing Board.  Further, since the approval of the cash advance was an act done pursuant to her functions as executive officer, she is not merely guilty of conduct prejudicial to the best interest of the service.

WHEREFORE, we PARTIALLY GRANT the Office of the Ombudsman’s petition for review on certiorari, and MODIFY the decision of the Court of Appeals in CA-G.R. SP No. 73357.  We find Dr. Nellie R. Apolonio GUILTY of SIMPLE MISCONDUCT.  In the absence of any showing that this is her second offense for simple misconduct, we impose the penalty of SUSPENSION for SIX MONTHS against Dr. Apolonio,[65]  but due to her retirement from the service, we order the amount corresponding to her six-month salary to be deducted from her retirement benefits.

No pronouncement as to costs.

SO ORDERED.

Carpio, (Chairperson), Perez, Sereno, and Reyes, JJ., concur.

                                                        BARBO V. COA

                                            (GR. No.127515, May 10, 2005)

TINGA, J.:

FACTS:

Before this Court are two petitions assailing COA Decision No. 96-650 rendered by respondent Commission on Audit (COA)[1] on November 21, 1996, sustaining the COA Auditor's disallowance of petitioners' rice allowances disbursed on various dates. G.R. No. 127515 is a petition for certiorari filed pursuant to Section 7, Article IX (A) of the 1987 Constitution in relation to Section 50 of Presidential Decree (P.D.) No. 1445 and Rule 45 of the Rules of Court, seeking to nullify COA Decision No. 96-650. G.R. No. 127544 is a petition for review on certiorari pursuant to Section 7, Article IX of the 1987 Constitution in relation to Book V, Title I, Subtitle B, Chapter 5, Section 35 of the Administrative Code of 1987, praying for the reversal of COA Decision No. 96-650 and the issuance of an order authorizing the grant of rice allowances. Upon motion of the Office of the Solicitor General (OSG), the petitions in G.R. Nos. 127515 and 127544 were consolidated since the subject of both petitions is the same COA Decision.

Petitioners in G.R. No. 127515 were the incumbent officers as of June 30, 1989 of the Local Water Utilities Administration (LWUA), a government-owned and/or controlled corporation created under P.D. No. 198. They are Rodolfo S. De Jesus, Deputy Administrator for Administrative Services; Edelwina DG. Parungao, Manager of Human Resource Management Department; and Rebecca A. Barbo, Manager of Property Management. Antonio R. De Vera, petitioner in G.R. No. 127544, is suing in his capacity as Administrator and on behalf of the officials and employees of the LWUA.

Since 1982 officials and employees of the LWUA had been receiving a rice subsidy of P200.00 for every two months pursuant to LWUA Board Resolution No. 05, Series of 1986.[2] The amount was further increased to P350.00 in 1986 pursuant to a series of board resolutions.

In the interim, then President Corazon Aquino issued Memorandum Order No. 177 (M.O. No. 177),[3] prescribing the policies and guidelines in rationalizing compensation structures in government-owned and/or controlled corporations (GOCCs). Pertinently, M.O. No. 177 directed the payment of a "transition allowance" to incumbents of positions in corporate entities receiving additional fringe benefits for a period of at least twelve (12) months prior to its effectivity, the aggregate of which exceeded the standardized rates under existing laws.[4] To implement the directives under M.O. No. 177, the Department of Budget and Management (DBM) issued Corporate Budget Circular No. 15 (DBM-CBC No. 15),[5] which laid down the procedural requirements in availing of the "transition allowance."

Administrator Antonio De Vera, petitioner in G.R. No. 127544, also sent a letter-appeal to respondent COA on behalf of LWUA officials and employees for reconsideration of the disallowance of the rice subsidies for 1991 to 1992 in the total amount of P2,059,700.00. For his part, De Vera argued that the disallowance of the rice subsidies was without legal basis considering that DBM-CCC No. 10, upon which the disallowance was based, was never published in the Official Gazette. De Vera also invoked the due process and equal protection clauses and the principle of non-diminution of salary and compensation to further his appeal.

On November 21, 1996, respondent COA rendered the assailed decision denying De Vera's appeal on the ground that until DBM-CCC No. 10 was nullified by the proper court, respondent COA must faithfully observe and carry out its mandate. Respondent COA also sustained the disallowance of the grant of the rice allowance to LWUA officials and employees for non-submission by LWUA of the list of allowances being received by its employees as required by M.O. No. 177 and DBM-CBC No. 15.

During the pendency of this case, this Court promulgated De Jesus v. Commission on Audit[6] declaring the ineffectiveness of DBM-CCC No. 10 due to its non-publication either in the Official Gazette or in a newspaper of general circulation in the country.

ISSUES:

I.  RESPONDENT COMMISSION ON AUDIT SERIOUSLY ERRED IN RELYING UPON DBM CORPORATE COMPENSATION CIRCULAR NO. 10  AS LEGAL BASIS FOR UPHOLDING OR SUSTAINING THE LWUA CORPORATE AUDITOR'S DISAPPROVAL OF THE RICE ALLOWANCES.

II. RESPONDENT COMMISSION ON AUDIT SERIOUSLY ERRED IN DISREGARDING THE CLEAR PROVISIONS OF REPUBLIC ACT 6758 WHICH EXPLICITLY AUTHORIZE THE GRANT OF ADDITIONAL COMPENSATION SUCH AS THE RICE ALLOWANCE EVEN IF THE SAME IS NOT INTEGRATED INTO THE STANDARDIZED SALARY RATES.

III. RESPONDENT COMMISSION ON AUDIT SERIOUSLY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RENDERED A DECISION THAT IS VIOLATIVE OF DUE PROCESS, THE EQUAL PROTECTION CLAUSE, AND THE BASIC RIGHTS OF WORKERS.

HELD:

As correctly contended by petitioners in G.R. No. 127515, Section 2 of M.O. No. 177 expressly directs the continuous grant of allowances, including those which were authorized solely by the governing boards, without qualification. Said provision is an explicit authorization for the giving of certain allowances or benefits on top of the standardized salary rates to the end that there would be no undue diminution of pay. Nowhere in said provision is it required that the "transition allowance" be authorized by the DBM, the Office of the President, or a legislative issuance. On the other hand, paragraph 5.1 of DBM-CBC No. 15 insofar as it empowers the DBM to determine which of the additional benefits may be considered as "transition allowance" constitutes a unilateral arrogation of authority—a consequence which was not intended by, much more expressly stated in, M.O. No. 177.

Moreover, the assailed disallowances covered the period between 1991 and 1994 when R.A. No. 6758 was already in effect. With the effectivity of the new law, M.O. No. 177 and its implementing rule, DBM-CBC No. 15, were rendered without force and effect. Therefore, the procedural requirements under DBM-CBC No. 15 involving the submission of a list of subsisting allowances and benefits, assuming that they did not go beyond the parameters of M.O. 177, were of no consequence as they were in effect prior to the effectivity of R.A. No. 6758 only.

Finally, this Court does not see the relevance to respondent COA's cause of the pronouncement in Baybay Water District v. Commission on Audit[20] to the effect that R.A. No. 6758 applies to positions in government-owned or controlled corporations. Its contention that the LWUA must "comply with the required prior authority (from the DBM, the Office of the President, or a legislative issuance) for the separate grant of a rice subsidy since LWUA is covered by R.A. No. 6758 does not find support in the aforementioned case. As explained before, under Section 12 of R.A. No. 6758, the only requirements for the continuous grant of allowances and fringe benefits on top of the standardized salary rates are as follows: (1) the employee must be an incumbent as of July 1, 1989; and (2) the allowance or benefit was not consolidated in the standardized salary rate as prescribed by R.A. No. 6758.

WHEREFORE, the petitions are GRANTED and the assailed COA Decision No. 96-650 of respondent Commission on Audit is SET ASIDE. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, and Garcia, JJ., concur.

Puno, J., on leave.

Panganiban, and Sandoval-Gutierrez, JJ., on official leave.

                                                                    LAUREL V. CSC

                                                  (GR. No. 71562, October 28,1991)

DAVIDE, JR., J.:

FACTS:

Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 March 1980, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the Governor, a non-career service position which belongs to the personal and confidential staff of an elective official.[1]

On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants and so as not to prejudice the operation of the Provincial Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial Administrator effective 2 January 1981 and to continue until the appointment of a regular Provincial Administrator, unless the designation is earlier revoked.[2]

On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868.[3]

On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service Commission[4] to bring to its attention the "appointment" of Benjamin Laurel as Provincial Administrator of Batangas by the Governor, his brother. He alleges therein that: (1) the position in question is a career position, (2) the appointment violates civil service rules, and (3) since the Governor authorized said appointee to receive representation allowance, he violated the Anti-Graft and Corrupt Practices Act. He then asks that the matter be investigated.

In his letter to the Chairman of the Civil Service Commission dated 18 January 1983,[5] Jose A. Oliveros, Acting Provincial Attorney of Batangas, for and in behalf of herein petitioner, asserts that the latter did not violate the provision prohibiting nepotism under Section 49 of P.D. No. 807 because, with respect to the positions of Senior Executive Assistant and Civil Security Officer, both are primarily confidential in nature; and, with respect to the position of Provincial Administrator:

"x x x what is prohibited under Section 49 of P.D. 807 is the appointment of a relative to a career Civil Service position, like that of a provincial administrator. Governor Laurel did not appoint his brother, Benjamin, as Provincial Administrator. He merely designated him 'Acting Provincial Administrator.' And 'appointment' and 'designation' are two entirely different things. Appointment implies original establishment of official relation. Designation is the imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes a previous appointment of the officer in whom the new or additional duties are imposed.

Appointment is generally permanent, hence the officer appointed cannot be removed except for cause; designation is merely temporary and the new or additional powers may be withdrawn with or without cause.

Benjamin C. Laurel had already been appointed Senior Executive Assistant in the Office of the Governor when Governor Laurel designated him Acting Provincial Administrator."

It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices Act because:

"As Acting Provincial Administrator, Benjamin is entitled under Office of the President Memorandum-Circular No. 437, series of 1971, to a monthly representation allowance of P350.00. And said allowance is 'strictly on reimbursement basis.'"[6]

On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-358[7] which, inter alia, revokes the designation of Benjamin as Acting Provincial Administrator on the ground that it is "nepotic", or in violation of Section 49, P.D. No. 807 on nepotism. The relevant portion of said section reads as follows:

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

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

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

x x x

Although what was extended to Benjamin was merely a designation and not an appointment, the Civil Service Commission ruled that "the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly." It further held that Section 24(f) of Republic Act No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service). The petitioner, therefore, could not legally and validly designate Benjamin, who successively occupied the non-career positions of Senior Executive Assistant and Civil Security Officer, to the position of Provincial Administrator, a career position under Section 4 of R.A. No. 5185.

Petitioner's motion to reconsider said Resolution,[8] based on the claim that the questioned position is primarily confidential in nature, having been denied in Resolution No. 85-271 of 3 July 1985[9] wherein the respondent Civil Service Commission maintains that said position is not primarily-confidential in nature since it neither belongs to the personal staff of the Governor nor are the duties thereof confidential in nature considering that its principal functions involve general planning, directive and control of administrative and personnel service in the Provincial Office, petitioner filed the instant petition invoking the following grounds:

"A. Respondent Commission has committed a (sic) grave abuse of discretion amounting to lack or excess of jurisdiction when it held that the position of provincial administrator is not a primarily-confidential position because said ruling is diametrically opposed to, and in utter disregard of rulings of this Honorable Court as to what is a primarily-confidential position under Article XII-B, Sec. 2 of the Constitution.

B. Respondent Commission gravely abused its discretion and acted without jurisdiction when it arrogated unto itself the power to review a designation made by petitioner by virtue of the powers in him vested under Section 2077 of the Revised Administrative Code.

C. Respondent Commission exceeded its jurisdiction when it gave due course to the complaint of private respondent and thereafter promulgated the resolutions under question in this petition.

D. There is no appeal, nor any other plain, speedy and adequate remedy in the ordinary course of law available to petitioner to have the questioned resolutions of respondent Commission reviewed and thereafter nullified, revoked and set aside, other than this recourse to a petition for certiorari under Rule 65 of the Rules of Court.

ISSUES:

(1) Is the position of Provincial Administrator primarily confidential?

(2) Does the rule on nepotism apply to designation?

(3) May a private citizen who does not claim any better right to a position file a verified complaint with the Civil Service Commission to denounce a violation by an appointing authority of the Civil Service Law and rules?

HELD:

(1) The first issue becomes important because if the questioned position is primarily confidential, Section 49 of P.D. No. 807 on nepotism would not apply in the instant case. Interestingly, however, petitioner did not raise it in the letter to the Chairman of the Civil Service Commission dated 18 January 1983.[14]

On the contrary, he submits, or otherwise admits therein, that said position is not primarily confidential for it belongs to the career service. He even emphasized this fact with an air of absolute certainty, thus:

"At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is the appointment of a relative to a career Civil Service position, LIKE THAT OF PROVINCIAL ADMINISTRATOR x x x."

(capitalization supplied for emphasis).

The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the rule does not apply to designation -- only to appointment. He changed his mind only after the public respondent, in its Resolution No. 83-358, ruled that the "prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly" and, more specifically, only when he filed his motion to reconsider said resolution. Strictly speaking, estoppel has bound petitioner to his prior admission. Per Article 1431 of the Civil Code, through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon.[15]

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

As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions,[16] to wit:

"Education : Bachelor's degree preferably in Law/Public or Business Administration.

Experience : Six years of progressively responsible experience in planning, directing and administration of provincial government operations. Experience in private agencies considered are those that have been more or less similar level of administrative proficiency.

Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First Grade/Supervisor."

It may be added that the definition of its functions and its distinguishing characteristics as laid down in the Manual, thus:

x x x

    "2. DEFINITION:

Under the direction of the Provincial Governor, responsible for the overall coordination of the activities of the various national and local agencies in the province; and general planning, direction and control of the personnel functions and the administrative services of the Governor's Office.

      3. DISTINGUISHING CHARACTERISTICS:

This is the class for top professional level management, administrative and organizational work in the operation of provincial government with highly complex, involved relationships with considerable delegation of authority and responsibility and a high degree of public contact."

render indisputable the above conclusion that the subject position is in the career service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications, (b) opportunity for advancement to higher career positions, and (c) security of tenure. More specifically, it is an open career position, for appointment to it requires prior qualification in an appropriate examination.[17] It falls within the second major level of positions in the career service, per Section 7 of P.D. No. 807, which reads:

"SECTION 7. Classes of Positions in the Career Service. - (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows:

x x x

  (2) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; x x x."

In Piñero, et al. vs. Hechanova, et. al.,[18] this Court had the occasion to rule that:

"It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII[19] of the Constitution."

This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:

"x x x and only the President may declare a position policy-determining, highly technical or primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the Presidential Reorganization Commission."

for the reason that the latter may be considered merely as the initial determination of the Executive, which in no case forecloses judicial review. A rule that exclusively vests upon the Executive the power to declare what position may be considered policy-determining, primarily confidential, or highly technical would subvert the provision on the civil service under the 1973 Constitution which was then in force at the time the decree was promulgated. Specifically, Section 2 of Article XII of said Constitution makes reference to positions which are policy-determining, primarily confidential, or highly technical in nature," thereby leaving no room for doubt that, indeed, it is the nature of the position which finally determines whether it falls within the above mentioned classification. The 1987 Constitution retains this rule when in Section 2 of Article IX-C, it clearly makes reference to "positions which are policy-determining, primarily confidential, or highly technical."

In the light of the foregoing, We cannot accept the view of the Solicitor General in his Rejoinder[20] that Salazar vs. Mathay[21] and Piñero, et al. vs. Hechanova, et al.[22] have already been modified by Section 6 of P.D. No. 807 and the third paragraph of Section 1 of P.D. No. 868.

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

We likewise agree with the public respondent that there is one further obstacle to the occupation by Benjamin Laurel of the position of Provincial Administrator. At the time he was designated as Acting Provincial Administrator, he was holding the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential position. He was thereafter promoted as Civil Security Officer, also a primarily confidential position. Both positions belong to the non-career service under Section 6 of P.D. No. 807. As correctly ruled by the public respondent, petitioner cannot legally and validly designate Benjamin Laurel as Acting Provincial Administrator, a career position, because Section 24(f) of R.A. No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service).

(2) Being embraced in the career service, the position of Provincial Administrator must, as mandated by Section 25 of P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be issued to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position except the appropriate civil service eligibility, provided, however, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.[23]

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

Petitioner, however, contends that since what he extended to his brother is not an appointment, but a DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for:

"By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly."[24]

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty."[25]

In Borromeo vs. Mariano,[26] this Court said:

"x x x All the authorities unite in saying that the term 'appoint' is well-known in law and whether regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual x x x." (emphasis supplied).

In Binamira vs. Garrucho,[27] this Court, per Mr. Justice Isagani M. Cruz, stated:

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

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly stated by public respondent, "what cannot be done directly cannot be done indirectly."[28]

(3) As regards the last issue, We rule that the letter-complaint of Sangalang was validly given due course by public respondent. Undoubtedly, as shown above, there was a violation of law committed by petitioner in designating his brother as Acting Provincial Administrator. Any citizen of the Philippines may bring that matter to the attention of the Civil Service Commission for appropriate action conformably with its role as the central personnel agency to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants,[29] with the power and function to administer and enforce the constitutional and statutory provisions on the merit system.[30] Moreover, Section 37 of the decree expressly allows a private citizen to directly file with the Civil Service Commission a complaint against a government official or employee, in which case it may hear and decide the case or may deputize any department or agency or official or group of officials to conduct an investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. This provision gives teeth to the constitutional exhortation that a public office is a public trust and public officers and employees must at all times be, inter alia, accountable to the people.[31] An ordinary citizen who brings to the attention of the appropriate office any act or conduct of a government official or employee which betrays the public interest deserves nothing less than the praises, support and encouragement of society. The vigilance of the citizenry is vital in a democracy.

WHEREFORE, this petition is DENIED for lack of merit, and the challenged Resolutions of the Civil Service Commission are AFFIRMED.

Costs against petitioner.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin, and Romero, JJ., concur.

                                                               MATHAY V. CSC

                               ( GR. No. 124374/126354/126366, December 15, 1999)

YNARES-SANTIAGO, J.:

FACTS:

Before this Court are three consolidated petitions[1] filed under Rule 45 of the Revised Rules of Court.

The facts behind the consolidated petitions are undisputed.

During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents[2] to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972.

On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs. Tuvera[3] the presidential decree is deemed never "in force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . . ."[4]

On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions.

For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety ("DPOS").

At the heart of these petitions is Section 3 of the Ordinance which provides:

Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights and other benefits. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. (Underscoring ours).

Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created.

Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992.

On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed.

The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents' appointments became the seed of discontent from which these three consolidated petitions grew.

We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly.

G.R. No. 124374 and G.R. No. 126366

After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990,[5] and ordering their reinstatement to their former positions in the DPOS.[6] Petitioner brought petitions for certiorari to this Court,[7] to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari.

In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS.

ISSUE:

Does the Civil Service Commission has the legal authority to litigate cases for reinstatement and non-reinstatement of contractual employees?

HELD:

The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired.

Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions.

In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments."[8] We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337.

The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive.[9] The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio unius est exclusio alterius.[10] Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms.

By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases,[11] we have consistently ruled that the Civil Service Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority.

We fail to see how the present petition, involving as it does the reinstatement or non-reinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply.

To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review."[28]

In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated function is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies,"[29] not to litigate.

Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354.

WHEREFORE, the petitions of Ismael A. Mathay in G.R. No.124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE.

The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED.

No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.

Melo, and Vitug, JJ., in the result.

                                                 BAYAN MUNA V. ROMULO

                                           ( GR. No. 159618, February 1, 2011)

VELASCO, JR., J.:

THE CASE:

This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA).

FACTS:

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.2

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute3 establishing the International Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions."4 The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.5

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory states.6 As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as "persons" of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries.9

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate.10

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioner’s standing to maintain a suit and counter that the Agreement, being in the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of the Agreement.

ISSUES:

1. Whether or not the Agreement was contracted validly, which resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it.

2. Whether or not the Agreement, which has not been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and other treaties. But because respondents expectedly raised it.

HELD:

1.Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of the Agreement carries with it constitutional significance and is of paramount importance that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers cases,12 in which ordinary citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances.

Going by the petition, petitioner’s representatives pursue the instant suit primarily as concerned citizens raising issues of transcendental importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or specific requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is direct and personal. At the very least, their assertions questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against established national policies, practices, and obligations bearing on the State’s obligation to the community of nations.

2. Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the Agreement. And without specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually faults the President for performing, through respondents, a task conferred the President by the Constitution—the power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the sole organ and authority in the external affairs of the country.65 The Constitution vests in the President the power to enter into international agreements, subject, in appropriate cases, to the required concurrence votes of the Senate. But as earlier indicated, executive agreements may be validly entered into without such concurrence. As the President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent.118 Even further, the Rome Statute specifically and unequivocally requires that: "This Statute is subject to ratification, acceptance or approval by signatory States."119 These clearly negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, "[t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence."120 The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No costs.

SO ORDERED.