Cayetano v. Monsod

G.R. No. 100113, September 3, 1991

Facts:

Respondent Christian Monsod was nominated by President

Corazon C. Aquino to the position of Chairman of the

COMELEC in a letter received by the Secretariat of the

Commission on Appointments on April 25, 1991. Petitioner

opposed the nomination because allegedly Monsod does not

possess the required qualification of having been engaged in

the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments

confirmed the nomination of Monsod as Chairman of the

COMELEC. On June 18, 1991, he took his oath of office. On

the same day, he assumed office as Chairman of the

COMELEC.

Challenging the validity of the confirmation by the

Commission on Appointments of Monsod's nomination,

petitioner as a citizen and taxpayer, filed the instant petition

for certiorari and Prohibition praying that said confirmation

and the consequent appointment of Monsod as Chairman of

the Commission on Elections be declared null and void.

Issue:

Whether the appointment of Chairman Monsod of Comelec

violates Section 1 (1), Article IX-C of the 1987 Constitution?

Held:

The 1987 Constitution provides in Section 1 (1), Article IX-C,

that there shall be a Commission on Elections composed of a

Chairman and six Commissioners who shall be natural-born

citizens of the Philippines and, at the time of their

appointment, at least thirty-five years of age, holders of a

college degree, and must not have been candidates for any

elective position in the immediately preceding elections.

However, a majority thereof, including the Chairman, shall be

members of the Philippine Bar who have been engaged in the

practice of law for at least ten years.

Atty. Christian Monsod is a member of the Philippine Bar,

having passed the bar examinations of 1960 with a grade of

86-55%. He has been dues paying member of the Integrated

Bar of the Philippines since its inception in 1972-73. He has

also been paying his professional license fees as lawyer for

more than ten years.

At this point, it might be helpful to define private practice.

The term, as commonly understood, means "an individual or

organization engaged in the business of delivering legal

services." (Ibid.). Lawyers who practice alone are often called

"sole practitioners." Groups of lawyers are called "firms." The

firm is usually a partnership and members of the firm are the

partners. Some firms may be organized as professional

corporations and the members called shareholders. In either

case, the members of the firm are the experienced attorneys.

In most firms, there are younger or more inexperienced

salaried attorneys called "associates."

Hence, the Commission on the basis of evidence submitted

doling the public hearings on Monsod's confirmation,

implicitly determined that he possessed the necessary

qualifications as required by law. The judgment rendered by

the Commission in the exercise of such an acknowledged

power is beyond judicial interference except only upon a

clear showing of a grave abuse of discretion amounting to

lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution).

Thus, only where such grave abuse of discretion is clearly

shown shall the Court interfere with the Commission's

judgment. In the instant case, there is no occasion for the

exercise of the Court's corrective power, since no abuse,

much less a grave abuse of discretion, that would amount to

lack or excess of jurisdiction and would warrant the issuance

of the writs prayed, for has been clearly shown.

Besides in the leading case of Luego v. Civil Service

Commission, he Court said that, Appointment is an essentially

discretionary power and must be performed by the officer in

which it is vested according to his best lights, the only

condition being that the appointee should possess the

qualifications required by law. If he does, then the

appointment cannot be faulted on the ground that there are

others better qualified who should have been preferred. This

is a political question involving considerations of wisdom

which only the appointing authority can decide.

Cayetano v. Monsod

FACTS

Monsod was nominated by President Aquino to the position

of Chairman of the COMELEC on April 25, 1991. Cayetano

opposed the nomination because allegedly Monsod does not

possess the required qualification of having been engaged in

the practice of law for at least ten years. Challenging the

validity of the confirmation by the Commission on

Appointments of Monsod’s nomination, petitioner filed a

petition for Certiorari and Prohibition praying that said

confirmation and the consequent appointment of Monsod as

Chairman of the Commission on Elections be declared null

and void because Monsod did not meet the requirement of

having practiced law for the last ten years.

ISSUE:

Whether or not Monsod satisfies the requirement of the

position of Chairman of the COMELEC.

HELD:

The practice of law is not limited to the conduct of cases in

court. A person is also considered to be in the practice of law

when he: “. . . for valuable consideration engages in the

business of advising person, firms, associations or

corporations as to their rights under the law, or appears in a

representative capacity as an advocate in proceedings

pending or prospective, before any court, commissioner,

referee, board, body, committee, or commission constituted

by law or authorized to settle controversies. Otherwise

stated, one who, in a representative capacity, engages in the

business of advising clients as to their rights under the law, or

while so engaged performs any act or acts either in court or

outside of court for that purpose, is engaged in the practice

of law.”

Atty. Christian Monsod is a member of the Philippine Bar,

having passed the bar examinations of 1960 with a grade of

86.55%. He has been a dues paying member of the Integrated

Bar of the Philippines since its inception in 1972-73. He has

also been paying his professional license fees as lawyer for

more than ten years. Atty. Monsod’s past work experiences

as a lawyer-economist, a lawyer-manager, a lawyer-

entrepreneur of industry, a lawyer-negotiator of contracts,

and a lawyer-legislator of both the rich and the poor — verily

more than satisfy the constitutional requirement — that he

has been engaged in the practice of law for at least ten years.

RENATO L. CAYETANO vs. CHRISTIAN MONSOD

September 3, 1991 | G.R. No. 100113

Facts:

- President Corazon Aquino Appointed Christian Monsod as

the chairman of COMELEC.

- Renato Cayetano opposed the nomination because

according to him, the respondent fall short of the ten year

requirement for the position.

- The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a

Chairman and six Commissioners who shall be natural-born

citizens of the Philippines and, at the time of their

appointment, at least thirty-five years of age, holders of a

college degree, and must not have been candidates for any

elective position in the immediately preceding -elections.

However, a majority thereof, including the Chairman, shall be

members of the Philippine Bar who have been engaged in the

practice of law for at least ten years. (Emphasis supplied)

- June 5, 1991: COA approved the appointment.

- June 18, 1991: Monsod took his oath and assumed office.

- Petitioner prayed for certiorari and prohibition against

Monsod.

Issue: Whether or not Monsod is engaged in the practice of

law for more than ten years.

Held:

Atty. Monsod’s past work experiences as a lawyer-economist,

a lawyer-manager, a lawyer-entrepreneur of industry, a

lawyer-negotiator of contracts, and a lawyer-legislator of

both the rich and the poor — verily more than satisfy the

constitutional requirement — that he has been engaged in

the practice of law for at least ten years.

The Commission on the basis of evidence submitted doling

the public hearings on Monsod’s confirmation, implicitly

determined that he possessed the necessary qualifications as

required by law. The judgment rendered by the Commission

in the exercise of such an acknowledged power is beyond

judicial interference except only upon a clear showing of a

grave abuse of discretion amounting to lack or excess of

jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where

such grave abuse of discretion is clearly shown shall the Court

interfere with the Commission’s judgment. In the instant

case, there is no occasion for the exercise of the Court’s

corrective power, since no abuse, much less a grave abuse of

discretion, that would amount to lack or excess of jurisdiction

and would warrant the issuance of the writs prayed, for has

been clearly shown.

The practice of law is not limited to the conduct of cases in

court.

Practice of law means any activity, in or out of court, which

requires the application of law, legal procedure, knowledge,

training and experience. “To engage in the practice of law is

to perform those acts which are characteristics of the

profession. Generally, to practice law is to give notice or

render any kind of service, which device or service requires

the use in any degree of legal knowledge or skill.”

CAYETANO VS. MONSOD

comelec – practice of law

Christian Monsod was nominated by President Cory as

Chairman of Comelec.

Cayetano opposed the nomination because allegedly Monsod

does not possess the required qualification of having been

engaged in the practice of law for at least 10 years.

According to the Consti, members of Comelec must have

been engaged in the practice of law for at least 10 years

The CA nevertheless confirmed the nomination of Monsod.

He took his oath of office and assumed office as Chair.

Cayetano, as citizen and taxpayer, filed a petition for

Prohibition, praying tha the confirmation and appointment of

Monsod be declared null and void.

ISSUE: Whether Monsod possessed the qualification that he

had engaged in the practice of law for at least 10 years?

SC: YES.

The practice of law is defined as the rendition of services

requiring the knowledge and application of legal principles

and techniques to serve the interest of another with his

consent. It is not limited to appearing in court, or advising or

assisting in the conduct of litigation, but embraces the

preparation of pleadings, and other papers incident to actions

and special proceedings, conveyancing, the preparation of

legal instruments, and the giving of all legal advice to clients.

It embraces all advice to clients and all actions taken for them

in matters connected with the law.

The practice of law is not limited to the conduct of cases in

court. A person is also considered to be in the practice of law

when he for valuable consideration engages in the business

of advising persons as to their rights under the law, or

appears in a representative capacity as an advocate in

proceedings pending or prospective before any court,

commission, referee, board, body committee, etc, and in such

representative capacity performs any act or acts for the

purpose of obtaining or defending the rights of their clients

under the law. As long as the work done involves the

determination by the trained legal mind of the legal effect of

facts and conditions, then it is a practice of law.

Practice of law means any activity, in or out of court, which

requires the application of law, legal procedure, knowledge,

training and experience. To engage in the practice of law is to

perform the acts which are characteristics of the profession.

Generaly, the practice of law is to give notice or render any

kind of service which requires the use in any degree of legal

knowledge or skill.

PRIVATE PRACTICE = means an individual or organization

(firm) engaged in the business of delivering legal services. But

most lawyers do not only spend time in litigation or

courtrooms. Substantially more legal work is transacted in

law offices than in courtrooms. General practitioners of law

who do both litigation and non-litigation work also know that

in most cases they find themselves spending more time

“business counseling” rather than trying cases.

Background of Atty Monsod:

After graduating from UP College of Law, he worked in the

law office of his father. He then worked for the World Bank as

operations officer in Costa Rica y Panama. After returning to

the Philippines, he worked with Meralco, served as CEO of

bank, and subsequently of a business conglomerate. In 1986,

he has rendered services to various companies as a legal and

economic consultant or adviser. He was also Sec-Gen and

Chairman of Namfrel, and in fact appeared before the

Comelec during the hearing for accreditation. He became a

member of the Davide Commission, a quasi-judicial body

investigating on the coup d’etats. He was a member of the

Con-Com, and Chairman of its Committee of Accountability of

Public Officers.

Interpreted in the light of the modern concept of law

practice, and taking into account the liberal construction of

the Constitution, Atty Monsod’s past experience as lawyer-

economist, lawyer-manager, lawyer-entrepreneur, lawyer-

negotiator, lawyer-legislator, verily more than satisfy the

constitutional requirement. He has engaged in the practice of

law for at least 10 years.

Padilla Dissenting:

Practice of law is commonly understood as actual

performance or actual application of knowledge as

distinguished from mere possession of knowledge. It

connotes active, habitual, repeated or customary action.

It would be like a doctor who is employed and habitually

performing the tasks of a nurse, he cannot be said to be in

the practice of medicine. Just as a CPA who works as a clerk,

cannot be said to be practicing his profession as an

accountant. In the same way, a lawyer who is employed as a

business executive or corporate manager, other than as head

or attorney of the legal department, cannot be said to be in

the practice of law.

Gutierrez Dissenting:

To be engaged in the practice of law requires committed

participation in something which is the result of one’s

decisive choice. It means that one is occupied and involved in

an enterprise, one is obliged or pledged to carry it out with an

intent and attention. The practice envisioned is active and

regular, not isolated, occasional. Seasonal, intermittent, or

extemporaneous.

MATIBAG VS. BENIPAYO

comelec – temporary appointments

President GMA appointed, ad interim, Benipayo as COMELEC

Chairman,3 and Borra

4 and Tuason

5 as COMELEC

Commissioners, each for a term of seven years and all

expiring on February 2, 2008. They all took their oath of office

and assumed the positions. The Office of the President

submitted to the Commission on Appointments the ad

interim appointments of Benipayo, Borra and Tuason for

confirmation.6 However, the Commission on Appointments

did not act on said appointments.

President Arroyo renewed the ad interim appointments of

Benipayo, Borra and Tuason to the same positions and for the

same term of seven years. They took their oaths of office for

a second time. The Office of the President transmitted their

appointments to the Commission on Appointments for

confirmation.

Congress adjourned before the Commission on Appointments

could act on their appointments.

In his capacity as Comelec Chair, Benipayo issued a

Memorandum, reassigning Matibag to the from the

Education Department to the Law Department

Matibag sought reconsideration, arguing that transfer and

detail of employees are prohibited during the election period,

both by the Election Code and a Civil Service Memorandum

Matibag filed an administrative and criminal case against

Benipayo.

Matibag also questioned the appointment and the right to

remain in office of Benipayo, Borra and Tuason, as Chairman

and Commissioners of the COMELEC, respectively. Petitioner

claims that the ad interim appointments of Benipayo, Borra

and Tuason violate the constitutional provisions on the

independence of the COMELEC, as well as on the prohibitions

on temporary appointments and reappointments of its

Chairman and members.

Petitioner posits the view that an ad interim appointment can

be withdrawn or revoked by the President at her pleasure,

and can even be disapproved or simply by-passed by the

Commission on Appointments. For this reason, petitioner

claims that an ad interim appointment is temporary in

character and consequently prohibited by the last sentence

of Section 1 (2), Article IX-C of the Constitution. The rationale

behind petitioner’s theory is that only an appointee who is

confirmed by the Commission on Appointments can

guarantee the independence of the COMELEC. A confirmed

appointee is beyond the influence of the President or

members of the Commission on Appointments since his

appointment can no longer be recalled or disapproved. Prior

to his confirmation, the appointee is at the mercy of both the

appointing and confirming powers since his appointment can

be terminated at any time for any cause.

Petitioner also agues that assuming the first ad interim

appointments and the first assumption of office by Benipayo,

Borra and Tuason are constitutional, the renewal of the their

ad interim appointments and their subsequent assumption of

office to the same positions violate the prohibition on

reappointment under Section 1 (2), Article IX-C of the

Constitution. Petitioner theorizes that once an ad interim

appointee is by-passed by the Commission on Appointments,

his ad interim appointment can no longer be renewed

because this will violate Section 1 (2), Article IX-C of the

Constitution which prohibits reappointments. Petitioner

asserts that this is particularly true to permanent appointees

who have assumed office, which is the situation of Benipayo,

Borra and Tuason if their ad interim appointments are

deemed permanent in character.

ISSUES:

Whether or not the assumption of office by Benipayo, Borra

and Tuason on the basis of the ad interim appointments

issued by the President amounts to a temporary appointment

prohibited by Section 1 (2), Article IX-C of the Constitution;

Assuming that the first ad interim appointments and the first

assumption of office by Benipayo, Borra and Tuason are legal,

whether or not the renewal of their ad interim appointments

and subsequent assumption of office to the same positions

violate the prohibition on reappointment under Section 1 (2),

Article IX-C of the Constitution;

SC:

1. MATIBAG IS WRONG.

An ad interim appointment is a permanent appointment

because it takes effect immediately and can no longer be

withdrawn by the President once the appointee has qualified

into office. The fact that it is subject to confirmation by the

Commission on Appointments does not alter its permanent

character. The Constitution itself makes an ad interim

appointment permanent in character by making it effective

until disapproved by the Commission on Appointments or

until the next adjournment of Congress.

Thus, the ad interim appointment remains effective

until such disapproval or next adjournment, signifying that it

can no longer be withdrawn or revoked by the President. The

fear that the President can withdraw or revoke at any time

and for any reason an ad interim appointment is utterly

without basis.

2. An ad interim appointment that is by-passed because of

lack of time or failure of the Commission on Appointments to

organize is another matter. A by-passed appointment is one

that has not been finally acted upon on the merits by the

Commission on Appointments at the close of the session of

Congress. There is no final decision by the Commission on

Appointments to give or withhold its consent to the

appointment as required by the Constitution. Absent such

decision, the President is free to renew the ad interim

appointment of a by-passed appointee. Thus, a by-passed

appointment can be considered again if the President renews

the appointment.

In short, an ad interim appointment ceases to be

effective upon disapproval by the Commission, because the

incumbent can not continue holding office over the positive

objection of the Commission. It ceases, also, upon "the next

adjournment of the Congress", simply because the President

may then issue new appointments - not because of implied

disapproval of the Commission deduced from its inaction

during the session of Congress, for, under the Constitution,

the Commission may affect adversely the interim

appointments only by action, never by omission. If the

adjournment of Congress were an implied disapproval of ad

interim appointments made prior thereto, then the President

could no longer appoint those so by-passed by the

Commission. But, the fact is that the President may reappoint

them, thus clearly indicating that the reason for said

termination of the ad interim appointments is not the

disapproval thereof allegedly inferred from said omission of

the Commission, but the circumstance that upon said

adjournment of the Congress, the President is free to make ad

interim appointments or reappointments."

The prohibition on reappointment in Section 1 (2),

Article IX-C of the Constitution applies neither to disapproved

nor by-passed ad interim appointments. A disapproved ad

interim appointment cannot be revived by another ad interim

appointment because the disapproval is final under Section

16, Article VII of the Constitution, and not because a

reappointment is prohibited under Section 1 (2), Article IX-C

of the Constitution. A by-passed ad interim appointment can

be revived by a new ad interim appointment because there is

no final disapproval under Section 16, Article VII of the

Constitution, and such new appointment will not result in the

appointee serving beyond the fixed term of seven years.

Section 1 (2), Article IX-C of the Constitution

provides that "[t]he Chairman and the Commissioners shall

be appointed x x x for a term of seven years without

reappointment." (Emphasis supplied) There are four

situations where this provision will apply. The first situation is

where an ad interim appointee to the COMELEC, after

confirmation by the Commission on Appointments, serves his

full seven-year term. Such person cannot be reappointed to

the COMELEC, whether as a member or as a chairman,

because he will then be actually serving more than seven

years. The second situation is where the appointee, after

confirmation, serves a part of his term and then resigns

before his seven-year term of office ends. Such person cannot

be reappointed, whether as a member or as a chair, to a

vacancy arising from retirement because a reappointment

will result in the appointee also serving more than seven

years. The third situation is where the appointee is confirmed

to serve the unexpired term of someone who died or

resigned, and the appointee completes the unexpired term.

Such person cannot be reappointed, whether as a member or

chair, to a vacancy arising from retirement because a

reappointment will result in the appointee also serving more

than seven years.

The fourth situation is where the appointee has

previously served a term of less than seven years, and a

vacancy arises from death or resignation. Even if it will not

result in his serving more than seven years, a reappointment

of such person to serve an unexpired term is also prohibited

because his situation will be similar to those appointed under

the second sentence of Section 1 (2), Article IX-C of the

Constitution. This provision refers to the first appointees

under the Constitution whose terms of office are less than

seven years, but are barred from ever being reappointed

under any situation. Not one of these four situations applies

to the case of Benipayo, Borra or Tuason.

To foreclose this interpretation, the phrase "without

reappointment" appears twice in Section 1 (2), Article IX-C of

the present Constitution. The first phrase prohibits

reappointment of any person previously appointed for a term

of seven years. The second phrase prohibits reappointment

of any person previously appointed for a term of five or three

years pursuant to the first set of appointees under the

Constitution. In either case, it does not matter if the person

previously appointed completes his term of office for the

intention is to prohibit any reappointment of any kind.

However, an ad interim appointment that has lapsed

by inaction of the Commission on Appointments does not

constitute a term of office. The period from the time the ad

interim appointment is made to the time it lapses is neither a

fixed term nor an unexpired term. To hold otherwise would

mean that the President by his unilateral action could start

and complete the running of a term of office in the COMELEC

without the consent of the Commission on Appointments.

This interpretation renders inutile the confirming power of

the Commission on Appointments.

The phrase "without reappointment" applies only to

one who has been appointed by the President and confirmed

by the Commission on Appointments, whether or not such

person completes his term of office. There must be a

confirmation by the Commission on Appointments of the

previous appointment before the prohibition on

reappointment can apply. To hold otherwise will lead to

absurdities and negate the President’s power to make ad

interim appointments.

In the great majority of cases, the Commission on

Appointments usually fails to act, for lack of time, on the ad

interim appointments first issued to appointees. If such ad

interim appointments can no longer be renewed, the

President will certainly hesitate to make ad interim

appointments because most of her appointees will effectively

be disapproved by mere inaction of the Commission on

Appointments. This will nullify the constitutional power of the

President to make ad interim appointments, a power

intended to avoid disruptions in vital government services.

This Court cannot subscribe to a proposition that will wreak

havoc on vital government services.

The prohibition on reappointment is common to the

three constitutional commissions. The framers of the present

Constitution prohibited reappointments for two reasons. The

first is to prevent a second appointment for those who have

been previously appointed and confirmed even if they served

for less than seven years. The second is to insure that the

members of the three constitutional commissions do not

serve beyond the fixed term of seven years.

As to the transfer of Matibag

COMELEC Resolution No. 3300 does not require that

every transfer or reassignment of COMELEC personnel should

carry the concurrence of the COMELEC as a collegial body.

Interpreting Resolution No. 3300 to require such concurrence

will render the resolution meaningless since the COMELEC en

banc will have to approve every personnel transfer or

reassignment, making the resolution utterly useless.

Resolution No. 3300 should be interpreted for what it is, an

approval to effect transfers and reassignments of personnel,

without need of securing a second approval from the

COMELEC en banc to actually implement such transfer or

reassignment.

The COMELEC Chairman is the official expressly

authorized by law to transfer or reassign COMELEC

personnel. The person holding that office, in a de jure

capacity, is Benipayo. The COMELEC en banc, in COMELEC

Resolution No. 3300, approved the transfer or reassignment

of COMELEC personnel during the election period. Thus,

Benipayo’s order reassigning petitioner from the EID to the

Law Department does not violate Section 261 (h) of the

Omnibus Election Code.

Matibag vs Benipayo

GR No. 149036

April 2, 2002

Maria J. Angelina G. Matibag questions the constitutionality

of the appointment by President Arroyo of Benipayo

(Chairman of the Commission on Elections), and Bora and

Tuason (COMELEC Commissioners). She questions the legality

of appointment by Benipayo of Velma J. Cinco as Director IV

of the Comelec’s EID and reassigning her to the Law

department.

Issues:

1. Instant petition satisfies all requirements

2. Assumption of office by Benipayo, Bora and Tuason; ad

interim appointments amounts to a temporary appointment

prohibited by Sec 1 (2), Article IX-C of the Constitution

3. Renewal of ad interim violated the prohibition on

reappointment under Sec 1 (2), Article IX-C of the

Constitution

4. Benipayo’s removal of petitioner is illegal

5. OIC of COMELEC’s Finance Services Department acting in

excess jurisdiction

Matibag’s Argument:

1. Failure to consult for reassignment

2. Civil Service Commission Memorandum Circular No 7;

transferring and detailing employees are prohibited during

the election period beginning January 2 until June 13, 2001

3. Reassignment violated Sec 261 of the Omnibus Election

Code, COMELEC Resolution No. 3258

4. Ad interim appointments of Benipayo, Bora and Tuason

violated the constitutional provisions on the independence of

the COMELEC

5. Illegal removal or reassignment

6. Challenges the designation of Cinco

7. Questions the disbursement made by COMELEC

8. No ad interim appointment to the COMELEC or to Civil

Service Commission and COA

9. Sec 1 (2) of Article IX-C; an ad interim appointee cannot

assume office until confirmed by the Commission on

Appointments

Benipayo’s Argument:

1. Comelec Resolution No. 3300

2. Petitioner does not have personal interest, not directly

injured

3. Failure to question constitutionality of ad interim

appointments at the earliest opportunity. She filed only after

third time of reappointments

4. Ad interim is not the lis mota because the real issue is the

legality of petitioner’s reassignment.

Rules of Court:

1. Real issue is whether or not Benipayo is the lawful

Chairman of the Comelec

2. Petitioner has a personal and material stake.

3. It is not the date of filing of the petition that determines

whether the constitutional issue was raised at the earliest

point. The earliest opportunity to raise a constitutional issue

is to raise it in the pleading.

4. Questioned the constitutionality of the ad interim

appointments which is the earliest opportunity for pleading

the constitutional issue before a competent body.

5. Ad interim appointment is a permanent appointment

because it takes effect immediately and can no longer be

withdrawn. It is not the nature of appointment but the

manner on which appointment was made. It will avoid

interruptions that would result to prolonged vacancies. It is

limited the evil sought to be avoided.

6. Termination of Ad interim appointment (Sword of

Damocles); (1) disapproval (2) recess

7. Two modes of appointment: (1) in session (2) in recess

8. By-passed appointments – (1) lack of time/failure of the

Commission on Appointments to organize, (2) subject of

reconsideration, (3) can be revived since there is no final

disapproval

9. Four situations in for a term of seven years without

replacement: (1) serves his full seven-year term, (2) serves a

part of his term and then resigns before his seven-year term,

(3) served the unexpired term of someone who died or

resigned, (4) served a term of less than seven years, and a

vacancy arises from death or resignation. Not one of the four

situation applies to the case of Benipayo, Borra or Tuason

10. Reappointment cannot be applied; (1) appointed by

president, (2) confirmed by Commission on Appointments

11. Without reappointment means: (first phrase) prohibits

reappointment of any person previously appointed for a term

of seven years (second phrase) prohibits reappointment of

any person previously appointed for a term of 5 or 3 years

pursuant to the first set of appointees

12. Reasons for prohibition of reappointments: (1) prevent

second appointment (2) not serve beyond the fixed term

13. Two important amendments: (1) requiring the consent by

Commission of Appointments (2) prohibition on serving

beyond the fixed term of 7 years

14. Twin Prohibition (ironclad): (1) prohibition of

reappointments (2) prohibition of temporary or acting

appointments

15. Third issue not violation because the previous

appointments were not confirmed by the Commission on

Appointments.

16. Benipayo is the de jure COMELEC Chairman. He is not

required by law to secure the approval of the COMELEC en

banc.

17. The petitioner is acting only temporary because a

permanent appointment can be issued only upon meeting all

the requirements.

COMELEC Resolution No. 3300 refers only to COMELEC field

personnel not to head office personnel.

PANGILINAN VS. COMELEC

jurisdiction of comelec

Kiko Pangilinan and Sonny Belmonte were both candidates

for congressman in the 4th

District of QC during the 1992

elections.

Cadano, as registered voter, filed a petition for

disqualification against Belmonte, for allegedly violating Sec

68 of the Omnibus Election Code, by giving money and other

material consideration to influence, induce or corrupt the

voters. (that Belmonte gave sack of rice, medicine, P5000

cash, free trip for 2 to HKG)

Kiko and Cadano filed an urgent motion to suspend the

canvassing and/or proclamation of Belmonte, so that their

petition for disqualification would not become moot and

academic.

During the Canvass, Kiko objected to over 120 election

returns being canvassed, alleging that they were tampered,

altered or spurious.

The City Board of Canvassers overruled the objections of Kiko.

The reason was that under Sec 15 of Ra 7166, pre-

proclamation controversies are not allowed in the election of

Congressmen. Thus the canvassing continued.

Thus, Kiko assailed the constitutionality of RA 7166,

disallowing pre-proclamation controversies in the election of

Congressmen. Kiko argues that this is violative of Sec 3, Art

IX-C of the Constitution which vests in the Comelec the power

to hear and decide pre-proclamation controversies without

distinction as to whether the controversy involved the

election of Congressmen, or local elective officials. According

to him, the phrase “pre-proclamation controversies” in Art IX-

C embraces all kinds of pre-proc controversies such as those

of the election of Congressmen.

ISSUE; Does the Comelec have jurisdiction over pre-

proclamation controversies for the election of Congressmen?

SC: NO JURISDICTION.

Sec 2 of Art IX-C vests in the Comelec exclusive original

jurisdiction over all contests relating to the election, returns,

and qualifications of all elective REGIONAL, PROVINCIAL, AND

CITY OFFICIALS. It has no jurisdiction over contests relating to

the election, returns, and qualifications of Members of the

House. Under Article VI, it is the HRET who is the sole judge of

all contests relating to election, returns and qualifications of

Members of the House.

Thus the phrase “pre-proc controversies” in Art IX-C, should

be construed as referring only to those falling within the

exclusive and original jurisdiction of Comelec, that is, election

pertaining to regional, provincial and city officials.

RA 7166 is still VALID.

Since Sonny Belmonte has already been proclaimed winner,

and has taken oath and assumed office, the remedy of Kiko

was to file an electoral protest with the HRET.

SARMIENTO VS. COMELEC

comelec – pre-proc controversies/ division vs. en banc

This is a consolidated special civil action for certiorari seeking

to set aside the various Comelec Resolutions in special cases.

Among the resolutions were:

Ordering the exclusion of election returns from the canvass

Dismissing petitioner’s opposition to the composition of the

Board of Canvassers

Rejecting the petitioner’s objection to certain election

returns.

Petitioners claim that these decisions were in gadalej, and

that the Comelec sitting en banc, took cognizance of the

cases without first referring them to any of its divisions.

Petitioners claim that under Sec 3, Art IX-C, election cases

shall be heard and decided in divisions, provided hat MR of

the decisions shall be decided by the Commission en banc.

ISSUE: Whether the pre-proclamation controversies should

be decided first by division

SC:

It is clear from the provision of the constitution that election

cases included pre-proclamation controversies, and all such

cases must first be heard and decided by a Division of the

Comelec. The Commission, sitting en banc, does not have the

authority to hear and decide the same at the first instance.

Under the Comelec Rules of Procedure, with respect to pre-

proc controversies, the 2 Divisions of the Comelec are vested

with the authority to hear and decide those special cases. It is

recognized that the appeals from the rulings of the Board of

Canvassers are cognizable by any of the Divisions, to which

they are assigned, and not by the Commission en banc.

A MR on the decision of the Division may be filed within 5

days from its promulgation, after which the clerk of court will

notify the Presiding Commissioner, who shall certify the case

to the Comelec En Banc.

Here, the Comelec En Banc acted in gadalej when it resolved

the appeals of petitioners in the special cases without first

referring them to any of its Divisions. Said resolutions are

therefore null and void. Consequently, the appeals are

deemed pending before the Commission for proper referral

to a Division.

**Note the cases have been rendered moot and academic

because RA 7116 provides that all pre-proc controversies

pending shall be deemed terminated once the term of office

has begun. The term of office involved in the special cases

commenced at noon of June 30, 1992. Thus, the petitions are

dismissed.

ATIENZA vs. COMELEC Case Digest

ATIENZA vs. COMELEC

G.R. No. 108533, Dec. 20 1994

Facts:

Private respondent Antonio G. Sia was elected mayor of the

Municipality of Madrilejos, Cebu in the 1998 local elections.

Following Sia’s proclamation, petitioner filed an election

protest with the Regional Trial Court questioning the results

of the elections in a number of precincts in the municipality.

Consequently, in the revision ordered by the lower court,

petitioner obtained a plurality of 12 votes over the private

respondent. The Regional Trial Court rendered its decision

declaring petitioner the winner of the municipal elections and

ordering the private respondent to reimburse petitioner the

amount of P300,856.19 representing petitioner’s expenses in

the election protest. Private respondent appealed.

Meanwhile, the Regional trial Court granted petitioner’s

motion for execution pending appeal, which was opposed by

respondent. The Comelec issued a preliminary injunction

stopping the enforcement of the order of execution. The

Comelec, en banc, on April 7, 1992 issued an Order setting

aside the preliminary injunction and thereby allowing

petitioner to assume as mayor of the Municipality of

Madrilejos pending resolution of his appeal. However,

following the synchronized elections of May 11, 1992, the

Presiding Commissioner of the Comelec’s Second Division

issued an Order dated July 18, 1992 dismissing petitioner’s

appeal for being moot and academic.

Issue: Whether or not the Comelec acted with grave abuse of

discretion in reversing the lower court’s judgment.

Held: The dismissal of an appeal in an election protest case

for having become moot and academic due to the election of

new municipal officials referred only to that part of the

appealed judgment which was affected by the election and

not to that portion relating to the award of damages.

However, it would appear virtually impossible for a party in

an election protest case to recover actual or compensatory

damages in the absence of a law expressly providing for

situations allowing for the recovery of the same. This,

petitioner has been unable to do. The intent of the legislature

to do away with provisions indemnifying the victorious party

for expenses incurred in an election contest in the absence of

a wrongful act or omission clearly attributable to the losing

party cannot be gainsaid – in fine, Section 259 of the

Omnibus Election Code merely provides for the granting of

actual and compensatory damages “in accordance with law.”

The intent, moreover, to do away with such provisions merely

recognizes the maxim, settled in law that a wrong without

damage or damage without wrong neither constitutes a

cause of action nor creates a civil obligation.

Atienza vs. Comelec

FACTS:

Private respondent Antonio G. Sia was elected mayor of the

Municipality of Madrilejos, Cebu in the 1988 local elections

obtaining a plurality of 126 votes over his nearest rival, herein

petitioner Lou A .Atienza.

Following Sia's proclamation by the Municipal Board of

Canvassers, petitioner fi led an election protest with

the Regional Trial Court questioning the results of the

elections in a number of precincts in the municipality.

•

Consequently, in the revision ordered by the lower court,

petitionerobtained a total of 2,826 votes, a plural ity

of 12 votes over theprivate respondent.

•

On April 12, 1989 the Regional Trial Court rendered

its decision declaring petitioner the winner of the

municipal elections and ordering the private respondent to

reimburse petitioner the amountof P300,856.19

representing petitioner's expenses in the election

protest.

•

Private respondent appealed the trial court's decision to the

COMELEC raising as errors 1) the computation of the number

of votes received by the candidates; and 2) the alleged award

of "excessive damages" in favor of the petitioner.

The case was docketed and assigned to the COMELEC's

Second Division.

•

The COMELEC,

en banc

, issued an Order setting aside the preliminary injunction and

thereby allowing petitioner to assume as mayor of the

Municipality of Madrilejos pending resolution of his appeal.

•

However, following the synchronized elections of May 11,

1992, the Presiding Commissioner of the COMELEC's Second

Division issued an Order dated July 18, 1992 dismissing

petitioner's appeal for being moot and academic

pursuant to the Commission's decision in Resolution No. 2494

declaring the election protest and appeal cases as well as

petitions for special relief arising out of the January18, 1988

elections dismissed and terminated as of June 30,1992.

•

On January 28, 1993, respondent Commission

en banc

released its questioned resolution, the dispositive portion of

which states: PREMISES CONSIDERED, the Commission

RESOLVED, as it hereby RESOLVES, that the dismissal of

the appeal by the Commission(

Second Division ) f o r b e i n g m o o t a n d a c a d e m i c

b e c a u s e o f t h e expiration of the term of office of

the contested posit ion did not thereby revive the

vacated judgment of the Regional Trial Court, said appealed

judgment to remain vacated, not having been resolved on the

merits by the Commission for or against any of the parties;

and the judgment directing the protestee-appellant to

reimburse the protestant-appellee the amount of

P300,856.19 representing his expenses in the election

protest, is hereby REVERSED , said judgment not being in

accordance with law in the absence of any evidence of a n y

w r o n g f u l , o r n e g l i g e n t a c t o r o m i s s i o n o n t h e

p a r t o f t h e protestee appellant to justify the award.

ISSUE(S)/HELD:

Whether the COMELEC acted with grave abuse of discretion

when it issued its Resolution of January 28, 1993 reversing

the lower court's judgment awarding damages to herein

petitioner after it had earlier dismissed for being moot and

academic.

NO.RATIO:

•

The Omnibus Election Code provides: Actual or compensatory

damages may be granted in all election contests or in quo

warranto proceedings in accordance with law.

•

Provisions for actual or compensatory damages

under the law areembodied in various Civil Code articles

allowing claims for damages under specific circumstances.

Thus, Article 2176 provides: Whoever by act or omission

causes damage to another, there being fault or

negl igence, is obliged to pay for the damage done.

Such fault o rnegligence, if there is no pre-existing

contractual relation between the parties is called a quasi

delict , and is governed by the provisionsof this chapter.

•

Specifically, Article 2199 of the Civil Code mandates that:

Except asprovided by law or by stipulation, one is

entitled to an adequate compensation only for such

pecuniary loss suffered by him as he has duly proved. Such

compensation is referred to as actual or compensatory

damages.

•

Given this setting, it would appear virtually impossible for a

party in an election protest case to recover actual or

compensatory damages in the absence of the

conditions specified under Articles 2201 and2202 of

the Civil Code,

or in the absence of a law expressly providingfor situations

allowing for the recovery of the same

. I t f o l l o w s , naturally, that in most election protest

cases where the monetary claim does not hinge on

either a contract or

quasi

-contract or atortious act or omission,

the claimant must be able to point out to a specific

provision of law authorizing a money claim for

election protest expenses against the losing party

. This, petitioner has been unable to do.

•

Section 259 of the Omnibus Election Code merely

provides for the granting of actual and

compensatory damages in accordance with l a w .

T h a t i t w a s t h e i n t e n t o f t h e l e g i s l a t u r e t o

d o a w a y w i t h provisions indemnifying the victorious party

for expenses incurred in an election contest in the

absence of a wrongful act or omission clearly

attributable to the losing party cannot be gainsaid. The intent

,moreover, to do away with such provisions merely

recognizes themaxim, settled in law that a wrong

without damage or damage without wrong neither

constitutes a cause of action nor creates a civil obligation.

REYES vs. COMELEC

G.R. No. 120905, March 7, 1996

FACTS

Dr. Manalo filed with the Sangguniang Panlalawigan an

administrative complaint against incumbent Mayor Reyes of

Bongabong, Oriental Mindoro. It was alleged that Reyes

exacted and collected P50,000,00 from each market stall

holder in the Bongabong Public Market. Also, that certain

checks issued to him by the National Reconciliation and

Development Program of the DILG were never received by

the Municipal Treasurer nor reflected in the books of

accounts of the same officer; and that he took 27 heads of

cattle from beneficiaries of a cattle dispersal program. The

Sangguniang Panlalawigan found petitioner guilty of the

charges and ordered his removal from office.

Reyes filed a petition for certiorari, prohibition and injunction

with the RTC of Oriental Mindoro. Later, the Presiding Officer

of the Sangguniang Panlalawigan issued an order for Reyes to

vacate the position of mayor and to turn over the office to

the incumbent vice mayor but he refused to accept the

service of the order.

Thereafter, Reyes filed a certificate of candidacy with the

Comelec but a petition for disqualification was filed against

him. Thus, the Comelec canceled Reyes’s certificate of

candidacy. However, the Municipal Board of Canvassers of

Bongabong unaware of the disqualification of Reyes by the

Comelec, proclaimed him the duly-elected mayor.

The COMELEC en banc declared him to have been validly

disqualified as candidate and, consequently, set aside his

proclamation as municipal mayor. Hence the petition in G.R.

No. 120905, which was filed on July 20, 1995, alleging grave

abuse of discretion by the COMELEC on the ground that the

decision in the administrative case against petitioner Reyes

was not yet final and executory and therefore could not be

used as basis for his disqualification. Invoking the ruling in the

case of Aguinaldo v. Santos, petitioner argues that his

election on May 8, 1995 is a bar to his disqualification.

Garcia, who obtained the highest number of votes next to

Reyes, intervened, contending that because Reyes was

disqualified, he was entitled to be proclaimed mayor. The

Comelec en banc denied Garcia’s prayer.

ISSUES:

1. WON the decision of the Sangguniang Panlalawigan is not

yet final because he has not been served a copy thereof.

2. WON petitioner’s reelection rendered the administrative

charges against him moot and academic

3. WON the candidate who obtains the second highest

number of votes may not be proclaimed winner in case the

winning candidate is disqualified.

HELD:

1. No. The failure of the Sangguniang Panlalawigan to deliver

a copy of its decision was due to the refusal of petitioner and

his counsel to receive the decision. Repeated attempts had

been made to serve the decision on Reyes personally and by

registered mail, but Reyes refused to receive the decision. If a

judgment or decision is not delivered to a party for reasons

attributable to him, service is deemed completed and the

judgment or decision will be considered validly served as long

as it can be shown that the attempt to deliver it to him would

be valid were it not for his or his counsel's refusal to receive

it. Reyes’s refusal to receive the decision may, therefore, be

construed as a waiver on his part to have a copy of the

decision.

Petitioner was given sufficient notice of the decision. Rather

than resist the service, he should have received the decision

and taken an appeal to the Office of the President in

accordance with R.A. No. 7160 Section 67. But petitioner did

not do so. Accordingly, the decision became final 30 days

after the first service upon petitioner. Thus, when the

elections were held the decision of the Sangguniang

Panlalawigan had already become final and executory. The

filing of a petition for certiorari with the RTC did not prevent

the administrative decision from attaining finality. An original

action of certiorari is an independent action and does not

interrupt the course of the principal action nor the running of

the reglementary period involved in the proceeding.

Consequently, to arrest the course of the principal action

during the pendency of the certiorari proceedings, there must

be a restraining order or a writ of preliminary injunction from

the appellate court directed to the lower court. In the case at

bar, although a temporary restraining order was issued by the

Regional Trial Court, no preliminary injunction was

subsequently issued. The temporary restraining order issued

expired after 20 days. From that moment on, there was no

more legal barrier to the service of the decision upon

petitioner.

2. No. Petitioner invokes the ruling in Aguinaldo v. COMELEC,

in which it was held that a public official could not be

removed for misconduct committed during a prior term and

that his reelection operated as a condonation of the officer’s

previous misconduct to the extent of cutting off the right to

remove him therefor. But that was because in that case,

before the petition questioning the validity of the

administrative decision removing petitioner could be decided,

the term of office during which the alleged misconduct was

committed expired. Removal cannot extend beyond the term

during which the alleged misconduct was committed. If a

public official is not removed before his term of office

expires, he can no longer be removed if he is thereafter

reelected for another term. This is the rationale for the ruling

in the two Aguinaldo cases.

The case at bar is the very opposite of those cases. Here,

although petitioner Reyes brought an action to question the

decision in the administrative case, the temporary restraining

order issued in the action he brought lapsed, with the result

that the decision was served on petitioner and it thereafter

became final on April 3, 1995, because petitioner failed to

appeal to the Office of the President. He was thus validly

removed from office and, pursuant to § 40 (b) of the Local

Government Code, he was disqualified from running for

reelection.

It is noteworthy that at the time the Aguinaldo cases were

decided there was no provision similar to § 40 (b) which

disqualifies any person from running for any elective position

on the ground that he has been removed as a result of an

administrative case. The Local Government Code of 1991

(R.A. No. 7160) could not be given retroactive effect.

Indeed, it appears that petitioner was given sufficient

opportunity to file his answer. He failed to do so.

Nonetheless, he was told that the complainant would be

presenting his evidence and that he (petitioner) would then

have the opportunity to cross-examine the witnesses. But on

the date set, he failed to appear. He would say later that this

was because he had filed a motion for postponement and

was awaiting a ruling thereon. This only betrays the pattern

of delay he employed to render the case against him moot by

his election.

3. The candidate who obtains the second highest number of

votes may not be proclaimed winner in case the winning

candidate is disqualified. To simplistically assume that the

second placer would have received the other votes would be

to substitute our judgment for the mind of the voter. The

second placer is just that, a second placer. He lost the

elections. He was repudiated by either a majority or plurality

of voters. He could not be considered the first among

qualified candidates because in a field which excludes the

disqualified candidate, the conditions would have

substantially changed. We are not prepared to extrapolate

the results under the circumstances. The votes cast for Reyes

are presumed to have been cast in the belief that Reyes was

qualified and for that reason cannot be treated as stray, void,

or meaningless. The subsequent finding that he is disqualified

cannot retroact to the date of the elections so as to invalidate

the votes cast for him.

● Rule 13, §§ 3 and 7 of the Rules of Court provide for the

service of final orders and judgments either personally or by

mail. Personal service is completed upon actual or

constructive delivery, which may be made by delivering a

copy personally to the party or his attorney, or by leaving it in

his office with a person having charge thereof, or at his

residence, if his office is not known. Hence service was

completed when the decision was served upon petitioner’s

counsel in his office in Manila on March 3, 1995.

In addition, as the secretary of the Sangguniang Panlalawigan

certified, service by registered mail was also made on

petitioner Reyes. Although the mail containing the decision

was not claimed by him, service was deemed completed five

days after the last notice to him on March 27, 1995.

If a judgment or decision is not delivered to a party for

reasons attributable to him, service is deemed completed and

the judgment or decision will be considered validly served as

long as it can be shown that the attempt to deliver it to him

would be valid were it not for his or his counsel’s refusal to

receive it.

Indeed that petitioner’s counsel knew that a decision in the

administrative case had been rendered is evident in his effort

to bargain with the counsel for the Sangguniang Panlalawigan

not to have the decision served upon him and his client while

their petition for certiorari in the Regional Trial Court was

pending. His refusal to receive the decision may, therefore,

be construed as a waiver on his part to have a copy of the

decision.

The purpose of the rules on service is to make sure that the

party being served with the pleading, order or judgment is

duly informed of the same so that he can take steps to

protect his interests, i.e., enable a party to file an appeal or

apply for other appropriate reliefs before the decision

becomes final.

In practice, service means the delivery or communication of a

pleading, notice or other papers in a case to the opposite

party so as to charge him with receipt of it, and subject him

to its legal effect.

In the case at bar, petitioner was given sufficient notice of the

decision. Prudence required that, rather than resist the

service, he should have received the decision and taken an

appeal to the Office of the President in accordance with R.A.

No. 7160, § 67. But petitioner did not do so. Accordingly, the

decision became final on April 2, 1995, 30 days after the first

service upon petitioner.

Maquiling Vs. Comelec

On the Selection of the Lawful Mayor of Kauswagan, Lanao

del Sur

Arnado used his USA passport after his Renunciation of

American

Citizenship and before he filed his Certificate of Candidacy.

This positive

act of retraction of his renunciation before the filing of the

Certificate of

Candidacy renders Arnado’s Certificate of Candidacy void ab

initio.

Therefore, Arnado was never a candidate at any time, and all

the votes for

him are stray votes. We reiterate our ruling in Jalosjos v.

COMELEC6

on

this matter

Decisions of this Court holding that the second-placer cannot

be

proclaimed winner if the first-placer is disqualified or

declared ineligible

should be limited to situations where the certificate of

candidacy of the

first-placer was valid at the time of filing but subsequently

had to be

cancelled because of a violation of law that took place, or a

legal

impediment that took effect, after the filing of the certificate

of

candidacy. If the certificate of candidacy is void ab initio, then

legally

the person who filed such void certificate of candidacy was

never a

candidate in the elections at any time. All votes for such non-

candidate

are stray votes and should not be counted. Thus, such non-

candidate can

never be a first-placer in the elections. If a certificate of

candidacy void

ab initio is cancelled on the day, or before the day, of the

election,

prevailing jurisprudence holds that all votes for that

candidate are stray

votes. If a certificate of candidacy void ab initio is cancelled

one day or

more after the elections, all votes for such candidate should

also be stray

votes because the certificate of candidacy is void from the

very

beginning. This is the more equitable and logical approach on

the effect of the cancellation of a certificate of candidacy that

is void ab initio.

Otherwise, a certificate of candidacy void ab initio can

operate to defeat

one or more valid certificates of candidacy for the same

position

Garnering the highest number of votes

for an elective position does not cure this defect. l\1aquiling,

the alleged

"second placer," should be proclaimed Mayor because

Amado's ce11iticate

of candidacy was void ah initio. Maquiling is the qualified

candidate

who actually garnered the highest number of votes for the

position of Mayor.

MISON VS. COA

coa decisions

Mison was the Commissioner of Customs. He declared the

seizure of a Japanese vessel, MV Hyojin as invalid. He thus

ordered the release of said vessel.

However, the vessel was not released. It sank while in the

custody of the Bureau of Customs

Chan then filed a claim with the COA for the value of the

sunken vessel. ($50,000)

By authority of the Acting Chair, Mr. Espiritu (who was the

Manager of the Technical Services), denied the claim.

The claimants thus questioned the authority of Mr. Espiritu in

denying the claim.

Thru their lawyer Atty David, moved for the reconsideration,

writing a letter to the Acting COA Chair Tantuico. He argued

that the decision in the case was rendered only by the

Manager, and not by the Acting Chairman, much less the COA

itself. He contends that the decision is void because the

matter should be acted upon only by the COA duly

constituted (ie, by the Chair and the 2 Comm.) (at this time,

the COA is not yet fully constituted)

Acting COA Chair Tantuico denied the claim as well. Tantuico

adopted the Espiritu decision.

Again, Atty David moved for reconsideration, now arguing

that Acting Chair Tantuico also had no authority to act on the

case. He requested that the same be submitted for resolution

by the COA itself, after the appointment of 2 commissioners.

Later, the COA was finally fully constituted.

Atty David still wrote another letter, for the payment of their

claims.

In a 4th Indorsement, Chairman Domingo, acting for the

Commission, reconsidered the decision of Acting Chairman

Tantuico. Chairman Domingo granted the claim. He

forwarded the decision to grant the claim to Mison.

Mison now sought clarification on the legal implication of the

4th

Indorsement. He contends that the first COA decision,

although signed only by a Manger – Espiritu, was ratified or

made valid because it was adopted in toto as a decision of the

COA in the subsequent letters.

SC: INVALID.

In the first place, the decision by the Manager Espiritu was

void ab initio. As Manager of the Technical Services, Mr.

Espiritu obviously had no power to render or promulgate a

decision of or for the Commission. Even the Chairman alone,

had not that power. As clearly set out in the Constitution, the

power was lodged in the COA, composed of a Chairman and 2

Commissioners, to decide any case brought before it.

Hence, the adoption or ratification of the Espiritu decision by

Acting Chair Tantuico was inconsequential. Ratification

cannot validate an act void ab initio because it was done

absolutely without authority. The act has to be done anew by

the person or entity duly endowed with authority to do so.

Further, no proper ratification or validation could have been

effected by Acting Chair Tantuico, since he was not the

Commission, and he himself had no power to decide any case

brought before the COA. That power, is lodged on the in the

COA itself, a collegial body.

(it was argued that how about the hundreds of decisions

signed by Acting Chair Tantuico alone… since at that time

there was an interval during which only he had been

designated and no other Commissioner had been appointed..

what would happen to those decisions?)

SC: The principle should logically apply only to those

particular instances where there was a timely and specific

challenge to the authority of the Acting COA chair in the

exercise of adjudication. It should not affect all other cases

where the parties expressly or by implication accepted the

adjudicative authority of the Acting COA Chair.

(Mison further argued that Atty David already waived the

objection on lack of collegiality when he failed to raise it in his

MR. His MR merely reiterated the arguments on the merits of

the claim, but did not raise the ground of lack of collegiality)

SC: No waiver. Atty David in fact reiterated his challenge to

Tantuico’s authority in his subsequent letters. He insisted that

the same should be submitted for resolution by the COA, only

after full constitution of the COA.

Also, it must be made clear that the Espiritu decision was not

merely technically invalid for lack of collegiality. IT WAS

SUBSTANTIVELY VOID AB INITIO. It was rendered without

jurisdiction, Hence, it has an essential and inherent defect

which could not have been waived.

(Finally, Mison argued that the 4th

INdorsement should also

be invalid because COA Chair Domingo was the only one who

signed it).

SC: 4th

INdorsement VALID.

When the 4th

Indorsement Decision was rendered, there were

already 2 Commissioners (meaning the COA was fully

constituted already), clearly a number sufficient to satisfy the

constitutional requirement for collegial action. Even so, the

4th

Indorsement made it clear that it was the Decision of the

Commission, when Chairman Domingo placed “FOR THE

COMMISSION” in the decision. Records also show that the

other commissioners concurred in the decision.

Mison vs COA

Section 1: Purpose, composition, appointmentDoctrine: COA as a collegial

bodyCase: Mison v COA

Facts:

The case is about customs case no. 813 where the

commissioner of customs,MIson, declaring illegal the seizure

by elements of the Philippine Navy of the M/V"Hyojin Maru"

a vessel of Japanese registry, and ordered the release of the

vessel andits cargo to the claimants, Chan Chiu On and

Cheung I.However, the vessel was never released because it

sank while in the custody ofthe bureau of customs and it

could not be salvaged. The claimants filed a claim with

theCommission on Audit for the payment of the vessel.Acting

thereon "(b)y authority of the Acting Chairman," Mr. Rogelio

B. Espiritu,Manager, Technical Service Office of the COA,

denied the claim for the reasons setforth in his registered

letter to the claimant's lawyer dated November 3, 1977-

captioned"Decision No. 77-142."

In a letter dated May 10, 1978, claimant‘s counsel, Mr. David

replied that said Decision No. 77-142-rendered only by the

Manager, Technical Service Office of theCOA, and "not (by)

the Acting Chairman, much less . . . the Commission on Audit"

— was void because the matter could validly be acted upon

only by "the Commission onAudit duly constituted, by the

appointment and qualification of its Chairman and

twoCommissioners," "as specifically provided by Section 2,

Article XII-D of the (1973)Constitution. In a 4th Indorsement

dated June 22, 1987 addressed "to the Auditor,Bureau of

Customs," Chairman Eufemio C. Domingo, acting "FOR

THECOMMISSION," reconsidered Decision No. 77-142 of

Acting Commissioner of AuditTantuico,

supra.

He declared that the vessel sank while in illegal custody of the

Bureau ofCustoms, which "should have pre-eminently taken

adequate measures to preserve" itbut did not.; hence, he

declared that "this Commission will interpose no objection"

to theinstant claim, subject to the usual auditing and

accounting requirements." Petitionerseasonably filed with

this Court a petition for certiorari

to nullify said COA Decisionspursuant to Section 7, Article IX

of the 1987 Constitution.Issues:Whether or not the decision

to reverse the Espiritu Decision was proper?

Decision:In the first place the "Espiritu decision" was void

ab initio. As manager of theCOA Technical Service Office, Mr.

Espiritu obviously had no power whatever to renderand

promulgate a decision of or for the Commission. Indeed, even

the Chairman, alone,had not that power. As clearly set out in

the Constitution then in force, the power waslodged in the

Commission on Audit, "composed of a Chairman and

woCommissioners."

20 It was the Commission, as a collegial body, which then as

now, hadthe jurisdiction to "(d)ecide any case brought before

it within sixty days from the date ofits submission for

resolution," subject to review by the Supreme Court on

certiorari

21

Hence, the adoption or ratification of the Espiritu decision by

the Acting COAChairman was inconsequential. Ratification

cannot validate an act void

ab initio because done absolutely without authority. The act

has to be done anew by the personor entity duly endowed

with authority to do so.Moreover, even conceding the

contrary, no proper ratification or validation couldhave been

effected by the Acting Chairman since he was not the

Commission, and hehimself had no power to decide any case

brought before the Commission, that power, torepeat, being

lodged only in the Commission itself, as a collegial body. it

must be madeclear that the Espiritu Decision was not merely

"technically invalid," as the petitionerdescribes it. It was

substantively void ab initio, because rendered without

jurisdiction. Ithad an essential inherent defect that could not

be cured or waived.

PHIIL OPERATIONS VS. AUDITOR GENERAL

Coa – accounts and money claims

PhilOps entered into a barter agreement with the Bureau of

Prisons, where it agreed to deliver to the Bureau a sawmill,

complete with diesel engine and a saw, and other

accessories. While the Bureau was to deliver 70,000 feet of

lumber

The receipt that the employee of the Bureau of Prisons issued

for the items disclosed that there were unsatisfactory

conditions on the items (three was no belt in the main saw,

broken frames, lack of hooks, no rope cables, worn out rusty,

etc)

The Bureau of Prisons claim that when the barges were

examined, PhilOps were advised verbally about the defects

therein, and so were they with respect to the parts of the

sawmill when it was found.

Around a year later, it became evident that it was not feasible

for the Bureau of Prisons to deliver lumber. PhilOps proposed

to obtain surplus from the Surplus Property Commission in

lieu of the lumber so as to finally liquidate the obligation

contracted with the Bureau of Prisons.

It turned out however that no equipment could be found in

the Commission which could be usable by PhilOps, so it

proposed that the corporation be credited with an amount of

P70,000 and be allowed to bid in future surplus offerings.

PhilOps later filed a claim with the Auditor General.

The Bureau of Prisons offered to deliver the first installment

of the lumber. But this was rejected by PhilOps on the ground

that the offer came too late, and that it demanded payment

of cash.

The Auditor General denied PhilOps claim for payment. It was

mentioned that the Auditor General did not have jurisdiction.

PhilOps appealed to the SC.

The Auditor General claims that the Commonweal Act 327

which imposed upon the Auditor General the duty of acting

and deciding on cases involving the settlement of accounts or

claims other than those of accountable officers, does NOT

authorize or empower the Auditor General to pass upon the

PhilOps claim for P105,000 because the term “claims” used in

the said Act can refer to no other than liquidated claims. (In

short, the Auditor General claims that it has jurisdiction only

over liquidated claims)

PhilOps on the other hand contend that the Auditor General

had been granted additional power upon any money claim

involving liability arising from contract which could serve as a

basis for civil action between the parties. It also argued that

assuming that the Auditor General has jurisdiction only over

liquidated claims, the claim of P70,000 should be considered

liquidated, since this has been accepted by both parties.

SC:

AUDITOR GENERAL HAS NO JURDXN FOR UNLIQUIDATED

CLAIMS.

The reason for denying jurisdiction over unliquidated claims

for breach of contract is because these claims often involve a

broad filed of investigation and require the application of

judgment and discretion upon the measure of damages and

the weight of conflicting evidence.

The term used in the Commonwealth Act is “moneyed

claims” or only liquidated claims. An account is something

which may be adjusted or liquidated by arithmetic process.

But Treasury officials cannot pass upon accounts where the

amount is not the result of a numerical computation. Claims

for unliquidated damages require for their settlement the

application of the qualities of judgment and discretion. They

are frequently sustained by extraneous proof. The results to

be reached in such cases is not merely an “account” and are

not committed by law to the contro and decision of Treasury

officers.

Another reason why the AG cannot entertain unliquidated

damages is because the liability or non-liability of the

government is put in issue. In these cases, the most

important question to be deterined are judicial in nature,

involving the examination of evide and the use of judicial

discretion.

An administrative officer like the AG cannot assume this

jurisdiction, because it would amount to an illegal act, a

delegation of judicial power to an executive officer.

An examination of the provisions of the Constitution fails to

disclose any power vested in or granted to the AG to consider

these claims. All that is vested in the AG is the SETTLEMENT

OF ACCOUNTS (see earlier definition of Accounts).

INSURANCE COMPANY VS. REPUBLIC

money claims

The Plaintiff Insurance Company filed an action for recovery

of P86,000 the insured value of 82 cartons of goods, allegedly

lost in the custody of the carrier, US Lines, or the vessel

operator, Luzon Stevedore, or the arrestre operator, the

Bureau of Customs (an agency of the Republic)

The Republic of the Philippines filed a MTD, claiming the

State immunity from suit.

CFI denied the MTD.

However later, the case was dismissed against the Republic

and the Bureau.

Plaintiff appealed.

ISSUES: Suability of the RP and the BOC

SC: The BOC in operating the arrastre service, does so in the

performance of a necessary incident to the prime

governmental function of taxation. Thus it is not suable for

alleged loses resulting therefrom. Thus, neither is the

Republic suable for said activity.

ISSUE: It is claimed that the money claims that may be filed

with the Auditor General (AG) under Act 3083, are only those

which are subject to liquidation by an arithmetic computation

and only where the liability of the government is no longer an

issue. (a prior case of Tabacos was cited)

SC: It is precisely for the AG to determine whether the same

claim is tenable or not, and if not, to deny the same. The

ruling in the Tabacos case cannot apply in this case, since

there, the issue was the offsetting of an unliquidated claim

for damages against a specific liquidated debt. The ruling in

Tabacos was that offsetting cannot be made. Here, there is

no question of offsetting. The only issue was simply that of

allowing or disallowing a specific and liquidated claim against

the government.

Since in the present case, the amount of claim is already fixed

and readily determined from the bill of lading and other

shipping papers, they can be filed with the AG. Thus, we

sustain the power of the Ag to take cognizance of the claim,

for if the same be found in order and allowable, the amount

recoverable is fixed and liquidated, as determined or readily

determinable from the papers and invoices available to him,

Stated otherwise, where the existence of a specific and fixed

debt is the issue, the AG has the power to act on the claim,

but when not only the existence but also the amount of the

unfixed and undetermined debt is involved, the AG has no

competence to consider such claim.

- in short, the dismissal of the case against the Republic

and the BOC was proper because the claim should have been

filed with the AG.

Section 2: Power and Functions Examine and audit government revenues

Examine and audit government expenditures Doctrine: post-audit

authority Case: Blue Bar Coconut

G.R. No. L-28594 June 30, 1971

EDILBERTO M. RAMOS, PACIANO CAPALONGAN, VICTORINO REYES,

CONSORCIA JOVEN, JOSEFINA COLOMA, JOSE JOAQUIN, petitioners-

appellants,

vs.

HON. BENJAMIN H. AQUINO, Provincial Fiscal, Pasig, Rizal, BRIG. GEN.

ROMEO ESPINO, AFP, Commanding General, Philippine Army Fort

Bonifacio, Rizal, respondents-appellees.

A constitutional question with an element of novelty is raised in this appeal

from a lower court order dismissing an action for certiorari and prohibition

against the then respondent Fiscal of Rizal, Benjamin H. Aquino, to prevent

him from conducting a preliminary investigation. It is whether there is an

encroachment on the constitutional prerogatives of the Auditor General if,

after the final approval of certain vouchers by him without an appeal being

made, an inquiry by a provincial fiscal to determine whether criminal

liability for malversation through falsification of public, official and

commercial documents based thereon could lawfully be conducted. The

lower court that a prosecutor could, without offending the constitutional

grant of authority to the Auditor General, do so. We therefore affirm. In the

certiorari and prohibition proceeding filed with the lower court on June 6,

1967, petitioners, 1 now appellants, assailed the jurisdiction of cases

Benjamin Aquino, then Provincial Fiscal of Rizal, to conduct the preliminary

investigation of the alleged commission of malversation through

falsification of public, official and commercial documents imputed to them

by the other respondent, then the Commanding General, Philippine Army,

Fort Bonifacio, Rizal, Romeo Espino. The basis for such a motion was that

under the Constitution, the Auditor General is not only vested with the duty

to examine or audit all expenditures of funds of the Government, but also

to audit or investigate and "bring to the attention of the proper

administrative officer expenditures of funds or property which in his

opinion are irregular, unnecessary, excessive, or extravagant." It is their

contention that under the above, it is incumbent on the Auditor General to

determine whether criminal responsibility for the anomaly discovered in

the courage of his audit or examination of the accounts lies. It was further

contended that the decisions of the Auditor-General on the correctness of

the vouchers on which the alleged of cases were based having become

final and irrevocable, not even the courts could substitute its findings.

Otherwise the provision of law that vouchers, claims or accounts "once

finally settled shall in no case be opened or reviewed except as herein

provided" would be meaningless if the army authorities and respondent

Fiscal were permitted to proceed with the preliminary investigation to

determine whether criminal case could be filed. 2

The above legal objections were brought to the attention of the then cases

Provincial Fiscal by petitioners in a motion to quash which was denied by

him in a resolution of May 23, 1967 on this ground: "The exclusive

jurisdiction of the Auditor General on matters now raised by respondents

refer to auditorial requirements and approval but not to the criminal

liability, if any, of the persons involved in an alleged irregular or anomalous

disbursement of public funds. The authority of the Fiscal to investigate

whether a criminal act has been committed or not in the disbursement of

public funds, and finally of the Courts to try any person involved in the

alleged malversation of public funds is not curtailed or in any way divested

by the administrative findings of the Auditor General. To hold otherwise

would be to arrogate unto the Office of the Auditor General the power

which pertains to the judicial branch of the government." 3

Then came thus petition before the lower court, petitioners praying for a

judgment annulling aforesaid resolution of cases Provincial Fiscal denying

their motion to quash, rendering judgment that he was without petition to

conduct such preliminary investigation and prohibiting him from further

proceeding on the matter. 4 On November 2, 1967, there was a motion to

dismiss by respondent Provincial Fiscal based on the argument that the

amounts subject to the criminal cases were not closed and settled accounts

and that even if they were such, respondent Fiscal could still institute the

appropriation criminal action, there being no need for a certification by the

Auditor General as to any irregularity in the settlement of accounts as an

essential element for a criminal prosecution in malversation cases.

After an opposition was filed by petitioner to the aforesaid motion to

dismiss on November 21, 1967, the lower court, in an order of December

20, 1967, dismissed the petition. In support of such an order, it was set forth

in such order of dismissal: "The Provincial Fiscal is only studying whether or

not, as complained of, from these accounts or vouchers which have already

been passed in audit by the Auditor General or his representatives more

than three years ago, there is a crime to be prosecuted in which the

petitioners are answerable. 5 It was further emphasized: Were the theory

of the petitioners to prevail, then the Auditor General will be arrogating

unto himself duties which pertain to the judicial branch of the government.

6 The last ground on which the plea that the prohibition be dismissed was

sustained the principle that one "cannot restrain the Fiscal, by means of

injunction from prosecuting [this] case ...." 7

The matter was duly elevated on appeal to this Court on January 3, 1968.

The brief for petitioners appellants was filed on March 6 of that year. With

the submission of the brief for respondents as appellants on May 3, 1968,

the appeal was deemed submitted. As set forth at the outset, there is no

legal ground for reversing the lower court.

1. Appellants, in their brief, reiterate their principal argument that

the order of the lower court dismissing their motion and thus allowing their

investigation by cases Fiscal to proceed, did amount to an encroachment

on the constitutional prerogatives of the Auditor General. Such a

contention lacks merit. It betrays on its face a lack of understanding of the

constitutional provision relied upon. The Auditor General, as noted, is

vested with the power to examine, audit and settle all accounts pertaining

to the revenues and receipts from whatever source, and to audit, in

accordance with law and administrative regulations" all expenditures of

funds or property pertaining to or held in trust by the government as well as

the provinces or municipalities thereof. 8 That is one thing. The

ascertainment of whether a crime committed and by whom is definitely

another.

There is thus a manifest failure on the part of appellants to appreciate

correctly the constitutional objective in the conferment of authority on the

Auditor General. It is based on the fundamental postulate that in the

division of powers, the control over the purse remains with the legislative

branch. There is the explicit requirement then that there be no expenditure

of public founds except in pursuance of an appropriation made by law. 9

There is need, therefore, for an enactment to permit disbursement from

the public treasury. Nor does fidelity to this constitutional mandated end

there. There must be compliance with the terms of the statute. If it were

not so to, the extent that there is a deviation, there is a frustration of the

legislative will. It is obvious that Congress itself is not in a position to oversee

and supervise the actual release of each and every appropriation. That is

where the Auditor General comes in. It is the responsibility of his office to

exact obedience to any law that allows the expenditure of public funds. He

serves as the necessary check to make certain that no department of the

government, especially its main spending arm, the Executive, exceeds the

statutory limits of the appropriation to which it is entitled. That is the

purpose and end calling for the creation of such an office, certainly not the

enforcement of criminal statutes.

So it has been made clear by the then Delegate, later President, Manuel

Roxas in the Constitutional Convention of 1934. To the question as to the

method or means to determine whether public funds are spent in

accordance with the congressional will, this was his answer: "The only

means provided in our Constitution, as in the constitutions in other

countries, is the office of the auditor; therefore, if the auditor is a check on

the Executive, it is not wise to make the auditor depend on the Executive.

For another ways, the Executive, if he is able to influence the auditor, may

spent the proper checking of the expenditures of the public money." 10 For

such a dignitary to live up to such grave responsibility, he must, according to

Delegate Roxas, be independent, not only of the President but even of

Congress, even if he were in a true and vital sense fulfilling a task

appertaining to it. Thus, "In the United States while the auditor is appointed

by the President with the advice and consent of the United States Senate,

the office is kept as an independent office — independent [of] the

Executive and independent [of] the Legislature, because he has not only to

check the accounts of the Executive, but also the accounts of the Legislature

...." 11

It could be that appellants were not completely oblivious to the force of the

observations. They therefore did seek to lend plausibility to their contention

with reminder that there is likewise included in the constitutional provision

in question the task incumbent on the Auditor General to "bring forth the

attention of the proper administrative officer expenditures of funds or

property which, in his opinion, are irregular, unnecessary, excessive, or

extravagant." From which, by a process of construction rather latitudinarian

in character, they would imply that on the Auditor General alone rests the

determination of whether or not criminal liability is incurred for any

anomaly discovered in the course of his audit or examination. Such a

conclusion is at war with the controlling doctrine. As construed in Guevara

v. Gimenez, 12 at most such a duty goes no further then requiring him to

call the attention of the proper administrative officer of the existence of

such a situation but does not even extend to the power "to refuse and

disapprove payment of such expenditures, ...." 13 Much less then could it

justify the assertion devoid of any legal justification that even, the

ascertainment of any possible criminal liability is likewise a part and parcel

of such constitutional competence of the Auditor General. How, then, can it

be said that their plea is thereby strengthened?

There is likewise an invocation by appellants of alleged statutory support for

their untenable view. It is likewise in vain. All that appellants have to go on is

the concluding paragraph of section 657 of the Revised Administrative

Code: "Accounts once finally settled shall in no case be opened or reviewed

except as herein provided." The paragraph immediately preceding should

have disabused the minds of appellants of any cause for optimism. All that

set it provides for is that in case any settled account "appears to be infected

with fraud, collusion or error of calculation or when new and material

evidence is discovered, the Auditor General may within three years after

original settlement, open such account, and after a reasonable time for his

reply or appearance, may certify thereon a new balance." The official given

the opportunity for a reply or appearance is the provincial auditor, for

under the first paragraph of this particular section, the Auditor General at

any time before the expiration of three years and the making of any

settlement by a provincial auditor, may, of his own motion, review and

revise the same and certify a new balance. Nowhere does it appear that

such a statutory grant of authority of the Auditor General to open revised

accounts carries with it the power to determine who may be constituted in

the event that in the preparation thereof a crime has been committed. The

conclusive effect of the finality of his decision on the execution of branch of

the government thus relates solely to the administrative aspect of the

matter. 14

From the constitutional, no less than the statutory standpoint then, this

claim of appellants finds no support. It has nothing but novelty to call for

any attention being paid to it. It is singularly unpersuasive. To repeat, it

would be to stretch to unwarranted limits the constitutional power thus

conferred on the Auditor General to accede to such a plea. Nothing is

better settled than that, broad and comprehensive as it is, it does not

include a participation in the investigation of charges to determine whether

or not a criminal prosecution should be instituted. 15 Thus, the first two

errors of the appellants which would impugn the order of dismissal

forreaching a similar conclusion are disposed of.

2. The third assigned error by appellants would find fault with the

lower court's reliance on the well-settled doctrine that as a general

principle, no action lies to enjoin fiscals from conducting investigations to

ascertain whether an offense has been committed. To demonstrate its

equally groundless character, it suffices to refer to Ramos v. Torres, 16

dismissing an original action for prohibition instituted, by five of the six

petitioners, now appellants, 17 to cut short further proceedings on an

information accusing them of malversation through falsification of public

and commercial documents. In the opinion of the present Chief Justice, it is

emphatically affirmed: "Upon a review of the record, we are satisfied that

petitioners herein have not established their right to the writ prayed for.

Indeed, it is well-settled that, as a matter of general rule, the writ of

prohibition will not issue to restrain criminal prosecution." 18 An excerpt

from the opinion of Justice Sanchez in Hernandez v. Albano 19 was then

quoted. Thus: "Agreeably to the foregoing, a rule now of long standing and

frequent application was formulated that ordinarily criminal prosecution

may not be blocked by court prohibition or injunction. Really, if at every

turn investigation of a crime will be halted by a court order, the

administration of criminal justice will meet with an undue setback. Indeed,

the investigative power of the Fiscal may suffer such a tremendous

shrinkage that it may end up in hollow sound rather than as a part and

parcel of the machinery of criminal justice." 20 Nor is the accused person

thereby left unprotected for, as was noted by the Chief Justice, referring to

Gorospe v. Peñaflorida, 21 he could defend himself from any possible

prosecution by establishing that he did not commit the act charged or that

the statute or ordinance on which the prosecution is based is invalid or in

the event of conviction, he could appeal. While the general rule admits of

exceptions, no showing has been made that petitioners appropriately

invoke them. As they failed in their previous action of prohibition in Ramos

v. Torres, so they must now.

WHEREFORE, the appealed order of the lower court of December 20, 1967

dismissing the petitioners' action for certiorari and prohibition is affirmed.

With costs against petitioner-appellants.

Phils v Tantuico

Facts:

Sometime in 1976, the respondent Acting Chairman of the

Commission on Audit initiated a special audit of coconut end-

user companies, which include herein petitioners, with

respect to their Coconut Consumers Stabilization Fund levy

collections and the subsidies they had received. As a result of

the initial findings of the Performance Audit Office with

respect only to the petitioners, respondent Acting COA

Chairman directed the Chairman, the Administrator, and the

Military Supervisor of PCA and the Manager of the Coconut

Consumers Stabilization Fund, in various letters to them

(Annexes G-2 H, I, J, L and Nof petition) to collect the short

levies and overpaid subsidies, and to apply subsidy claims to

the settlement of short levies should the petitioners fail to

remit the amount due.

Issues:

Whether or not the respondent COA Chairman may disregard

the PCA rules and decions have become moot.

Decision:

In the case at bar, the petitioners have failed to show that

acts were done withgrave abuse of discretion amounting to

lack of jurisdiction. Case dismissed. Petitioners contend that

they are outside the ambit of respondents' "audit" power

which is confined to government-owned or controlled

corporations. Section 2 (1) of Article IX-D of the Constitution

provides that "The Commission on Audit shall have the

power, authority and duty to examine, audit, and settle all

accounts pertaining to the revenues and receipts of, and

expenditures or uses of funds and property, owned or held in

trust by or pertaining to, the Government, or any of its

subdivisions, agencies or instrumentalities, including

government-owned or controlled corporation with original

charters, and on a post-audit basis. ... (d)

such non-governmental entities receiving subsidy or equity

directly or indirectly from or through the Government which

are required by law or the granting institution to submit to

such audit as a condition of subsidy or equity ." (Emphasis

supplied) The Constitution formally embodies the long

established rule that private entities who handle government

funds or subsidies in trust may be examined or audited in

their handling of said funds by government auditors. n view

of the above considerations, we apply the principle o

fprimary jurisdiction:In cases involving specialized disputes,

the trend has been to refer the same to an administrative

agency of special competence. As early as 1954, theCourt in

Pambujan Sur United Mine Workers v. Samar Mining Co., Inc.

(94 Phil.932,941), held that under the sense-making and

expeditious doctrine of primary jurisdiction ... the courts

cannot or will not determine a controversy involving

aquestion which is within the jurisdiction of an administrative

tribunal prior to the decision of that question by the

administrative tribunal, where the question demands the

exercise of sound administrative discretion requiring the

special knowledge, experience, and services of the

administrative tribunal to determine technical and intricate

matters of fact, and a uniformity of ruling is essential to

comply with the Purposes of the regulatory statute

administered." Recently, this Court speaking thru Mr. Chief

Justice Claudio Teehankee said that "In this era of clogged

court dockets, the need for specialized administrative boards

or commissions with the special knowledge, experience and

capability to hear and determine promptly disputes on

technical matters or essentially factual matters, subject to

judicial review in case of grave abuse of discretion, has

become wellnigh indispensable." The court reminds us that

The legal presumption is that official duty has been duly

performed.