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72 SUPREME COURT REPORTS ANNOTATED


Cetus Development, Inc. vs. Court of Appeals

*
G.R. No. 77645. August 7,1989.

CETUS DEVELOPMENT, INC., petitioner, vs. COURT OF


APPEALS and EDERLINA NAVALTA, respondents.
*
G.R. No. 77648. August 7, 1989.

CETUS DEVELOPMENT, INC., petitioner, vs. COURT OF


APPEALS and ONG TENG, respondents.
*
G.R. No. 77649. August 7, 1989.

CETUS DEVELOPMENT, INC., petitioner, vs. COURT OF


APPEALS and JOSE LIWANAG, respondents.
*
G.R. No. 77650. August 7, 1989.

CETUS DEVELOPMENT, INC., petitioner, vs. COURT OF


APPEALS and LEANDRO CANLAS, respondents.
*
G.R. No. 77651. August 7, 1989.

CETUS DEVELOPMENT, INC., petitioner, vs. COURT OF


APPEALS and VICTORIA SUDARIO, respondents.
*
G.R. No. 77652. August 7, 1989.

CETUS DEVELOPMENT, INC., petitioner, vs. COURT OF


APPEALS and FLORA NAGBUYA, respondents.

Remedial Law; Special Civil Action; Ejectment; Demand


required and contemplated in Section 2, Rule 70 is a jurisdictional
requirement for the purpose of bringing an unlawful detainer suit
for failure to pay rent or comply with the conditions of lease.—We
hold that the demand required and contemplated in Section 2,
aforequoted, is a jurisdictional requirement for the purpose of
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bringing an unlawful detainer suit for failure to pay rent or


comply with the conditions of lease. It

_______________

* FIRST DIVISION.

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Cetus Development, Inc. vs. Court of Appeals

partakes of an extrajudicial remedy that must be pursued before


resorting to judicial action so much so that when there is full
compliance with the demand, there arises no necessity for court
action.
Same; Same; Same; Existence of cause of action gives the
lessor the right under Article 1659 of the New Civil Code to ask for
the rescission of the contract of lease and indemnification for
damages or only the latter, allowing the contract to remain in
force; where rescission is clearly the option taken, the whole that
has been followed in our jurisdiction is that both demands to pay
rent and to vacate are necessary to make a lessee a deforciant in
order that an ejectment suit may be filed.—As to whether this
demand is merely a demand to pay rent or comply with the
conditions of the lease or also a demand to vacate, the answer can
be gleaned from said Section 2. This section presupposes the
existence of a cause of action for unlawful detainer as it speaks of
“failure to pay rent due or comply with the conditions of the
lease.” The existence of said cause of action gives the lessor the
right under Article 1659 of the New Civil Code to ask for the
rescission of the contract of lease and indemnification for
damages, or only the latter, allowing the contract to remain in
force. Accordingly, if the option chosen is for specific performance,
then the demand referred to is obviously to pay rent or to comply
with the conditions of the lease violated. However, if rescission is
the option chosen, the demand must be for the lessee to pay rents
or to comply with the conditions of the lease and to vacate.
Accordingly, the rule that has been followed in our jurisprudence
where rescission is clearly the option taken, is that both demands
to pay rent and to vacate are necessary to make a lessee a
deforciant in order that an ejectment suit may be filed.
Same; Same; Same; There are two requisites for bringing an
ejectment suit.—Thus, for the purpose of bringing an ejectment
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suit, two requisites must concur, namely: (1) there must be failure
to pay rent or comply with the conditions of the lease and (2)
there must be demand both to pay or to comply and vacate within
the periods specified in Section 2, Rule 70, namely 15 days in case
of lands and 5 days in case of buildings. The first requisite refers
to the existence of the cause of action for unlawful detainer while
the second refers to the jurisdictional requirement of demand in
order that said cause of action may be pursued.
Same; Same; Same; Same; In the case at bar, no cause of
action for ejectment has accrued.—It is very clear that in the case
at bar, no cause of action for ejectment has accrued. There was no
failure yet on the

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74 SUPREME COURT REPORTS ANNOTATED

Cetus Development, Inc. vs. Court of Appeals

part of private respondents to pay rents for three consecutive


months. As the terms of the individual verbal leases which were
on a month­to­month basis were not alleged and proved, the
general rule on necessity of demand applies, to wit: there is
default in the fulfillment of an obligation when the creditor
demands payment at the maturity of the obligation or at anytime
thereafter. This is explicit in Article 1169, New Civil Code which
provides that “(t)hose obliged to deliver or to do something incur
in delay from the time the obligee judicially or extrajudicially
demands from them the fulfillment of their obligation.”
Same; Same; Same; Same; Same; Petitioner has not shown
that the case falls on any of the exceptions where demand is not
required.—Petitioner has not shown that its case falls on any of
the following exceptions where demand is not required: (a) when
the obligation or the law so declares; (b) when from the nature
and circumstances of the obligation it can be inferred that time is
of the essence of the contract; and (c) when demand would be
useless, as when the obligor has rendered it beyond his power to
perform.
Same; Same; Same; Same; Demand required in Article 1169
of the Civil Code may be in any form provided it can be proved;
This demand is different from the demand required under Section
2, Rule 70 which is merely a jurisdictional requirement.—The
demand required in Article 1169 of the Civil Code may be in any
form, provided that it can be proved. The proof of this demand lies
upon the creditor. Without such demand, oral or written, the
effects of default do not arise. This demand is different from the
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demand required under Section 2, Rule 70, which is merely a


jurisdictional requirement before an existing cause of action may
be pursued.
Same; Same; Same; Same; Same; Record fails to show proof
that petitioner demanded payment of the rentals when the
obligation matured; There being no accrued cause of action for
ejectment, petitioner’s demand to vacate was premature.—The
facts on record fail to show proof that petitioner demanded the
payment of the rentals when the obligation matured. Coupled
with the fact that no collector was sent as previously done in the
past, the private respondents cannot be held guilty of mora
solvendi or delay in the payment of rentals. Thus, when petitioner
first demanded the payment of the 3­month arrearages and
private respondents lost no time in making tender and payment,
which petitioner accepted, no cause of action for ejectment
accrued. Hence, its demand to vacate was premature as it was an
exercise of a non­existing right to rescind.

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VOL. 176, AUGUST 7, 1989 75

Cetus Development, Inc. vs. Court of Appeals

Same; Same; Same; Same; Where the right of rescission exists,


payment of the arrearages in rental after the demand to pay and to
vacate does not extinguish the cause of action for ejectment.—In
contradistinction, where the right of rescission exists, payment of
the arrearages in rental after the demand to pay and to vacate
under Section 2, Rule 70 does not extinguish the cause of action
for ejectment as the lessor is not only entitled to recover the
unpaid rents but also to eject the lessee.
Same; Same; Same; Argument that acceptance of tendered
payment does not constitute a waiver of the cause of action for
ejectment especially when accepted with the written condition that
it was without prejudice to the filing of an ejectment suit, correct.
—Petitioner correctly argues that acceptance of tendered payment
does not constitute a waiver of the cause of action for ejectment
especially when accepted with the written condition that it was
“without prejudice to the filing of an ejectment suit”. Indeed, it is
illogical or ridiculous not to accept the tender of payment of
rentals merely to preserve the right to file an action for unlawful
detainer. However, this line of argument presupposes that a cause
of action for ejectment has already accrued, which is not true in
the instant case.
Same; Same; Same; Same; It could not be said that private
respondents were in default in the payment of their rentals as the
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delay in paying the same was not imputable to them but to


petitioner’s omission or neglect to collect.—Petitioner likewise
claims that its failure to send a collector to collect the rentals
cannot be considered a valid defense for the reason that sending a
collector is not one of the obligations of the lessor under Article
1654. While it is true that a lessor is not obligated to send a
collector, it has been duly established that it has been customary
for private respondents to pay the rentals through a collector.
Besides Article 1257, New Civil Code provides that where no
agreement has been designated for the payment of the rentals,
the place of payment is at the domicile of the defendants. Hence,
it could not be said that they were in default in the payment of
their rentals as the delay in paying the same was not imputable
to them. Rather, it was attributable to petitioner’s omission or
neglect to collect.

PETITIONS for certiorari to review the decision of the


Court of Appeals.

The facts are stated in the opinion of the Court.


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76 SUPREME COURT REPORTS ANNOTATED


Cetus Development, Inc. vs. Court of Appeals

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision


dated January 30, 1987 of the Court of Appeals in CA­GR
Nos. SP­07945­50 entitled, “Cetus Development, Inc.,
Petitioner vs. Hon. Conrado T. Limcaoco, Presiding Judge,
Regional Trial Court of Manila, Branch XI, Ederlina
Navalta, et. al., respondents.”
The following facts appear in the records:
The private respondents, Ederlina Navalta, Ong Teng,
Jose Liwanag, Leandro Canlas, Victoria Sudario, and Flora
Nagbuya were the lessees of the premises located at No.
512 Quezon Boulevard, Quiapo, Manila, originally owned
by the Susana Realty. These individual verbal leases were
on a month­to­month basis at the following rates: Ederlina
Navalta at the rate of P80.50; Ong Teng at the rate of
P96.10; Jose Liwanag at the rate of P40.35; Leandro
Canlas at the rate of P80.55; Victoria Sudario at the rate of
P50.45 and Flora Nagbuya at the rate of P80.55. The
payments of the rentals were paid by the lessees to a
collector of the Susana Realty who went to the premises
monthly.

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Sometime in March, 1984, the Susana Realty sold the


leased premises to the petitioner, Cetus Development, Inc.,
a corporation duly organized and existing under the laws of
the Philippines. From April to June, 1984, the private
respondents continued to pay their monthly rentals to a
collector sent by the petitioner. In the succeeding months of
July, August and September 1984, the respondents failed
to pay their monthly individual rentals as no collector
came.
On October 9, 1984, the petitioner sent a letter to each of
the private respondents demanding that they vacate the
subject premises and to pay the back rentals for the
months of July, August and September, 1984, within
fifteen (15) days from the receipt thereof. Immediately
upon the receipt of the said demand letters on October 10,
1984, the private respondents paid their respective
arrearages in rent which were accepted by the petitioner
subject to the unilateral condition that the acceptance was
without prejudice to the filing of an ejectment suit.
Subsequent monthly rental payments were likewise
accepted by the petitioner under the same condition.

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Cetus Development, Inc. vs. Court of Appeals

For failure of the private respondents to vacate the


premises as demanded in the letter dated October 9, 1984,
the petitioner filed with the Metropolitan Trial Court of
Manila complaints for ejectment against the former, as
follows: (1) 105972­CV, against Ederlina Navalta; (2)
105973­CV, against Jose Liwanag; (3) 105974­CV, against
Flora Nagbuya; (4) 105975­CV, against Leandro Canlas; (5)
105976­CV, against Victoria Sudario and (6) 105977­CV,
against Ong Teng.
In their respective answers, the six (6) private
respondents interposed a common defense. They claimed
that since the occupancy of the premises they paid their
monthly rental regularly through a collector of the lessor;
that their non­payment of the rentals for the months of
July, August and September, 1984, was due to the failure
of the petitioner (as the new owner) to send its collector;
that they were at a loss as to where they should pay their
rentals; that sometime later, one of the respondents called
the office of the petitioner to inquire as to where they
would make such payments and he was told that a collector
would be sent to receive the same; that no collector was
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ever sent by the petitioner; and that instead they received


a uniform demand letter dated October 9, 1984.
The private respondents, thru counsel, later filed a
motion for consolidation of the six cases and as a result
thereof, the said cases were consolidated in the
Metropolitan Trial Court of Manila, Branch XII, presided
over by Judge Eduardo S. Quintos, Jr. On June 4, 1985, the
trial court rendered its decision dismissing the six cases, a
pertinent portion of which reads, as follows:

“The records of this case show that at the time of the filing of this
complaint, the rentals had all been paid. Hence, the plaintiff
cannot eject the defendants from the leased premises, because at
the time these cases were instituted, there are no rentals in
arrears.
“The acceptance of the back rental by the plaintiff before the
filing of the complaint, as in these case, the alleged rental
arrearages were paid immediately after receipt of the demand
letter, removes its cause of action in an unlawful detainer case,
even if the acceptance was without prejudice.
“x      x      x.
“Furthermore, the court has observed that the account involved

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Cetus Development, Inc. vs. Court of Appeals

which constitutes the rentals of the tenants are relatively


small to which the ejectment may not lie on grounds of equity and
for humanitarian reasons.
“Defendants’ counterclaim for litigation expenses has no legal
and factual basis for assessing the same against plaintiff.
“WHEREFORE, judgment is hereby rendered dismissing these
cases, without pronouncement as to costs.
“Defendants’ counterclaim is likewise dismissed.
“SO ORDERED.” (pp. 32­33, Rollo, G.R. No. 77647)

Not satisfied with the decision of the Metropolitan Trial


Court, the petitioner appealed to the Regional Trial Court
of Manila and the same was assigned to Branch IX thereof
presided over by Judge Conrado T. Limcaoco (now
Associate Justice of the Court of Appeals). In its decision
dated November 19, 1985, the Regional Trial Court
dismissed the appeal for lack of merit.
In due time, a petition for review of the decision of the
Regional Trial Court was filed by the petitioner with the
Court of Appeals. Said petition was dismissed on January
30, 1987, for lack of merit.
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Aggrieved by the decision of the Court of Appeals,


petitioner now comes to Us in this petition, assigning the
following errors:

ASSIGNMENT OF ERRORS

“I

“RESPONDENT COURT OF APPEALS COMMITTED A GRAVE


ABUSE OF DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, WHEN IT ERRED IN HOLDING THAT THE
CAUSE OF ACTION FOR UNLAWFUL DETAINER IN THESE
CASES DID NOT EXIST WHEN THE COMPLAINTS WERE
FILED BECAUSE PRIVATE RESPONDENTS TENDERED,
AND PETITIONER ACCEPTED, THE PAYMENT OF THE
THREE (3) MONTHS RENTAL IN ARREARS WITHIN THE
FIFTEEN (15) DAY PERIOD FROM PRIVATE RESPONDENTS’
RECEIPT OF PETITIONER’S DEMAND LETTERS TO VACATE
THE SUBJECT PREMISES AND TO PAY THE RENTALS IN
ARREARS.

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Cetus Development, Inc. vs. Court of Appeals

“II

“RESPONDENT COURT OF APPEALS COMMITTED A


GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, WHEN IT ERRED IN AFFIRMING THE
DISMISSAL OF THE COMPLAINTS IN THESE CASES
NOTWITHSTANDING THE EXISTENCE OF VALID GROUNDS
FOR THE JUDICIAL EJECTMENT OF PRIVATE
RESPONDENT.

“III

“RESPONDENT COURT OF APPEALS COMMITTED A


GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, WHEN IT ERRED IN HOLDING THAT
THESE CASES ARE CLASSIC EXAMPLES TO CIRCUMVENT
THE RENT CONTROL LAW.” (pp. 164­165, Rollo, G.R. No.
77647)

The Court of Appeals defined the basic issue in this case as


follows: whether or not there exists a cause of action when
the complaints for unlawful detainer were filed considering
the fact that upon demand by petitioner from private
respondents for payment of their back rentals, the latter
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immediately tendered payment which was accepted by


petitioner.
In holding that there was no cause of action, the
respondent Court relied on Section 2, Rule 70 of the Rules
of Court, which provides:

“Sec. 2. Landlord to proceed against tenant only after demand.—


No landlord or his legal representative or assign, shall bring such
action against a tenant for failure to pay rent due or to comply
with the conditions of his lease, unless the tenant shall have
failed to pay such rent or comply with such conditions for a period
of fifteen (15) days or five (5) days in case of building, after
demand therefor, made upon him personally, or by serving
written notice of such demand upon the person found on the
premises, or by posting such notice on the premises if no persons
be found thereon.”

It interpreted the said provision as follows:

“x x x the right to bring an action of ejectment or unlawful


detainer must be counted from the time the defendants failed to
pay

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Cetus Development, Inc. vs. Court of Appeals

rent after the demand therefor. It is not the failure per se to


pay rent as agreed in the contract, but the failure to pay the rent
after a demand therefor is made, that entitles the lessor to bring
an action for unlawful detainer. In other words, the demand
contemplated by the above­quoted provision is not a demand to
vacate, but a demand made by the landlord upon his tenant for
the latter to pay the rent due. If the tenant fails to comply with
the said demand within the period provided, his possession
becomes unlawful and the landlord may then bring the action for
ejectment.” (p. 28, Rollo, G.R. No. 77647)

We hold that the demand required and contemplated in


Section 2, aforequoted, is a jurisdictional requirement for
the purpose of bringing an unlawful detainer suit for
failure to pay rent or comply with the conditions of lease. It
partakes of an extrajudicial remedy that must be pursued
before resorting to judicial action so much so that when
there is full compliance with the demand, there arises no
necessity for court action.
As to whether this demand is merely a demand to pay
rent or comply with the conditions of the lease or also a
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demand to vacate, the answer can be gleaned from said


Section 2. This section presupposes the existence of a cause
of action for unlawful detainer as it speaks of “failure to
pay rent due or comply with the conditions of the lease.”
The existence of said cause of action gives the lessor the
right under Article 1659 of the New Civil Code to ask for
the rescission of the contract of lease and indemnification
for damages, or only the latter, allowing the contract to
remain in force. Accordingly, if the option chosen is for
specific performance, then the demand referred to is
obviously to pay rent or to comply with the conditions of
the lease violated. However, if rescission is the option
chosen, the demand must be for the lessee to pay rents or
to comply with the conditions of the lease and to vacate.
Accordingly, the rule that has been followed in our
jurisprudence where rescission is clearly the option taken,
is that both demands to pay rent and to vacate are
necessary to make a lessee a deforciant in order that an
ejectment suit may be filed (Casilan, et al. vs. Tomassi, L­
16574, February 28, 1964, 10 SCRA 261; Rickards vs.
Gonzales, 109 Phil. 423; Dikit vs. Icasiano, 89 Phil. 44).
Thus, for the purpose of bringing an ejectment suit, two
requisites must concur, namely: (1) there must be failure to
pay

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Cetus Development, Inc. vs. Court of Appeals

rent or comply with the conditions of the lease and (2) there
must be demand both to pay or to comply and vacate within
the periods specified in Section 2, Rule 70, namely 15 days
in case of lands and 5 days in case of buildings. The first
requisite refers to the existence of the cause of action for
unlawful detainer while the second refers to the
jurisdictional requirement of demand in order that said
cause of action may be pursued.
It is very clear that in the case at bar, no cause of action
for ejectment has accrued. There was no failure yet on the
part of private respondents to pay rents for three
consecutive months. As the terms of the individual verbal
leases which were on a month­to­month basis were not
alleged and proved, the general rule on necessity of
demand applies, to wit: there is default in the fulfillment of
an obligation when the creditor demands payment at the
maturity of the obligation or at anytime thereafter. This is
explicit in Article 1169, New Civil Code which provides
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that “(t)hose obliged to deliver or to do something incur in


delay from the time the obligee judicially or extrajudicially
demands from them the fulfillment of their obligation.”
Petitioner has not shown that its case falls on any of the
following exceptions where demand is not required: (a)
when the obligation or the law so declares; (b) when from
the nature and circumstances of the obligation it can be
inferred that time is of the essence of the contract; and (c)
when demand would be useless, as when the obligor has
rendered it beyond his power to perform.
The demand required in Article 1169 of the Civil Code
may be in any form, provided that it can be proved. The
proof of this demand lies upon the creditor. Without such
demand, oral or written, the effects of default do not arise.
This demand is different from the demand required under
Section 2, Rule 70, which is merely a jurisdictional
requirement before an existing cause of action may be
pursued.
The facts on record fail to show proof that petitioner
demanded the payment of the rentals when the obligation
matured. Coupled with the fact that no collector was sent
as previously done in the past, the private respondents
cannot be held guilty of mora solvendi or delay in the
payment of rentals. Thus, when petitioner first demanded
the payment of the 3­
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Cetus Development, Inc. vs. Court of Appeals

month arrearages and private respondents lost no time in


making tender and payment, which petitioner accepted, no
cause of action for ejectment accrued. Hence, its demand to
vacate was premature as it was an exercise of a non­
existing right to rescind.
In contradistinction, where the right of rescission exists,
payment of the arrearages in rental after the demand to
pay and to vacate under Section 2, Rule 70 does not
extinguish the cause of action for ejectment as the lessor is
not only entitled to recover the unpaid rents but also to
eject the lessee.
Petitioner correctly argues that acceptance of tendered
payment does not constitute a waiver of the cause of action
for ejectment especially when accepted with the written
condition that it was “without prejudice to the filing of an
ejectment suit”. Indeed, it is illogical or ridiculous not to
accept the tender of payment of rentals merely to preserve
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the right to file an action for unlawful detainer. However,


this line of argument presupposes that a cause of action for
ejectment has already accrued, which is not true in the
instant case.
Petitioner likewise claims that its failure to send a
collector to collect the rentals cannot be considered a valid
defense for the reason that sending a collector is not one of
the obligations of the lessor under Article 1654. While it is
true that a lessor is not obligated to send a collector, it has
been duly established that it has been customary for
private respondents to pay the rentals through a collector.
Besides Article 1257, New Civil Code provides that where
no agreement has been designated for the payment of the
rentals, the place of payment is at the domicile of the
defendants. Hence, it could not be said that they were in
default in the payment of their rentals as the delay in
paying the same was not imputable to them. Rather, it was
attributable to petitioner’s omission or neglect to collect.
Petitioner also argues that neither is its refusal to
accept the rentals a defense for non­payment as Article
1256 provides that “[i]f the creditor to whom the tender of
payment has been made refuses without just cause to
accept it, the debtor shall be released from responsibility by
the consignation of the thing due.” It bears emphasis that
in this case there was no unjustified refusal on the part of
petitioner or non­acceptance without
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VOL. 176, AUGUST 7, 1989 83


Cetus Development, Inc. vs. Court of Appeals

reason that would constitute mora accipiendi and warrant


consignation. There was simply lack of demand for
payment of the rentals.
In sum, We hold that respondent Court of Appeals did
not commit grave abuse of discretion amounting to lack of
jurisdiction in its conclusion affirming the trial court’s
decision dismissing petitioner’s complaint for lack of cause
of action. We do not agree, however, with the reasons relied
upon.
ACCORDINGLY, the petition for review on certiorari is
hereby DENIED for lack of merit and the decision dated
January 30, 1987 of respondent Court of Appeals is hereby
AFFIRMED.
SO ORDERED.

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          Narvasa, Cruz, Gancayco and Griño­Aquino, JJ.,


concur.

Petition denied; decision affirmed.

Notes.—Possession of land becomes illegal only from


the time demand to vacate the land is made. (Philippine
National Bank vs. Animas, 117 SCRA 735).
Ejectment is the proper remedy for refusal to vacate
premises. (Dakudao vs. Consolacion, 122 SCRA 877.)

——o0o——

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84 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

*
G.R. No. 81954. August 8, 1989. CESAR Z. DARIO,
petitioner, vs. HON. SALVADOR M. MISON, HON.
VICENTE JAYME and HON. CATALINO MACARAIG,
JR., in their respective capacities as Commissioner
of Customs, Secretary of Finance, and Executive
Secretary, respondents.

*
G.R. No. 81967. August 8, 1989. VICENTE A. FERIA,
JR., petitioner, vs. HON. SALVADOR M. MISON,
HON. VICENTE JAYME, and HON. CATALINO
MACARAIG, JR., in their respective capacities as
Commissioner of Customs, Secretary of Finance, and
Executive Secretary, respondents.

*
G.R. No. 82023. August 8, 1989. ADOLFO CASARENO,
PACIFICO LAGLEVA, JULIAN C. ESPIRITU,
DENNIS A. AZARRAGA, RENATO DE JESUS,
NICASIO C. GAMBOA, CORAZON RALLOS NIEVES,
FELICITACION R. GELUZ, LEODEGARIO H.
FLORESCA, SUBAER PACASUM, ZENAIDA
LANARIA, JOSE B. ORTIZ, GLICERIO R. DOLAR,
CORNELIO NAPA, PABLO B. SANTOS, FERMIN
RODRIGUEZ, DALISAY BAUTISTA, LEO­NARDO
JOSE, ALBERTO LONTOK, PORFIRIO TABINO,
JOSE BARREDO, ROBERTO ARNALDO, ESTER
TAN, PEDRO BAKAL, ROSARIO DAVID, RODOLFO
AFUANG, LORENZO CATRE, LEONCIA CATRE,
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ROBERTO ABADA, petitioners, vs. COMMISSIONER


SALVADOR M. MISON, COMMISSIONER, BUREAU
OF CUSTOMS, respondent.

*
G.R. No. 83737. August 8, 1989. BENEDICTO L.
AMASA and WILLIAM S. DIONISIO, petitioners, vs.
PATRICIA A. STO. TOMAS, in her capacity as

_______________

* EN BANC.

85

VOL. 176, AUGUST 8, 1989 85


Dario vs. Mison

Chairman of the Civil Service Commission and


SALVADOR MISON, in his capacity as Commissioner
of the Bureau of Customs, respondents.

G.R. No. 85310. August 8, 1989.* SALVADOR M.


MISON, in his capacity as Commissioner of Customs,
petitioner, vs. CIVIL SERVICE COMMISSION,
ABACA, SISINIO T., ABAD, ROGELIO C.,
ABADIANO, JOSE P., ABCEDE, NEMECIO C.,
ABIOG, ELY F., ABLAZA, AURORA M., AGBAYANI,
NELSON I., AGRES, ANICETO, AGUILAR, FLOR,
AGUILUCHO, MA. TERESA R., AGUSTIN,
BONIFACIO T., ALANO, ALEX P., ALBA, MAXIMO F.
JR., ALBANO, ROBERT B., ALCANTARA, JOSE G.,
ALMARIO, RODOLFO F., ALVEZ, ROMUALDO R.,
AMISTAD, RUDY M., AMOS, FRANCIS F., ANDRES,
RODRIGO V., ANGELES, RICARDO S., ANOLIN,
MILAGROS H., AQUINO, PASCASIO E., ARABE,
MELINDA M., ARCANGEL, AGUSTIN S., JR.,
ARPON, ULPIANO U., JR., ARREZA, ARTEMIO M.,
JR., ARROJO, ANTONIO P., ARVISU, ALEXANDER
S., ASCAÑO, ANTONIO T., ASLAHON, JULAHON P.,
ASUNCION, VICTOR R., ATANGAN, LORNA S.,
ATIENZA, ALEXANDER R., BACAL, URSULINO C.,
BAÑAGA, MARLOWE, Z., BANTA, ALBERTO T.,
BARREDO, JOSE B., BARROS, VICTOR C.,
BARTOLOME, FELIPE A., BAYSAC, REYNALDO S.,
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BELENO, ANTONIO B., BERNARDO, ROMEO D.,


BERNAS, MARCIANO S., BOHOL, AUXILIADOR G.,
BRAVO, VICTOR M., BULEG, BALILIS R., CALNEA,
MERCEDES M., CALVO, HONESTO G., CAMACHO,
CARLOS V., CAMPOS, RODOLFO C., CAPULONG,
RODRIGO G., CARINGAL, GRACIA Z., CARLOS,
LORENZO B., CARRANTO, FIDEL U.,
CARUNGCONG, ALFREDO M., CASTRO, PATRICIA
J., CATELO, ROGELIO B., CATURLA, MANUEL B.,
CENIZAL, JOSEFINA F., CINCO, LUISITO, CONDE,
JOSE C., JR., CORCUERA, FIDEL S., CORNETA,
VICENTE S., CORONADO, RICARDO S., CRUZ,
EDUARDO S., CRUZ EDILBERTO A., CRUZ,
EFIGENIA B., CRUZADO, MARCIAL C., CUSTODIO,
RODOLFO M., DABON, NORMA M., DALINDIN,
EDNA MAE D., DANDAL, EDEN F., DATUHARON,
SATA A., DAZO, GODOF

86

86 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

A., DE GUZMAN, RENATO E., DE LA CRUZ, AMADO


A., JR., DE LA CRUZ, FRANCISCO C., DE LA PEÑA,
LEONARDO, DEL CAMPO, ORLANDO, DEL RIO,
MAMERTO P., JR., DEMESA, WILHELMINA T.,
DIMAKUTA, SALIC L., DIZON, FELICITAS A.,
DOCTOR, HEIDY M., DOLAR, GLICERIO R.,
DOMINGO, NICANOR J., DOMINGO, PERFECTO V.,
JR., DUAY, JUANA G., DYSANGCO, RENATO F.,
EDILLOR, ALFREDO P., ELEVAZO, LEONARDO A.,
ESCUYOS, MANUEL M., JR., ESMERIA, ANTONIO
E., ESPALDON, MA. LOURDES H., ESPINA, FRANCO
A., ESTURCO, RODOLFO C., EVANGELINO,
FERMIN I., FELIX, ERNESTO G., FERNANDEZ,
ANDREW M., FERRAREN, ANTONIO C., FERRERA,
WENCESLAO A., FRANCISCO, PELAGIO S., JR.,
FUENTES, RUDY L., GAGALANG, RENATO V.,
GALANG, EDGARDO R., GAMBOA, ANTONIO C.,
GAN, ALBERTO R., GARCIA, GILBERT M., GARCIA,
EDNA V., GARCIA, JUAN L., GAVIOLA, LILIAN V.,
GEMPARO, SEGUNDINA G., GOBENCIONG,
FLORDELIZ B., GRATE, FREDERICK R.,
GREGORIO, LAURO P., GUARTICO, AMMON H.,
GUIANG, MYRNA N., GUINTO, DELFIN C.,
HERNANDEZ, LUCAS A., HONRALES, LORETO N.,

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HUERTO, LEOPOLDO H., HULAR, LANNYROSS E.,


IBAÑEZ, ESTER C., ILAGAN, HONORATO C.,
INFANTE, REYNALDO C., ISAIS, RAY C., ISMAEL,
HADJI AKRAM B., JANOLO, VIRGILIO M., JAVIER,
AMADOR L., JAVIER, ROBERTO S., JAVIER,
WILLIAM R., JOVEN, MEMIA A., JULIAN,
REYNALDO V., JUMAMOY, ABUNDIO A.,
JUMAQUIAO, DOMINGO F., KAINDOY, PASCUAL
B., JR., KOH, NANIE G., LABILLES, ERNESTO S.,
LABRADOR, WILFREDO M., LAGA, BIENVENIDO
M., LAGLEVA, PACIFICO Z., LAGMAN,
EVANGELINE G., LAMPONG, WILFREDO G.,
LANDICHO, RESTITUTO A., LAPITAN, CAMILO M.,
LAURENTE, REYNALDO A., LICARTE, EVARISTO
R., LIPIO, VICTOR O., LITTAUA, FRANKLIN Z.,
LOPEZ, MELENCIO L., LUMBA, OLIVIA R.,
MACAISA, BENITO T., MACAISA, ERLINDA C.,
MAGAT, ELPIDIO, MAGLAYA, FERNANDO P.,
MALABANAN, ALFREDO C., MALIBIRAN, ROSITA
D., MALIJAN, LAZARO V., MALLI, JAVIER M.,
MANAHAN, RAMON S., MANUEL, ELPIDIO R.,

87

VOL. 176, AUGUST 8, 1989 87


Dario vs. Mison

MARAVILLA, GIL B., MARCELO, GIL C., MARIÑAS,


RODOLFO V., MAROKET, JESUS C., MARTIN,
NEMENCIO A., MARTINEZ, ROMEO M., MARTINEZ,
ROSELINA M., MATIBAG, ANGELINA G., MATUGAS,
ERNESTO T., MATUGAS, FRANCISCO T., MAYUGA,
PORTIA E., MEDINA, NESTOR M., MEDINA,
ROLANDO S., MENDAVIA, AVELINO I., MENDOZA,
POTENCIANO G., MIL, RAY M., MIRAVALLES,
ANASTACIA L., MONFORTE, EUGENIO, JR., G.,
MONTANO, ERNESTO F., MONTERO, JUAN M. III.,
MORALDE, ESMERALDO B., JR., MORALES,
CONCHITA D.L., MORALES, NESTOR P., MORALES,
SHIRLEY S., MUNAR, JUANITA L., MUÑOZ,
VICENTE R., MURILLO, MANUEL M., NACION,
PEDRO R., NAGAL, HENRY N., NAPA, CORNELIO
B., NAVARRO, HENRY L., NEJAL, FREDRICK E.,
NICOLAS, REYNALDO S., NIEVES, RUFINO A.,
OLAIVAR, SEBASTIAN T., OLEGARIO, LEO Q.,
ORTEGA, ARLENE R., ORTEGA, JESUS R., OSORIO,
ABNER S., PAPIO, FLORENTINO T. II, PASCUA,

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ARNULFO A., PASTOR, ROSARIO, PELAYO,


ROSARIO L., PEÑA, AIDA C., PEREZ, ESPERIDION
B., PEREZ, JESUS BAYANI M., PRE, ISIDRO A.,
PRUDENCIADO, EULOGIA S., PUNZALAN,
LAMBERTO N., PURA, ARNOLD T., QUINONES,
EDGARDO I., QUINTOS, AMADEO C., JR., QUIRAY,
NICOLAS C., RAMIREZ, ROBERTO P., RAÑADA,
RODRIGO C., RARAS, ANTONIO A., RAVAL,
VIOLETA V., RAZAL, BETTY R., REGALA, PONCE F.,
REYES, LIBERATO R., REYES, MANUEL E., REYES,
NORMA Z., REYES, TELESFORO F., RIVERA,
ROSITA L., ROCES, ROBERTO V., ROQUE,
TERESITA S., ROSANES, MARILOU M., ROSETE,
ADAN I., RUANTO, REY CRISTO C., JR., SABLADA,
PASCASIO G., SALAZAR SILVERIA S., SALAZAR,
VICTORIA A.,SALIMBACOD, PERLITA C.,
SALMINGO, LOURDES M., SANTIAGO, EMELITA B.,
SATINA, PORFIRIO C., SEKITO, COSME B., JR.,
SIMON, ANGELO L., SORIANO, MAGDALENA R.,
SUMULONG, ISIDRO L., JR., SUNICO, ABELARDO
T., TABIJE, EMMA B., TAN, RUDY GOROSPE, TAN,
ESTER, S., TAN, JULITA S., TECSON, BEATRIZ B.
TOLENTINO, BENIGNO A., TURINGAN, ENRICO T.,
JR., UMPA, ALI A., VALIC, LUCIO E., VASQUEZ

88

88 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

NICANOR B., VELARDE, EDGARDO C., VERA,


AVELINO A., VERAME, OSCAR E., VIADO, LILIAN
T., VIERNES, NAPOLEON K., VILLALON, DENNIS
A., VILLAR, LUZ L., VILLALUZ, EMELITO V., ZATA,
ANGEL A., JR., ACHARON, CRISTETO, ALBA,
RENATO B., AMON, JULITA C., AUSTRIA, ERNESTO
C., CALO, RAYMUNDO M., CENTENO, BENJAMIN
R., DE CASTRO, LEOPAPA C., DONATO, ESTELITA
P., DONATO, FELIPE S., FLORES, PEDRITO S.,
GALAROSA, RENATO, MALAWI, MAUYAG,
MONTENEGRO, FRANCISCO M., OMEGA,
PETRONILO T., SANTOS, GUILLERMO F., TEMPLO,
CELSO, VALDERAMA, JAIME B., and VALDEZ,
NORA M., respondents.

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G.R. No. 85335. August 8, 1989.* FRANKLIN Z.


LITTAUA, ADAN I. ROSETE, FRANCISCO T.
MATUGAS, MA. J. ANGELINA G. MATIBAG,
LEODEGARDIO H. FLORESCA, LEONARDO A.
DELA PEÑA, ABELARDO T. SUNICO, MELENCIO L.
LOPEZ, NEMENCIO A. MARTIN, RUDY M.
AMISTAD, ERNESTO T. MATUGAS, SILVERIA S.
SALAZAR, LILLIAN V. GAVIOLA, MILAGROS
ANOLIN, JOSE B. ORTIZ, ARTEMIO ARREZA, JR.,
GILVERTO M. GARCIA, ANTONIO A. RARAS,
FLORDELINA B. GOBENCIONG, ANICETO AGRES,
EDGAR Y. QUINONES, MANUEL B. CATURLA, ELY
F. ABIOG, RODRIGO C. RANADA, LAURO
GREGORIO, ALBERTO I. GAN, EDGARDO GALANG,
RAY C. ISAIS, NICANOR B. VASQUEZ, MANUEL
ESCUYOS, JR., ANTONIO B. BELENO, ELPIO R.
MANUEL, AUXILIADOR C. BOHOL, LEONARDO
ELEVAZO, VICENTE S. CORNETA, petitioners, vs.
COM. SALVADOR M. MISON/BUREAU OF CUSTOMS
and the CIVIL SERVICE COMMISSION,
respondents.

G.R. No. 86241. August 8, 1989.* SALVADOR M.


MISON, in his capacity as Commissioner of Customs,
petitioner, vs. CIVIL SERVICE COMMISSION,
SENEN S. DIMAGUILA, ROMEO P. ARABE,
BERNARDO S. QUINTONG, GREGORIO P. REYES,
and ROMULO C.

89

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Dario vs. Mison

BADILLO, respondents.

Political Law; Constitutional Commissions; Civil Service


Commission; Civil Procedure; Certiorari; Judgments of the
Commission may be brought to the Supreme Court through
certiorari alone under Rule 65 of the Rules of Court.—We reject,
finally, contentions that the Bureau’s petition (in G.R. 85310)
raises no jurisdictional questions, and is therefore bereft of any
basis as a petition for certiorari under Rule 65 of the Rules of
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Court. We find that the questions raised in Commissioner Mison’s


petition (in G.R. 85310) are, indeed, proper for certiorari, if by
“jurisdictional questions” we mean questions having to do with
“an indifferent disregard of the law, arbitrariness and caprice, or
omission to weigh pertinent considerations, a decision arrived at
without rational deliberation,” as distinguished from questions
that require “digging into the merits and unearthing errors of
judgment” which is the office, on the other hand, of review under
Rule 45 of the said Rules. What cannot be denied is the fact that
the act of the Civil Service Commission of reinstating hundreds of
Customs employees Commissioner Mison had separated, has
implications not only on the entire reorganization process decreed
no less than by the Provisional Constitution, but on the Philippine
bureaucracy in general; these implications are of such a
magnitude that it cannot be said that—assuming that the Civil
Service Commission erred—the Commission committed a plain
“error of judgment” that Aratuc says cannot be corrected by the
extraordinary remedy of certiorari or any special civil action. We
reaffirm the teaching of Aratuc—as regards recourse to this Court
with respect to rulings of the Civil Service Commission—which is
that judgments of the Commission may be brought to the
Supreme Court through certiorari alone, under Rule 65 of the
Rules of Court. In Aratuc, we declared: It is once evident for these
constitutional and statutory modifications that there is a definite
tendency to enhance and invigorate the role of the Commission on
Elections as the independent constitutional body charged with the
safeguarding of free, peaceful and honest elections. The framers of
the new Constitution must be presumed to have definite
knowledge of what it means to make the decisions, orders and
rulings of the Commission “subject to review by the Supreme
Court”. And since instead of maintaining that provision intact, it
ordained that the Commission’s actuations be instead “brought to
the Supreme Court on certiorari”, We cannot insist that there was
no intent to change the nature of the remedy, considering that the
limited scope of certiorari, compared to a review, is well known in
remedial law.

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Dario vs. Mison

Same; Same; Same; The Civil Service Commission is the sole


arbiter of all controversies pertaining to the civil service.—We
observe no fundamental difference between the Commission on
Elections and the Civil Service Commission (or the Commission
on Audit for that matter) in terms of the consitutional intent to
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leave the constitutional bodies alone in the enforcement of laws


relative to elections, with respect to the former, and the civil
service, with respect to the latter (or the audit of government
accounts, with respect to the Commission on Audit). As the poll
body is the “sole judge” of all election cases, so is the Civil Service
Commission the single arbiter of all controversies pertaining to
the civil service.
Same; Same; Same; Courts; Certiorari; The jurisdiction of the
Supreme Court over cases emanating from the Civil Service
Commission is limited to complaints of lack or excess of
jurisdiction or grave abuse of discretion tantamount to lack or
excess of jurisdiction, complaints that justify certiorari under Rule
65.—It should also be noted that under the new Constitution, as
under the 1973 Charter, “any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari”,
which, as Aratuc tells us, “technically connotes something less
than saying that the same ‘shall be subject to review by the
Supreme Court,’ ” which in turn suggests an appeal by petition for
review under Rule 45. Therefore, our jurisdiction over cases
emanating from the Civil Service Commission is limited to
complaints of lack or excess of jurisdiction or grave abuse of
discretion tantamount to lack or excess of jurisdiction, complaints
that justify certiorari under Rule 65.
Same; Same; Same; Same; Same; Same; RA 6656; Since RA
6656 provides that judgments of the Civil Service Commission are
final and unappealable, certiorari therefore lies under Rule 65 in
the absence of appeal.—While Republic Act No. 6656 states that
judgments of the Commission are “final and executory” and hence,
unappealable, under Rule 65, certiorari precisely lies in the
absence of an appeal. Accordingly, we accept Commissioner
Mison’s petition (G.R. 85310) which clearly charges the Civil
Service Commission with grave abuse of discretion, a proper
subject of certiorari, although it may not have so stated in explicit
terms.
Same; Same; Same; Same; Same; Same; Same; Motions for
Reconsideration; A motion for reconsideration should preface a
resort to a special civil action.—As we stated, under the
Constitution, an aggrieved party has thirty days within which to
challenge “any decision,

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order or ruling” of the Commission. To say that the period should


be counted from the Solicitor’s receipt of the main Resolution,
dated June 30, 1988, is to say that he should not have asked for
reconsideration. But to say that is to deny him the right to contest
(by a motion for reconsideration) any ruling, other than the main
decision, when, precisely, the Constitution gives him such a right.
That is also to place him at a “no­win” situation because if he did
not move for a reconsideration, he would have been faulted for
demanding certiorari too early, under the general rule that a
motion for reconsideration should preface a resort to a special civil
action. Hence, we must reckon the thirty­day period from receipt
of the order of denial.
Constitutional Law; Civil Service Commission; Public
Officers; Removal; Abolition of Office; In case of separation from
office arising from abolition of office as a result of reorganization,
the government is obliged to prove good faith; but in case of
removals undertaken on the strength of clear and explicit
constitutional mandates, the government is not hard put to prove
anything.—At this point, we must distinguish removals from
separations arising from abolition of office (not by virtue of the
Constitution) as a result of reorganization carried out by reason of
economy or to remove redundancy of functions. In the latter case,
the Government is obliged to prove good faith. In case of removals
undertaken to comply with clear and explicit constitutional
mandates, the Government is not hard put to prove anything,
plainly and simply because the Constitution allows it.
Same; Same; Same; Courts; Decisions; Obiter Dictum; The
ruling in Jose vs. Arroyo that “the reorganization of the Bureau of
Customs under Exec. Order No. 127 may continue even after
ratification of the present Constitution. . . .” is in the nature of an
obiter dictum, and therefore, it lacks the force of an adjudication
and should be ordinarily regarded as such.—There are a few
points about Arroyo that have to be explained. First, the opinion
expressed therein that “[b]y virtue of said provision the
reorganization of the Bureau of Customs under Executive Order
No. 127 may continue even after the ratification of this
constitution and career civil service employees may be separated
from the service without cause as a result of such reorganization”
is in the nature of an obiter dictum. We dismissed Jose’s petition
primarily because it was “clearly premature, speculative, and
purely anticipatory, based merely on newspaper reports which do
not show any direct or threatened injury,” it appearing that the
reorganization of the Bureau of Customs had not been, then, set
in motion. Jose therefore had no cause for complaint, which was
enough basis to dismiss the

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petition. The remark anent separation “without cause” was


therefore not necessary for the disposition of the case. In Morales
v. Paredes, it was held that an obiter dictum “lacks the force of an
adjudication and should not ordinarily be regarded as such.”
Same; Same; Same; Removal; Security of Tenure; The present
Constitution does not provide for automatic vacancies; removals
“not for cause” must be resulting from reorganization; and must
pass the test of good faith.—As we have demonstrated,
reorganization under the aegis of the 1987 Constitution is not as
stern as reorganization under the prior Charter. Whereas the
latter, sans the President’s subsequently imposed constraints,
envisioned a purgation, the same cannot be said of the
reorganization inferred under the new Constitution because,
precisely, the new Constitution seeks to usher in a democratic
regime. But even if we concede ex gratia argumenti that Section
16 is an exception to due process and no­removal “except for cause
provided by law” principles enshrined in the very same 1987
Constitution, which may possibly justify removals “not for cause,”
there is no contradiction in terms here because, while the former
Constitution left the axe to fall where it might, the present
organic act requires that removals “not for cause” must be as a
result of reorganization. As we observed, the Constitution does
not provide for “automatic” vacancies. It must also pass the test of
good faith—a test not obviously required under the revolutionary
government formerly prevailing, but a test well­established in
democratic societies and in this government under a democratic
Charter. When, therefore, Arroyo permitted a reorganization
under Executive Order No. 127 after the ratification of the 1987
Constitution, Arroyo permitted a reorganization provided that it
is done in good faith. Otherwise, security of tenure would be an
insuperable impediment.
Same; Same; Same; Same; Same; Same; Reorganization in
Good Faith; Reorganization is carried out in good faith if it is for
the purpose of economy or to make bureaucracy more efficient.—
Reorganizations in this jurisdiction have been regarded as valid
provided they are pursued in good faith. As a general rule, a
reorganization is carried out in “good faith” if it is for the purpose
of economy or to make bureaucracy more efficient. In that event,
no dismissal (in case of dismissal) or separation actually occurs
because the position itself ceases to exist. And in that case,
security of tenure would not be a Chinese wall. Be that as it may,
if the “abolition,” which is nothing else but a separation or

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removal, is done for political reasons or purposely to defeat


security of tenure, or otherwise not in good faith, no valid
“abolition” takes

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Dario vs. Mison

place and whatever “abolition” is done, is void ab initio. There is


an invalid “abolition” as where there is merely a change of
nomenclature of positions, or where claims of economy are belied
by the existence of ample funds. It is to be stressed that by
predisposing a reorganization to the yardstick of good faith, we
are not, as a consequence, imposing a “cause” for restructuring.
Retrenchment in the course of a reorganization in good faith is
still removal “not for cause,” if by “cause” we refer to “grounds” or
conditions that call for disciplinary action. Good faith, as a
component of a reorganization under a constitutional regime, is
judged from the facts of each case.
Same; Same; Security of Tenure; Career Service Employees;
Removal; The President could have validly removed government
employees without cause but only before the effectivity of the 1987
Constitution.—The President could have validly removed
government employees, elected or appointed, without cause but
only before the effectivity of the 1987 Constitution on February 2,
1987 (De Leon v. Esguerra, supra; Palma­Fernandez v. De la Paz,
supra); in this connection, Section 59 (on non­reappointment of
incumbents) of Executive Order No. 127 cannot be a basis for
termination. In such a case, dismissed employees shall be paid
separation and retirement benefits or upon their option be given
reemployment opportunities (CONST. [1987], art. XVIII, sec. 16;
Rep. Act No. 6656, sec. 9). From February 2, 1987, the State does
not lose the right to reorganize the Government resulting in the
separation of career civil service employees [CONST. (1987),
supra] provided, that such a reorganization is made in good faith.
(Rep. Act No. 6656, surpra.)
Same; Same; Same; Same; Same; RA 6656; The provisions of
RA 6656 does not run counter to the transitory provisions of the
new Constitution on removal not for cause; RA 6656 is
constitutional.—This disposition also resolves G.R. No. 83737. As
we have indicated, G.R. No. 83737 is a challenge to the validity of
Republic Act No. 6656. In brief, it is argued that the Act, insofar
as it strengthens security of tenure and as far as it provides for a
retroactive effect, runs counter to the transitory provisions of the

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new Constitution on removals not for cause. It can be seen that


the Act, insofar as it provides for reinstatement of employees
separated without “a valid cause and after due notice and
hearing” is not contrary to the transitory provisions of the new
Constitution. The Court reiterates that although the Charter’s
transitory provisions mention separations “not for cause,”
separations thereunder must nevertheless be on account of a valid
reorganization and which do not come about automatically.
Otherwise, security of

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94 SUPREME COURT REPORTS ANNOTATED

Dario vs. Mison

tenure may be invoked. Moreover, it can be seen that the statute


itself recognizes removals without cause. However, it also
acknowledges the possibility of the leadership using the artifice of
reorganization to frustrate security of tenure. For this reason, it
has installed safeguards. There is nothing unconstitutional about
the Act. We recognize the injury Commissioner Mison’s
replacements would sustain. We also commisserate with them.
But our concern is the greater wrong inflicted on the dismissed
employees on account of their illegal separation from the civil
service.

MELENCIO­HERRERA, J., Dissenting

Constitutional Law; Freedom Constitution; Civil Service;


Reorganization; Sec. 16, Art. XVIII of the 1987 Constitution
recognizes that reorganization pursuant to Proc. No. 3 may be
continued even after the ratification of 1987 Constitution during
the transition period.—By its very context, SECTION 16
envisages the continuance of the reorganization pursuant to
Proclamation No. 3 even after ratification of the Constitution and
during the transition period. The two [2] stages contemplated,
namely, (1) the stage before and (2) after ratification, refer to the
same nature of separation “NOT FOR CAUSE but as a result of
Proclamation No. 3.” No valid reason has been advanced for a
different treatment after ratification as the majority opines, i.e.,
that separation NOT FOR CAUSE is allowed before ratification
but that, thereafter, separation can only be FOR CAUSE. A
fundamental principle of Constitutional construction is to assure
the realization of the purpose of the framers of the organic law
and of the people who adopted it. x x x It should also be recalled
that the deadline for the reorganization under Proclamation No. 3
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was “one year from February 25, 1986” (Article III, Section 2), or
up to February 24, 1987. Executive Order No. 17 itself provided
that the review/assessment of personnel be completed “not later
than February 24, 1987.” But, confronted with the reality of the
ratification of the Constitution before that deadline without
reorganization having been completed, there was need for a
provision allowing for its continuance even after ratification and
until completed. It was also to beat that deadline that EO 127 and
similar issuances, providing for the reorganization of departments
of government, were all dated 30 January 1987 or prior to the
plebiscite held on 2 February 1987. The intent to continue and
complete the reorganizations started is self­evident in SECTION
16.
Same; Same; Same; Same; Separation Not For Cause; When
Sec. 16, Art. XVIII speaks of dismissal not for cause, it implies
that it is not

95

VOL. 176, AUGUST 8, 1989 95

Dario vs. Mison

bound by the “fetters” of due process.—The canon for the removal


or suspension of a civil service officer or employee is that it must
be FOR CAUSE. That means “a guarantee of both procedural and
substantive due process. Basically, procedural due process would
require that suspension or dismissal come only after notice and
hearing. Substantive due process would require that suspension
or dismissal be ‘for cause’.” (Bernas, The Constitution of the
Republic of the Philippines: A Commentary, Vol. II, First Edition,
1988, p. 334) The guarantee of removal FOR CAUSE is enshrined
in Article IX­B, Section 2(3) of the 1987 Constitution, which states
that “No officer or employee of the civil service shall be removed
or suspended except FOR CAUSE provided by law.” There can be
no question then as to the meaning of the phrase FOR CAUSE. It
simply means the observance of both procedural and substantive
due process in cases of removal of officers or employees of the civil
service. When SECTION 16 speaks, therefore, of separation from
the service NOT FOR CAUSE, it can only mean the diametrical
opposite. The constitutional intent to exempt the separation of
civil service employees pursuant to Proclamation No. 3 from the
operation of Article IX­B, Section 2(3), becomes readily apparent.
A distinction is explicitly made between removal FOR CAUSE,
which as aforestated, requires due process, and dismissal NOT
FOR CAUSE, which implies that the latter is not bound by the

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“fetters” of due process. It is obviously for that reason that Section


16 grants separation pay and retirement benefits to those
separated NOT FOR CAUSE but as a result of the reorganization
precisely to soften the impact of the nonobservance of due process.
“What is envisioned in Section 16 is not a remedy for arbitrary
removal of civil servants enjoying security of tenure but some
form of relief for members of the career civil service who may have
been or may be legally but involuntarily ‘reorganized out’ of the
service or may have voluntarily resigned pursuant to the
reorganization policy” (ibid., p. 615).
Same; Same; Same; Same; RA 6656, Constitutionality of; Sec.
13, RA 6656, in so far as it provides for retroactivity clashes
frontally with Sec. 16, Art. XVIII of the 1987 Constitution, should
be declared unconstitutional.—The Constitution is the paramount
law to which all laws must conform. It is from the Constitution
that all statutes must derive their bearings. The legislative
authority of the State must yield to the expression of the
sovereign will. No statutory enactment can disregard the Charter
from which it draws its own existence (Phil. Long Distance
Telephone Co. v. Collector of Internal Revenue, 90 Phil. 674
[1952]). But, that is exactly what RA 6656 does in providing for
retroactivity—it disregards and contravenes a Constitutional
impera­

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96 SUPREME COURT REPORTS ANNOTATED

Dario vs. Mison

tive. To save it, it should be applied and construed prospectively


and not retroactively notwithstanding its explicit provision. Then,
and only then, would it make good law.
Same; Same; Same; Same; The interest of an employee to
security of tenure must yield to the interest of the entire populace
and to an efficient and honest government.—To be sure, the
reorganization could affect the tenure of members of the career
service as defined in Section 5, Article IV of Presidential Decree
No. 807, and may even result in the separation from the office of
some meritorious employees. But even then, the greater good of
the greatest number and the right of the citizenry to a good
government, and as they themselves have mandated through the
vehicle of Proclamation No. 3, provide the justification for the said
injury to the individual. In terms of values, the interest of an
employee to security of tenure must yield to the interest of the
entire populace and to an efficient and honest government.

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CRUZ, J., Concurring

Constitutional Law; Reorganization; Freedom Constitution;


Any reorganization that may be undertaken after the ratification
of the 1987 Constitution must be authorized by the legislature.—
The clear implication is that any government reorganization that
may be undertaken thereafter must be authorized by the
legislature only and may not be allowed the special liberties and
protection enjoyed by the revolutionary reorganization.
Otherwise, there would have been no necessity at all for the time
limitation expressly prescribed by the Freedom Constitution. I
cannot accept the view that Section 16 is an authorization for the
open­ended reorganization of the government “following the
ratification of the Constitution.”
Same; Same; Reorganization to be valid must be done in good
faith.—This notwithstanding, the power to reorganize is not
unlimited. It is essential that it be based on a valid purpose, such
as the promotion of efficiency and economy in the government
through a pruning of offices or the streamlining of their functions.
(Cervantes v. Auditor­General, 91 Phil. 359.) Normally, a
reorganization cannot be validly undertaken as a means of
purging the undesirables for this would be a removal in disguise
undertaken en masse to circumvent the constitutional
requirement of legal cause. (Eradication of graft and corruption
was one of the expressed purposes of the revolutionary
organization, but this was authorized by the Freedom
Constitution itself.) In short, a reorganization, to be valid, must
be done in good

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VOL. 176, AUGUST 8, 1989 97

Dario vs. Mison

faith. (Urgelio v. Osmeña, 9 SCRA 317; Cuneta v. Court of


Appeals, 1 SCRA 663; Cariño v. ACCFA, 18 SCRA 183.)

SARMIENTO, J.:

The Court writes finis to this controversy that has raged


bitterly for the past several months. It does so out of a
legitimate presentiment of more suits reaching it as a
consequence of the government reorganization and the
instability it has wrought on the performance and
efficiency of the bureaucracy. The Court is apprehensive
that unless the final word is given and the ground rules are
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settled, the issue will fester, and likely foment a


constitutional crisis for the nation, itself beset with grave
and serious problems.
The facts are not in dispute.
On March 25, 1986, President Corazon Aquino
promulgated Proclamation No. 3, “DECLARING A
NATIONAL POLICY TO IMPLEMENT THE REFORMS
MANDATED BY THE PEOPLE, PROTECTING THEIR
BASIC RIGHTS, ADOPTING A PROVISIONAL
CONSTITUTION, AND PROVIDING FOR AN ORDERLY
TRANSITION TO A GOVERNMENT UNDER A NEW
CONSTITUTION.” Among other things, Proclamation No.
3 provided:

SECTION 1. . . .
The President shall give priority to measures to achieve the
mandate of the people to:
(a) Completely reorganize the government, eradicate unjust
and oppressive 1structures, and all iniquitous vestiges of the
previous regime;
.     .     .
Pursuant thereto, it was also provided:
SECTION 1. In the reorganization of the government, priority
shall be given to measures to promote economy, efficiency, and
the eradication of graft and corruption.
SECTION 2. All elective and appointive officials and employees

_______________

1 Proc. No. 3, (PROVISIONAL CONST.), art. II, sec. 1(a).

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98 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

under the 1973 Constitution shall continue in office until


otherwise provided by proclamation or executive order or upon the
appointment and qualification of their successors, if such is made
within a period of one year from February 25, 1986.
SECTION 3. Any public officer or employee separated from the
service as a result of the organization effected under this
Proclamation shall, if entitled under the laws then in force,
receive the retirement and other benefits accruing thereunder.
SECTION 4. The records, equipment, buildings, facilities and
other properties of all government offices shall be carefully
preserved. In case any office or body is abolished or reorganized
pursuant to this Proclamation, its funds and properties shall be

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transferred to the office or body to which


2
its powers, functions and
responsibilities substantially pertain.

Actually, the reorganization process started as early as


February 25, 1986, when the President, in her first act in
office, called upon “all appointive public officials to submit
their courtesy resignation(s)
3
beginning with the members
of the Supreme Court.” 4
Later on, she abolished the
Batasang Pambansa
5
and the positions of Prime Minister
and Cabinet under the 1973 Constitution.
Since then, the President has issued a number of
executive orders and directives reorganizing various other
government offices, a number of which, with respect to6
elected local officials, has been challenged in this Court,
and two of which, with respect to appointed functionaries,
have likewise been ques­

_______________

2 Supra, art. III, secs. 1­4.


3 Proc. No. 1 (1986).
4 CONST. (1986), supra, art. 1, sec. 3.
5 Supra.
6 The various “OIC cases”, among them, Solis v. Pimentel, G.R. No.
73970, April 10, 1986; Palma v. Fortich, G.R. No. 59679, January 29,
1987; Ignacio v. Banata, G.R. No. 74720, August 31, 1987; Association of
Barangay Councils of Las Piñas v. Juntilla, G.R. No. 78965, November 17,
1987; Ramos v. Lorenzana, G.R. No. 80282, November 26, 1987; Del
Monte v. Ferrer, G.R. 78963, January 13, 1988; Yasay v. Flores, G.R. No.
81047, January 7, 1988; ending with De Leon v. Esguerra, No. 78059,
August 31, 1987, 153 SCRA 602.

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VOL. 176, AUGUST 8, 1989 99


Dario vs. Mison

7
tioned herein.
On May 28, 1986, the President enacted Executive
Order No. 17, “PRESCRIBING RULES AND
REGULATIONS FOR THE IMPLEMENTATION OF
SECTION 2, ARTICLE III OF THE FREEDOM
CONSTITUTION.” Executive Order No. 17 recognized the
“unnecessary anxiety and demoralization among the
deserving officials and employees” the ongoing government
reorganization had generated, and prescribed as “grounds
for the separation/replacement of personnel,” the following:

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SECTION 3. The following shall be the grounds for separation/


replacement of personnel:

1) Existence of a case for summary dismissal pursuant to


Section 40 of the Civil Service Law;
2) Existence of a probable cause for violation of the Anti­
Graft and Corrupt Practices Act as determined by the
Ministry Head concerned;
3) Gross incompetence or inefficiency in the discharge of
functions;
4) Misuse of public office for partisan political purposes;
5) Any other analogous ground showing that the incumbent
is unfit to remain in the service or 8his
separation/replacement is in the interest of the service.

On January 30, 1987, the President promulgated Executive


Order No. 9127, “REORGANIZING THE MINISTRY OF
FINANCE”. Among other offices, Executive Order No. 127 10
provided for the reorganization of the Bureau of Customs
and prescribed a new staffing pattern therefor.
11
Three days later, on February 2, 1987, the Filipino
people adopted the new Constitution.

______________

7 Jose v. Arroyo, G.R. No. 78435, August 11, 1987; Palma­Fernandez v.


De la Paz, No. 78496, August 15, 1988, 160 SCRA 751.
8 Exec. Ord. No. 17, sec. 3.
9 88 O.G. 2009­2024 (Apr., 1987).
10 Exec. Ord. No. 127, supra, secs. 33­38.
11 De Leon v. Esguerra, supra. The writer of this opinion dissented, and
maintained that the new Constitution was ratified on February 11, 1987.

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100 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

On January 6, 1988, incumbent Commissioner of Customs


Salvador Mison issued a Memorandum, in the nature of
“Guidelines on the 12
Implementation of Reorganization
Executive Orders,” prescribing the procedure in personnel
placement. It also provided:

1. By February 28, 1988, all employees covered by


Executive Order 127 and the grace period extended
to the Bureau of Customs by the President of the
Philippines on reorganization shall be:
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a) informed of their re­appointment, or


b) offered another position in the same department or
agency, or
13
c) informed of their termination.

On the same date, Commissioner Mison constituted a


Reorganization Appeals Board charged with adjudicating 14
appeals from removals under the above Memorandum. On
January 26, 1988, Commissioner Mison addressed several
notices to various Customs officials, in the tenor as follows:

Sir:

Please be informed that the Bureau is now in the process of


implementing the Reorganization Program under Executive
Order No. 127.
Pursuant to Section 59 of the same Executive Order, all officers
and employees of the Department of Finance, or the Bureau of
Customs in particular, shall continue to perform their respective
duties and responsibilities in a hold­over capacity, and that those
incumbents whose positions are not carried in the new
reorganization pattern, or who are not re­appointed, shall be
deemed separated from the service.
In this connection, we regret to inform you that your services
are hereby terminated as of February 28, 1988. Subject to the
normal clearances, you may receive the retirement benefits to
which you may be entitled under existing laws, rules and
regulations.

_______________

12 Rollo, G.R. No. 85310, 317­31.


13 Id., 317.
14 Id., 8.

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VOL. 176, AUGUST 8, 1989 101


Dario vs. Mison

In the meantime, your name will be included in the


consolidated list compiled by the Civil Service Commission so that
you may be given priority for future employment with the
Government as the need arises.
Sincerely yours,     
(Sgd) SALVADOR M. MISON      15
Commissioner      

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As far as the records will yield, the following were


recipients of these notices:

1. CESAR DARIO  
2. VICENTE FERIA, JR. 30. LEONCIA CATRE
3. ADOLFO CASARENO 31. ROBERTO ABADA
4. PACIFICO LAGLEVA 32. ABACA, SISINIO T.
5. JULIAN C. ESPIRITU 33. ABAD, ROGELIO C.
6. DENNIS A. AZARRAGA 34. ABADIANO, JOSE P.
7. RENATO DE JESUS 35. ABCEDE, NEMECIO C.
8. NICASIO C. GAMBOA 36. ABIOG, ELY F.
9. CORAZON RALLOS 37. ABLAZA, AURORA M.
NIEVES
10. FELICITACION R. 38. AGBAYANI, NELSON I.
GELUZ
11. LEODEGARIO H. 39. AGRES, ANICETO
FLORESCA
12. SUBAER PACASUM 40. AGUILAR, FLOR
13. ZENAIDA LANARIA 41. AGUILUCHO, MA.
TERESA R.
14. JOSE B. ORTIZ 42. AGUSTIN, BONIFACIO
T.
15. GLICERIO R. DOLAR 43. ALANO, ALEX P.
16. CORNELIO NAPA 44. ALBA, MAXIMO F. JR.
17. PABLO B. SANTOS 45. ALBANO, ROBERT B.
18. FERMIN RODRIGUEZ 46. ALCANTARA, JOSE G.
19. DALISAY BAUTISTA 47. ALMARIO, RODOLFO F.
20. LEONARDO JOSE 48. ALVEZ, ROMUALDO R.
21. ALBERTO LONTOK 49. AMISTAD, RUDY M.
22. PORFIRIO TABINO 50. AMOS, FRANCIS F.
23. JOSE BARREDO 51. ANDRES, RODRIGO V.
24. ROBERTO ARNALDO 52. ANGELES, RICARDO S.
25. ESTER TAN 53. ANOLIN, MILAGROS H.
26. PEDRO BAKAL 54. AQUINO, PASCASIO E.
L.
27. ROSARIO DAVID 55. ARABE, MELINDA M.
28. RODOLFO AFUANG 56. ARCANGEL, AGUSTIN
S., JR.
29. LORENZO CATRE

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57. ARPON, ULPIANO U.,


JR.
  58. ARREZA, ARTEMIO M.,
JR.
  59. ARROJO, ANTONIO P.

_______________

15 Rollo, G.R. No. 81954, 24; rollo, G.R. No. 81967, 27; rollo, G.R. No.
82023, 37; see also rollo, id., G.R. No. 85310, 8.

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102 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

60. ARVISU, ALEXANDER 107. DE GUZMAN,


S. ANTONIO A.
61. ASCAÑO, ANTONIO T. 108. DE GUZMAN, RENATO
E.
62. ASLAHON, JULAHON 109. DE LA CRUZ, AMADO
P. A., JR.
63. ASUNCION, VICTOR 110. DE LA CRUZ,
R. FRANCISCO C.
64. ATANGAN, LORNA S. 111. DE LA PEÑA,
LEONARDO
65. ATIENZA, 112. DEL CAMPO,
ALEXANDER R. ORLANDO
66. BACAL, URSULINO C. 113. DEL RIO, MAMERTO
P., JR.
67. BAÑAGA, MARLOWE 114. DEMESA,
Z. WILHELMINA T.
68. BANTA, ALBERTO T. 115. DIMAKUTA, SALIC L.
69. BARROS, VICTOR C. 116. DIZON, FELICITAS A.
70. BARTOLOME, FELIPE 117. DOCTOR, HEIDY M.
A.
71. BAYSAC, REYNALDO 118. DOMINGO, NICANOR
S. J.
72. BELENO, ANTONIO B. 119. DOMINGO, PERFECTO
V., JR.
73. BERNARDO, ROMEO 120. DUAY, JUANA G.
D.

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74. BERNAS, MARCIANO 121. DYSANGCO, RENATO


S. F.
75. BOHOL, AUXILIADOR 122. EDILLOR, ALFREDO P.
G.
76. BRAVO, VICTOR M. 123. ELEVAZO, LEONARDO
A.
77. BULEG, BALILIS R. 124. ESCUYOS, MANUEL
M., JR.
78. CALNEA, MERCEDES 125. ESMERIA, ANTONIO E.
M.
79. CALVO, HONESTO G. 126. ESPALDON, MA.
LOURDES H.
80. CAMACHO, CARLOS 127. ESPINA, FRANCO A.
V.
81. CAMPOS, RODOLFO 128. ESTURCO, RODOLFO
C. C.
82. CAPULONG, 129. EVANGELINO,
RODRIGO G. FERMIN I.
83. CARINGAL, GRACIA Z. 130. FELIX, ERNESTO G.
84. CARLOS, LORENZO B. 131. FERNANDEZ,
ANDREW M.
85. CARRANTO, FIDEL U. 132. FERRAREN, ANTONIO
C.
86. CARUNGCONG, 133. FERRERA,
ALFREDO M. WENCESLAO A.
87. CASTRO, PATRICIA J. 134. FRANCISCO, PELAGIO
S., JR.
88. CATELO, ROGELIO B. 135. FUENTES, RUDY L.
89. CATURLA, MANUEL 136. GAGALANG, RENATO
B. V.
90. CENIZAL, JOSEFINA 137. GALANG, EDGARDO R.
F.
91. CINCO, LUISITO 138. GAMBOA, ANTONIO C.
92. CONDE, JOSE C., JR. 139. GAN, ALBERTO R.
93. CORCUERA, FIDEL S. 140. GARCIA, GILBERT M.
94. CORNETA, VICENTE 141. GARCIA, EDNA V.
S.
95. CORONADO, 142. GARCIA, JUAN L.
RICARDO S.
96. CRUZ, EDUARDO S. 143. GAVIOLA, LILIAN V.
97. CRUZ, EDILBERTO A.

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144. GEMPARO,
SEGUNDINA G.
98. CRUZ, EFIGENIA B. 145. GOBENCIONG,
FLORDELIZ B.
99. CRUZADO, MARCIAL 146. GRATE, FREDERICK R.
C.
100. CUSTUDIO, 147. GREGORIO, LAURO P.
RODOLFO M.
101. DABON, NORMA M. 148. GUARTICO, AMMON
H.
102. DALINDIN, EDNA 149. GUIANG, MYRNA N.
MAE D.
103. DANDAL, EDEN F. 150. GUINTO, DELFIN C.
104. DATUHARON, SATA 151. HERNANDEZ, LUCAS
A. A.
105. DAZO, GODOFREDO 152. HONRALES, LORETO
L. N.
106. DE CASTRO, 153. HUERTO, LEOPOLDO
LEOPAPA H.

103

VOL. 176, AUGUST 8, 1989 103


Dario vs. Mison

154. HULAR, 201. MATUGAS, ERNESTO T.


LANNYROSS E.
155. IBAÑEZ, ESTER C. 202. MATUGAS, FRANCISCO
T.
156. ILAGAN, 203. MAYUGA, PORTIA E.
HONORATO C.
157. INFANTE, 204. MEDINA, NESTOR M.
REYNALDO C.
158. ISAIS, RAY C. 205. MEDINA, ROLANDO S.
159. ISMAEL, HADJI 206. MENDAVIA, AVELINO
AKRAM B. I.
160. JANOLO, VIRGILIO 207. MENDOZA,
M. POTENCIANO G.
161. JAVIER, AMADOR L. 208. MIL, RAY M.
162. JAVIER, ROBERTO 209. MIRAVALLES,
S. ANASTACIA L.

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163. JAVIER, WILLIAM 210. MONFORTE, EUGENIO,


R. JR. G.
164. JOVEN, MEMIA A. 211. MONTANO, ERNESTO
F.
165. JULIAN, 212. MONTERO, JUAN M. III
REYNALDO V.
166. JUMAMOY, 213. MORALDE,
ABUNDIO A. ESMERALDO B., JR.
167. JUMAQUIAO, 214. MORALES, CONCHITA
DOMINGO F. D.L.
168. KAINDOY, 215. MORALES, NESTOR P.
PASCUAL B., JR.
169. KOH, NANIE G. 216. MORALES, SHIRLEY S.
170. LABILLES, 217. MUNAR, JUANITA L.
ERNESTO S.
171. LABRADOR, 218. MUÑOZ, VICENTE R.
WILFREDO M.
172. LAGA, BIENVENIDO 219. MURILLO, MANUEL M.
M.
173. LAGMAN, 220. NACION, PEDRO R.
EVANGELINE G.
174. LAMPONG, 221. NAGAL, HENRY N.
WILFREDO G.
175. LANDICHO, 222. NAVARRO, HENRY L.
RESTITUTO A.
176. LAPITAN, CAMILO 223. NEJAL, FREDRICK E.
M.
177. LAURENTE, 224. NICOLAS, REYNALDO
REYNALDO A. S.
178. LICARTE, 225. NIEVES, RUFINO A.
EVARISTO R.
179. LIPIO, VICTOR O. 226. OLAIVAR, SEBASTIAN
T.
180. LITTAUA, 227. OLEGARIO, LEO Q.
FRANKLIN Z.
181. LOPEZ, MELENCIO 228. ORTEGA, ARLENE R.
L.
182. LUMBA, OLIVIA R. 229. ORTEGA, JESUS R.
183. MACAISA, BENITO 230. OSORIO, ABNER S.
T.
184. MACAISA, ERLINDA 231. PAPIO, FLORENTINO T.
C. II
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185. MAGAT, ELPIDIO 232. PASCUA, ARNULFO A.


186. MAGLAYA, 233. PASTOR, ROSARIO
FERNANDO P.
187. MALABANAN, 234. PELAYO, ROSARIO L.
ALFREDO C.
188. MALIBIRAN, 235. PEÑA, AIDA C.
ROSITA D.
189. MALIJAN, LAZARO 236. PEREZ, ESPERIDION B.
V.
190. MALLI, JAVIER M. 237. PEREZ, JESUS BAYANI
M.
191. MANAHAN, RAMON 238. PRE, ISIDRO A.
S.
192. MANUEL, ELPIDIO 239. PRUDENCIADO,
R. EULOGIA S.
193. MARAVILLA, GIL B. 240. PUNZALAN,
LAMBERTO N.
194. MARCELO, GIL C. 241. PURA, ARNOLD T.
195. MARIÑAS, 242. QUINONES, EDGARDO
RODOLFO V. I.
196. MAROKET, JESUS 243. QUINTOS, AMADEO C.,
C. JR.
197. MARTIN, 244. QUIRAY, NICOLAS C.
NEMENCIO A.
198. MARTINEZ, ROMEO 245. RAMIREZ, ROBERTO P.
M.
199. MARTINEZ, 246. RAÑADA, RODRIGO C.
ROSELINA M.
200. MATIBAG, 247. RARAS, ANTONIO A.
ANGELINA G.

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104 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

248. RAVAL, VIOLETA V. 280. TOLENTINO,


BENIGNO A.
249. RAZAL, BETTY R. 281. TURINGAN, ENRICO
T., JR.
250. REGALA, PONCE F. 282. UMPA, ALI A.
251. REYES, LIBERATO R. 283. VALIC, LUCIO E.
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252. REYES, MANUEL E. 284. VASQUEZ, NICANOR


B.
253. REYES, NORMA Z. 285. VELARDE, EDGARDO
C.
254. REYES, TELESFORO 286. VERA, AVELINO A.
F.
255. RIVERA, ROSITA L. 287. VERAME, OSCAR E.
256. ROCES, ROBERTO V. 288. VIADO, LILIAN T.
257. ROQUE, TERESITA 289. VIERNES, NAPOLEON
S. K.
258. ROSANES, MARILOU 290. VILLALON, DENNIS A.
M.
259. ROSETE, ADAN I. 291. VILLAR, LUZ L.
260. RUANTO, REY 292. VILLALUZ, EMELITO
CRISTO C., JR. V.
261. SABLADA, 293. ZATA, ANGEL A., JR.
PASCASIO G.
262. SALAZAR, SILVERIA 294. ACHARON, CRISTETO
S.
263. SALAZAR, VICTORIA 295. ALBA, RENATO B.
A.
264. SALIMBACOD, 296. AMON, JULITA C.
PERLITA C.
265. SALMINGO, 297. AUSTRIA, ERNESTO C.
LOURDES M.
266. SANTIAGO, 298. CALO, RAYMUNDO M.
EMELITA B.
267. SATINA, PORFIRIO 299. CENTENO, BENJAMIN
C. R.
268. SEKITO, COSME B., 300. DONATO, ESTELITA P.
JR.

269. SIMON, RAMON P. 301. DONATO, FELIPE S.,


270. SINGSON, MELECIO 302. FLORES, PEDRITO S.
C.
271. SORIANO, ANGELO 303. GALAROSA, RENATO
L.
272. SORIANO, 304. MALAWI, MAUYAG
MAGDALENA R.
273. SUMULONG, 305. MONTENEGRO,
ISIDORO L., JR. FRANCISCO M.

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274. SUNICO, ABELARDO 306. OMEGA, PETRONILO


T. T.
275. TABIJE, EMMA B. 307. SANTOS, GUILLERMO
F.
276. TAN, RUDY 308. TEMPLO, CELSO
GOROSPE
277. TAN, ESTER S. 309. VALDERAMA, JAIME
B.
278. TAN, JULITA S. 310. VALDEZ, NORA M.
279. TECSON, BEATRIZ B.  

Cesar Dario is the petitioner in G.R. No. 81954; Vicente


Feria, Jr., is the petitioner in G.R. No. 81967; Messrs.
Adolfo Caser­ano, Pacifico Lagleva, Julian C. Espiritu,
Dennis A. Azarraga, Renato de Jesus, Nicasio C. Gamboa,
Mesdames Corazon Rallos Nieves and Felicitacion R.
Geluz, Messrs. Leodegario H. Floresca, Subaer Pacasum,
Ms. Zenaida Lanaria, Mr. Jose B. Ortiz, Ms. Gliceria R.
Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin
Rodriguez, Ms. Dalisay Bautista, Messrs. Leo­nardo Jose,
Alberto Lontok, Porfirio Tabino, Jose Barredo, Roberto
Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario
David, Rodolfo Afuang, Lorenzo Catre, Ms. Leoncia Catre,
and
105

VOL. 176, AUGUST 8, 1989 105


Dario vs. Mison

Roberto Abada,
16
are the petitioners in G.R. No. 82023; the
last 279 individuals mentioned are the private
respondents in G.R. No. 85310. 17
As far as the records will likewise reveal, a total of 394
officials and employees of the Bureau of Customs were
given individual notices of separation. A number
supposedly sought reinstatement with the Reorganization
Appeals Board while others went to the Civil Service
Commission. The first thirty­one mentioned above came
directly to this Court.
On June 30, 1988, the Civil Service Commission
promulgated its ruling ordering the reinstatement of the
279 employees, the 279 private respondents in G.R. No.
85310, the dispositive portion of which reads as follows:

WHEREFORE, it is hereby ordered that:

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1. Appellants be immediately reappointed to positions of


comparable or equivalent rank in the Bureau of Customs
without loss of seniority rights;
2. Appellants be paid their back salaries reckoned from the
dates of their illegal termination based on the rates under
the approved new staffing pattern but not lower than their
former salaries. This action of the Commission should not,
however, be interpreted as an exoneration of the
appellants from any accusation of wrongdoing and,
therefore, their reappointments are without prejudice to:

1. Proceeding with investigation of appellants with pending


administrative cases, and where investigations have been
finished, to promptly render the appropriate decisions;

_______________

16 The last eighteen are the successful employees in the appeal with the Civil
Service Commission (subject of G.R. No. 85310) whose reinstatement the
Commission ordered pending further proceedings herein. We consider them
impleaded as parties­respondents in G.R. No. 85310. Also, the Customs employees
involved have been impleaded as parties in more than one petition either as
petitioners or respondents.
17 Rollo, id., G.R. No. 85310, 8; according, however, to the petitioners in G.R.
86241, a total of 397 employees were terminated. Id., 260; former Sen. Ambrosio
Padilla, amicus curiae, placed the figure at 493 (G.R. No. 85310, id., 993).

106

106 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

2. The filing of appropriate administrative complaints


against appellants with derogatory reports or information
if evidence so warrants.
18
SO ORDERED.

On July 15, 1988, Commissioner Mison, represented by the


Solicitor General, filed a motion for reconsideration. Acting
on the motion, the Civil Service Commission,
19
on September
20, 1988, denied reconsideration.
On October 20, 1988, Commissioner Mison instituted
certiorari proceedings with this Court, docketed, as above­
stated, as G.R. No. 85310 of this Court.
On November 16, 1988, the Civil Service Commission
further disposed the appeal (from the resolution of the

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Reorganization Appeals Board) of five more employees,


holding as follows:

WHEREFORE, it is hereby ordered that:

1. Appellants be immediately reappointed to positions of


comparable or equivalent rank in the Bureau of Customs
without loss of seniority rights; and
2. Appellants be paid their back salaries to be reckoned from
the date of their illegal termination based on the rates
under the approved new staffing pattern but not lower
than their former salaries. This action of the Commission
should not, however, be interpreted as an exoneration of
the herein appellants from any accusation of any
wrongdoing and therefore, their reappointments are
without prejudice to:

1. Proceeding with investigation of appellants with pending


administrative cases, if any, and where investigations
have been finished, to promptly, render the appropriate
decisions; and
2. The filing of appropriate administrative complaints
against appellant with derogatory reports or information,
if any, and if evidence so warrants.
20
SO ORDERED.

On January 6, 1989, Commissioner Mison challenged the


Civil Service Commission’s Resolution in this Court; his
peti­

_______________

18 Rollo, id., G.R. No. 85310, 79; also rollo, G.R. No. 85335, 36.
19 Rollo, id., G.R. No. 85310, 424.
20 Rollo, G.R. No. 86241, 144.

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Dario vs. Mison

tion has been docketed herein as G.R. No. 86241. The


employees ordered to be reinstated are Senen Dimaguila,
Romeo Arabe, 21Bernardo Quintong, Gregorio Reyes, and
Romulo Badillo.
On June 10, 1988, Republic Act No. 6656, “AN ACT TO
PROTECT THE SECURITY OF TENURE OF CIVIL

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SERVICE OFFICERS AND EMPLOYEES IN THE


IMPLEMENTATION 22 OF GOVERNMENT
REORGANIZATION,” was signed into law. Under Section
7, thereof:

Sec. 9. All officers and employees who are found by the Civil
Service Commission to have been separated in violation of the
provisions of this Act, shall be ordered reinstated or reappointed
as the case may be without loss of seniority and shall be entitled
to full pay for the period of separation. Unless also separated for
cause, all officers and employees, including casuals and
temporary employees, who have been separated pursuant to
reorganization shall, if entitled thereto, be paid the appropriate
separation pay and retirement and other benefits under existing
laws within ninety (90) days from the date of the effectivity of
their separation or from the date of the receipt of the resolution of
their appeals as the case may be: Provided, That application for
clearance has been filed and no action thereon has been made by
the corresponding department or agency. Those who are not
entitled to said benefits shall be paid a separation gratuity in the
amount equivalent to one (1) month salary for every year of
service. Such separation pay and retirement benefits shall have
priority of 23
payment out of the savings of the department or agency
concerned.

On June 23, 1988, Benedicto Amasa and William Dionisio,


customs examiners appointed by Commissioner Mison
pursuant to the ostensible reorganization subject of this
controversy, petitioned the Court to contest the validity of
the statute. The petition is docketed as G.R. No. 83737.

_______________

21 Senen Dimaguila and Romulo Badillo earlier instituted in this Court


G.R. Nos. 81968 and 81955 but were allowed, by our Resolution of July 5,
1988, to withdraw and join the appeal subject of the Civil Service
Commission’s Resolution of November 11, 1988. See rollo, G.R. No. 82023,
169.
22 84 O.G. Supp. 1­4 (June, 1988).
23 Supra, 3.

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108 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

On October 21, 1988, thirty­five more Customs officials


whom the Civil Service Commission had ordered reinstated

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by its June 30, 1988 Resolution filed their own petition to


compel the Commissioner of Customs to comply with the
said Resolution. The petition is docketed as G.R. No. 85335.
On November 29, 1988, we resolved to consolidate all
seven petitions.
On the same date, we resolved to set the matter for
hearing on January 12, 1989. At the said hearing, the
parties, represented by their counsels (a) retired Justice
Ruperto Martin; (b) retired Justice Lino Patajo; (c) former
Dean Froilan Bacungan; (d) Atty. Lester Escobar; (e) Atty.
Faustino Tugade; and (f) Atty. Alexander Padilla,
presented their arguments. Solicitor General Francisco
Chavez argued on behalf of the Commissioner of Customs
(except in G.R. 85335, in which he represented the Bureau
of Customs and the Civil Service Commission). Former
Senator Ambrosio Padilla also appeared and argued as
amicus curiae. Thereafter, we resolved to require the
parties to submit their respective memoranda which they
did in due time.
There is no question that the administration may validly
carry out a government reorganization—insofar as these
cases are concerned, the reorganization of the Bureau of
Customs—by mandate not only of the Provisional
Constitution, supra, but also of the various Executive
Orders decreed by the Chief Executive in her capacity as
sole lawmaking authority under the 1986­1987
revolutionary government. It should also be noted that
under the present Constitution, there is a recognition,
albeit implied, that a government reorganization may 24
be
legitimately undertaken, subject to certain conditions.
The Court understands that the parties are agreed on
the validity of a reorganization per se, the only question
being, as shall be later seen: What is the nature and extent
of this government reorganization?
The Court disregards the questions raised as to
procedure, failure to exhaust administrative remedies, the
standing of

_______________

24 CONST. (1987), art. XVIII, sec. 16.

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Dario vs. Mison

25
certain parties to sue, and other technical objections,
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25
certain parties to sue, and other technical objections, for
two reasons, “[b]ecause of the demands of public interest,
26
including the need for stability in the public service,” and
because of the serious implications of these cases on the
administration of the Philippine civil service and the rights
of public servants.
The urgings in G.R. Nos. 85335 and 85310, that the
Civil Service Commission’s Resolution dated June 30, 1988
had attained a character of finality for failure of
Commissioner Mison to apply for judicial review or ask for
reconsideration
27
seasonably under Presidential
28
Decree No.
807, or under 29
Republic Act No. 6656, or under the
Constitution, are likewise rejected.

_______________

25 This was raised by the Civil Service Commission in G.R. No. 86241.
Failure to exhaust administrative remedies was raised in G.R. No. 81954
and 81917 by the Solicitor General.
26 Sarmiento III v. Mison, No. L­79974, December 17, 1987, 153 SCRA
549, 551­552.
27 Pres. Decree No. 807, sec. 39. The provision reads: “Appeals.—(a)
Appeals, where allowable, shall be made by the party adversely affected
by the decision within fifteen days from receipt of the decision unless a
petition for reconsideration is seasonably filed, which petition shall be
decided within fifteen days. Notice of the appeal shall be filed with the
disciplining office, which shall forward the records of the case, together
with the notice of appeal, to the appellate authority within fifteen days
from filing of the notice of appeal, with its comment, if any. The notice of
appeal shall specifically state the date of the decision appealed from and
the date of receipt thereof. It shall also specifically set forth clearly the
grounds relied upon for excepting from the decision; (b) A petition for
reconsideration shall be based only on any of the following grounds: (1)
new evidence has been discovered which materially affects the decision
rendered; (2) the decision is not supported by the evidence on record; or (3)
errors of law or irregularities have been committed prejudicial to the
interest of the respondent: Provided, That only one petition for
reconsideration shall be entertained.”
28 Rep. Act No. 6656, supra, sec. 8. The provision reads: “Sec. 8. An
officer or employee who is still not satisfied with the decision of the
appointing authority may further appeal within ten (10) days from receipt
thereof to the Civil Service Commission which shall render a decision
thereon within thirty (30) days and whose decision shall be final and
executory.”
29 CONST., art. IX, sec. 7. The provision reads: “Sec. 7. Each

110

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110 SUPREME COURT REPORTS ANNOTATED


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The records show that the Bureau of Customs had until


July 15, 1988 to ask for reconsideration or come to this
Court pursuant to Section 39 of Presidential Decree No.
807. The records likewise show that the Solicitor General 30
filed a motion for reconsideration on July 15, 1988. The
Civil Service Commission issued its Resolution denying
reconsideration on September 20, 1988; a copy of this
Resolution
31
was received by the Bureau on September 23,
1988. Hence the Bureau had until October 23, 32
1988 to
elevate the matter on certiorari to this Court. Since the
Bureau’s petition was filed on October 20, 1988, it was filed
on time.
We reject, finally, contentions that the Bureau’s petition
(in G.R. 85310) raises no jurisdictional questions, and is
therefore bereft of any basis as a petition
33
for certiorari
under Rule 65 of the Rules of Court. We find that the
questions raised in Commissioner Mison’s petition (in G.R.
85310) are, indeed, proper for certiorari, if by
“jurisdictional questions” we mean questions having to do
with “an indifferent disregard of the law, arbitrariness and
caprice, or omission to weigh pertinent considerations, 34
a
decision arrived at without rational deliberation,” as
distinguished from questions that require “digging
35
into the
merits and unearthing errors of judgment” which is the
office, on the other hand, of review under Rule 45 of the
said

_______________

Commission shall decide by a majority vote of all its Members any case
or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the last pleading,
brief, or memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by
law, any decision, order, or ruling of each Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof.”
30 Rollo, id., G.R. No. 85310, 82.
31 Id., 415.
32 CONST. (1987), supra.
33 See Aratuc v. Commission on Elections, Nos. L­49705­09, 49717­21,
February 8, 1979, 88 SCRA 251.
34 Supra, 271.
35 Supra.

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Dario vs. Mison

Rules. What cannot be denied is the fact that the act of the
Civil Service Commission of reinstating hundreds of
Customs employees Commissioner Mison had separated,
has implications not only on the entire reorganization
process decreed no less than by the Provisional
Constitution, but on the Philippine bureaucracy in general;
these implications are of such a magnitude that it cannot
be said that—assuming that the Civil Service Commission
erred—the Commission committed a plain “error of
judgment” that Aratuc says cannot be corrected by the
extraordinary remedy of certiorari or any special civil
action. We reaffirm the teaching of Aratuc—as regards
recourse to this Court with respect to rulings of the Civil
Service Commission—which is that judgments of the
Commission may be brought to the Supreme Court through
certiorari alone, under Rule 65 of the Rules of Court.
In Aratuc, we declared:

It is once evident from these constitutional and statutory


modifications that there is a definite tendency to enhance and
invigorate the role of the Commission on Elections as the
independent constitutional body charged with the safeguarding of
free, peaceful and honest elections. The framers of the new
Constitution must be presumed to have definite knowledge of
what it means to make the decisions, orders and rulings of the
Commission “subject to review by the Supreme Court”. And since
instead of maintaining that provision intact, it ordained that the
Commission’s actuations be instead “brought to the Supreme
Court on certiorari”, We cannot insist that there was no intent to
change the nature of the remedy, considering that the limited
scope of certiorari,
36
compared to a review, is well known in
remedial law.

We observe no fundamental difference between the


Commission on Elections and the Civil Service Commission
(or the Commission on Audit for that matter) in terms of
the constitutional intent to leave the constitutional bodies
alone in the enforcement of laws relative to elections, with
respect to the former, and the civil service, with respect to
the latter (or the audit of government accounts, with
respect to the Commission

_______________
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36 Aratuc, supra, 270.

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112 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

37
on Audit). As the poll body is the “sole judge” of all
election cases, so is the Civil Service Commission the single
arbiter of all controversies pertaining to the civil service.
It should also be noted that under the new Constitution,
as under the 1973 Charter, “any decision, order, or ruling
of each Commission
38
may be brought to the Supreme Court
on certiorari,” which, as Aratuc tells us, “technically
connotes something less than saying that the same 39
‘shall
be subject to review by the Supreme Court,’ ” which in
turn suggests an appeal by petition for review under Rule
45. Therefore, our jurisdiction over cases emanating from
the Civil Service Commission is limited to complaints of
lack or excess of jurisdiction or grave abuse of discretion
tantamount to lack or excess of jurisdiction, complaints
that justify certiorari under Rule 65.
While Republic Act No. 6656 states that 40judgments of
the Commission are “final and executory” and hence,
unappealable, under 41 Rule 65, certiorari precisely lies in the
absence of an appeal.
Accordingly, we accept Commissioner Mison’s petition
(G.R. No. 85310) which clearly charges the Civil Service
Commission with grave abuse of discretion, a proper
subject of certiorari, although it may not have so stated in
explicit terms.
As to charges that the said petition has been filed out of
time, we reiterate that it has been filed seasonably. It is to
be stressed that the Solicitor General had thirty days from
September 23, 1988 (the date the Resolution, dated
September 20, 1988, of the Civil Service Commission,
denying reconsideration, was received) to commence the
instant certiorari proceedings. As we stated, under the
Constitution, an aggrieved party has thirty

_______________

37 CONST. (1987), supra, art. IX(c), sec. 2(2). To be more precise, the
1987 Constitution gives the Commission “exclusive original jurisdiction
over all [election] contests.”
38 Supra, art. IX, sec. 7.
39 Aratuc, supra, 271; emphasis supplied.
40 Rep. Act No. 6656, supra, sec. 8.
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41 RULES OF COURT, Rule 65, sec. 1.

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Dario vs. Mison

days within
42
which to challenge “any decision, order, or
ruling” of the Commission. To say that the period should
be counted from the Solicitor’s receipt of the main
Resolution, dated June 30, 1988, is to say that he should
not have asked for reconsideration. But to say that is to
deny him the right to contest (by a motion for
reconsideration) any ruling, other than the main decision,
when, precisely, the Constitution gives him such a right.
That is also to place him at a “no­win” situation because if
he did not move for a reconsideration, he would have been
faulted for demanding certiorari too early, under the
general rule that a motion for reconsideration
43
should
preface a resort to a special civil action. Hence, we must
reckon the thirty­day period from receipt of the order of
denial.
We come to the merits of these cases.

G.R. Nos. 81954, 81967, 82023, and 85335:

The Case for the Employees

The petitioner in G.R. No. 81954, Cesar Dario, was one of


the Deputy Commissioners of the Bureau of Customs until
his relief on orders of Commissioner Mison on January 26,
1988. In essence, he questions the legality of his dismissal,
which he alleges was upon the authority of Section 59 of
Executive Order No. 127, supra, hereinbelow reproduced as
follows:

SEC. 59. New Structure and Pattern. Upon approval of this


Executive Order, the officers and employees of the Ministry shall,
in a holdover capacity, continue to perform their respective duties
and responsibilities and receive the corresponding salaries and
benefits unless in the meantime they are separated from
government service pursuant to Executive Order No. 17 (1986) or
Article III of the Freedom Constitution.
The new position structure and staffing pattern of the Ministry
shall be approved and prescribed by the Minister within one
hundred

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_______________

42 CONST. (1987), art. IX, sec. 7, supra.


43 Phil. American Life Ins. Co. vs. Social Security Com., No. L­20383, May 24,
1967, 20 SCRA 162.

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114 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

twenty (120) days from the approval of this Executive Order


and the authorized positions created hereunder shall be filled
with regular appointments by him or by the President, as the case
may be. Those incumbents whose positions are not included
therein or who are not reappointed shall be deemed separated
from the service. Those separated from the service shall receive
the retirement benefits to which they may be entitled under
existing laws, rules and regulations. Otherwise, they shall be paid
the equivalent of one month basic salary for every year of service,
or the equivalent nearest fraction thereof favorable to them on the
basis of highest salary received but in no case shall such payment
exceed the equivalent of 12 months salary.
No court or administrative body shall issue any writ of
preliminary injunction or restraining order to enjoin the
separation/replacement44
of any officer or employee effected under
this Executive Order.

a provision he claims the Commissioner could not have


legally invoked. He avers that he could not have been
legally deemed to be an “[incumbent] whose [position]45
[is]
not included therein or who [is] not reappointed” to justify
his separation from the service. He contends that neither
the Executive Order (under the second paragraph of the
section) nor
46
the staffing pattern proposed by the Secretary
of Finance abolished the office of Deputy Commissioner
47
of
Customs, but, rather, increased it to three. Nor can it be
said, so he 48further maintains, that he had not been
“reappointed” (under the second paragraph of the section)
because “[r]eappointment therein presupposes that the
position to which it refers is a new one in lieu of that which
has been abolished or although an existing 49
one, has
absorbed that which has been abolished.” He claims,
finally, that under the Provisional Constitution, the power
to dismiss50public officials without cause ended on February
25, 1987, and that thereafter, public officials enjoyed
security of tenure under the provi­

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_______________

44 Exec. Ord. No. 127, supra, sec. 59.


45 Supra.
46 Rollo, id., G.R. No. 81954, 36.
47 Exec. Ord. No. 127, supra, sec. 34; rollo, id., G.R. No. 81954.
48 Exec. Ord. No. 127, supra, sec. 59.
49 Rollo, id., G.R. No. 81954, 12; emphasis in the original.
50 CONST. (1986), Supra, art. IX, sec. 2.

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Dario vs. Mison

51
sions of the 1987 Constitution.
Like Dario, Vicente Feria, the petitioner in G.R. No.
81967, was a Deputy Commissioner at the Bureau until his
separation directed by Commissioner Mison. And like
Dario, he claims that under the 1987 Constitution, he has
acquired security of tenure and that he cannot be said to be
covered by Section 59 of Executive Order No. 127, having
been appointed on April 22, 1986—during the effectivity of
the Provisional Constitution. He adds that under Executive
Order No. 39, “ENLARGING THE POWERS AND
FUNCTIONS52 OF THE COMMISSIONER OF
CUSTOMS,” the Commissioner of Customs has the power
“[t]o appoint all Bureau
53
personnel, except those appointed
by the President,” and that his position, which is that of a
Presidential appointee, is beyond the control of
Commissioner Mison for purposes of reorganization.
The petitioners in G.R. No. 82023, collectors and
examiners in various ports of the Philippines, say, on the
other hand, that the purpose of reorganization is to end
corruption at the Bureau of Customs and that since there is
no finding that they are guilty of corruption, they cannot be
validly dismissed from the service.

The Case for Commissioner Mison

In his comments, the Commissioner


54
relies on this Court’s
resolution in Jose v. Arroyo, in which the following
statement appears in the last paragraph thereof:

The contention of petitioner that Executive Order No. 127 is


violative of the provision of the 1987 Constitution guaranteeing
career civil service employees security of tenure overlooks the
provisions of Section 16, Article XVIII (Transitory Provisions)

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which explicitly authorize the removal of career civil service


employees “not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the
reorganization following the ratification of

_______________

51 CONST. (1987), supra, art. IX(B), sec. 2(3).


52 August 8, 1986.
53 Supra, sec. 1(a).
54 G.R. No. 78435, August 11, 1987.

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Dario vs. Mison

this Constitution.” By virtue of said provision, the


reorganization of the Bureau of Customs under Executive Order
No. 127 may continue even after the ratification of the
Constitution, and career civil service employees may be separated 55
from the service without cause as a result of such reorganization.

For this reason, Mison posits, claims of violation of security


of tenure are allegedly no defense. He further states that
the deadline prescribed by the Provisional Constitution
(February 25, 1987) has been superseded by the 1987
Constitution,
56
specifically, the transitory provisions
thereof, which allows a reorganization thereafter (after
February 25, 1987) as this very Court has so declared in
Jose v. Arroyo. Mison submits that contrary to the
employees’ argument, Section 59 of Executive Order No.
127 is applicable (in particular, to Dario and Feria), in the
sense that retention in the Bureau, under the Executive
Order, depends on either retention of the position in the
new staffing pattern or reappointment of the incumbent,
and since the dismissed employees had not been
reappointed, they had been considered legally separated.
Moreover, Mison proffers that under Section 59 incumbents
are considered on holdover status, “which57means that all
those positions were considered vacant.” The Solicitor
General58
denies the applicability of Palma­Fernandez v. De
la Paz because that case supposedly involved a mere
transfer and not a separation. He rejects, finally, the force
and effect of Executive Order Nos. 17 and 39 for the reason
that Executive Order No. 17, which 59 was meant to
implement the Provisional Constitution, had ceased to
have force and effect upon the ratification of the 1987
Constitution, and that, under Executive Order No. 39, the
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dismissals contemplated were “for cause” while the


separations now under question were “not for cause” and
were a result of government reor­

_______________

55 Supra, 3.
56 CONST. (1987), supra, art. XVIII, sec. 16.
57 Rollo, id., G.R. No. 81954, 216; rollo, id., G.R. No. 81967, 64; rollo, id.,
G.R. No. 82023, 76.
58 Supra.
59 See Exec. Ord. No. 17, supra, sec. 1.

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Dario vs. Mison

ganization decreed by Executive Order No. 127. Anent


Republic Act No. 6656, he expresses doubts on the
constitutionality of the grant of retroactivity therein (as
regards the reinforcement of security of tenure) since the
new Constitution clearly allows reorganization after its
effectivity.

G.R. Nos. 85310 and 86241

The Position of Commissioner Mison

Commissioner’s twin petitions are direct challenges to


three rulings of the Civil Service Commission: (1) the
Resolution, dated June 30, 1988, reinstating the 265
customs employees above­stated; (2) the Resolution, dated
September 20, 1988, denying reconsideration; and (3) the
Resolution, dated November 16, 1988, reinstating five
employees. The Commissioner’s arguments are as follows:

1. The ongoing government60 reorganization is in the


nature of a “progressive” reorganization “impelled
by the need61 to overhaul the entire government
bureaucracy” following the people power
revolution of 1986;
2. There was faithful compliance by the Bureau of the
various guidelines issued by the President, in
particular, as to deliberation, and selection of
personnel for appointment under the new staffing
pattern;
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3. The separated employees have been, under Section


59 of Executive Order No. 127, on mere holdover
standing, “which62 means that all positions are
declared vacant;”
4. Jose v. Arroyo has declared the validity of
Executive Order No. 127 under the transitory
provisions of the 1987 Constitution;
5. Republic Act No. 6656 is of doubtful
constitutionality.

_______________

60 Rollo, id., G.R. No. 85310, 18; rollo, id., G.R. No. 86241, 14.
61 Id.; id., 13.
62 Id., 37; id., 33.

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Dario vs. Mison

The Ruling of the Civil Service Commission

The position of the Civil Service Commission is as follows:

1. Reorganizations occur where there has been a


reduction in personnel or redundancy of functions;
there is no showing that the reorganization in
question has been carried out for either purpose—
on the contrary, the dismissals now disputed were
carried out by mere service of notices;
2. The current Customs reorganization has not been
made according to Malacañang guidelines;
information on file with the Commission shows that
Commissioner Mison has been appointing
unqualified personnel;
3. Jose v. Arroyo, in validating Executive Order No.
127, did not countenance illegal removals;
4. Republic Act No. 6656 protects security of tenure in
the course of reorganizations.

The Court’s Ruling

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Reorganization, Fundamental Principles of.—

I.

The core provision of law involved is Section 16 Article


XVIII, of the 1987 Constitution. We quote:

Sec. 16. Career civil service employees separated from the service
not for cause but as a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the reorganization
following the ratification of this Constitution shall be entitled to
appropriate separation pay and to retirement and other benefits
accruing to them under the laws of general application in force at
the time of their separation. In lieu thereof, at the option of the
employees, they may be considered for employment in the
Government or in any of its subdivisions, instrumentalities, or
agencies, including government­owned or controlled corporations
and their subsidiaries. This provision also applies to career
officers whose resignation,63
tendered in line with the existing
policy, had been accepted.

_______________

63 CONST. (1987), art. XVIII, sec. 16, supra.

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Dario vs. Mison

The Court considers the above provision critical for two


reasons: (1) It is the only provision—insofar as it mentions
removals not for cause—that would arguably support the
challenged dismissals by mere notice, and (2) It is the
single existing law on reorganization after the ratification
of the 1987 Charter, except Republic Act No. 6656, which
came much later, on June 10, 1988. [Nota bene: Executive
Orders No. 116 (covering the Ministry of Agriculture &
Food), 117 (Ministry of Education, Culture & Sports), 119
(Health), 120 (Tourism), 123 (Social Welfare &
Development), 124 (Public Works & Highways), 125
(Transportation & Communications), 126 (Labor &
Employment), 127 (Finance), 128 (Science & Technology),
129 (Agrarian Reform), 131 (Natural Resources), 132
(Foreign Affairs), and 133 (Trade & Industry) were all
promulgated on January 30, 1987, prior 64
to the adoption of
the Constitution on February 2, 1987].
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It is also to be observed that unlike the grants of power


to effect reorganizations under the past Constitutions, the
above provision comes as a mere recognition of the right of
the Government to reorganize its offices, bureaus, and
instrumentalities. Under Section 4, Article XVI, of the 1935
Constitution:

Section 4. All officers and employees in the existing Government


of the Philippine Islands shall continue in office until the
Congress shall provide otherwise, but all officers whose
appointments are by this Constitution vested in the President
shall vacate their respective office(s) upon the appointment and
qualification of their successors, if such appointment is made
within a period of one year from the 65date of the inauguration of
the Commonwealth of the Philippines.

Under Section 9, Article XVII, of the 1973 Charter:

Section 9. All officials and employees in the existing Government


of the Republic of the Philippines shall continue in office until
otherwise provided by law or decreed by the incumbent President
of the Philippines, but all officials whose appointments are by this

_______________

64 See fn. 11.


65 CONST. (1935), art. XVI, sec. 4.

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Dario vs. Mison

Constitution vested in the Prime Minister shall vacate their


respective offices
66
upon the appointment and qualification of their
successors.

The Freedom Constitution is, as earlier seen, couched in


similar language:

SECTION 2. All elective and appointive officials and employees


under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the
appointment and qualification of their successors, if67 such is made
within a period of one year from February 25, 1986.

Other than references to “reorganization following the


ratification of this Constitution,” there is no provision for
“automatic” vacancies under the 1987 Constitution.

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Invariably, transition periods are characterized by


provisions for “automatic” vacancies. They are dictated by
the need to hasten the passage from the old to the new
Constitution free from the “fetters” of due process and
security of tenure.
At this point, we must distinguish removals from
separations arising from abolition of office (not by virtue of
the Constitution) as a result of reorganization carried out
by reason of economy or to remove redundancy of functions.
In the68 latter case, the Government is obliged to prove good
faith. In case of removals undertaken to comply with clear
and explicit constitutional mandates, the Government is
not hard put to prove anything, plainly and simply because
the Constitution allows it.
Evidently, the question is whether or not Section 16 of
Article XVIII of the 1987 Constitution is a grant of a license
upon the Government to remove career public officials it
could have validly done under an “automatic”­vacancy­
authority and to remove them without rhyme or reason.

_______________

66 CONST. (1973), art. XVII, sec. 9.


67 CONST. (1986); art. III, sec. 2, supra.
68 Ginson v. Municipality of Murcia, No. L­46585, February 8, 1988,
157 SCRA 1; De la Llana v. Alba, No. 57883, March 12, 1982, 112 SCRA
294; Cruz v. Primicias, Jr., No. L­28573, June 13, 1968, 23 SCRA 998.

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Dario vs. Mison

As we have seen, since 1935, transition periods have been


characterized by provisions for “automatic” vacancies. We
take the silence of the 1987 Constitution on this matter as
a restraint upon the Government to dismiss public servants
at a moment’s notice.
What is, indeed, apparent is the fact that if the present
Charter envisioned an “automatic” vacancy, it should have
said so in clearer terms, as its 1935, 1973, and 1986
counterparts had so stated.
The constitutional “lapse” means either one of two
things: (1) The Constitution meant to continue the
reorganization under the prior Charter (of the
Revolutionary Government), in the sense that the latter
provides for “automatic” vacancies, or (2) It meant to put a
stop to those “automatic” vacancies. By itself, however, it is
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ambiguous, referring as it does to two stages of


reorganization—the first, to its conferment or
authorization under Proclamation No. 3 (Freedom Charter)
and the second, to its implementation on its effectivity date
(February 2, 1987). But as we asserted, if the intent of
Section 16 of Article XVIII of the 1987 Constitution were to
extend the effects of reorganization under the Freedom
Constitution, it should have said so in clear terms. It is
illogical why it should talk of two phases of reorganization
when it could have simply acknowledged the continuing
effect of the first reorganization.
Second, plainly the concern of Section 16 is to ensure
compensation for “victims” of constitutional revamps—
whether under the Freedom or existing Constitution—and
only secondarily and impliedly, to allow reorganization. We
turn to the records of the Constitutional Commission:

INQUIRY OF MR. PADILLA

On the query of Mr. Padilla whether there is a need for a specific


reference to Proclamation No. 3 and not merely state “result of
the reorganization following the ratification of this Constitution”,
Mr. Suarez, on behalf of the Committee, replied that it is
necessary, inasmuch as there are two stages of reorganization
covered by the Section.
Mr. Padilla pointed out that since the proposals of the
Commission on Government Reorganization have not been
implemented yet,

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Dario vs. Mison

it would be better to use the phrase “reorganization before or


after the ratification of the Constitution” to simplify the Section.
Mr. Suarez instead suggested the phrase “as a result of the
reorganization effected before or after the ratification of the
Constitution” on the understanding that the provision would
apply to employees terminated because of the reorganization
pursuant to Proclamation No. 3 and even those affected by the
reorganization during the Marcos regime. Additionally, Mr.
Suarez pointed out that it is also for this reason that the
Committee specified the two Constitutions—the 69
Freedom
Constitution and the 1986 [1987] Constitution.

Simply, the provision benefits career civil service


employees separated from the service. And the separation
contemplated must be due to or the result of (1) the
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reorganization pursuant to Proclamation No. 3 dated


March 25, 1986, (2) the reorganization from February 2,
1987, and (3) the resignations of career officers tendered in
line with the existing policy and which resignations have
been accepted. The phrase “not for cause” is clearly and
primarily exclusionary, to exclude those career civil service
employees separated “for cause.” In other words, in order to
be entitled to the benefits granted under Section 16 of
Article XVIII of the Constitution of 1987, two requisites,
one negative and the other positive, must concur, to wit:

1. the separation must not be for cause, and


2. the separation must be due to any of the three
situations mentioned above.

By its terms, the authority to remove public officials under


the Provisional Constitution ended on February 25, 70
1987,
advanced by jurisprudence to February 2, 1987. It can
only mean, then, that whatever reorganization is taking
place is upon the authority of the present Charter, and
necessarily, upon the mantle of its provisions and
safeguards. Hence, it can not be legitimately stated that we
are merely continuing what

_______________

69 III RECORD OF THE CONSTITUTIONAL COMMISSION, 1615­


1616 (1986).
70 De Leon v. Esguerra, supra; Palma­Fernandez v. De la Paz, supra.

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Dario vs. Mison

the revolutionary Constitution of the Revolutionary


Government had started. We are through with
reorganization under the Freedom Constitution—the first
stage. We are on the second stage—that inferred from the
provisions of Section 16 of Article XVIII of the permanent
basic document.
This is confirmed not only by the deliberations of the
Constitutional Commission, supra, but is apparent from
the Charter’s own words. It also warrants our holding in
Esguerra and Palma­Fernandez, in which we categorically
declared that after February 2, 1987, incumbent officials
and employees have acquired security of tenure, which is

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not a deterrent against separation by reorganization under


the quondam fundamental law.
Finally, there is the concern of the State to ensure that
this reorganization is no “purge” like the execrated
reorganizations under martial rule. And, of course, we also
have the democratic character of the Charter itself.
Commissioner Mison would have had a point, insofar as
he contends that the reorganization is open­ended
(“progressive”), had it been a reorganization under the
revolutionary authority, specifically of the Provisional
Constitution. For then, the power to remove government
employees would have been truly wideranging and
limitless, not only because Proclamation No. 3 permitted it,
but because of the nature of revolutionary authority itself,
its totalitarian tendencies, and the monopoly of power in
the men and women who wield it.
What must be understood, however, is that
notwithstanding her immense revolutionary powers, the
President was, nevertheless, magnanimous in her rule.
This is apparent from Executive Order No. 17, which
established safeguards against the strong arm and ruthless
propensity that accompanies reorganizations—
notwithstanding the fact that removals arising therefrom
were “not for cause,” and in spite of the fact that such
removals would have been valid and unquestionable.
Despite that, the Chief Executive saw, as we said, the
“unnecessary anxiety and demoralization” in the
government rank and file that reorganization was causing,
and prescribed guidelines for personnel action. Specifically,
she said on May 28, 1986:
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Dario vs. Mison

WHEREAS, in order to obviate unnecessary anxiety and


demoralization among the deserving officials and employees,
particularly in the career civil service, it is necessary to prescribe
the rules and regulations for implementing the said constitutional
provision to protect career civil servants whose qualifications and
performance meet the standards of service demanded by the New
Government, and to ensure that only those found corrupt,
inefficient
71
and undeserving are separated from the government
service;

Noteworthy is the injunction embodied in the Executive


Order that dismissals should be made on the basis of
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findings of inefficiency,
**
graft, and unfitness to render
public service.
The President’s Memorandum of October 14, 1987
should furthermore be considered. We quote, in part:

Further to the Memorandum dated October 2, 1987 on the same


subject, I have ordered that there will be no further lay­offs this
72
year of personnel as a result of the government reorganization.

Assuming, then, that this reorganization allows removals


“not for cause” in a manner that would have been
permissible in a revolutionary setting as Commissioner
Mison so purports, it would seem that the Commissioner
would have been powerless, in any event, to order
dismissals at the Customs Bureau left and right. Hence,
even if we accepted his “progressive” reorganization theory,
he would still have to come to terms with the Chief
Executive’s subsequent directives moderating the
revolutionary authority’s plenary power to separate
government officials and employees.

Reorganization under the 1987 Constitution, Nature,


Extent, and Limitations of; Jose v. Arroyo, clarified.—
The controversy seems to be that we have, ourselves,
supposedly extended the effects of government
reorganization under

_______________

71 Exec. Ord. No. 17, supra.


** Paradoxically, Executive Order No. 17 would have provided a “cause”
for removal.
72 OP Memo (October 14, 1987).

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Dario vs. Mison

the Provisional Constitution73


to the regime of the 1987
Constitution. Jose v. Arroyo is said to be the authority for
this argument. Evidently, if Arroyo indeed so ruled, Arroyo
would be inconsistent with the earlier pronouncement of
Esguerra and the later holding of Palma­Fernandez. The
question, however, is: Did Arroyo, in fact, extend the effects
of reorganization under the revolutionary Charter to the
era of the new Constitution?

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There are a few points about Arroyo that have to be


explained. First, the opinion expressed therein that “[b]y
virtue of said provision the reorganization of the Bureau of
Customs under Executive Order No. 127 may continue
even after the ratification of this constitution and career
civil service employees may be separated from the 74
service
without cause as a result of such reorganization” is in the 75
nature of an obiter dictum. We dismissed Jose’s petition
primarily because it was “clearly premature, speculative,
and purely anticipatory, based merely on newspaper
reports 76 which do not show any direct or threatened
injury,” it appearing that the reorganization of the Bureau
of Customs had not been, then, set in motion. Jose
therefore had no cause for complaint, which was enough
basis to dismiss the petition. The remark anent separation
“without cause” was therefore not necessary 77
for the
disposition of the case. In Morales v. Paredes, it was held
that an obiter dictum “lacks the force of an adjudication
78
and should not ordinarily be regarded as such.”
Secondly, Arroyo is an unsigned resolution while Palma­
Fernandez is a full­blown decision, although both are en
banc cases. While a resolution of the Court is no less
forceful than a decision, the latter has a special weight.

_______________

73 Supra, see fn. 7.


74 Arroyo, supra, 3.
75 The petitioner was Leonardo Jose, a Collector III at the Bureau of
Customs.
76 Supra, 2.
77 55 Phil. 565 (1930).
78 Supra.

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Thirdly, Palma­Fernandez v. De la Paz comes as a later


doctrine. (Jose v. Arroyo was promulgated on August 11,
1987 while Palma­Fernandez was decided on August 31,
1987.) It is well­established that a later judgment
supersedes a prior one in case of an inconsistency.
As we have suggested, the transitory provisions of the
1987 Constitution allude to two stages of the
reorganization, the first stage being the reorganization
under Proclamation No. 3—which had already been
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consummated—the second stage being that adverted to in


the transitory provisions themselves—which is underway.
Hence, when we spoke, in Arroyo, of reorganization after
the effectivity of the new Constitution, we referred to the
second stage of the reorganization. Accordingly, we cannot
be said to have carried over reorganization under the
Freedom Constitution to its 1987 counterpart.
Finally, Arroyo is not necessarily incompatible with
Palma­Fernandez (or Esguerra).
As we have demonstrated, reorganization under the
aegis of the 1987 Constitution is not as stern as
reorganization under the prior Charter. Whereas the latter,
sans the President’s subsequently imposed constraints,
envisioned a purgation, the same cannot be said of the
reorganization inferred under the new Constitution
because, precisely, the new Constitution seeks to usher in a
democratic regime. But even if we concede ex gratia
argumenti that Section 16 is an exception to due process
and noremoval­“except for cause provided by law” 79
principles enshrined in the very same 1987 Constitution,
which may possibly justify removals “not for cause,” there
is no contradiction in terms here because, while the former
Constitution left the axe to fall where it might, the present
organic act requires that removals “not for cause” must be
as a result of reorganization. As we observed, the
Constitution does not provide for “automatic” vacancies. It
must also pass the test of good faith—a test not obviously
required under the revolutionary government formerly
prevailing, but a test well­established in democratic
societies and in this government under a democratic
Charter.

_______________

79 Art. III, sec. 1 and art. IX(B), sec. 2(3).

127

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Dario vs. Mison

When, therefore, Arroyo permitted a reorganization under


Executive Order No. 127 after the ratification of the 1987
Constitution, Arroyo permitted a reorganization provided
that it is done in good faith. Otherwise,
80
security of tenure
would be an insuperable impediment.
Reorganizations in this jurisdiction have been regarded
81
as valid provided they are pursued in good faith. As a
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general rule, a reorganization is carried out in “good faith”


if it is for the purpose of economy or to make bureaucracy
more efficient. In that event, no dismissal (in case of a
dismissal) or separation actually occurs because the
position itself ceases to exist. And in that case, security of
tenure would not be a Chinese wall. Be that as it may, if
the “abolition,” which is nothing else but a separation or
removal, is done for political reasons or purposely to defeat
security of tenure, or otherwise not in good faith, no valid
“abolition” takes place and whatever “abolition” is done, is
void ab initio. There is an invalid “abolition” as where
82
there
is merely a change of nomenclature of positions, or where
claims83 of economy are belied by the existence of ample
funds.
It is to be stressed that by predisposing a reorganization
to the yardstick of good faith, we are not, as a consequence,
imposing a “cause” for restructuring. Retrenchment in the
course of a reorganization in good faith is still removal “not
for cause,” if by “cause” we refer***
to “grounds” or conditions
that call for disciplinary action.

_______________

80 Supra. In Palma­Fernandez, we upheld claims of security of tenure


in the absence of a bona fide reorganization. In that case, there was no
valid abolition of an office but merely, a change in name of position. We
did not foreclose therein the validity of a removal “not for cause,” provided
that there is a valid reorganization.
81 Ginson v. Municipality of Murcia, supra; De la Llana v. Alba, supra;
Cruz v. Primicias, Jr., supra.
82 Palma­Fernandez, supra. In that case, the office of “Chief of Clinic”
was purportedly abolished and in its place an office of “Assistant Director
for Professional Services” was created. We held that the two positions “are
basically one and the same except for the change of nomenclature.” (757.)
83 Ginson, supra; Cruz, supra.
*** Although as we also said, Executive Order No. 17 itself im­

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128 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

Good faith, as a component of a reorganization under a


constitutional regime, is judged from the facts of each case.
However, under Republic Act No. 6656, we are told:

SEC. 2. No officer or employee in the career service shall be


removed except for a valid cause and after due notice and hearing.

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A valid cause for removal exists when, pursuant to a bona fide


reorganization, a position has been abolished or rendered
redundant or there is a need to merge, divide, or consolidate
positions in order to meet the exigencies of the service, or other
lawful causes allowed by the Civil Service Law. The existence of
any or some of the following circumstances may be considered as
evidence of bad faith in the removals made as a result of
reorganization, giving rise to a claim for reinstatement or
reappointment by an aggrieved party: (a) Where there is a
significant increase in the number of positions in the new staffing
pattern of the department or agency concerned; (b) Where an
office is abolished and another performing substantially the same
functions is created; (c) Where incumbents are replaced by those
less qualified in terms of status of appointment, performance and
merit; (d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices
perform substantially the same functions as the original offices;
(e) Where the removal
84
violates the order of separation provided in
Section 3 hereof.

It is in light hereof that we take up questions about


Commissioner Mison’s good faith, or lack of it.

Reorganization of the Bureau of Customs, Lack of Good


Faith in.—
The Court finds that after February 2, 1987 no perceptible
restructuring of the Customs hierarchy—except for the
change of personnel—has occurred, which would have
justified (all things being equal) the contested dismissals.
The contention that the staffing pattern at the Bureau
(which would have furnished a justification for a personnel
movement) is the same staffing pattern prescribed by
Section 34 of Executive Order

_______________

posed a “cause” for removals under the Freedom Constitution.


84 Rep. Act No. 6156, supra.

129

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Dario vs. Mison

No. 127 already prevailing when Commissioner Mison took


over the Customs
85
helm, has not been successfully
contradicted. There is no showing that legitimate
structural changes have been made—or a reorganization
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actually undertaken, for that matter—at the Bureau since


Commissioner Mison assumed office, which would have
validly prompted him to hire and fire employees. There can
therefore be no actual reorganization to speak of, in the
sense, say, of reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or
redundancy of functions, but a revamp of personnel pure
and simple.
The records indeed show that Commissioner Mison
separated about 394 Customs personnel
86
but replaced them
with 522 as of August 18, 1988. This betrays a clear intent
to “pack” the Bureau of Customs. He did so, furthermore, in
defiance of the President’s directive87 to halt further lay­offs
as a consequence of reorganization. Finally, he was aware
that lay­offs should observe the procedure laid down by
Executive Order No. 17. We are not, of course, striking
down Executive Order No. 127 for repugnancy to the
Constitution. While the act is valid, still
88
and all, the means
with which it was implemented is not.

Executive Order No. 127, Specific Case of.—


With respect to Executive Order No. 127, Commissioner
Mison submits that under Section 59 thereof, “[t]hose
incumbents whose positions are not included therein or
who are not reappointed shall be deemed separated from
the service.” He submits that because the 394 removed
personnel have not been “reappointed,” they are considered
terminated. To begin with, the Commissioner’s appointing
power is subject to the provisions of Executive Order No.
39. Under Executive Order No. 39,

_______________

85 See G.R. Nos. 81964, 81967, id., 10­11.


86 G.R. No. 86421, id., 31.
87 OP Memo (Oct., 14, 1987), supra.
88 See Free Telephone Workers Union v. Minister of Labor and
Employment, No. 58184, October 30, 1981, 108 SCRA 757.

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130 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

the Commissioner of Customs may “appoint all Bureau 89


personnel, except those appointed by the President.”
Accordingly, with respect to Deputy Commissioners
Cesar Dario and Vicente Feria, Jr., Commissioner Mison
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could not have validly terminated them, they being


Presidential appointees.
Secondly, and as we have asserted, Section 59 has been
rendered inoperative according to our holding in Palma­
Fernandez.
That Customs employees, under Section 59 of Executive
Order No. 127 had been on a mere holdover status cannot
mean that the positions held by them had become vacant.
In PalmaFernandez, we said in no uncertain terms:

The argument that, on the basis of this provision, petitioner’s


term of office ended on 30 January 1987 and that she continued in
the performance of her duties merely in a hold­over capacity and
could be transferred to another position without violating any of
her legal rights, is untenable. The occupancy of a position in a
hold­over capacity was conceived to facilitate reorganization and
would have lapsed on 25 February 1987 (under the Provisional
Constitution), but advanced to February 2, 1987 when the 1987
Constitution became effective (De Leon, et al., vs. Hon. Benjamin
B. Esquerra, et. al., G.R. No. 78059, 31 August 1987). After the
said date
90
the provisions of the latter on security of tenure
govern.

It should be seen, finally, that we are not barring


Commissioner Mison from carrying out a reorganization
under the transitory provisions of the 1987 Constitution.
But such a reorganization should be subject to the criterion
of good faith.

_________________

89 Supra. With respect to Vicente Feria, Jr., the records reveal that his
appointment was extended on April 22, 1986. (G.R. No. 81967, id., 7.) For
that reason, he cannot be said to be an “incumbent” for purposes of
reorganization, to whom a reappointment may be issued. Because his
appointment came after the promulgation of the Freedom Constitution, he
is, to all intents and purposes, an appointee as a result of reorganization.
90 Supra, 757.

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Dario vs. Mison

Resume.—
In resume, we restate as follows:

1. The President could have validly removed


government employees, elected or appointed,
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without cause but only before the effectivity of the


1987 Constitution on February 2, 1987 (De Leon v.
Esguerra, supra; Palma­Fernandez vs. De la Paz,
supra); in this connection, Section 59 (on non­
reappointment of incumbents) of Executive Order
No. 127 cannot be a basis for termination;
2. In such a case, dismissed employees shall be paid
separation and retirement benefits or upon their
option be given reemployment opportunities
(CONST. [1987], art. XVIII, sec. 16; Rep. Act No.
6656, sec. 9);
3. From February 2, 1987, the State does not lose the
right to reorganize the Government resulting in the
separation of career civil service employees
[CONST. (1987), supra] provided, that such a
reorganization is made in good faith. (Rep. Act No.
6656, supra.)

G.R. No. 83737

This disposition also resolves G.R. No. 83737. As we have


indicated, G.R. No. 83737 is a challenge to the validity of
Republic Act No. 6656. In brief, it is argued91
that the Act,
insofar as it strengthens security of92tenure and as far as it
provides for a retroactive effect, runs counter to the
transitory provisions of the new Constitution on removals
not for cause.
It can be seen that the Act, insofar as it provides for
reinstatement of employees separated93 without “a valid
cause and after due notice and hearing” is not contrary to
the transitory provisions of the new Constitution. The
Court reiterates that although the Charter’s transitory
provisions mention separations “not for cause,” separations
thereunder must nevertheless

_______________

91 Supra, sec. 9.
92 Supra, sec. 13.
93 Supra, sec. 2.

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132 SUPREME COURT REPORTS ANNOTATED


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be on account of a valid reorganization and which do not


come about automatically. Otherwise, security of tenure
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may be invoked. Moreover, it can be seen that the statute


itself recognizes removals without cause. However, it also
acknowledges the possibility of the leadership using the
artifice of reorganization to frustrate security of tenure. For
this reason, it has installed safeguards. There is nothing
unconstitutional about the Act.
We recognize the injury Commissioner Mison’s
replacements would sustain. We also commisserate with
them. But our concern is the greater wrong inflicted on the
dismissed employees on account of their illegal separation
from the civil service.
WHEREFORE, THE RESOLUTIONS OF THE CIVIL
SERVICE COMMISSION, DATED JUNE 30, 1988,
SEPTEMBER 20, 1988, NOVEMBER 16, 1988,
INVOLVED IN G.R. NOS. 85310, 85335, AND 86241, AND
MAY 8, 1989, INVOLVED IN G.R. NO. 85310, ARE
AFFIRMED.
THE PETITIONS IN G.R. NOS. 81954, 81967, 82023,
AND 85335 ARE GRANTED. THE PETITIONS IN G.R.
NOS. 83737, 85310 AND 86241 ARE DISMISSED.
THE COMMISSIONER OF CUSTOMS IS ORDERED
TO REINSTATE THE EMPLOYEES SEPARATED AS A
RESULT OF HIS NOTICES DATED JANUARY 26, 1988.
THE EMPLOYEES WHOM COMMISSIONER MISON
MAY HAVE APPOINTED AS REPLACEMENTS ARE
ORDERED TO VACATE THEIR POSTS SUBJECT TO
THE PAYMENT OF WHATEVER BENEFITS THAT MAY
BE PROVIDED BY LAW.
NO COSTS.
IT IS SO ORDERED.

          Gutierrez, Jr., Paras, Gancayco, Bidin, Cortés,


Griño­Aquino and Medialdea, JJ., concur.
          Fernan, (C.J.), Narvasa, Feliciano, Regalado, JJ.,
We join Justice Melencio­Herrera in her dissent.
     Melencio­Herrera, J., Please see attached dissent.
     Cruz, J., See separate concurrence.
          Padilla, J., No part, related to counsel for
respondent Abaca in G.R. No. 85310.

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MELENCIO­HERRERA, J., dissenting:

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The historical underpinnings of Government efforts at


reorganization hark back to the people power phenomenon
of 22­24 February 1986, and Proclamation No. 1 of
President Corazon C. Aquino, issued on 25 February 1986,
stating in no uncertain terms that “the people expect a
reorganization of government.” In its wake followed
Executive Order No. 5, issued on 12 March 1986, “Creating
a Presidential Commission on Government
Reorganization,” with the following relevant provisions:

“WHEREAS, there is need to effect the necessary and proper


changes in the organizational and functional structures of the
national and local governments, its agencies and
instrumentalities, including government­owned and controlled
corporations and their subsidiaries, in order to promote economy,
efficiency and effectiveness in the delivery of public services
x x x     x x x     x x x
“Section 2. The functional jurisdiction of the PCGR shall
encompass, as necessary, the reorganization of the national and
local governments, its agencies and instrumentalities including
government­owned or controlled corporations and their
subsidiaries.
x x x     x x x” (Italics supplied)

Succeeding it was Proclamation No. 3, dated 25 March


1986, also known as the Freedom Constitution, declaring,
in part, in its Preamble as follows:

WHEREAS, the direct mandate of the people as manifested by


their extraordinary action demands the complete reorganization
of the government, x x x” (Italics supplied)

and pertinently providing:

“ARTICLE II
“Section I
“x x x
“The President shall give priority to measures to achieve the
mandate of the people to:
“(a) Completely reorganize the government and eradicate
unjust and oppressive structures, and all iniquitous vestiges of
the previous

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134 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

regime;” (Emphasis supplied)

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x x x     x x x
“ARTICLE III—GOVERNMENT REORGANIZATION
“Section 2. All elective and appointive officials and employees
under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors,
if such is made within a period of one year from February 25,
1986.
“Section 3. Any public office or employee separated from the
service as a result of the reorganization effected under this
Proclamation shall, if entitled under the laws then in force,
receive the retirement and other benefits accruing thereunder.”
(Emphasis ours)

On 28 May 1986, Executive Order No. 17 was issued


“Prescribing Rules and Regulations for the Implementation
of Section 2, Article III of the Freedom Constitution”
providing, inter alia, as follows:

“Section 1. In the course of implementing Article III, Section 2 of


the Freedom Constitution, the Head of each Ministry shall see to
it that the separation or replacement of officers and employees is
made only for justifiable reasons, to prevent indiscriminate
dismissals of personnel in the career civil service whose
qualifications and performance meet the standards of public
service of the New Government.
“x x x     x x x
“The Ministry concerned shall adopt its own rules and
procedures for the review and assessment of its own personnel,
including the identification of sensitive positions which require
more rigid assessment of the incumbents, and shall complete such
review/assessment as expeditiously as possible but not later than
February 24, 1987 to prevent undue demoralization in the public
service.
“Section 2. The Ministry Head concerned, on the basis of such
review and assessment shall determine who shall be separated
from the service. Thereafter, he shall issue to the official or
employee concerned a notice of separation which shall indicate
therein the reason/s or ground/s for such separation and the fact
that the separated official or employee has the right to file a
petition for reconsideration pursuant to this Order. Separation
from the service shall be effective upon receipt of such notice,
either personally by the official or employee concerned or on his
behalf by a person of sufficient discretion.
“Section 3. The following shall be the grounds for separation/
replacement of personnel:

135

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Dario vs. Mison

1. Existence of a case for summary dismissal pursuant to


Section 40 of the Civil Service Law;
2. Existence of a probable cause for violation of the Anti­
Graft and Corrupt Practice Act as determined by the
Ministry Head concerned;
3. Gross incompetence or inefficiency in the discharge of
functions;
4. Misuse of Public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent
is unfit to remain in the service or his
separation/replacement is in the interest of the service.”

“Section 11. This Executive Order shall not apply to elective


officials or those designated to replace them, presidential
appointees, casual and contractual employees, or officials and
employees removed pursuant to disciplinary proceedings under
the Civil Service Law and rules, and to those laid off as a result of
the reorganization undertaken pursuant to Executive Order No.
5.” (Italics supplied)

On 6 August 1986, Executive Order No. 39 was issued by


the President “Enlarging the Powers and Functions of the
Commissioner of Customs”, as follows:

“x x x     x x x
“SECTION 1. In addition to the powers and functions of the
Commissioner of Customs, he is hereby authorized, subject to the
Civil Service Law and its implementing rules and regulations:

a) To appoint all Bureau personnel, except those appointed


by the President;
b) To discipline, suspend, dismiss or otherwise penalize
erring Bureau officers and employees;
c) To act on all matters pertaining to promotion, transfer,
detail, reassignment, reinstatement, reemployment and
other personnel action, involving officers and employees of
the Bureau of Customs.

x x x     x x x”

On 30 January 1987, Executive Order No. 127 was issued


“Reorganizing the Ministry of Finance.”
1
Similar Orders,
approximately thirteen (13) in all, were issued in respect of
the

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_____________

1 Executive Orders Nos. 116 (Agriculture and Food); 117 (Educa­

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136 SUPREME COURT REPORTS ANNOTATED


Dario vs. Mison

other executive departments. The relevant provisions


relative to the Bureau of Customs read:

“RECALLING that the reorganization of the government is


mandated expressly in Article II, Section 1(a) and Article III of
the Freedom Constitution;
“HAVING IN MIND that pursuant to Executive Order No. 5
(1986), it is directed that the necessary and proper changes in the
organizational and functional structures of the government, its
agencies and instrumentalities, be effected in order to promote
efficiency and effectiveness in the delivery of public services;
“BELIEVING that it is necessary to reorganize the Ministry of
Finance to make it more capable and responsive, organizationally
and functionally, in its primary mandate of judiciously generating
and efficiently managing the financial resources of the
Government, its subdivisions and instrumentalities in order to
attain the socio­economic objectives of the national development
programs.
“x x x     x x x”
“SEC. 2. Reorganization.—The Ministry of Finance, hereinafter
referred to as Ministry, is hereby reorganizaed, structurally and
functionally, in accordance with the provisions of this Executive
Order.”
“SEC. 33. Bureau of Customs.
“x x x Executive Order No. 39 dated 6 August 1986 which
grants autonomy to the Commissioner of Customs in matters of
appointment and discipline of Customs personnel shall remain in
effect.”
“SEC. 55. Abolition of Units Integral to Ministry.—All units
not included in the structural organization as herein provided and
all positions thereof are hereby deemed abolished. x x x Their
personnel shall be entitled to the benefits provided in the second
paragraph of Section 59 hereof.”
“SEC. 59. New Structure and Pattern.—Upon approval of this
Executive Order, the officers and employees of the Ministry shall,
in a holdover capacity, continue to perform their respective duties
and responsibilities and receive the corresponding salaries and
benefits

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_______________

tion, Culture and Sports); 119 (Health); 120 (Tourism); 123 (Social Welfare and
Development); 124 (Public Works and Highways); 125 (Transportation and
Communication); 126 (Labor and Employment); 128 (Science and Technology; 129
(Agrarian Reform); 131 (Natural Resources); 132 (Foreign Affairs); and 133 (Trade
and Industry).

137

VOL. 176, AUGUST 8. 1989 137


Dario vs. Mison

unless in the meantime they are separated from government


service pursuant to Executive Order No. 17 (1986) or Article III of
the Freedom Constitution.
“The new position structure and staffing pattern of the
Ministry shall be approved and prescribed by the Minister within
one hundred twenty (120) days from the approval of this
Executive Order and the authorized positions created hereunder
shall be filled with regular appointments by him or by the
President, as the case may be. Those incumbents whose positions
are not included therein or who are not reappointed shall be
deemed separated from the service. Those separated from the
service shall receive the retirement benefits to which they may be
entitled under the existing laws, rules and regulations.
Otherwise, they shall be paid the equivalent of one month basic
salary for every year of service or the equivalent nearest fraction
thereof favorable to them on the basis of highest salary received,
but in no case shall such payment exceed the equivalent of 12
months salary.
“No court or administrative body shall issue any writ or
preliminary injunction or restraining order to enjoin the
separation/replacement of any officer or employee affected under
this Executive Order.”
“Section 67—All laws, ordinances, rules, regulations and other
issuances or parts thereof, which are inconsistent with this
Executive Order, are hereby repealed or modified accordingly.
“x x x     x x x “ (Italics ours)

On 2 February 1987, the present Constitution took effect


(De Leon, et al., vs. Esguerra, G.R. No. 78059, August 31,
1987, 153 SCRA 602). Reorganization in the Government
service pursuant to Proclamation No. 3, supra, was
provided for in its Section 16, Article XVIII entitled
Transitory Provisions, reading:

“Section 16. Career civil service employees separated from the


service not for cause but as a result of the reorganization

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pursuant to Proclamation No. 3 dated March 25, 1986 and the


reorganization following the ratification of this Constitution shall
be entitled to appropriate separation pay and to retirement and
other benefits accruing to them under the laws of general
application in force at the time of their separation. In lieu thereof,
at the option of the employees, they may be considered for
employment in the Government or in any of its subdivisions,
instrumentalities, or agencies, including government owned or
controlled corporations and their subsidiaries. This provision also
applies to career officers whose resignation, tendered in line with
the existing policy, has been accepted.”

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138 SUPREME COURT REPORTS ANNOTATED


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On 24 May 1987 the then Commissioner of Customs,


Alexander A. Padilla, transmitted to the Department of
Finance for approval the proposed “position structure and
staffing pattern” of the Bureau of Customs. Said
Department gave its imprimatur. Thereafter, the staffing
pattern was transmitted to and approved by the
Department of Budget and Management on 7 September
1987 for implementation. Under the old staffing pattern,
there were 7,302 positions while under the new staffing
pattern, there are 6,530 positions (CSC Resolution in CSC
Case No. 1, dated 20 September 1988, pp. 3­4).
On 22 September 1987, Salvador M. Mison assumed
office as Commissioner of Customs.
On 2 October 1987 “Malacañang Memorandum Re:
Guidelines on the Implementation of Reorganization
Executive Orders” was issued reading, insofar as revelant
to these cases, as follows:

“It is my concern that ongoing process of government


reorganization be conducted in a manner that is expeditious, as
well as sensitive to the dislocating consequences arising from
specific personnel decisions.
“The entire process of reorganization, and in particular the
process of separation from service, must be carried out in the most
humane manner possible.
“For this purpose, the following guidelines shall be strictly
followed:

1. By October 21, 1987, all employees covered by the


Executive Orders for each agency on reorganization shall
be:

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a. informed of their reappointment or


b. offered another position in the same department/ agency,
or
c. informed of their termination.

2. In the event of an offer for a lower position, there will be


no reduction in the salary.

x x x     x x x

4. Each department/agency shall constitute a Reorganization


Appeals Board at the central office, on or before October
21, 1987, to review or reconsider appeals or complaints
relative to reorganization. All cases submitted to the
Boards shall be resolved subject to the following
guidelines:

139

VOL. 176, AUGUST 8. 1989 139


Dario vs. Mison

a. publication or posting of the appeal procedure


promulgated by the Department Secretary;
b. adherence to due process;
c. disposition within 30 days from submission of the case;
d. written notification of the action taken and the grounds
thereof.

Action by the Appeals Review Board does not preclude appeal


to the Civil Service Commission.

5. Placement in the new staffing pattern of incumbent


personnel shall be completed prior to the hiring of new
personnel, if any.

x x x     x x x” (Italics ours)

On 25 November 1987 Commissioner Mison wrote the


President requesting a grace period until the end of
February 1988 within which to completely undertake the
reorganization of the Bureau of Customs pursuant to
Executive Order No. 127 dated 30 January 1987. Said
request was granted in a letter­reply by Executive
Secretary Catalino Macaraig, Jr., dated 22 December 1987.
On 6 January 1988, within the extended period
requested, Bureau of Customs Memorandum “Re:
Guidelines on the Implementation of Reorganization

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Executive Orders” was issued in the same tenor as the


Malacañang Memorandum of 2 October 1987, providing
inter alia:

“To effectively implement the reorganization at the Bureau of


Customs, particularly in the selection and placement of personnel,
and insure that the best qualified and most competent personnel
in the career service are retained, the following guidelines are
hereby prescribed for the guidance of all concerned

1. By February 28, 1988 all employees covered by Executive


Order No. 127 and the grace period extended to the
Bureau of Customs by the President of the Philippines on
reorganization shall be:

a. informed of their reappointment, or


b. offered another position in the same department or
agency, or
c. informed of their termination.

2. In the event of termination, the employee shall:

a. be included in a consolidated list compiled by the Civil


Service Commission. All departments who are recruiting
shall give preference to the employees in the list; and

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140 SUPREME COURT REPORTS ANNOTATED


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b. continue to receive salary and benefits until February 28,


1988, and
c. be guaranteed the release of separation benefits within 45
days from termination and in no case later than June 15,
1988.
x      x      x” (Italics supplied)

It is to be noted that paragraph 1 above and its sub­


sections reproduced verbatim the Malacañang Guidelines
of 2 October 1987 in that the employees concerned were
merely to be informed of their termination.
On 28 January 1988 Commissioner Mison addressed
identical letters of termination to Bureau of Customs
officers and employees effective on 28 February 1988.
As of 18 August 1988, Commissioner Mison appointed
five hundred twenty­two (522) officials and employees of
the Bureau of Customs (CSC Resolution in CSC Case No. 1,

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dated 20 September 1988, p. 6). In fact, in a letter dated 27


January 1988, Commissioner Mison recommended Jose M.
Balde for appointment to President Aquino as one of three
(3) Deputy Commissioners under Executive Order No. 127.
In the interim, during the pendency of these Petitions,
Republic Act No. 6656, entitled “An Act to Protect the
Security of Tenure of Civil Service Officers and Employees
in the Implementation of Government Reorganization” was
passed by Congress on 9 June 1988. The President signed
it into law on 10 June 1988 and the statute took effect on
29 June 1988.
On 20 June 1988 Motions were filed, in these cases
pending before this Court, invoking the provisions of
Republic Act No. 6656. The relevant provisions thereof
read:

“SECTION 1. It is hereby declared the policy of the State to


protect the security of tenure of civil service officers and
employees in the reorganization of the various agencies of the
National government x x x.
“SECTION 2. No officer or employee in the career service shall
be removed except for a valid cause and after due notice and
hearing. A valid cause for removal exists when, pursuant to a
bona fide reorganization, a position has been abolished or
rendered redundant or there is a need to merge, divide, or
consolidate positions in order to meet the

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exigencies of the service, or other lawful causes allowed by the


Civil Service Law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the
removals made as a result of reorganization, giving rise to a claim
for reinstatement or reappointment by an aggrieved party:

(a) Where there is a significant increase in the number of


positions in the new staffing pattern of the department or
agency concerned;
(b) Where an office is abolished and another performing
substantially the same functions is created;
(c) Where incumbents are replaced by those less qualified in
terms of status of appointment, performance and merit;
(d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified

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offices perform substantially the same functions as the


original offices;
(e) Where the removal violates the order of separation
provided in Section 3 hereof.

x x x     x x x
“SECTION 9. All officers and employees who are found by the
Civil Service Commission to have been separated in violation of
the provisions of this Act, shall be ordered reinstated or
reappointed as the case may be without loss of seniority and shall
be entitled to full pay for the period of separation. Unless also
separated for cause, all officers and employees, including casuals
and temporary employees, who have been separated pursuant to
reorganization shall, if entitled thereto, be paid the appropriate
separation pay and retirement and other benefits under existing
laws within ninety (90) days from the date of the effectivity of
their separation or from the date of the receipt of the resolution of
their appeals as the case may be: Provided, That application for
clearance has been filed and no action thereon has been made by
the corresponding department or agency. Those who are not
entitled to said benefits shall be paid a separation gratuity in the
amount equivalent to one (1) month salary for every year of
service. Such separation pay and retirement benefits shall have
priority of payment out of the savings of the department or agency
concerned.
x x x     x x x
“SECTION 11. The executive branch of the government shall
implement reorganization schemes within a specified period of
time authorized by law.
“In the case of the 1987 reorganization of the executive branch,
all departments and agencies which are authorized by executive
orders promulgated by the President to reorganize shall have
ninety (90)

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Dario vs. Mison

days from the approval of this Act within which to implement


their respective reorganization plans in accordance with the
provisions of this Act.
x x x     x x x
“SECTION 13. All laws, rules and regulations or parts thereof,
inconsistent with the provisions of this Act are hereby repealed or
modified accordingly. The rights and benefits under this Act shall
be retroactive as of June 30, 1987.
x      x      x” (Italics ours)
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Given the foregoing statutory backdrop, the issues can now


be addressed.

Scope of Section 16, Art. XVIII, 1987 Constitution


Crucial to the present controversy is the construction to be
given to the abovementioned Constitutional provision
(SECTION 16, for brevity), which speaks of:

“Career civil service employees separated from the service not for
cause
but as a result of the reorganization pursuant to Proclamation
No. 3 dated March 25, 1986
and the reorganization following the ratification of this
Constitution x x x” (paragraphing supplied).

To our minds, SECTION 16 clearly recognizes (1) the


reorganization authorized by Proclamation No. 3; (2) that
such separation is NOT FOR CAUSE but as a result of the
reorganization pursuant to said Proclamation; and (3) that
the reorganization pursuant to Proclamation No. 3 may be
continued even after the ratification of the 1987
Constitution during the transition period.

Separation NOT FOR CAUSE


The canon for the removal or suspension of a civil service
officer or employee is that it must be FOR CAUSE. That
means “a guarantee of both procedural and substantive due
process. Basically, procedural due process would require
that suspension

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Dario vs. Mison

or dismissal come only after notice and hearing.


Substantive due process would require that suspension or
dismissal be ‘for cause’.” (Bernas, The Constitution of the
Republic of the Philippines: A Commentary, Vol. II, First
Edition, 1988, p. 334)
The guarantee of removal FOR CAUSE is enshrined in
Article IX­B, Section 2(3) of the 1987 Constitution, which
states that
“No officer or employee of the civil service shall be
removed or suspended except FOR CAUSE provided by
law.”
There can be no question then as to the meaning of the
phrase FOR CAUSE. It simply means the observance of
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both procedural and substantive due process in cases of


removal of officers or employees of the civil service. When
SECTION 16 speaks, therefore, of separation from the
service NOT FOR CAUSE, it can only mean the
diametrical opposite. The constitutional intent to exempt
the separation of civil service employees pursuant to
Proclamation No. 3 from the operation of Article IX­B,
Section 2(3), becomes readily apparent. A distinction is
explicitly made between removal FOR CAUSE, which as
aforestated, requires due process, and dismissal NOT FOR
CAUSE, which implies that the latter is not bound by the
“fetters” of due process.
It is obviously for that reason that Section 16 grants
separation pay and retirement benefits to those separated
NOT FOR CAUSE but as a result of the reorganization
precisely to soften the impact of the non­observance of due
process. “What is envisioned in Section 16 is not a remedy
for arbitrary removal of civil servants enjoying security of
tenure but some form of relief for members of the career
civil service who may have been or may be legally but
involuntarily ‘reorganized out’ of the service or may have
voluntarily resigned pursuant to the reorganization policy”
(ibid., p. 615).

Reorganization Pursuant to Proclamation No. 3 to


Continue Transitorily Even After Ratification
By its very context, SECTION 16 envisages the
continuance of the reorganization pursuant to
Proclamation No. 3 even after ratification of the
Constitution and during the transition period. The two [2]
stages contemplated, namely, (1) the stage
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before and (2) after ratification, refer to the same nature of


separation “NOT FOR CAUSE but as a result of
Proclamation No. 3.” No valid reason has been advanced for
a different treatment after ratification as the majority
opines, i.e., that separation NOT FOR CAUSE is allowed
before ratification but that, thereafter, separation can only
be FOR CAUSE.
A fundamental principle of Constitutional construction
is to assure the realization of the purpose of the framers of
the organic law and of the people who adopted it.

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That the reorganization commenced pursuant to


Proclamation No. 3 was envisioned to continue even after
the ratification of the 1987 Constitution, at least
transitorily, is evident from the intent of its authors
discoverable from their deliberations held on 3 October
1986 and evincing their awareness that such
reorganization had not as yet been fully implemented.
Thus:

“Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the


clause ‘pursuant to the provisions of Article III of
Proclamation No. 3, issued on March 25, 1986, and the
reorganization.’ Are those words necessary? Can we not
just say ‘result of the reorganization following the
ratification of this Constitution’? In other words, must
we make specific reference to Proclamation No. 3?
“Mr. SUAREZ. Yes. I think the committee feels that is
necessary, because in truth there has been a
reorganization by virtue of Proclamation No. 3. In other
words, there are two stages of reorganization covered by
this section.
“Mr. PADILLA. I understand there is a reorganization
committee headed by a minister?
“Mr. SUAREZ. Philippine Commission on Government
Reorganization.
“Mr. PADILLA. But whether that has already been
implemented or not, I do not believe in it. There has
been a plan, but I do not think it has been implemented.
If we want to include any previous reorganization after
or before the ratification, why do we not just say
‘reorganization before or after the ratification’ to
simplify the provision and eliminate two­and­a­half
sentences that may not be necessary? And as a result of
the reorganization, if the committee feels there has been
reorganization before ratification and there be
reorganization after, we just say ‘before or after the
ratification of this Constitution.’
Mr. SUAREZ. Something like this: ‘as a result of the
reorganization effected before or after the ratification of
the Constitution’ on the

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Dario vs. Mison

understanding, with the statement into the records, that


this would be applicable to those reorganized out pursuant
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to the Freedom Constitution also.


“Mr. PADILLA. That is understood if there has been a
reorganization before the ratification or a reorganization
after the ratification.” (RECORDS of the Constitutional
Commission, Vol. 5, p. 416) (Italics provided)

It should also be recalled that the deadline for the


reorganization under Proclamation No. 3 was “one year
from February 25, 1986” (Article III, Section 2), or up to
February 24, 1987. Executive Order No. 17 itself provided
that the review/assess­ment of personnel be completed “not
later than February 24, 1987.” But, confronted with the
reality of the ratification of the Constitution before that
deadline without reorganization having been completed,
there was need for a provision allowing for its continuance
even after ratification and until completed. It was also to
beat that deadline that EO 127 and similar issuances,
providing for the reorganization of departments of
government, were all dated 30 January 1987 or prior to the
plebiscite held on 2 February 1987. The intent to continue
and complete the reorganizations started is self­evident in
SECTION 16.
In Jose vs. Arroyo, et al. (G.R. No. 78435, August 11,
1987), which was a Petition for Certiorari and Prohibition
to enjoin the implementation of Executive Order No. 127,
we recognized that the reorganization pursuant to
Proclamation No. 3 as mandated by SECTION 16, was to
continue even after ratification when we stated:

“The contention of petitioner that EO No. 127 is violative of the


provision of the 1987 Constitution guaranteeing career civil
service employees security of tenure overlooks the provision of
Section 16, Art. XVIII (Transitory Provisions) which explicitly
authorizes the removal of career civil service employees not for
cause but as a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the reorganization
following the ratification of the Constitution. By virtue of said
provision, the reorganization of the Bureau of Customs under
Executive Order No. 127 may continue even after the ratification
of this Constitution and career civil service em­

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Dario vs. Mison

ployees may be separated from the service without cause as a


result of such reorganization.” (Italics ours)

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With due respect to the majority, we disagree with its


conclusion that the foregoing pronouncement is mere
“obiter dictum.”

“An obiter dictum or dictum has been defined as a remark or


opinion uttered, by the way. It is a statement of the court
concerning a question which was not directly before it (In re Hess,
23 A. 2d. 298, 301, 20 N.J. Misc. 12). It is language unnecessary to
a decision, (a) ruling on an issue not raised, or (an) opinion of a
judge which does not embody the resolution or determination of
the court, and is made without argument or full consideration of
the point (Lawson v. US, 176 F2d 49, 51, 85 U.S. App. D.C. 167).
It is an expression of opinion by the court or judge on a collateral
question not directly involved, (Crescent Ring Co. v. Traveler’s
Indemnity Co. 132 A. 106, 107, 102 N.J. Law 85) or not necessary
for the decision (Du Bell v. Union Central Life Ins. Co., 29, So. 2d
709, 712; 211 La. 167).”

In the case at bar, however, directly involved and squarely


before the Court was the issue of whether “EO 127 violates
Section 2(3) of Article IX­B of the 1987 Constitution against
removal of civil service employees except for cause.”
Petitioner batted for the affirmative of the proposition,
while respondents contended that “removal of civil service
employees without cause is allowed not only under the
Provisional Constitution but also under the 1987
Constitution if the same is made pursuant to a
reorganization after the ratification of the Constitution.”
It may be that the Court dismissed that Petition for
being “premature, speculative and purely anticipatory”
inasmuch as petitioner therein had “not received any
communication terminating or threatening to terminate his
services.” But that was only one consideration. The Court
still proceeded to decide all the issues adversatively
contested by the parties, namely “1) that the expiration
date of February 25, 1987 fixed by Section 2 of
Proclamation No. 3 on which said Executive order is based
had already lapsed; 2) that the Executive Order has not
been published in the Official Gazette as required by
Article 2 of the Civil Code and Section 11 of the Revised
Administrative Code;
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and 3) that its enforcement violates Section 2(3) of Article


IX­B of the 1987 Constitution against removal of civil
service employees except for cause.”
The ruling of the Court, therefore, on the Constitutional
issues presented, particularly, the lapse of the period
mandated by Proclamation No. 3, and the validity of EO
127, cannot be said to be mere “obiter.” They were ultimate
issues directly before the Court, expressly decided in the
course of the consideration of the case, so that any
resolution thereon must be considered as authoritative
precedent, and not a mere dictum (See Valli v. US, 94 F.2d
687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed.
1092; See also Weedin v. Tayokichi Yamada 4 F. (2d) 455).
Such resolution would not lose its value as a precedent just
because the disposition of the case was also made on some
other ground.

“x x x And this rule applies as to all pertinent questions although


only incidentally involved, which are presented and decided in the
regular course of the consideration of the case, and lead up to the
final conclusion (Northern Pac. Ry. Co. v. Baker, D.C. Wash., 3 F.
Suppl. 1; See also Wisconsin Power and Light Co. v. City of Beloit,
254 NW 119; Chase v. American Cartage Co. 186 N.W. 598; City
of Detroit, et al. v. Public Utilities Comm. 286 N.W. 368).
Accordingly, a point expressly decided does not lose its value as a
precedent because the disposition of the case is made on some
other ground. (Wagner v. Corn Products Refining Co. D.C. N.J. 28
F 2d 617) Where a case presents two or more points, any one of
which is sufficient to determine the ultimate issue, but the court
actually decides all such points, the case is an authoritative
precedent as to every point decided, and none of such points can
be regarded as having merely the status of a dictum (See U.S. v.
Title Insurance and Trust Co., Cal., 44 S. Ct. 621, 265 U.S. 472,
68 L. Ed. 1110; Van Dyke v. Parker 83 F. (2d) 35) and one point
should not be denied authority merely because another point was
more dwelt on and more fully argued and considered. (Richmond
Screw Anchor Co. v. U.S. 48 S. Ct. 194, 275 U.S. 331, 72 L. Ed.
303)”

It is true that in Palma­Fernandez vs. de la Paz (G.R. No.


78946, April 15, 1986, 160 SCRA 751), we had stated:

“The argument that, on the basis of this provision (Section 26 of


Executive Order No. 119, or the ‘Reorganization Act of the
Ministry of

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Dario vs. Mison

Health’), petitioner’s term of office ended on 30 January 1987 and


that she continued in the performance of her duties merely in a
hold­over capacity and could be transferred to another position
without violating any of her legal rights, is untenable. The
occupancy of a position in a hold­over capacity was conceived to
facilitate reorganization and would have lapsed on 25 February
1987 (under the Provisional Constitution), but advanced to 2
February 1987 when the 1987 Constitution became effective (De
Leon, et al., vs. Hon. Esguerra, et al., G.R. No. 78059, 31 August
1987, 153 SCRA 602). After the said date the provisions of the
latter on security of tenure govern.”

The factual situation in the two cases, however, radically


differ. In the cited case, Dra. Palma­Fernandez, the
petitioner, had already been extended a permanent
appointment as Assistant Director for Professional Services
of the East Avenue Medical Center but was still being
transferred by the Medical Center Chief to the Research
Office against her consent. Separation from the service as a
result of reorganization was not involved. The question
then arose as to whether the latter official had the
authority to transfer or whether the power to appoint and
remove subordinate officers and employees was lodged in
the Secretary of Health. Related to that issue was the vital
one of whether or not her transfer, effected on 29 May
1987, was tantamount to a removal without cause.
Significant, too, is the fact that the transfer was basically
made “in the interest of the service” pursuant to Section
24(c) of PD No. 807, or the Civil Service Decree, and not
because she was being reorganized out by virtue of EO 119
or the “Reorganization Act of the Ministry of Health,”
although the said Act was invoked after the fact. And so it
was that SECTION 16 was never mentioned, much less
invoked in the Palma­Fernandez case.
Finally, on this point, it is inaccurate for the majority to
state that there were no reorganization orders after
ratification. There were, namely, EO 181 (Reorganization
Act of the Civil Service Commission), June 1, 1987; EO 193
(Reorganization Act of the Office of Energy Affairs), June
10, 1987; EO 230 (Reorganization Act of NEDA), July 22,
1987; EO 262 (Reorganization Act of the Department of
Local Government), July 25, 1987; EO 297 (Reorganization
Act of the Office of the Press Secretary), July 25, 1987.
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Dario vs. Mison

The Element of Good Faith


The majority concedes that reorganization can be
undertaken provided it be in good faith but concludes that
Commissioner Mison was not in good faith.
The aforesaid conclusion is contradicted by the records.
Executive Order No. 127, dated 30 January 1987,
specifically authorized the reorganization of the Bureau of
Customs “structurally and functionally” and provided for
the abolition of all units and positions thereof not included
in the structural organization (Section 55).
As stated heretofore, it was the former Commissioner of
Customs, Alexander A. Padilla who, on 24 May 1987,
transmitted to the Department of Finance for approval the
proposed “position structure and staffing pattern” of the
Bureau of Customs. This was approved by the Department
of Finance. Thereafter, it was transmitted to and approved
by the Department of Budget and Management on 7
September 1987 for implementation. Under the old staffing
pattern, there were 7,302 positions while under the new
staffing pattern, there are 6,530 positions.
On 2 October 1987 “Malacañang Memorandum Re:
Guidelines on the Implementation of Reorganization
Executive Orders” provided:

“By October 21, 1987, all employees covered by the Executive


orders for each agency on reorganization shall be:

a. informed of their reappointment, or


b. offered another position in the same department or
agency, or
c. informed of their termination.” (Italics supplied)

On 25 November 1987 Commissioner Mison asked for and


was granted by the President an extension up to February
1988 within which to completely undertake the
reorganization of the Bureau of Customs.
On 6 January 1988, he issued Bureau of Customs
Memorandum “Re Guidelines on the Implementation of
Reorganization Executive Orders” reiterating the above­
quoted portion of the Malacañang Memorandum of 2
October 1987. Pursuant thereto, on 28 January 1988,
Commissioner Mison addressed uniform
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letters of termination to the employees listed on pages 15,


16 and 17 of the majority opinion, effective on 28 February
1988, within the extended period granted.
The records further show that upon Commissioner
Mison’s official inquiry, Secretary of Justice Sedfrey A.
Ordoñez, rendered the following Opinion:

“x x x It is believed that customs employees who are reorganized


out in the course of the implementation of E.O. No. 127
(reorganizing the Department of Finance) need not be informed of
the nature and cause of their separation from the service. It is
enough that they be ‘informed of their termination’ pursuant to
section 1(c) of the Memorandum dated October 2, 1987 of
President Aquino, which reads:

“1. By October 21, 1987, all employees covered by the


Executive orders for each agency on reorganization shall
be:

x x x     x x x

“c) Informed of their terminations.

“The constitutional mandate that ‘no officer or employee of the


civil service shall be removed or suspended except for cause as
provided by law’ (Sec. 2(4) (sic), Article IX­B of the 1987
Constitution) does not apply to employees who are separated from
office as a result of the reorganization of that Bureau as directed
in Executive Order No. 127.
x x x     x x x
“Regarding your (third) query, the issue as to the
constitutionality of Executive Order No. 127 is set at rest, after
the Supreme Court resolved to dismiss the petition for certiorari
questioning its enforceability, for lack of merit (see Jose vs.
Arroyo, et al., supra).” (Opinion No. 41, s. 1988, March 3, 1988)
(Italics supplied)

The former Chairman of the Civil Service Commission,


Celerina G. Gotladera, likewise periodically consulted by
Commissioner Mison, also expressed the opinion that “it is
not a prerequisite prior to the separation of an employee
pursuant to reorganization that he be administratively
charged.” (Annex 16, p. 411, Rollo, G.R. No. 85310)
Moreover, the records show that the final selection and
placement of personnel was done by a Placement
Committee, one of whose members is the Head of the Civil
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Service Commission Field Office, namely, Mrs. Purificacion


Cuerdo. The appointment of employees made by
Commissioner Mison was based on

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Dario vs. Mison

the list approved by said Placement Committee.


But the majority further faults Mison for defying the
President’s directive to halt further lay­offs as a
consequence of reorganization, citing OP Memo of 14
October 1987, reading:

“Further to the Memorandum dated October 2, 1987 on the same


subject, I have ordered that there will be no further lay­offs this
year of personnel as a result of the government reorganization.”
(p. 45, Decision)

The foregoing, however, must be deemed superseded by


later developments, namely, the grant to Commissioner
Mison by the President on 22 December 1987 of a grace
period until the end of February 1988 within which to
completely undertake the reorganization of the Bureau of
Customs, which was, in fact, accomplished by 28 February
1988.
To further show lack of good faith, the majority states
that Commissioner Mison failed to observe the procedure
laid down by EO 17, supra, directing inter alia that a notice
of separation be issued to an employee to be terminated
indicating therein the reason/s or ground/s for such
separation. That requirement, however, does not appear in
Section 59 of EO 127, which provides on the contrary “that
those incumbents whose positions are not included in the
new position structure and staffing pattern of the Ministry
or who are not reappointed shall be deemed separated from
the service.” The right granted by EO 17 to an employee to
be informed of the ground for his separation must be
deemed to have been revoked by the repealing clause of EO
127 (Section 67) providing that “all laws, ordinances or
parts thereof, which are inconsistent with this Executive
Order, are hereby repealed and modified accordingly.”
Moreover, Section 11 of EO 17 explicitly excepts from its
coverage a reorganization pursuant to EO 5. Thus

“The Executive Order shall not apply to elective officials or those


designated to replace them, presidential appointees, casual and
contractual employees, or officials and employees removed
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pursuant to disciplinary proceedings under the Civil Service law


and rules, and to those laid off as a result of reorganization
undertaken pursuant to Executive Order No. 5.” (Italics ours)

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That EO 127 was issued pursuant to or in implementation


of EO 5, is shown by its introductory portion reading:

“Recalling that the reorganization of the government is mandated


expressly by Article II, Section 1 (a) and Article III of the Freedom
Constitution;
“Having in mind that pursuant to Executive Order No. 5
(1986), it is directed that the necessary and proper changes in the
organizational and functional structures of the government, its
agencies and instrumentalities, be effected in order to promote
efficiency and effectiveness in the delivery of public service;”
(Italics supplied)

Constitutionality of Republic Act No. 6656


The majority also relies on Republic Act No. 6656 entitled
an “Act to Protect the Security of Tenure of Civil Service
Officers and Employees in the Implementation of
Government Reorganization,” particularly Section 2
thereof, to test the good faith of Commissioner Mison.
We are of the view, however, that in providing for
retroactivity in its Section 13, RA 6656 clashes frontally
with SECTION 16.
1) SECTION 16 clearly recognizes that career service
employees separated from the service by reason of the
“complete reorganization of the government” pursuant to
Proclamation No. 3 may be separated NOT FOR CAUSE.
And yet, RA 6656 requires the exact opposite—separation
FOR CAUSE. It would not be remiss to quote the provision
again:

“SEC. 2. No officer or employee in the career service shall be


removed except for a valid cause and after due notice and hearing.
A valid cause for removal exists when, pursuant to a bona fide
reorganization, a position has been abolished or rendered
redundant or there is a need to merge, divide, or consolidate
positions in order to meet the exigencies of the service, or other
lawful causes allowed by the Civil Service law. The existence of
any or some of the following circumstances may be considered as

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evidence of bad faith in the removals made as a result of


reorganization, giving rise to a claim for reinstatement or
reappointment by an aggrieved party: (a) Where there is a
significant increase in the number of positions in the new staffing
pattern of the department or agency concerned; (b) Where an
office is

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Dario vs. Mison

abolished and another performing substantially the same


functions is created; (c) Where incumbents are replaced by those
less qualified in terms of status of appointment, performance and
merit; (d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices
perform substantially the same functions as the original offices;
(e) Where the removal violates the order of separation provided in
Section 3 hereof. (Republic Act No. 6156)

The standards laid down are the “traditional” criteria for


removal of employees from the career service, e.g. valid
cause, due notice and hearing, abolition of, or redundancy
of offices. Proclamation No. 3, on the other hand,
effectuates the “progressive” type of reorganization dictated
by the exigencies of the historical and political upheaval at
the time. The “traditional” type is limited in scope. It is
concerned with the individual approach where the
particular employee involved is charged administratively
and where the requisites of notice and hearing have to be
observed. The “progressive” kind of reorganization, on the
other hand, is the collective way. It is wider in scope, and is
the reorganization contemplated under SECTION 16.
2) By providing for reinstatement in its Section 9, RA
6656 adds a benefit not included in SECTION 16. The
benefits granted by the latter provision to employees
separated NOT FOR CAUSE but as a consequence of
reorganization are “separation pay, retirement, and other
benefits accruing to them under the laws of general
application in force at the time of their separation.” The
benefit of reinstatement is not included. RA 6656, however,
allows reinstatement. That it cannot do because under
SECTION 16, it is not one of the laws “in force at the time
of their separation.”
The Constitution is the paramount law to which all laws
must conform. It is from the Constitution that all statutes
must derive their bearings. The legislative authority of the

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State must yield to the expression of the sovereign will. No


statutory enactment can disregard the Charter from which
it draws its own existence (Phil. Long Distance Telephone
Co. v. Collector of Internal Revenue, 90 Phil. 674 [1952]).
But, that is exactly what RA 6656 does in providing for
retroactivity—it disregards and contravenes a
Constitutional imperative. To save it, it

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Dario vs. Mison

should be applied and construed prospectively and not


retroactively notwithstanding its explicit provision. Then,
and only then, would it make good law.

Effects of Reorganization
To be sure, the reorganization could effect the tenure of
members of the career service as defined in Section 5,
Article IV of Presidential Decree No. 807, and may even
result in the separation from the office of some meritorious
employees. But even then, the greater good of the greatest
number and the right of the citizenry to a good
government, and as they themselves have mandated
through the vehicle of Proclamation No. 3, provide the
justification for the said injury to the individual. In terms
of values, the interest of an employee to security of tenure
must yield to the interest of the entire populace and to an
efficient and honest government.
But a reorganized employee is not without rights. His
right lies in his past services, the entitlement to which
must be provided for by law. EO 127 provides for the same
in its Section 59, and so does SECTION 16 when the latter
specified that career civil service employees separated from
the service not for cause:

“shall be entitled to appropriate separation pay and to retirement


and other benefits accruing to them under the laws of general
application in force at the time of their separation. In lieu thereof,
at the option of the employees, they may be considered for
employment in the Government or in any of its subdivisions,
instrumentalities, or agencies, including government­owned or
controlled corporations and their subsidiaries. This provision also
applies to career officers whose resignation, tendered in line with
the existing policy, has been accepted.”

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This is a reward for the employee’s past service to the


Government. But this is all. There is no vested property
right to be re­employed in a reorganized office.

“The right to an office or to employment with government or any


of its agencies is not a vested property right, and removal
therefrom will not support the question of due process” (Yantsin
v. Aberdeen, 54 Wash 2d

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Dario vs. Mison

787, 345 P 2d 178). A civil service employee does not have a


constitutionally protected right to his position, which position is
in the nature of a public office, political in character and held by
way of grant or privilege extended by government; generally he
has been held to have no property right or vested interest to
which due process guaranties extend (See Taylor v. Beckham 178
U.S. 548, 44 L Ed. 1187; Angilly v. US (CA2 NY) 199 F 2d 642;
People ex. rel. Baker v. Wilson, 39 lll App 2d 443, 189 NE 2d 1;
Kelliheller v. NY State Civil Service Com., 21 Misc 2d 1034, 194
NYS 2d 89).

To ensure, however, that no meritorious employee has been


separated from the service, there would be no harm, in fact,
it could do a lot of good, if the Commissioner of Customs
reviews the evaluation and placements he has so far made
and sees to it that those terminated are included in a
consolidated list to be given preference by departments who
are recruiting (Section 2[a], BOC Memorandum, January 6,
1988).

Conclusion
Premises considered, and subject to the observation
hereinabove made, it is our considered view that the
separation from the service “NOT FOR CAUSE but as a
result of the reorganization pursuant to Proclamation No. 3
dated March 25, 1986” of the affected officers and
employees of the Bureau of Customs should be UPHELD,
and the Resolutions of the Civil Service Commission, dated
30 June 1988, 20 September 1988, and 16 November 1988
should be SET ASIDE for having been issued in grave
abuse of discretion.
Republic Act No. 6656, in so far as it provides for
retroactivity, should be declared UNCONSTITUTIONAL

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for being repugnant to the letter and spirit of Section 16,


Article XVIII of the 1987 Constitution.

CRUZ, J., concurring:

I concur with the majority view so ably presented by Mr.


Justice Abraham F. Sarmiento. While additional comments
may seem superfluous in view of the exhaustiveness of his

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Dario vs. Mison

ponencia, I nevertheless offer the following brief


observations for whatever they may be worth.
Emphasizing Article XVII, Section 16 of the
Constitution, the dissenting opinion considers the ongoing
government reorganization valid because it is merely a
continuation of the reorganization begun during the
transition period. The reason for this conclusion is the
phrase “and the reorganization following the ratification of
the Constitution,” that is to say, after February 2, 1987,
appearing in the said provision. The consequence (and I
hope I have not misread it) is that the present
reorganization may still be undertaken with the same
“absoluteness” that was allowed the revolutionary
reorganization although the Freedom Constitution is no
longer in force.
Reorganization of the government may be required by
the legislature even independently of specific constitutional
authorization, as in the case, for example, of R.A. No. 51
and B.P. No. 129. Being revolutionary in nature, the
reorganization decreed by Article III of the Freedom
Constitution was unlimited as to its method except only as
it was later restricted by President Aquino herself through
various issuances, particularly E.O. No. 17. But this
reorganization, for all its permitted summariness, was not
indefinite. Under Section 3 of the said Article III, it was
allowed only up to February 29, 1987 (which we advanced
to February 2, 1987, when the new Constitution became
effective).
The clear implication is that any government
reorganization that may be undertaken thereafter must be
authorized by the legislature only and may not be allowed
the special liberties and protection enjoyed by the
revolutionary reorganization. Otherwise, there would have

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been no necessity at all for the time limitation expressly


prescribed by the Freedom Constitution.
I cannot accept the view that Section 16 is an
authorization for the open­ended reorganization of the
government “following the ratification of the Constitution.”
I read the provision as merely conferring benefits—
deservedly or not—on persons separated from the
government as a result of the reorganization of the
government, whether undertaken during the transition
period or as a result of a law passed thereafter. What the

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government. It is axiomatic that grants of power are not


lightly inferred, especially if these impinge on individual
rights, and I do not see why we should depart from this
rule.
To hold that the present reorganization is a continuation
of the one begun during the transition period is to
recognize the not separated earlier remain in a hold­over
capacity only and so may be replaced at any time even
without cause. That is a dangerous proposition that
threatens the security and stability of every civil servant in
the executive department. What is worse is that this
situation may continue indefinitely as the claimed
“progressive” reorganization has no limitation as to time.
Removal imports the forcible separation of the
incumbent before the expiration of his term and can be
done only for cause as provided by law. Contrary to
common belief, a reorganization does not result in removal
but in a different mode of terminating official relations
known as abolition of the office (and the security of tenure
attached thereto.) The erstwhile holder of the abolished
office cannot claim he has been removed without cause in
violation of his constitutional security of tenure. The reason
is that the right itself has disappeared with the abolished
office as an accessory following the principal. (Ocampo v.
Sec. of Justice, 51 O.G. 147; De la Llana v. Alba, 112 SCRA
294; Manalang v. Quitoriano, 94 Phil. 903.)
This notwithstanding, the power to reorganize is not
unlimited. It is essential that it be based on a valid
purpose, such as the promotion of efficiency and economy in
the government through a pruning of offices or the
streamlining of their functions. (Cervantes v. Auditor­
General, 91 Phil. 359.) Normally, a reorganization cannot
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be validly undertaken as a means of purging the


undesirables for this would be a removal in disguise
undertaken en masse to circumvent the constitutional
requirement of legal cause. (Eradication of graft and
corruption was one of the expressed purposes of the
revolutionary organization, but this was authorized by the
Freedom Constitution itself.) In short, a reorganization, to
be valid, must be done in good faith. (Urgelio v. Osmeña, 9
SCRA 317; Cuneta v. Court of provision grants is privileges
to the retirees, not power to the theory of the public
respondent that all officers and employees

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Dario vs. Mison

Appeals, 1 SCRA 663; Cariño v. ACCFA, 18 SCRA 183.)


A mere recitation—no matter how lengthy—of the
directives, guidelines, memoranda, etc. issued by the
government and the action purportedly taken thereunder
does not by itself prove good faith. We know only too well
that these instructions, for all their noble and sterile
purposes, are rarely followed in their actual
implementation. The reality in this case, as the majority
opinion has pointed out and as clearly established in the
hearing we held, is that the supposed reorganization was
undertaken with an eye not to achieving the avowed
objectives but to accommodating new appointees at the
expense of the dislodged petitioners. That was also the
finding of the Civil Service Commission, to which we must
accord a becoming respect as the constitutional office
charged with the protection of the civil service from the
evils of the spoils system.
The present administration deserves full support in its
desire to improve the civil service, but this objective must
be pursued in a manner consistent with the Constitution.
This praiseworthy purpose cannot be accomplished by an
indiscriminate reorganization that will sweep in its wake
the innocent along with the redundant and inept, for the
benefit of the current favorites.

Notes.—Certiorari is generally resorted to only in cases


where the remedy of appeal is unavailable, except where
public policy so dictate or the broader interest of justice so
require. (Uy vs. Workmen’s Compensation Commission, 97
SCRA 255.)

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For petition for certiorari to prosper, the grave abuse of


discretion committed by the tribunal must be shown.
(Ignacio vs. Court of Appeals, 96 SCRA 648.)

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