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G.R. No. 203302 April 11, 2013

MAYOR EMMANUEL L. MALIKSI, Petitioner, vs. COMMISSION ON ELECTIONS AND HOMER T.

SAQUILAVAN, Respondents.

BERSAMIN, J.:

The Court hereby resolves the Extremely Urgent Motion for Reconsideration tiled by petitioner

Emmanuel L. Maliksi against the Court's decision promulgated on March 12, 2013, dismissing hispetition for certiorari assailing the resolution dated September 14, 2012 of the Commission on Elections

(COMELEC) En Bane that sustained the declaration of respondent Homer T. Saquilayan as the duly

elected Mayor of Imus, Cavite.

For clarity, we briefly restate the factual antecedents. During the 2010 Elections, the Municipal Board of

Canvassers proclaimed Saquilayan the winner for the position of Mayor of Imus, Cavite. Maliksi, the

candidate who garnered the second highest number of votes, brought an election protest in the

Regional Trial Court (RTC) in Imus, Cavite alleging that there were irregularities in the counting of

votes in 209 clustered precincts. Subsequently, the RTC held a revision of the votes, and, based on the

results of the revision, declared Maliksi as the duly elected Mayor of Imus commanding Saquilayan to

cease and desist from performing the functions of said office. Saquilayan appealed to the COMELEC.

In the meanwhile, the RTC granted Maliksis motion for execution pending appeal, and Maliksi was

then installed as Mayor.

In resolving the appeal, the COMELEC First Division, without giving notice to the parties, decided to

recount the ballots through the use of the printouts of the ballot images from the CF cards. Thus, it

issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount necessary to defray

the expenses for the decryption and printing of the ballot images. Later, it issued another order dated

April 17, 2012 for Saquilayan to augment his cash deposit.

On August 15, 2012, the First Division issued a resolution nullifying the RTCs decision and declaring

Saquilayan as the duly elected Mayor.1

Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due process

because he had not been notified of the decryption proceedings. He argued that the resort to the

printouts of the ballot images, which were secondary evidence, had been unwarranted because there

was no proof that the integrity of the paper ballots had not been preserved.

On September 14, 2012, the COMELEC En Banc resolved to deny Maliksis motion for

reconsideration.2

Maliksi then came to the Court via petition for certiorari, reiterating his objections to the decryption,

printing, and examination of the ballot images without prior notice to him, and to the use of the printouts

of the ballot images in the recount proceedings conducted by the First Division.1wphi1

In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksis petition

for certiorari. The Court concluded that Maliksi had not been denied due process because: (a) he had

received notices of the decryption, printing, and examination of the ballot images by the First Division

referring to the orders of the First Division directing Saquilayan to post and augment the cash

deposits for the decryption and printing of the ballot images; and (b) he had been able to raise his

objections to the decryption in his motion for reconsideration. The Court then pronounced that the First

Division did not abuse its discretion in deciding to use the ballot images instead of the paper ballots,

explaining that the printouts of the ballot images were not secondary images, but considered originaldocuments with the same evidentiary value as the official ballots under the Rule on Electronic

Evidence; and that the First Divisions finding that the ballots and the ballot boxes had been tampered

had been fully established by the large number of cases of double-shading discovered during the

revision.

In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to wit:

I. WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED

IN DISMISSING THE INSTANT PETITION DESPITE A CLEAR VIOLATION OF PETITIONERS

CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW CONSIDERING THAT DECRYPTION,

PRINTING AND EXAMINATION OF THE DIGITAL IMAGES OF THE BALLOTS, WHICH IS THE

BASIS FOR THE ASSAILED 14 SEPTEMBER 2012 RESOLUTION OF THE PUBLIC RESPONDENT,

WHICH IN TURN AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE COMELEC FIRST

DIVISION, WERE DONE INCONSPICUOUSLY UPON A MOTU PROPRIO DIRECTIVE OF THE

COMELEC FIRST DIVISION SANS ANY NOTICE TO THE PETITIONER, AND FOR THE FIRST TIME

ON APPEAL.

II. WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED

IN UPHOLDING THE COMELEC FIRST DIVISIONS RULING TO DISPENSE WITH THE PHYSICAL

BALLOTS AND RESORT TO THEIR DIGITAL IMAGES NOTWITHSTANDING THE FACT THAT THE

BALLOTS ARE THE BEST AND MOST CONCLUSIVE EVIDENCE OF THE VOTERS WILL, AND

THAT BALLOT IMAGES CAN BE RESORTED TO ONLY IF THE OFFICIAL BALLOTS ARE LOST OR

THEIR INTEGRITY WAS COMPROMISED AS DETERMINED BY THE RECOUNT/REVISION

COMMITTEE, CIRCUMSTANCES WHICH ARE WANTING IN THIS CASE, AND IN FACT THE

INTEGRITY OF THE BALLOT BOXES AND ITS CONTENTS WAS PRESERVED AND THE ISSUE OF

TAMPERING WAS ONLY BELATEDLY RAISED BY THE PRIVATE RESPONDENT AFTER THE

REVISION RESULTS SHOWED THAT HE LOST.

III. WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONER-MOVANT

THAT THE 12 MARCH 2013 RESOLUTION ISSUED BY THE HONORABLE SUPREME COURT EN

BANC IS NULL AND VOID AB INITIO AND THEREFORE OF NO FORCE AND EFFECT, FOR

HAVING BEEN PROMULGATED DESPITE THE ABSENCE OF HONORABLE SUPREME COURT

JUSTICE JOSE PORTUGAL PEREZ AT THE TIME OF THE DELIBERATION AND VOTING ON THE

12 MARCH 2013 RESOLUTION IN THE INSTANT CASE. 3

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Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to be

present at every stage thereof; (b) that he was deprived of such rights when he was not informed of the

decryption, printing, and examination of the ballot images by the First Division; (c) that the March 28,

2012 and April 17, 2012 orders of the First Division did not sufficiently give him notice inasmuch as the

orders did not state the date, time, and venue of the decryption and printing of the ballot images; and

(d) that he was thus completely deprived of the opportunity to participate in the decryption proceedings.

Maliksi contends that the First Divisions motu proprio directive for the decryption, printing, and

examination of the ballot images was highly irregular. In this regard, he asserts: (a) that the decryption,printing, and examination should have taken place during the revision before the trial court and after

the revision committee had determined that the integrity of the official ballots had not been preserved;

(b) that the trial court did not make such determination; (c) that, in fact, Saquilayan did not allege or

present any proof in the RTC to show that the ballots or the ballot boxes had been tampered, and had,

in fact, actively participated in the revision proceedings; (d) that the First Division should not have

entertained the allegation of ballot tampering belatedly raised on appeal; (e) that the First Division

should have limited itself to reviewing the evidence on record; and (f) that the First Division did not

even explain how it had arrived at the conclusion that the integrity of the ballots had not been

preserved.

Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having been

promulgated despite the absence from the deliberations and lack of signature of Justice Jose Portugal

Perez.

The Court grants Maliksis Extremely Urgent Motion for Reconsideration, and reverses the decision

promulgated on March 12, 2013 on the ground that the First Division of the COMELEC denied to him

the right to due process by failing to give due notice on the decryption and printing of the ballot images.

Consequently, the Court annuls the recount proceedings conducted by the First Division with the use of

the printouts of the ballot images.

It bears stressing at the outset that the First Division should not have conducted the assailed recount

proceedings because it was then exercising appellate jurisdiction as to which no existing rule of

procedure allowed it to conduct a recount in the first instance. The recount proceedings authorized

under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by the

COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election protests

involving elective regional (the autonomous regions), provincial and city officials.4

As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount proceedings,

contrary to the regular procedure of remanding the protest to the RTC and directing the reconstitution

of the Revision Committee for the decryption and printing of the picture images and the revision of the

ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc upheld the First Divisions

unwarranted deviation from the standard procedures by invoking the COMELECs power to "take such

measures as the Presiding Commissioner may deem proper," and even citing the Courts minute

resolution in Alliance of Barangay Concerns (ABC) Party-List v. Commission on Elections5 to the effect

that the "COMELEC has the power to adopt procedures that will ensure the speedy resolution of its

cases. The Court will not interfere with its exercise of this prerogative so long as the parties are amply

heard on their opposing claims."

Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on Elections, the

power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases should

still be exercised only after giving to all the parties the opportunity to be heard on their opposing claims.

The parties right to be heard upon adversarial issues and matters is never to be waived or sacrificed,

or to be treated so lightly because of the possibility of the substantial prejudice to be thereby caused tothe parties, or to any of them. Thus, the COMELEC En Banc should not have upheld the First

Divisions deviation from the regular procedure in the guise of speedily resolving the election protest, in

view of its failure to provide the parties with notice of its proceedings and an opportunity to be heard,

the most basic requirements of due process.

I. Due process requirements

The picture images of the ballots are electronic documents that are regarded as the equivalents of the

original official ballots themselves.6 In Vinzons-Chato v. House of Representatives Electoral

Tribunal,7the Court held that "the picture images of the ballots, as scanned and recorded by the PCOS,

are likewise official ballots that faithfully capture in electronic form the votes cast by the voter, as

defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of

the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an

electoral protest."

That the two documentsthe official ballot and its picture imageare considered "original documents"

simply means that both of them are given equal probative weight. In short, when either is presented as

evidence, one is not considered as weightier than the other.

But this juridical reality does not authorize the courts, the COMELEC, and the Electoral

Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots

in the proceedings had before them without notice to the parties. Despite the equal probative

weight accorded to the official ballots and the printouts of their picture images, the rules for the

revision of ballots adopted for their respective proceedings still consider the official ballots to

be the primary or best evidence of the voters will. In that regard, the picture images of the

ballots are to be used only when it is first shown that the official ballots are lost or their integrity

has been compromised.

For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 ( In Re: Comelec

Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10,

2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires that "the Recount

Committee determines that the integrity of the ballots has been violated or has not been preserved, or

are wet and otherwise in such a condition that (the ballots) cannot be recounted" before the printing of

the image of the ballots should be made, to wit:

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x x x x (g) Only when the Recount Committee, through its chairman, determines that the integrity of the

ballots has been preserved or that no signs of tampering of the ballots are present, will the recount

proceed. In case there are signs that the ballots contained therein are tampered, compromised, wet or

are otherwise in such a condition that it could not be recounted, the Recount Committee shall follow

paragraph (l) of this rule.

x x x x (l) In the event the Recount Committee determines that the integrity of the ballots has been

violated or has not been preserved, or are wet and otherwise in such a condition that it cannot berecounted, the Chairman of the Committee shall request from the Election Records and Statistics

Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF

card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot images

shall proceed only upon prior authentication and certification by a duly authorized personnel of the

Election Records and Statistics Department (ERSD) that the data or the images to be printed are

genuine and not substitutes. (Emphases supplied.)

x x x x Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election

Contests, which governs the proceedings in the Regional Trial Courts exercising original jurisdiction

over election protests, provides:

x x x x (m) In the event that the revision committee determines that the integrity of the ballots and the

ballot box have not been preserved, as when proof of tampering or substitution exists, it shall proceed

to instruct the printing of the picture image of the ballots stored in the data storage device for the

precinct. The court shall provide a non-partisan technical person who shall conduct the necessary

authentication process to ensure that the data or image stored is genuine and not a substitute. Only

after this determination can the printed picture image be used for the recount. (Emphases supplied.)

x x x x A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:

Rule 43. Conduct of the revision. The revision of votes shall be done through the use of appropriate

PCOS machines or manually and visually, as the Tribunal may determine, and according to the

following procedures:

x x x x (q) In the event that the RC determines that the integrity of the ballots and the ballot box was not

preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing of

the picture image of the ballots of the subject precinct stored in the data storage device for the same

precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service of a non-

partisan technical person who shall conduct the necessary authentication process to ensure that the

data or images stored are genuine and not merely substitutes. It is only upon such determination that

the printed picture image can be used for the revision of votes. (Emphases supplied.)

x x x x Also, the House of Representative Electoral Tribunals Guidelines on the Revision of Ballots

requires a preliminary hearing to be held for the purpose of determining whether the integrity of the

ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof

of tampering or substitutions, to wit:

Section 10. Revision of Ballots

x x x x (d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that

the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as

when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture

images of the ballots of the subject precinct stored in the data storage device for the same precinct.

The Tribunal shall provide a non-partisan technical person who shall conduct the necessaryauthentication process to ensure that the data or image stored is genuine and not a substitute. It is only

upon such determination that the printed picture image can be used for the revision. (As amended per

Resolution of February 10, 2011; Emphases supplied.)

x x x x All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the

ballots may be resorted to only after the proper Revision/Recount Committee has first determined that

the integrity of the ballots and the ballot boxes was not preserved.

The foregoing rules further require that the decryption of the images stored in the CF cards and the

printing of the decrypted images take place during the revision or recount proceedings. There is a good

reason for thus fixing where and by whom the decryption and the printing should be conducted. It is

during the revision or recount conducted by the Revision/Recount Committee when the parties are

allowed to be represented, with their representatives witnessing the proceedings and timely raising

their objections in the course of the proceedings. Moreover, whenever the Revision/Recount

Committee makes any determination that the ballots have been tampered and have become unreliable,

the parties are immediately made aware of such determination.

When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising

original jurisdiction over the protest that made the finding that the ballots had been tampered, but the

First Division in the exercise of its appellate jurisdiction, the parties should have been given a formal

notice thereof.

Maliksi was not immediately made aware of that crucial finding because the First Division did not even

issue any written resolution stating its reasons for ordering the printing of the picture images. The

parties were formally notified that the First Division had found that the ballots had been tampered only

when they received the resolution of August 15, 2012, whereby the First Division nullified the decision

of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the resolution of the First

Division to that effect was unusually mute about the factual bases for the finding of ballot box

tampering, and did not also particularize how and why the First Division was concluding that the

integrity of the ballots had been compromised. All that the First Division declared as justification was a

simple generalization of the same being apparent from the allegations of ballot and ballot box

tampering and upon inspection of the ballot boxes, viz:

x x x x The Commission (First Division) took into consideration the allegations of ballot and ballot box

tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had been

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compromised so, to be able to best determine the true will of the electorate, we decided to go over the

digital image of the appealed ballots.8(Emphasis supplied)

x x x x It was the COMELEC En Bancs assailed resolution of September 14, 2012 that later on

provided the explanation to justify the First Divisions resort to the picture images of the ballots, by

observing that the "unprecedented number of double-votes" exclusively affecting the position of Mayor

and the votes for Saquilayan had led to the belief that the ballots had been tampered. However, that

explanation by the COMELEC En Banc did not cure the First Divisions lapse and did not erase theirregularity that had already invalidated the First Divisions proceedings.

In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELECs finding of

ballot tampering was a mere surplusage because there was actually no need for such finding before

the ballots digital counterparts could be used. He cites Section 3, Rule 16 of COMELEC Resolution

No. 8804, as amended by Resolution No. 9164, which states:

Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion to

be approved by the Division of the Commission requesting for the printing of ballot images in addition

to those mentioned in the second paragraph of item (e). Parties concerned shall provide the necessary

materials in the printing of images such as but not limited to copying papers, toners and printers.

Parties may also secure, upon prior approval by the Division of the Commission, a soft copy of the

ballot images contained in a secured/hashed disc on the condition that the ballot images be first

printed, at the expense of the requesting party, and that the printed copies be signed by the parties

respective revisors or representatives and by an ERSD IT-capable representative and deposited with

the Commission.

The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics

Department (ERSD), for the printing of images. Said director shall in turn designate a personnel who

will be responsible in the printing of ballot images.

Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she deems

necessary, there is actually no need for a finding of tampering of the ballots or the ballot boxes before

the COMELEC Division may grant the motion. He states that a determination by the parties that the

printing is necessary under Section 3 is a ground separate from Section 6(e), which in turn pertinently

states that:

Section 6. Conduct of the Recount

x x x x (e) Before the opening of the ballot box, the Recount Committee shall note its condition as well

as that of the locks or locking mechanism and record the condition in the recount report. From its

observation, the Recount Committee must also make a determination as to whether the integrity of the

ballot box has been preserved.

In the event that there are signs of tampering or if the ballot box appears to have been compromised,

the Recount Committee shall still proceed to open the ballot box and make a physical inventory of the

contents thereof. The committee shall, however, record its general observation of the ballots and other

documents found in the ballot box.

The application of Section 3 to this case is inappropriate, considering that the First Division did not in

any way suggest in its decision dated August 15, 2010 that it was resolving Saquilayans motion to print

the ballot images. Instead, the First Division made therein a finding of tampering, thus:

The COMELEC (First Division) took into consideration the allegations of ballot and ballot box tampering

and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had been

compromised so, to be able to best determine the true will of the electorate, we decided to go over the

digital images of the appealed ballots.

Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the First

Division merely resolved Saquilayans motion for the printing of the ballot images; instead, it reinforced

the First Divisions finding that there was tampering of the ballots. The non-mention of Saquilayans

motion was a clear indication of the COMELECs intention to act motu proprio; and also revealed its

interpretation of its very own rules, that there must be justifiable reason, i.e. tampering, before the ballot

images could be resorted to.

The application of Section 3 would only highlight the First Divisions denial of Maliksis right to due

process. For, if the First Division was really only acting on a motion to allow the printing of the ballot

images, there was a greater reason for the First Division to have given the parties notice of its ruling

thereon. But, as herein noted, the First Division did not issue such ruling.

To interpret Section 3 as granting to any one of the parties the right to move for the printing of the ballot

images should such party deem it necessary, and the COMELEC may grant such motion, is contrary to

its clear wording. Section 3 explicitly states: "in case the parties deem it necessary, they may file a

motion." The provision really envisions a situation in which both parties have agreed that the ballot

images should be printed. Should only one of the parties move for the printing of the ballot images, it is

not Section 3 that applies but Section 6(e), which then requires a finding that the integrity of the ballots

has been compromised.

The disregard of Maliksis right to be informed of the decision to print the picture images of the ballots

and to conduct the recount proceedings during the appellate stage cannot be brushed aside by the

invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be exact,

the motion for reconsideration was actually directed against the entire resolution of the First Division,

while Maliksis claim of due process violation is directed only against the First Divisions recount

proceedings that resulted in the prejudicial result rendered against him. Notably, the First Division did

not issue any order directing the recount. Without the written order, Maliksi was deprived of the chance

to seek any reconsideration or even to assail the irregularly-held recount through a seasonable petition

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for certiorari in this Court. In that context, he had no real opportunity to assail the conduct of the

recount proceedings.

The service of the First Division orders requiring Saquilayan to post and augment the cash deposits for

the printing of the picture images did not sufficiently give Maliksi notice of the First Divisions decision to

print the picture images. The said orders did not meet the requirements of due process because they

did not specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders

offer the factual bases for the finding of tampering. Hence, to leave for Maliksi to surmise on the factualbases for finding the need to print the picture images still violated the principles of fair play, because

the responsibility and the obligation to lay down the factual bases and to inform Maliksi as the party to

be potentially prejudiced thereby firmly rested on the shoulders of the First Division.

Moreover, due process of law does not only require notice of the decryption, printing, and recount

proceedings to the parties, but also demands an opportunity to be present at such proceedings or to be

represented therein. Maliksi correctly contends that the orders of the First Division simply required

Saquilayan to post and augment his cash deposit. The orders did not state the time, date, and venue of

the decryption and recount proceedings. Clearly, the First Division had no intention of giving the parties

the opportunity to witness its proceedings.

Mendoza v. Commission on Elections 9instructs that notice to the parties and their participation are

required during the adversarial aspects of the proceedings. In that case, after the revision of the ballots

and after the election protest case was submitted for decision, the ballots and ballot boxes were

transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending in the

SET. Mendoza later learned that the COMELEC, with the permission of the SET, had meanwhile

conducted proceedings within the SETs premises. Mendoza then claimed that his right to due process

was violated because he had not been given notice by the COMELEC that it would be conducting

further proceedings within the SET premises. The Court did not sustain his claim, however, and pointed

out:

After consideration of the respondents Comments and the petitioners petition and Reply, we hold that

the contested proceedings at the SET ("contested proceedings") are no longer part of the adversarial

aspects of the election contest that would require notice of hearing and the participation of the parties.

As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioners

Reply:

"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested

ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting

"further proceedings" requiring notice to the parties. There is no revision or correction of the ballots

because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating

with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no

part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making

process is supposed to be conducted only by the designated members of the Second Division of the

public respondent in strict confidentiality."

In other words, what took place at the SET were the internal deliberations of the COMELEC, as a

quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial

election contest on the merits. These deliberations are no different from judicial deliberations which are

considered confidential and privileged. We find it significant that the private respondents Comment

fully supported the COMELECs position and disavowed any participation in the contested proceeding

the petitioner complained about. The petitioner, on the other hand, has not shown that the private

respondent was ever present in any proceeding at the SET relating to the provincial electioncontest.1wphi1

To conclude, the rights to notice and to be heard are not material considerations in the COMELECs

handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no

proceedings at the instance of one party or of COMELEC has been conducted at the SET that would

require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is

under no legal obligation to notify either party of the steps it is taking in the course of deliberating on

the merits of the provincial election contest. In the context of our standard of review for the petition, we

see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the

COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this

deliberation entailed.10(Emphasis supplied.)

Here, the First Division denominated the proceedings it had conducted as an "appreciation of ballots"

like in Mendoza. But unlike in Mendoza, the proceedings conducted by the First Division were

adversarial, in that the proceedings included the decryption and printing of the picture images of the

ballots and the recount of the votes were to be based on the printouts of the picture images. The First

Division did not simply review the findings of the RTC and the Revision Committee, but actually

conducted its own recount proceedings using the printouts of the picture image of the ballots. As such,

the First Division was bound to notify the parties to enable them to participate in the proceedings.

Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by COMELEC

Resolution No. 9164, requires the parties presence during the printing of the images of the ballots,

thus:

x x x x (l) In the event the Recount Committee determines that the integrity of the ballots has been

violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be

recounted, the Chairman of the Committee shall request from the Election Records and Statistics

Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF

card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot images

shall proceed only upon prior authentication and certification by a duly authorized personnel of the

Election Records and Statistics Department (ERSD) that the data or the images to be printed are

genuine and not substitutes.

x x x x We should not ignore that the parties participation during the revision and recount proceedings

would not benefit only the parties, but was as vital and significant for the COMELEC as well, for only by

their participation would the COMELECs proceedings attain credibility as to the result. The parties

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presence would have ensured that the requisite procedures have been followed, including the required

authentication and certification that the images to be printed are genuine. In this regard, the COMELEC

was less than candid, and was even cavalier in its conduct of the decryption and printing of the picture

images of the ballots and the recount proceedings. The COMELEC was merely content with listing the

guidelines that the First Division had followed in the appreciation of the ballots and the results of the

recount. In short, there was vagueness as to what rule had been followed in the decryption and printing

proceeding.

II. Remand to the COMELEC

We are mindful of the urgent need to speedily resolve the election protest because the term of the

position involved is about to end. Thus, we overlook pro hac vice the lack of factual basis for the

COMELECs decision to use the digital images of the ballots and sustain its decision thereon. Although

a remand of the election protest to the RTC would have been the appropriate procedure, we direct the

COMELEC En Banc instead to conduct the decryption and printing of the digital images of the ballots

and to hold recount proceedings, with due notice to all the parties and opportunity for them to be

present and to participate during such proceedings. Nothing less serves the ideal objective

safeguarded by the Constitution.

In the absence of particular rules to govern its proceedings in accordance with this disposition, the

COMELEC is urged to follow and observe Rule 15 of COMELEC Resolution No. 8804, as amended by

COMELEC Resolution No. 9164.

The Court, by this resolution, does not intend to validate the victory of any of the parties in the 2010

Elections. That is not the concern of the Court as yet. The Court simply does not want to countenance

a denial of the fundamental right to due process, a cornerstone of our legal system.11 After all, it is the

Courts primary duty to protect the basic rights of the people vis--vis government actions, thus:

It cannot be denied that most government actions are inspired with noble intentions, all geared towards

the betterment of the nation and its people. But then again, it is important to remember this ethical

principle: "The end does not justify the means." No matter how noble and worthy of admiration the

purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with

constitutional parameters, then it cannot still be allowed. The Court cannot just turn a blind eye and

simply let it pass. It will continue to uphold the Constitution and its enshrined principles.12

WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for Reconsideration of

petitioner Emmanuel Maliksi; REVERSES the Court's decision promulgated on March 12, 2013; and

DIRECTS the Commission on Elections En Bane to conduct proceedings for the decryption of the

picture images of the ballots involved in the protest after due authentication, and for the recount of

ballots by using the printouts of the ballot images, with notice to and in the presence of the parties or

their representatives in accordance with the procedure laid down by Rule 15 of COMELEC Resolution

No. 8804, as amended by Resolution No. 9164.No pronouncement on costs of suit.

SO ORDERED.

[G.R. No. 199149 : November 29, 2011]

LIWAYWAY VINZONS-CHATO VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL

AND ELMER E. PANOTES

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution datedNOVEMBER 29, 2011, which

reads as follows:cralaw

"G.R. No. 199149 (Liwayway Vinzons-Chato vs. House of Representatives Electoral Tribunal and

Elmer E. Panotes).- Acting on the Special Civil Action for Certiorari and Prohibition with Prayer for a

Temporary Restraining Order and/or Issuance of a Writ of Prohibitory Injunction, the Court Resolved,

without giving due course to the petition, to require the respondents to COMMENT thereon within ten

(10) days from notice hereof."

Velasco, Jr., Brion, Peralta and Bersamin, JJ., no part.

Very truly yours,

(Sgd.) ENRIQUETA E. VIDAL

Clerk of Court

G.R. No. 190147 MARCH 05, 2013

CIVIL SERVICE COMMISSION, Petitioner, v. PILILLA WATER DISTRICT, Respondent.

Assailed in this petition for review on certiorari under Rule 45 are the Decision 1 dated July 28, 2009

and Resolution2 dated November 9, 2009 of the Court of Appeals (CA) in CA-G.R. SP No. 106031

which annulled and set aside Resolution Nos. 0809423 and 0818464 of the Civil Service Commission

(CSC).

The factual background of this case is as follows: Paulino J. Rafanan was first appointed General

Manager on a coterminous status under Resolution No. 12 issued on August 7, 1998 by the Board of

Directors (BOD) of respondent Pililla Water District (PWD). His appointment was signed by the BOD

Acting Chairman and attested by the CSC Field Office-Rizal.5

On October 4, 2001, petitioner issued Resolution No. 0116246 amending and clarifying Section 12,

Rule XIII of CSC Memorandum Circular No. 15, s. 1999, as follows: Section 12. a) No person who has

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reached the compulsory retirement age of 65 years can be appointed to any position in the

government, subject only to the exception provided under sub-section (b) hereof.

However, in meritorious cases, the Commission may allow the extension of service of a person who

has reached the compulsory retirement age of 65 years, for a period of six (6) months only unless

otherwise stated. Provided, that, such extension may be for a maximum period of one (1) year for one

who will complete the fifteen (15) years of service required under the GSIS Law.

A request for extension shall be made by the head of office and shall be filed with the Commission not

later than three (3) months prior to the date of the official/employees compulsory retirement.

Henceforth, the only basis for Heads of Offices to allow an employee to continue rendering service

after his/her 65th birthday is a Resolution of the Commission granting the request for extension. Absent

such Resolution, the salaries of the said employee shall be for the personal account of the responsible

official.

x x x x b) A person who has already reached the compulsory retirement age of 65 can still be appointed

to a coterminous/primarily confidential position in the government. A person appointed to a

coterminous/primarily confidential position who reaches the age of 65 years is considered automatically

extended in the service until the expiry date of his/her appointment or until his/her services are earlier

terminated. (Emphasis supplied)

On April 2, 2004, Republic Act (R.A.) No. 92867 was approved and signed into law, Section 2 of which

provides: SEC. 2. Section 23 of Presidential Decree No. 198, as amended is hereby amended to read

as follows:

AN ACT FURTHER AMENDING PRESIDENTIAL DECREE NO. 198, OTHERWISE KNOWN AS THE

PROVINCIAL WATER UTILITIES ACT OF 1973, AS AMENDED. Decision 3 G.R. No. 190147

SEC. 23. The General Manager.At the first meeting of the Board, or as soon thereafter as

practicable, the Board shall appoint, by a majority vote, a general manager and shall define [his] duties

and fix his compensation. Said officer shall not be removed from office, except for cause and after due

process. (Emphasis supplied)

On June 16, 2004, the BOD approved Resolution No. 19,8 Series of 2004, which reads:

EXTENSION OF SERVICES OF MR. PAULINO J. RAFANAN AS GENERAL MANAGER OF PILILLA

WATER DISTRICT

WHEREAS[,] the General Manager, Mr. Paulino J. Rafanan[,] is reaching his age 65 this month of this

year the Board, because of his good and honest performance in faithfully carrying out the policies of

the Board resulting in the success of the Districts expansion program, unanimously agreed to retain his

services as General Manager at least up to December 31, 2008 co-terminus with the term of the

Director last appointed after which period he may stay at the pleasure of the other Board.

THEREFORE[,] THE BOARD RESOLVED[,] AS IT HEREBY RESOLVED that the services of Mr.

Paulino J. Rafanan as General Manager of Pililla Water District is extended up to December 31, 2008

as a reward for his honest and efficient services to the District.

In its Resolution No. 04-1271 dated November 23, 2004, petitioner denied the request of BOD

Chairman Valentin E. Paz for the extension of service of Rafanan and considered the latter separated

from the service at the close of office hours on June 25, 2004, his 65th birthday. Petitioner also denied

the motion for reconsideration filed by Chairman Paz under its Resolution No. 05-0118 dated February

1, 2005.9

On April 8, 2005, the BOD issued Resolution No. 09, Series of 2005 reappointing Rafanan as General

Manager on coterminous status. Said reappointment was signed by Chairman Paz and attested by the

CSC Field Office-Rizal.10 A year later, the BOD approved Resolution No. 20 declaring the appointment

of General Manager Rafanan as permanent11 but this resolution was not implemented.

In a letter dated November 19, 2007, Pililla Mayor Leandro V. Masikip, Sr. questioned Rafanans

coterminous appointment as defective and void ab initio considering that he was appointed to a career

position despite having reached the compulsory retirement age. Said letter-complaint was treated as an

appeal from the appointment made by the BOD Chairman of respondent.

On May 19, 2008, petitioner issued Resolution No. 080942 invalidating the coterminous appointment

issued to Rafanan as General Manager on April 8, 2005 on the ground that it was made in violation of

Section 2 of R.A. No. 9286. Petitioner further observed that the appointment was issued to circumvent

the denial of the several requests for extension of service of Rafanan.

Rafanan filed a motion for reconsideration which was denied by petitioner under its Resolution No.

081846 dated September 26, 2008. Respondent filed in the CA a petition for review with application for

temporary restraining order and/or writ of preliminary injunction under Rule 43 of the 1997 Rules of

Civil Procedure, as amended. Insisting that Rafanans coterminous appointment was based on CSC

Resolution No. 011624, respondent contended that petitioner cannot usurp the power of appointment

and removal of the appointing authority, and that petitioner failed to observe due process.

In the assailed Decision, the CA reversed the CSC and ruled that the position of General Manager in

water districts remains primarily confidential in nature and hence respondents BOD may validly appoint

Rafanan to the said position even beyond the compulsory retirement age.

Petitioner filed a motion for reconsideration which the CA denied.

Hence, this petition submitting the following issues:

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I . WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE POSITION

OF GENERAL MANAGER OF A LOCAL WATER DISTRICT IS PRIMARILY CONFIDENTIAL IN

NATURE.

II . WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE APRIL 8,

2005 APPOINTMENT OF RAFANAN IN A CO-TERMINOUS CAPACITY WAS VALID.

Under Section 13, Rule V of the Omnibus Rules Implementing Book V of Executive Order No. 292 and

other Pertinent Civil Service Laws and CSC Resolution No. 91-1631 issued on December 27, 1991,

appointments in the civil service may either be of permanent or temporary status. A permanent

appointment is issued to a person who meets all the requirements for the position to which he is being

appointed/promoted, including the appropriate eligibility prescribed, in accordance with the provisions

of law, rules and standards promulgated in pursuance thereof, while a temporary appointment may be

extended to a person who possesses all the requirements for the position except the appropriate civil

service eligibility and for a limited period not exceeding twelve months or until a qualified civil service

eligible becomes available. Section 14 of the same resolution provides for a coterminous appointment:

Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose entrance

and continuity in the service is based on the trust and confidence of the appointing authority or that

which is subject to his pleasure, or co-existent with his tenure, or limited by the duration of project or

subject to the availability of funds. The co-terminous status may be further classified into the following:

(1) co-terminous with the project - when the appointment is coexistent with the duration of a particular

project for which purpose employment was made or subject to the availability of funds for the same;

(2) co-terminous with the appointing authority - when appointment is co-existent with the tenure of the

appointing authority or at his pleasure;

(3) co-terminous with the incumbent - when the appointment is coexistent with the appointee, in that

after the resignation, separation or termination of the services of the incumbent the position shall be

deemed automatically abolished; and

(4) co-terminous with a specific period - appointment is for a specific period and upon expiration

thereof, the position is deemed abolished.

For the purpose of coverage or membership with the GSIS, or their right to security of tenure, co-

terminous appointees, except those who are co-terminous with the appointing authority, shall be

considered permanent. (Emphasis supplied)

Section 23 of Presidential Decree (P.D.) No. 198, otherwise known as The Provincial Water Utilities

Act of 1973 reads:

SEC. 23. Additional Officers.At the first meeting of the board, or as soon thereafter as practicable, the

board shall appoint, by a majority vote, a general manager, an auditor, and an attorney, and shall

define their duties and fix their compensation. Said officers shall serve at the pleasure of the board.

(Emphasis supplied)

The provision was subsequently amended by P.D. No. 76813:

SEC. 23. The General Manager.At the first meeting of the board, or as soon thereafter as practicable,

the board shall appoint, by a majority vote, a general manager and shall define his duties and fix his

compensation. Said officer shall serve at the pleasure of the board. (Emphasis supplied)

In the case of Paloma v. Mora, 14 we held that the nature of appointment of General Managers of

Water Districts under Section 23 of P.D. No. 198 falls under Section 14 of the Omnibus Rules

Implementing Book V of Executive Order No. 292, otherwise known as the Administrative Code of

1987, that is, the General Manager serves at the pleasure of the BOD.

As mentioned, Section 23 of P.D. No. 198 was already amended by R.A. No. 9286 which now

provides that the General Manager of a water district shall not be removed from office except for cause

and after due process. Said law, however, cannot be retroactively applied as to preclude the BOD from

terminating its General Manager at the time the governing law was still P.D. No. 198, thus:

Unfortunately for petitioner, Rep. Act No. 9286 is silent as to the retroactivity of the law to pending

cases and must, therefore, be taken to be of prospective application. The general rule is that in an

amendatory act, every case of doubt must be resolved against its retroactive effect. Since the

retroactive application of a law usually divests rights that have already become vested, the rule in

statutory construction is that all statutes are to be construed as having only a prospective operation

unless the purpose and intention of the legislature to give them a retrospective effect is expressly

declared or is necessarily implied from the language used.

First, there is nothing in Rep. Act No. 9286 which provides that it should retroact to the date of

effectivity of P.D. No. 198, the original law. Next, neither is it necessarily implied from Rep. Act No.

9286 that it or any of its provisions should apply retroactively. Third, Rep. Act No. 9286 is a substantive

amendment of P.D. No. 198 inasmuch as it has changed the grounds for termination of the General

Manager of Water Districts who, under the then Section 23 of P.D. No. 198, shall serve at the pleasure

of the Board. Under the new law, however, said General Manager shall not be removed from office,

except for cause and after due process. To apply Rep. Act No. 9286 retroactively to pending cases,

such as the case at bar, will rob the respondents as members of the Board of the Palompon, Leyte

Water District of the right vested to them by P.D. No. 198 to terminate petitioner at their pleasure or

discretion. Stated otherwise, the new law can not be applied to make respondents accountable for

actions which were valid under the law prevailing at the time the questioned act was committed.

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Prescinding from the foregoing premises, at the time petitioner was terminated by the Board of

Directors, the prevailing law was Section 23 of P.D. No. 198 prior to its amendment by Rep. Act No.

9286.15 (Italics in the original; emphasis supplied)

In this case, respondents BOD reappointed Rafanan as General Manager on April 8, 2005 when R.A.

No. 9286 was already in force and the BOD no longer had the authority to terminate the General

Manager at its pleasure or discretion.

Petitioner assails the CA in upholding the April 8, 2005 reappointment of Rafanan as General Manager

on coterminous status, arguing that the change of phraseology of Section 23 under R.A. No. 9286 ipso

facto reclassified said position from non-career to career position. Petitioner points out that it issued

CSC Memorandum Circular No. 13, Series of 2006 entitled Considering the Position of General

Manager Under the Career Service and Prescribing the Guidelines and Qualification Standards for the

said Position Pursuant to R.A. No. 9286,16 which applies to respondent under local water district

Medium Category:

D (SG-24) - Medium

Education : Masters degree

Experience : 4 years in position/s involving management and supervision

Training : 24 hours of training in management and supervision

Eligibility : Career Service (Professional)/Second Level

Eligibility17

Respondent contends that the amendment introduced by R.A. No. 9286 is not in conflict with the

coterminous appointment of Rafanan since the latter can be removed for loss of confidence, which is

cause for removal. As to the above-cited CSC Memorandum Circular No. 13, Series of 2006, the

same should be applied only to appointments made after its issuance, and not to Rafanan who was

already the incumbent General Manager before August 17, 2006. Respondent maintains that since the

General Manager of a water district holds a primarily confidential position, Rafanan can be appointed to

or remain in said position even beyond the compulsory retirement age of 65 years.

The threshold issue is whether under Section 23 of P.D. No. 198 as amended by R.A. No. 9286, the

position of General Manager of a water district remains as primarily confidential.

In the 1950 case of De los Santos v. Mallare18 a position that is primarily confidential in nature is

defined as follows: x x x. These positions [policy-determining, primarily confidential and highly technical

positions], involve the highest degree of confidence, or are closely bound up with and dependent on

other positions to which they are subordinate, or are temporary in nature. It may truly be said that the

good of the service itself demands that appointments coming under this category be terminable at the

will of the officer that makes them.

x x x x Every appointment implies confidence, but much more than ordinary confidence is reposed inthe occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in

the aptitude of the appointee for the duties of the office but primarily close intimacy which insures

freedom of [discussion, delegation and reporting] without embarrassment or freedom from misgivings

of betrayals of personal trust or confidential matters of state. x x x.

From the above case the proximity rule was derived. A position is considered to be primarily

confidential when there is a primarily close intimacy between the appointing authority and the

appointee, which ensures the highest degree of trust and unfettered communication and discussion on

the most confidential of matters.20 Moreover, in classifying a position as primarily confidential, its

functions must not be routinary, ordinary and day to day in character. A position is not necessarily

confidential though the one in office may sometimes hold confidential matters or documents.

The case of Piero v. Hechanova22 laid down the doctrine that it is the nature of the position that finally

determines whether a position is primarily confidential, policy determining or highly technical and that

executive pronouncements can be no more than initial determinations that are not conclusive in case of

conflict. As reiterated in subsequent cases, such initial determination through executive declaration or

legislative fiat does not foreclose judicial review.23 More recently, in Civil Service Commission v.

Javier,24 we categorically declared that even petitioners classification of confidential positions in the

government is not binding on this Court:

At present, there is no law enacted by the legislature that defines or sets definite criteria for determining

primarily confidential positions in the civil service. Neither is there a law that gives an enumeration of

positions classified as primarily confidential.

What is available is only petitioner's own classification of civil service positions, as well as

jurisprudence which describe or give examples of confidential positions in government.

Thus, the corollary issue arises: should the Court be bound by a classification of a position as

confidential already made by an agency or branch of government?

Jurisprudence establishes that the Court is not bound by the classification of positions in the civil

service made by the legislative or executive branches, or even by a constitutional body like the

petitioner. The Court is expected to make its own determination as to the nature of a particular position,

such as whether it is a primarily confidential position or not, without being bound by prior classifications

made by other bodies. The findings of the other branches of government are merely considered initial

and not conclusive to the Court. Moreover, it is well-established that in case the findings of various

agencies of government, such as the petitioner and the CA in the instant case, are in conflict, the Court

must exercise its constitutional role as final arbiter of all justiciable controversies and disputes.

(Emphasis supplied)

Applying the proximity rule and considering the nature of the duties of the office of the Corporate

Secretary of the Government Service Insurance System (GSIS), we held in the above-cited case that

said position in the GSIS or any government-owned or controlled corporation (GOCC) for that matter, isa primarily confidential position.25 In holding that the position of General Manager of a water district is

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primarily confidential in nature, the CA said:

x x x we rule that the position of general manager remains primarily confidential in nature despite the

amendment of Section 23 of P.D. No. 198 by R.A. No. 9286, which gave the occupant of said position

security of tenure, in that said officer could only be removed from office for cause and after due

process. The nature of the duties and functions attached to the position points to its confidential

character. First, the general manager is directly appointed by the board of directors. Second, the

general manager directly reports to the board of directors. Third, the duties and responsibilities of a

general manager are determined by the board of directors, which is a clear indication of a closely

intimate relationship that exists between him and the board. Fourth, the duties and responsibilities of a

general manager are not merely clerical and routinary in nature. His work involves policy and decision

making. Fifth, the compensation of the general manager is fixed by the board of directors.

And last, the general manager is directly accountable for his actions and omissions to the board of

directors. Under this situation, the general manager is expected to possess the highest degree of

honesty, integrity and loyalty, which is crucial to maintaining trust and confidence between him and the

board of directors. The loss of such trust or confidence could easily result in the termination of the

general managers services by the board of directors. To be sure, regardless of the security of tenure a

general manager may now enjoy, his term may still be ended by the board of directors based on the

ground of loss of confidence.

We sustain the ruling of the CA.

We stress that a primarily confidential position is characterized by the close proximity of the positions of

the appointer and appointee as well as the high degree of trust and confidence inherent in their

relationship.27 The tenure of a confidential employee is coterminous with that of the appointing

authority, or is at the latters pleasure. However, the confidential employee may be appointed or remain

in the position even beyond the compulsory retirement age of 65 years.28

Among those positions judicially determined as primarily confidential positions are the following: Chief

Legal Counsel of the Philippine National Bank; Confidential Agent of the Office of the Auditor, GSIS;

Secretary of the Sangguniang Bayan; Secretary to the City Mayor; Senior Security and Security Guard

in the Office of the Vice Mayor; Secretary to the Board of a government corporation; City Legal

Counsel, City Legal Officer or City Attorney; Provincial Attorney; Private Secretary; and Board

Secretary II of the Philippine State College of Aeronautics.29 The Court in these instances focused on

the nature of the functions of the office characterized by such close intimacy between the appointee

and appointing power which insures freedom of intercourse without embarrassment or freedom from

misgivings of betrayals of personal trust or confidential matters of state.30

In the case of the General Manager of a water district, Section 24 in relation to Section 23 of P.D. No.

198, as amended, reveals the close proximity of the positions of the General Manager and BOD.

SEC. 24. Duties.The duties of the General Manager and other officers shall be determined and

specified from time to time by the Board. The General Manager, who shall not be a director, shall have

full supervision and control of the maintenance and operation of water district facilities, with power and

authority to appoint all personnel of the district: Provided, That the appointment of personnel in the

supervisory level shall be subject to approval by the Board. (As amended by Sec.10, PD 768)

(Emphasis supplied)

While the BOD appoints by a majority vote the General Manager and specifies from time to time the

duties he shall perform, it is the General Manager who exercises full supervision and control of the

maintenance and operation of water district facilities. The BOD is confined to policy-making and

prescribing a system of business administration and accounting for the water district patterned upon

and in conformity to the standards established by the Local Water Utilities Administration (LWUA), and

it is the General Manager who implements the plans and policies approved by the BOD. And while the

BOD may not engage in the detailed management of the water district, it is empowered to delegate to

such officers or agents designated by it any executive, administrative or ministerial power,31 including

entering into contracts under conditions and restrictions it may impose. Moreover, though the General

Manager is vested with the power to appoint all personnel of the water district, the appointment of

personnel in the supervisory level shall be subject to the approval of the BOD. It is likewise evident that

the General Manager is directly accountable to the BOD which 29 Id. at 508-509, citing Besa v.

Philippine National Bank, 144 Phil. 282 (1970) has disciplinary jurisdiction over him. The foregoing

working relationship of the General Manager and BOD under the governing law of water districts clearly

demands a high degree of trust and confidence between them. The CA therefore correctly concluded

that the position of General Manager is primarily confidential in nature.

Petitioner contends that the amendment introduced by R.A. No. 9286 in effect placed the position of

General Manager of a water district in the category of career service. It posits that this can be inferred

from the removal of the sentence Said officer shall serve at the pleasure of the Board, and replaced it

with the sentence Said officer shall not be removed from office, except for cause and after due

process. Accordingly, petitioner said it issued CSC MC No. 13, Series of 2006 prescribing guidelines

for the implementation of the new law and qualification standards for the position of General Manager

of a water district, whereby all incumbent general managers who hold appointments under coterminous

status upon the effectivity of R.A. No. 9286 were given two years to meet all the requirements for

permanent status.

Such interpretation is incorrect. To our mind, the amendment introduced by R.A. No. 9286 merely

tempered the broad discretion of the BOD. In Paloma v. Mora32 we noted the change brought about by

the said law insofar as the grounds for terminating the General Manager of a water district. Whereas

previously the General Manager may be removed at the pleasure or discretion of the BOD even without

prior notice and due hearing, the amendatory law expressly demands that these be complied with.

Such condition for the exercise of the power of removal implements the fundamental right of due

process guaranteed by the Constitution. In De los Santos v. Mallare,33 the Court simply recognized as

a necessity that confidential appointments be terminable at the will of the appointing authority.

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It is established that no officer or employee in the Civil Service shall be removed or suspended except

for cause provided by law. However, this admits of exceptions for it is likewise settled that the right to

security of tenure is not available to those employees whose appointments are contractual and

coterminous in nature.34 Since the position of General Manager of a water district remains a primarily

confidential position whose term still expires upon loss of trust and confidence by the BOD provided

that prior notice and due hearing are observed, it cannot therefore be said that the phrase shall not be

removed except for cause and after due process converted such position into a permanent

appointment. Significantly, loss of confidence may be predicated on other causes for removal provided

in the civil service rules and other existing laws.

In Tanjay Water District v. Quinit, Jr.,35 we said: Indeed, no officer or employee in the Civil Service

shall be removed or suspended except for cause provided by law. The phrase cause provided by law,

however, includes loss of confidence. It is an established rule that the tenure of those holding

primarily confidential positions ends upon loss of confidence, because their term of office lasts only as

long as confidence in them endures. Their termination can be justified on the ground of loss of

confidence, in which case, their cessation from office involves no removal but the expiration of their

term of office.

The Civil Service Law classifies the positions in the civil service into career and non-career service

positions. Career positions are characterized by: (1) entrance based on merit and fitness to be

determined as far as practicable by competitive examinations, or based on highly technical

qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.36

The Career Service shall include37:

(1) Open Career positions for appointment to which prior qualification in an appropriate examination is

required;

(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty

and academic staff of state colleges and universities, and scientific and technical positions in scientific

or research institutions which shall establish and maintain their own merit systems;

(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau

Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of

Department Service and other officers of equivalent rank as may be identified by the Career Executive

Service Board, all of whom are appointed by the President;

(4) Career officers, other than those in the Career Executive Service, who are appointed by the

President, such as the Foreign Service Officers in the Department of Foreign Affairs;

(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit

system;

(6) Personnel of government-owned or controlled corporations whether performing governmental or

proprietary functions, who do not fall under the non-career service; and

(7) Permanent laborers, whether skilled, semi-skilled or unskilled. (Emphasis supplied)

On the other hand, non-career positions are defined by the Administrative Code of 198738 as follows:

SEC. 9. Non-Career Service. The Non-Career Service shall be characterized by (1) entrance on

bases other than those of the usual tests of merit and fitness utilized for the career service; and (2)

tenure which is limited to a period specified by law, or which is coterminous with that of the appointing

authority or subject to his pleasure, or which is limited to the duration of a particular project for which

purpose employment was made.

The Non-Career Service shall include:

(1) Elective officials and their personal or confidential staff;

(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the

President and their personal or confidential staff(s);

(3) Chairman and members of commissions and boards with fixed terms of office and their personal or

confidential staff;

(4) Contractual personnel or those whose employment in the government is in accordance with a

special contract to undertake a specific work or job, requiring special or technical skills not available in

the employing agency, to be accomplished within a specific period, which in no case shall exceed one

year, and performs or accomplishes the specific work or job, under his own responsibility with a

minimum of direction and supervision from the hiring agency; and

(5) Emergency and seasonal personnel. (Emphasis supplied)

As can be gleaned, a coterminous employment falls under the noncareer service classification of

positions in the Civil Service,39 its tenure being limited or specified by law, or coterminous with that of

the appointing authority, or at the latters pleasure. Under R.A. No. 9286 in relation to Section 14 of the

Omnibus Rules Implementing Book V of the Administrative Code of 1987, the coterminous appointment

of the General Manager of a water district is based on the majority vote of the BOD and whose

continuity in the service is based on the latters trust and confidence or co-existent with its tenure.

The term of office of the BOD members of water districts is fixed by P.D. No. 198 as follows:

SEC. 11. Term of Office. -- Of the five initial directors of each newly-formed district, two shall be

appointed for a maximum term of two years, two for a maximum term of four years, and one for a

maximum term of six years. Terms of office of all directors in a given district shall be such that the term

of at least one director, but not more than two, shall expire on December 31 of each even-numbered

year. Regular terms of office after the initial terms shall be for six years commencing on January 1 of

odd-numbered years. Directors may be removed for cause only, subject to review and approval of the

Administration. (As amended by Sec. 5, P.D. No. 768.) (Emphasis supplied)

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On the basis of the foregoing, the logical conclusion is that the General Manager of a water district who

is appointed on coterminous status may serve or hold office for a maximum of six years, which is the

tenure of the appointing authority, subject to reappointment for another six years unless sooner

removed by the BOD for loss of trust and confidence, or for any cause provided by law and with due

process.

It may also be mentioned that under Section 3641 of P.D. No. 198, as amended, the L WUA is

empowered to take over the operation and management of a water district which has defaulted on its

loan obligations to L WUA. As the bondholder or creditor, and in fulfilment of its mandate to regulate

water utilities in the country, LWUA may designate its employees or any person or organization to

assume all powers or policy-decision and the powers of management and administration to undertake

all such actions as may be necessary for the water district's efficient operation. This further reinforces

the conclusion that the position of General Manager of a water district is a non-career position.

In fine, since the position of General Manager of a water district remains a primarily confidential

position, Rafanan was validly reappointed to said position by respondent's BOD on April 8, 2005 under

coterminous status despite having reached the compulsory retirement age, which is allowed under

Section 12 (b), Rule XIII of CSC Memorandum Circular No. 15, s. 1999, as amended by Resolution No.

011624 dated October 4, 2001.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated July 28, 2009 and

Resolution dated November 9, 2009 of the Court of Appeals in CA-G.R. SP No. 106031 are

AFFIRMED and UPHELD. No costs. SO ORDERED.

SAMUEL B. ONG, Petitioner, G.R. No. 184219

Present:

- versus -

OFFICE OF THE PRESIDENT, ET AL., Respondents.

CARPIO,J.,

Chairperson,

PEREZ,

SERENO,

REYES, and

PERLAS-BERNABE, JJ.*

Promulgated:

January 30, 2012

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

REYES, J.:

The Case

Before us is a petition for review [1]on certiorariunder Rule 45 of the Rules of Court filed by

Samuel B. Ong (Ong) to assail the Decision [2] rendered by the Court of Appeals (CA) on August 5,

2008 in CA-G.R. SP No. 88673, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing premises, the petition for quo

warranto filed in this case is hereby DENIED. SO ORDERED.[3]

Ong died on May 22, 2009 during the pendency of the instant petition.[4] Admittedly, Ong's death

rendered the prayer for reinstatement in the petition for quo warranto as moot and academic. However,

substitution [5]was sought because in the event that the Court would rule that Ong was indeed entitled

to the position he claimed, backwages pertaining to him can still be paid to his legal heirs. Per

Resolution [6]issued on January 10, 2011, we granted the motion for substitution. The deceased

petitioner is now herein substituted by his wife Elizabeth, and children, Samuel Jr., Elizabeth and

Carolyn, all surnamed Ong.

Antecedents Facts The CA aptly summarized the facts of the case before the filing of the petition for quo

warranto as follows:

The petitioner [Ong] joined the National Bureau of Investigation (NBI) as a

career employee in 1978. He held the position of NBI Director I from July 14, 1998

to February 23, 1999 and NBI Director II from February 24, 1998 to September 5,

2001. On September 6, 2001, petitioner was appointed Director III by the

President. His appointment paper pertinently reads:

x x x

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Pursuant to the provisions of existing laws, the following are hereby

appointed to the NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF

JUSTICE co-terminus with the appointing authority:

x x x

SAMUEL B. ONG - DIRECTOR III

(vice Carlos S. Caabay) [DEPUTY DIRECTOR]

x x x

On June 3, 2004, the petitioner received from respondent Reynaldo Wycoco

Memorandum Circular No. 02-S.2004 informing him that his appointment, being

co-terminus with the appointing authority's tenure, would end effectively at

midnight on June 30, 2004 and, unless a new appointment would be issued in his

favor by the President consistent with her new tenure effective July 1, 2004, he

would be occcupying his position in a de facto/hold[-]over status until his

replacement would be appointed.

On December 01, 2004, the President appointed respondent Victor A.

Bessat as NBI Director III as replacement of the petitioner. Consequently,

respondent Wycoco notified the petitioner that, effective on December 17, 2004,

the latter should cease and desist from performing his functions as NBI Director III

in view of the presidential appointment of respondent Bessat as petitioner's

replacement. The petitioner received the aforementioned notice only on January

27, 2005.[7](underscoring supplied and citations omitted)

On February 22, 2005, Ong filed before the CA a petition forquo warranto. He sought for the

declaration as null and void of (a) his removal from the position of NBI Director III; and (b) his

replacement by respondent Victor Bessat (Bessat). Ong likewise prayed for reinstatement and

backwages.

The CA denied Ong's petition on grounds:

A petition for quo warranto is a proceeding to determine the right of a

person to the use or exercise of a franchise or office and to oust the holder from

its enjoyment, if his claim is not well-founded, or if he has forfeited his right to

enjoy the privilege.[8]Where the action is filed by a private person, in his own

name, he must prove that he is entitled to the controverted position, otherwise,

respondent has a right to the undisturbed possession of the office.[9]

Section 27 of the Administrative Code of 1987, as amended, classifies theappointment status of public officers and employees in the career service into

permanent and temporary. A permanent appointment shall be issued to a person

who meets all the requirements for the position to which he is being appointed,

including appropriate eligibility prescribed, in accordance with the provisions of

law, rules and standards promulgated in pursuance thereof. In the absence of

appropriate eligibles and it becomes necessary in the public interest to fill a

vacancy, a temporary appointment shall be issued to a person who meets all the

requirements for the position to which he is being appointed except the

appropriate civil service eligibility; provided, that such temporary appointment shall

not exceed twelve months, but the appointee may be replaced sooner if a qualified

civil service eligible becomes available.

x x x In Cuadra v. Cordova,[10]temporary appointment is defined as one

made in an acting capacity, the essence of which lies in its temporary character

and its terminability at pleasure by the appointing power. Thus, the temporary

appointee accepts the position with the condition that he shall surrender the office

when called upon to do so by the appointing authority. The termination of a

temporary appointment may be with or without a cause since the appointee serves

merely at the pleasure of the appointing authority.

In the career executive service, the acquisition of security of tenure

presupposes a permanent appointment. As held in General v. Roco,[11] two

requisites must concur in order that an employee in the career executive service

may attain security of tenure, to wit: 1) CES eligibility[;] and 2) appointment to the

appropriate CES rank.

In the present case, it is undisputed that the petitioner is a non-CESO

eligible. At best, therefore, his appointment could be regarded only as temporary

and, hence, he has no security of tenure. Such being the case, his appointment

can be withdrawn at will by the President, who is the appointing authority in this

case, and at a moment's notice. [12]

Moreover, a perusal of the petitioner's appointment will reveal that his

appointment as NBI Director III is co-terminous with the appointing authority.

Correlatively, his appointment falls under Section 14 of the Omnibus Rules

Implementing Book V of the Revised Administrative Code of 1987 which provides

that:[13]

Sec. 14. An appointment may also be co-terminous

which shall be issued to a person whose entrance and

continuity in the service is based on the trust and confidence

of the appointing authority or that which is subject to his

pleasure, or co-existent with his tenure, or limited by theduration of project or subject to the availability of funds.

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The co-terminous status may thus be classified as

follows:

x x x x

(2) Co-terminous with the appointing authority

when appointment is co-existent with the tenure of the

appointing authority or at his pleasure; x x x

x x x x

Thus, although petitioner's appointment is co-terminous with the tenure of

the President, he nevertheless serves at the pleasure of the President and his

appointment may be recalled anytime. The case of Mita Pardo de Tavera v.

Philippine Tuberculosis Society, Inc.[14]delineated the nature of an appointment

held at the pleasure of the appointing power in this wise:

An appointment held at the pleasure of the appointing

power is in essence temporary in nature. It is co-extensive

with the desire of the Board of Directors. Hence, when the

Board opts to replace the incumbent, technically there is no

removal but only an expiration of term and in an expiration of

term, there is no need of prior notice, due hearing or

sufficient grounds before the incumbent can be separated

from office. The protection afforded by Section 7.04 of the

Code of By-Laws on Removal [o]f Officers and Employees,

therefore, cannot be claimed by petitioner.

All told, petitioner's appointment as well as its consequent termination falls

within the ambit of the discretion bestowed on th