EN BANC
[ G.R. No. 191890, December 04, 2012 ]EVALYN I. FETALINO v. COMMISSION ELECTIONS +
EVALYN I. FETALINO AND AMADO M. CALDERON, PETITIONERS, MANUEL A. BARCELONA, JR., PETITIONER-INTERVENOR, VS. COMMISSION ELECTIONS, ON RESPONDENT.
D E C I S I O N
EVALYN I. FETALINO v. COMMISSION ELECTIONS +
EVALYN I. FETALINO AND AMADO M. CALDERON, PETITIONERS, MANUEL A. BARCELONA, JR., PETITIONER-INTERVENOR, VS. COMMISSION ELECTIONS, ON RESPONDENT.
D E C I S I O N
BRION, J.:
Before us is a Petition for Certiorari, Mandamus and Prohibition with Application for Writ of Preliminary Injunction and/or Temporary Restraining Order,[1] seeking to nullify and enjoin the implementation of Commission on
Elections (Comelec) Resolution No. 8808 issued on March 30, 2010.[2] Republic Act (R.A.) No. 1568, as amended,[3] extends a five-year lump sum gratuity to the chairman or any member of the Comelec upon retirement,
after completion of the term of office; incapacity; death; and resignation after reaching 60 years of age but before expiration of the term of office. The Comelec en banc determined that former Comelec Commissioners Evalyn I. Fetalino[4] and Amado M. Calderon[5] (petitioners) - whose ad interim appointments were not acted upon by the Commission on Appointments (CA) and, who were subsequently, not reappointed are not entitled to the five-year lump sum gratuity
because they did not complete in full the seven-year term of office.
The Antecedent Facts
On February 10, 1998, President Fidel V. Ramos extended an interim appointment to the petitioners as Comelec Commissioners, each for a term of seven (7) years, pursuant to Section 2, Article IX-D of the 1987 Constitution.[6] Eleven days later (or on February 21, 1998), Pres. Ramos renewed the petitioners' ad interim appointments for the same position. Congress, however, adjourned in May 1998 before the CA could act on their appointments. The constitutional ban on presidential appointments later took effect and the petitioners were no longer re-appointed as Comelec Commissioners.[7] Thus, the petitioners merely served as Comelec Commissioners for more than four months, or from February 16, 1998 to June 30, 1998.[8]
Subsequently, on March 15, 2005, the petitioners applied for their retirement benefits and monthly pension with the Comelec, pursuant to R.A. No. 1568.[9] The Comelec initially approved the petitioners' claims pursuant to its Resolution No. 06-1369[10] dated December 11, 2006 whose dispositive portion reads:
On February 6, 2007, the Comelec issued Resolution No. 07-0202 granting the petitioners a pro-rated gratuity and pension.[12] Subsequently, on October 5, 2007, the petitioners asked for a re-computation of their retirement pay on the principal ground that R.A. No. 1568,[13] does not cover a pro-rated computation of retirement pay. In response, the Comelec issued a resolution referring the matter to its Finance Services Department for comment and recommendation.[14] On July 14, 2009, the Comelec issued another resolution referring the same matter to its Law Department for study and recommendation.[15]
In the presently assailed Resolution No. 8808[16] dated March 30, 2010, the Comelec, on the basis of the Law Department's study, completely disapproved the petitioners' claim for a lump sum benefit under R.A. No. 1568. The Comelec reasoned out that:
On this basis, the Comelec ruled on the matter, as follows:
The Petitions
The petitioners sought the nullification of Comelec Resolution No. 8808 via a petition for certiorari under Rule 65 of the Rules of Court. Petitioner-intervenor Manuel A. Barcelona, Jr. later joined the petitioners in questioning the assailed resolution. Like the petitioners, Barcelona did not complete the full seven-year term as Comelec Commissioner since he served only from February 12, 2004 to July 10, 2005. The petitioners and Barcelona commonly argue that:
(1) the non-renewal of their ad interim appointments by the CA until Congress already adjourned qualifies as retirement under the law and entitles them to the full five-year lump sum gratuity;
(2) Resolution No. 06-1369 that initially granted the five-year lump sum gratuity is already final and executory and cannot be modified by the Comelec; and
(3) they now have a vested right over the full retirement benefits provided by RA No. 1568 in view of the finality of Resolution No. 06-1369.[19]
In the main, both the petitioners and Barcelona pray for a liberal interpretation of Section 1 of R.A. No. 1568. They submit that the involuntary termination of their ad interim appointments as Comelec Commissioners should be deemed by this Court as a retirement from the service. Barcelona, in support of his plea for liberal construction, specifically cites the case of Ortiz v. COMELEC.[20] The Court ruled in this cited case that equity and justice demand that the involuntary curtailment of Mario D. Ortiz's term be deemed a completion of his term of office so that he should be considered retired from the service.
In addition, the petitioners also bewail the lack of notice and hearing in the issuance of Comelec Resolution No. 8808. Barcelona also assails the discontinuance of his monthly pension on the basis of the assailed Comelec issuance.[21]
The Case for the Respondents
On July 22, 2010, the Comelec filed its Comment[22] through the Office of the Solicitor General. The Comelec prays for the dismissal of the petition on the grounds outlined below:
First, it submits that the petitioners' reliance on Section 13, Rule 18 of the Comelec Rules of Procedure to show that Resolution No. 06-1369 has attained finality is misplaced as this resolution is not the final decision contemplated by the Rules. It also argues that estoppel does not lie against the Comelec since the erroneous application and enforcement of the law by public officers do not estop the Government from making a subsequent correction of its errors.[23]
Second, the Comelec reiterates that the petitioners are not entitled to the lump sum gratuity, considering that they cannot be considered as officials who retired after completing their term of office. It emphasizes that R.A. No. 1568 refers to the completion of the term of office, not to partial service or to a variable tenure that does not reach its end, as in the case of the petitioners. The Comelec also draws the Court's attention to the case of Matibag v. Benipayo[24] where the Court categorically ruled that an ad interim appointment that lapsed by inaction of the Commission on Appointments does not constitute a term of office.[25]
Third, it argues that the petitioners do not have any vested right on their retirement benefits considering that the retirements benefits afforded by R.A. No. 1568 are purely gratuitous in nature; they are not similar to pension plans where employee participation is mandatory so that they acquire vested rights in the pension as part of their compensation. Without such vested rights, the Comelec concludes that the petitioners were not deprived of their property without due process of law.[26]
The Court's Ruling
We DISMISS the petition and DENY Barcelona's petition for intervention.
Preliminary Considerations
R.A. No. 1568 provides two types of retirement benefits for a Comelec Chairperson or Member: a gratuity or five-year lump sum, and an annuity or a lifetime monthly pension.[27] Our review of the petitions, in particular, Barcelona's petition for intervention, indicates that he merely questions the discontinuance of his monthly pension on the basis of Comelec Resolution No. 8808.[28] As the assailed resolution, by its plain terms (cited above), only pertains to the lump sum benefit afforded by R.A. No. 1568, it appears that Barcelona's petition for intervention is misdirected. We note, too, that Barcelona has not substantiated his bare claim that the Comelec discontinued the payment of his monthly pension on the basis of the assailed Resolution.
To put the case in its proper perspective, the task now before us is to determine whether the petitioners are entitled to the full five-year lump sum gratuity provided for by R.A. No. 1568. We conclude under our discussion below that they are not so entitled as they did not comply with the conditions required by law.
The petitioners are not entitled to the
lump sum gratuity under Section 1 of
R.A. No. 1568, as amended
That the petitioners failed to meet conditions of the applicable retirement law Section 1 of R.A. No. 1568[29] is beyond dispute. The law provides:
To be entitled to the five-year lump sum gratuity under Section 1 of R.A. No. 1568, any of the following events must transpire:
(1) Retirement from the service for having completed the term of office;
(2) Incapacity to discharge the duties of their office; (3) Death while in the service; and
(4) Resignation after reaching the age of sixty (60) years but before the expiration of the term of office. In addition, the officer should have rendered not less than twenty years of service in the government at the time of retirement.
Death during the service obviously does not need to be considered in the present case, thus leaving retirement, incapacity and resignation as the event that must transpire in order to be entitled to the lump sum gratuity.
We note that the termination of the petitioners' ad interim appointments could hardly be considered as incapacity since it was not the result of any disability that rendered them incapable of performing the duties of a Commissioner. Thus, incapacity is likewise effectively removed from active consideration.
"Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment."[30] In this sense, resignation likewise does not appear applicable as a ground because the petitioners did not voluntarily relinquish their position as Commissioners; their termination was merely a consequence of the adjournment of Congress without action by the CA on their ad interim appointments.
This eliminative process only leaves the question of whether the termination of the petitioners' ad interim appointments amounted to retirement from the service after completion of the term of office. We emphasize at this point that the right to retirement benefits accrues only when two conditions are met: first, when the conditions imposed by the applicable law in this case, R.A. No. 1568 are fulfilled; and second, when an actual retirement takes place.[31] This Court has repeatedly emphasized that retirement entails compliance with certain age and service requirements specified by law and jurisprudence, and takes effect by operation of law.[32]
Section 1 of R.A. No. 1568 allows the grant of retirement benefits to the Chairman or any Member of the Comelec who has retired from the service after having completed his term of office. The petitioners obviously did not retire under R.A. No. 1568, as amended, since they never completed the full seven-year term of office prescribed by Section 2, Article IX-D of the 1987 Constitution; they served as Comelec Commissioners for barely four months, i.e., from February 16, 1998 to June 30, 1998. In the recent case of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946,[33] where the Court did not allow Judge Macarambon to retire under R.A. No. 910 because he did not comply with the age and service requirements of the law, the Court emphasized:
More importantly, we agree with the Solicitor General that the petitioners' service, if any, could only amount to tenure in office and not to the term of office contemplated by Section 1 of R.A. No. 1568. Tenure and term of office have well-defined meanings in law and jurisprudence. As early as 1946, the Court, in Topacio Nueno v. Angeles,[34] provided clear distinctions between these concepts in this wise:
This is the ruling that has been followed since then and is the settled jurisprudence on these concepts.[35]
While we characterized an ad interim appointment in Matibag v. Benipayo[36] "as a permanent appointment that takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office," we have also positively ruled in that case that "an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office."[37] We consequently ruled:
Based on these considerations, we conclude that the petitioners can never be considered to have retired from the service not only because they did not complete the full term, but, more importantly, because they did not serve a "term of office" as required by Section 1 of R.A. No. 1568, as amended.
Ortiz v. COMELEC cannot be
applied to the present case
We are not unmindful of the Court's ruling in Ortiz v. COMELEC[39] which Barcelona cites as basis for his claim of retirement benefits despite the fact that like the petitioners he did not complete the full term of his office.
In that case, the petitioner was appointed as Comelec Commissioner, for a term expiring on May 17, 1992, by then President Ferdinand E. Marcos, and took his oath of office on July 30, 1985. When President Corazon Aquino assumed the Presidency and following the lead of the Justices of the Supreme Court, Ortiz together with the other Comelec Commissioners tendered his courtesy resignation on March 5, 1986. On July 21, 1986, President Aquino accepted their resignations effective immediately. Thereafter, Ortiz applied for retirement benefits under R.A. No. 1568, which application the Comelec denied. The Court, however, reversed the Comelec and held that "[t]he curtailment of [Ortiz's] term not being attributable to any voluntary act on the part of the petitioner, equity and justice demand that he should be deemed to have completed his term xxx. [That he] should be placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superior's loss of confidence in him." Thus, as "he is deemed to have completed his term of office, [Ortiz] should be considered retired from the service."[40]
A close reading of Ortiz reveals that it does not have the same fact situation as the present case and is thus not decisive of the present controversy. We note that the impact of the principle of stare decisis that Barcelona cited as basis is limited; specific judicial decisions are binding only on the parties to the case and on future parties with similar or identical factual situations.[41] Significantly, the factual situation in Ortiz is totally different so that its ruling cannot simply be bodily lifted and applied arbitrarily to the present case.
First, in Ortiz, Ortiz's appointment was a regular appointment made by then President Marcos, while the petitioners were appointed by President Ramos ad interim or during the recess of Congress.
Second, Ortiz's appointment was made under the 1973 Constitution which did not require the concurrence of the CA. Notably, the 1973 Constitution abolished the CA and did not provide for an executive limit on the appointing authority of the President. In the present case, the petitioners' ad interim appointment was made under the 1987 Constitution which mandated that an appointment shall be effective only until disapproval by the CA or until the next adjournment of Congress.
Third, in Ortiz, the Court addressed the issue of whether a constitutional official, whose "courtesy resignation" had been accepted by the President of the Philippines during the effectivity of the Freedom Constitution, may be entitled to retirement benefits under R.A. No. 1568. In the present case, the issue is whether the termination of the petitioners' ad interim appointments entitles them to the full five-year lump sum gratuity provided for by R.A. No. 1568.
No occasion for liberal construction
since Section 1 of R.A. No. 1568, as
amended, is clear and unambiguous
The petitioners' appeal to liberal construction of Section 1 of R.A. No. 1568 is misplaced since the law is clear and unambiguous. We emphasize that the primary modality of addressing the present case is to look into the provisions of the retirement law itself. Guided by the rules of statutory construction in this consideration, we find that the language of the retirement law is clear and unequivocal; no room for construction or interpretation exists, only the application of the letter of the law.
The application of the clear letter of the retirement law in this case is supported by jurisprudence. As early as 1981, in the case of In Re: Claim of CAR Judge Noel,[42] the Court strictly adhered to the provisions of R.A. No. 910 and did not allow the judge's claim of monthly pension and annuity under the aforementioned law, considering that his length of government service fell short of the minimum requirements.
Similarly, in Re: Judge Alex Z. Reyes,[43] the Court dismissed CTA Judge Reyes' invocation of the doctrine of liberal construction of retirement laws to justify his request that the last step increment of his salary grade be used in the computation of his retirement pay and terminal leave benefits, and held:
Finally, in Gov't Service Insurance System v. Civil Service Commission,[45] the Court was asked to resolve whether government service rendered on a per diem basis is creditable for computing the length of service for retirement purposes. In disregarding the petitioners' plea for liberal construction, the Court held:
No compelling reasons exist to
warrant the liberal application
of Section 1 of R.A. No. 1568,
as amended, to the present case
We find no compelling legal or factual reasons for the application of the Court's liberality in the interpretation of retirement laws to the present case. The discretionary power of the Court to exercise the liberal application of retirement laws is not limitless; its exercise of liberality is on a case-to- case basis and only after a consideration of the factual circumstances that justify the grant of an exception. The recent case of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946[47] fully explained how a liberal approach in the application of retirement laws should be construed, viz:
In the present case, as previously mentioned, Ortiz cannot be used as authority to justify a liberal application of Section 1 of R.A. No. 1568, as amended not only because it is not on all fours with the present case; more importantly, the Court in Ortiz had ample reasons, based on the unique factual circumstances of the case, to grant an exception to the service requirements of the law. In Ortiz, the Court took note of the involuntariness of Ortiz's "courtesy resignation," as well as the peculiar circumstances obtaining at that time President Aquino issued Proclamation No. 1 calling for the courtesy resignation of all appointive officials, viz:
In stark contrast, no such peculiar circumstances obtain in the present case.
Finally, in the absence of any basis for liberal interpretation, the Court would be engaged in judicial legislation if we grant the petitioners' plea. We cannot overemphasize that the policy of liberal construction cannot and should not be to the point of engaging in judicial legislation an act that the Constitution absolutely forbids this Court to do. In the oft-cited case of Tanada v. Yulo,[49] Justice George A. Malcolm cautioned against judicial legislation and warned against liberal construction being used as a license to legislate and not to simply interpret,[50] thus:
In the present case, Section 1 of R.A. No. 1568, by its plain terms, is clear that retirement entails the completion of the term of office. To construe the term "retirement" in Section 1 of R.A. No. 1568 to include termination of an ad interim appointment is to read into the clear words of the law exemptions that its literal wording does not support; to depart from the meaning expressed by the words of R.A. No. 1568 is to alter the law and to legislate, and not to interpret. We would thereby violate the time-honored rule on the constitutional separation of powers. The words of Justice E. Finley Johnson in the early case of Nicolas v. Alberto[52] still ring true today, viz.:
To reiterate, in light of the express and clear terms of the law, the basic rule of statutory construction should therefore apply: "legislative intent is to be determined from the language employed, and where there is no ambiguity in the words, there is no room for construction."[53]
The Comelec did not violate the rule
on finality of judgments
Petitioners argue that Resolution No. 06-1369, which initially granted them a five-year lump sum gratuity, attained finality thirty (30) days after its promulgation, pursuant to Section 13, Rule 18 of the Comelec Rules of Procedure, and, thus, can no longer be modified by the Comelec.
We cannot agree with this position. Section 13, Rule 18 of the Comelec Rules of Procedure reads:
A simple reading of this provision shows that it only applies to ordinary actions, special proceedings, provisional remedies and special reliefs. Under Section 5, Rule 1 of the Comelec Rules of Procedures, ordinary actions refer to election protests, quo warranto, and appeals from decisions of courts in election protest cases; special proceedings refer to annulment of permanent list of voters, registration of political parties and accreditation of citizens' arms of the Commission; provisional remedies refer to injunction and/or restraining order; and special reliefs refer to certiorari, prohibition, mandamus and contempt. Thus, it is clear that the proceedings that precipitated the issuance of Resolution No. 06-1369 do not fall within the coverage of the actions and proceedings under Section 13, Rule 18 of the Comelec Rules of Procedure. Thus, the Comelec did not violate its own rule on finality of judgments.
No denial of due process
We also find no merit in the petitioners' contention that that they were denied due process of law when the Comelec issued Resolution No. 8808 without affording them the benefit of a notice and hearing. We have held in the past that "[t]he essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. [Thus, a] formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are given fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing."[54] In Bautista v. Commission on Elections,[55] we emphasized:
Thus, "[a] party cannot successfully invoke deprivation of due process if he was accorded the opportunity of a hearing, through either oral arguments or pleadings. There is no denial of due process when a party is given an opportunity through his pleadings."[57] In the present case, the petitioners cannot claim deprivation of due process because they actively participated in the Comelec proceedings that sought for payment of their retirement benefits under R.A. No. 1568. The records clearly show that the issuance of the assailed Comelec resolution was precipitated by the petitioners' application for retirement benefits with the Comelec. Significantly, the petitioners were given ample opportunity to present and explain their respective positions when they sought a re-computation of the initial pro-rated retirement benefits that were granted to them by the Comelec. Under these facts, no violation of the right to due process of law took place.
No vested rights over retirement benefits
As a last point, we agree with the Solicitor General that the retirement benefits granted to the petitioners under Section 1 of R.A. No. 1568 are purely gratuitous in nature; thus, they have no vested right over these benefits.[58] Retirement benefits as provided under R.A. No. 1568 must be distinguished from a pension which is a form of deferred compensation for services performed; in a pension, employee participation is mandatory, thus, employees acquire contractual or vested rights over the pension as part of their compensation.[59] In the absence of any vested right to the R.A. No. 1568 retirement benefits, the petitioners' due process argument must perforce fail.
WHEREFORE, premises considered, we hereby DISMISS the petition for certiorari filed by petitioners Evalyn I. Fetalino and Amado M. Calderon for lack of merit. We likewise DENY Manuel A. Barcelona, Jr.'s petition for intervention tor lack of merit. No costs.
SO ORDERED.
Carpio, (Acting C.J.), Leonardo-De Castro, Peralta, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, Perlas-Bernabe, and Leonen, JJ., concur.
Sereno, C.J., on leave.
Velasco, Jr., J., no part due to relationship to party.
Bersamin, J., I join the dissent of J. Reyes.
Reyes, J., with my dissenting opinion.
** In lieu of Chief Justice Maria Lourdes P. A. Sereno per Special Order No. 1384 dated December 4, 2012.
[1] Rollo, pp. 3-42.
[2] Id. at 46-5 L
[3] The term Republic Act No. 1568 without indicating its amended status refers to the Republic Act, as amended, unless otherwise indicated.
[4] Vice Remedios A. Salazar-Fernando, now a member of the Court of Appeals.
[5] Vice Regalado E. Maambong (deceased), retired member of the Court of Appeals.
[6] The provision states:
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Member for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.
[7] Rollo, pp. 6-7.
[8] Id. at 50.
[9] Id. at 52-67.
[10] Id. at 88-89.
[11] Id. at 89.
[12] Id. at 90-92.
[13] Id. at 93.
[14] Id. at 94-97.
[15] Id. at 98-99.
[16] Supra note 2.
[19] Id. at 12-38.
[20] 245 Phil.780, 788 (1988).
[21] Rollo. p. 237.
[23] Id. at 113-116.
[24] 429 Phil. 554 (2002).
[25] Rollo, p. 119.
[26] Id. at 120-121.
[27] Section 1 of R.A. No. 1568, as amended.
[28] Supra note 20.
[29] Originally, Section 1 of R.A. No. 1568 only provided for a five-year lump sum gratuity. It reads:
Section 1. When the Auditor General, or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term of office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns upon reaching the age of sixty years, he or his heirs shall be paid in lump sum his salary for five years: Provided, That at the time of said retirement, death or resignation, he has rendered not less than twenty years of service in the government.
Subsequently, R.A. No. 1568 was amended by R.A. No. 3473 (entitled "An Act to provide under certain conditions life pension to the Auditor General and the Chairman and members of the Commission on Elections") to include a life pension and R.A. No. 3595. These amendments added the following proviso in Section 1 of R.A. No. 1568, as amended:
And, provided, further, That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of the monthly salary he was receiving on the date of retirement, incapacity or resignation.
On June 17, 1967, R.A. No. 4968 (entitled "An Act to Amend Republic Act Numbered Fifteen Hundred Sixty-Eight") abolished R.A. No. 1568, as amended. Finally, on August 4, 1969, R.A. No. 6118 (entitled "An Act to Restore the Pension System for the Auditor General and the Chairman and Members of the Commission on Elections as Provided in Republic Act Numbered One Thousand Five Hundred Sixty-Eight, as amended") re-enacted R.A. No. 1568, as amended, by R.A. No. 3473 and R.A. No. 3595.
[30] Ortiz v. Comelec, supra note 19 at 787; citations omitted.
[31] See J. Brion's Separate Concurring Opinion in Herrera v. National Power Corporation, G.R. No. 166570, December 18, 2009, 608 SCRA 475, 501, citing DBP v. COA, 467 Phil. 62 (2004).
[32] Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946, A.M. No. 14061- Ret, June 19, 2012.
[33] Ibid.
[34] 76 Phil. 12, 21-22 (1946).
[35] Aparri v. CA, et al.35 similarly discusses what a "term" connotes, as follows:
The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon the expiration of the officer's term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of Public Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration of the term for which he was elected or appointed. [emphasis ours; italics supplied; citations omitted]
A later case, Gaminde v. Commission on Audit,35 reiterated the well-settled distinction between term and tenure, viz.:
In the law of public officers, there is a settled distinction between "term" and "tenure." "[T]he term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. [emphases ours]
[36] Supra note 23.
[37] Id. at 598; emphasis ours.
[38] Ibid.
[39] Supra note 19.
[40] Id. at 788.
[41] See Concurring Opinion of J. Brion in Philippine Savings Bank, et al. v. Senate Impeachment Court, etc., G.R. No. 200238, February 9, 2012 citing Theodore O. Te, Stare In (Decisis): Reflections on Judicial Flip-flopping in League of Cities v. Comelec and Navarro v. Ermita, 85 PHIL. L. J. 784, 787 (2011). See also Negros Navigation Co., Inc. v. CA, 346 Phil. 551, (1997).
[42] Adm. Matter No. 1155-CAR, 194 Phil. 9 (1981).
[43] Adm. Matter No. 91-6-007-CTA, December 21, 1992, 216 SCRA 720.
[44] Id. at 725.
[45] G.R. Nos. 98395 and 102449, October 28, 1994, 237 SCRA 809.
[46] Id. at 816- 818.
[47] Supra note 32 citing Re: Gregorio G. Pineda, A.M. No. 6789, July 13, 1990, 187 SCRA 469, 475.
[48] Ortiz v. COMELEC, Supra note 19 at 787-788.
[49] 61 Phil. 515 (1935).
[50] See Theodore O. Te, Stare In (Decisis): Reflections on Judicial Flip-flopping in League of Cities v. Comelec and Navarro v. Ermita, 85 PHIL. L. J. 784, 787 (2011).
[51] Tanada v. Yulo, supra note 50, at 519.
[52] See Dissenting Opinion in Nicolas v. Alberto, 51 Phil. 370, 382 (1928).
[53] See Concurring Opinion of J. Brion in Philippine Savings Bank, et al. v. Senate Impeachment Court, etc., G.R. No. 200238, February 9, 2012, citing Veroy v. Layague, et al., G.R. No. L-95630, June 18, 1992 and Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989, 171 SCRA 1.
[54] Bautista v. COMELEC, 460 Phil. 459, 478 (2003).
[55] 359 Phil. 1 (1998).
[56] Id. at 9-10.
[57] Alauya, Jr. v. Commission on Elections, 443 Phil. 893, 902 (2003); citations omitted.
[58] Parreño v. Commission on Audit, G.R. No. 162224, June 7, 2007, 523 SCRA 390,400.
[59] Ibid.
DISSENTING OPINION
REYES, J.:
At issue in this case is whether the petitioners are entitled to the full five-year lump sum gratuity provided by Republic Act (R.A.) No. 1568, as amended,[1] entitled "An Act to Provide Lite Pension to the Auditor General and the Chairman or any Member of the Commission on Elections."[2]
In deference to the majority, it is my opinion that the petitioners are entitled to a pro-rated computation of the gratuity for reasons hereinafter discussed.
R.A. No. 1568, as amended, provides for the retirement benefits due to a COMELEC or Chairperson Member. One is the gratuity or five-year lump sum and the other is the annuity or lifetime monthly pension. The bone of contention in this case pertains solely to the gratuity or five-year lump sum.
Originally, Section 1 of R.A. No. 1568 provides:
R.A. No. 1568 was subsequently amended by R.A. Nos. 3473[3] and 3595,[4] until R.A. No. 4968,[5] which declared inoperative or abolished R.A. No. 1568, as amended. R.A. No. 1568, as amended by R.A. Nos. 3473 and 3595 was finally resurrected by R.A. No. 6118[6] by re-enacting it.
Thus, as it now stands, Section 1 provides:
There are only four (4) categories under which a COMELEC Chairperson or Commissioner may avail of the five-year lump sum gratuity, viz:
The termination of the petitioners' ad interim appointments cannot qualify as either incapacity or resignation.
Incapacity in this case means the inability of a public officer to perform the functions and duties concomitant to the office due to impairment. The termination of the petitioners' ad interim appointment was obviously not a result of any disability such that the petitioners cannot perform the duties of a Commissioner. The limitation on their capacity to perform the duties of their office was due to the simple reason that they have no office or responsibility to speak of since their ad interim appointments were not acted upon by the CA and were bypassed with the adjournment of Congress.
Neither can the termination of their ad interim appointments be deemed as resignation. Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment.[7] In this case, there was no intentional relinquishment by the petitioners' of their posts as the termination was a result of the adjournment of Congress without the CA acting on their appointments.
The COMELEC was correct in ruling that the only pertinent provision under which the petitioners' case may fall is retirement from service.[8] Retirement, however, entails compliance with certain age and service requirements specified by law and jurisprudence and takes effect by operation of law.[9]
R.A. No. 1568, as amended, is clear. Section 1 thereof states that "[W]hen x x x any Member of the Commission on Elections retires from the service for having completed his term of office x x x he or his heirs shall be paid in lump sum his salary for five years x x x." It is obvious from the plain language of the provision that retirement under said category presupposes completion of the term of office.
Term means the time during which the officer may claim to hold office as a matter of right, and fixes the interval after which the several incumbents shall succeed one another.[10] Particularly, term of office has been defined as the period when an elected officer or appointee is entitled to perform the functions of the office and enjoy its privileges and emoluments.[11]
Article IX-D, Section 2 of the 1987 Constitution provides for a seven (7) year term, without reappointment, for the COMELEC Chairperson and Commissioners. In this case, petitioners Fetalino and Calderon served as COMELEC Commissioners only from February 16, 1998 to June 30, 1998. Petitioner-intervenor Barcelona, on the other hand, served only from February 12, 2004 to July 10, 2005. Strictly construed, the petitioners, therefore, did not complete the full term of their office.
I believe, however, that all is not lost for the petitioners. In Ortiz v. COMELEC,[12] the Court affirmed the grant of retirement benefits in favor of then COMELEC Commissioner Mario D. Ortiz (Ortiz) despite the fact that he did not complete the full term of his office. Ortiz was initially appointed as COMELEC Commissioner by then President Ferdinand E. Marcos and took his oath of office on July 30, 1985. Immediately after the assumption of President Corazon C. Aquino (Pres. Aquino), Ortiz, together with other COMELEC Commissioners, tendered their courtesy resignations on March 5, 1986, which were accepted by Pres. Aquino. Subsequently, Ortiz filed his application for retirement benefits, which was denied by the COMELEC. Taking into consideration principles of equity and justice, the Court reversed the COMELEC's denial of Ortiz's application and directed the appropriate government agency to facilitate the processing and payment of his retirement benefits. The Court stated:
While the circumstances of Ortiz are not exactly identical with that of the petitioners', this should not be a bar to the Court's application of the Ortiz ruling in this case. It should be noted that at the time of Ortiz's appointment in 1985 and courtesy resignation in 1986, there was no CA to speak of as it was abolished by the 1973 Constitution.[14] Nevertheless, the severance of the petitioners' appointment may be likened to that of Commissioner Ortiz's in that it is not "attributable to any voluntary act" on their part and their positions may be "placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superior's loss of confidence in him."[15]
Moreover, a liberal construction of R.A. No. 1568, as amended, would achieve the humanitarian purposes of the law so that efficiency, security and well-being of government employees may be enhanced. After all, retirement laws are designed to provide for the retiree's sustenance and, hopefully, even comfort, when he no longer has the capability to earn a livelihood.[16] Thus, the non-renewal of the petitioners' ad interim appointments should be tantamount to expiration of their respective terms and in line with the same dictates of justice and equity espoused in Ortiz, the petitioners, therefore, are deemed to have completed their terms of office and considered as retired from the service.
The petitioners, however, are not entitled to the full five-year lump sum gratuity provided by R.A. No. 1568, as amended. Section 1 contains the proviso: "he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for every year of service based upon the last annual salary that he was receiving at the time of retirement." Said condition provides for the manner of computing the retirement benefits due to a COMELEC Chairperson or Commissioner. Consequently, a maximum of five-year lump gratuity is given to a Chairperson or Commissioner who retired and has served for at least five (5) years. If the years of service are less than five (5), then a retiree is entitled to a gratuity for every year of service. The same proviso also contemplates the situation when a Chairperson or Commissioner does not complete the full term of the office. This will occur, for example, when a Chairperson or Commissioner takes over in a case of vacancy resulting from certain causes death, resignation, disability or impeachment such that the appointee will serve only for the unexpired portion of the term of the predecessor.[18] In such case, the retiree is entitled to gratuity depending on the years of service but not to exceed five (5) years. Given that the petitioners did not serve the full length of their term of office, the computation of their lump sum gratuity should be based on the foregoing proviso.
Moreover, I do not agree with the petitioners that they were deprived of due process when the COMELEC issued the assailed resolution without affording them the right to be notified of its issuance and be heard on the matter. Neither did they acquire a vested right over their retirement benefits.
In issuing the assailed Resolution No. 8808, the COMELEC was performing a purely administrative function. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs.[19] In Bautista v. COMELEC,[20] the Court stated that the term administrative connotes, or pertains, to administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things.[21] It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.[22] In denying the petitioners' application for retirement benefits, the COMELEC was merely applying and implementing the provisions of R.A. No. 1568, as amended, vis-a-vis the petitioners' prevailing circumstances. It was not exercising any quasi-judicial or administrative adjudicatory power such that the due process requirements of notice and hearing must be observed.[23]
Records also show that the issuance of the assailed resolution originated from the petitioners' own move to have their retirement benefits paid.[24] Petitioners, in fact, were also able to present their respective positions on the matter when they sought a re-computation of the initial retirement benefits that were granted by the COMELEC on a pro rata basis.[25]
It should be stressed that the retirement benefits granted to COMELEC Chairpersons and Commissioners under R.A. No. 1568, as amended, are purely gratuitous in nature. The petitioners cannot claim any vested right over the same as these are not similar to a pension plan where employee contribution or participation is mandatory, thus vesting in the employee a right over said pension. The rule is that where the pension is part of the terms of employment and employee participation is mandatory, employees have contractual or vested rights in the pension.[26]
WHEREFORE, I vote that the petition filed by Evelyn L Fetalino and Amado M. Calderon should be GRANTED while the petition tiled by Manuel A. Barcelona should he DENIED inasmuch as he admitted that he already received his pro-rated gratuity.[27]
[1] R.A. No. 1568 was amended by R.A. Nos. 3473 and 3595.
[2] Approved on June 16, 1956 and re-enacted by R.A. No. 6118, entitled "An Act to Restore the Pension System for the Auditor General and the Chairman
[3] Approved on June 16, 1962. The title of the law was amended to read as "(A)n Act to provide under certain conditions life pension to the Auditor General and the Chairman and members of the Commission on Elections," while the proviso "(A)nd, provided, further, That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of the monthly salary he was receiving on the date of retirement, incapacity or resignation," was added to Section 1.
[4] Approved on June 22, 1963, entitled "An Act to Amend Republic Act Numbered Fifteen Hundred Sixty-Eight."
[5] Approved on June 17, 1967, entitled, "An Act Amending further Commonwealth Act Numbered One Hundred Eighty-Six, as amended."
[6] Section 1 thereof states: "Republic Act Numbered One thousand five hundred sixty-eight, as amended by Republic Act Numbered Three thousand four hundred seventy-three and Republic Act Numbered Three thousand five hundred ninety-five providing for the pension system for the Auditor General and the Chairman and Members of the Commission on Elections, is hereby re-enacted."
[7] Ortiz v. COMELEC, 245 Phil. 780, 787 (1988).
[8] Rollo, p. 48.
[9] Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946, A.M. No. 14061-Ret, June 19, 2012.
[10] Gaminde v. Commission on Audit, 401 Phil. 77, 88 (2000).
[11] Casibang v. Judge Aquino, 181 Phil. 181, 190 (1979).
[12] Supra note 7.
[13] Id. at 788-789.
[14] http://comappt.gov.ph/index.php?id1=2&id2=1&id3=0, viewed on October 25, 2012.
[15] Supra note 7.
[16] Government Service Insurance System v. De Leon, G.R. No. 186560, November 17, 2010, 635 SCRA 321, 330.
[17] Supra note 7.
[18] See Funa v. The Chairman, Commission on Audit, Reynaldo A. Villar, G.R. No. 192791 April 24, 2012.
[19] Cipriano v. Commission on Elections, 479 Phil. 677, 690 (2004).
[20] 460 Phil. 459 (2003).
[21] Id. at 475-476, citing the concurring opinion of Justice Antonio in University of Nueva Caceres v. Hon. Martinez, 155 Phil. 126, 132-133 (1974).
[22] Id.
[23] Namil v. COMELEC, 460 Phil. 751, 759 (2003).
[24] Rollo, pp. 52-67.
[25] Id. at 93.
[26] GSIS, Cebu City Branch v. Montesdaros, 478 Phil. 573, 584 (2004); see also Parreño v. Commission on Audit, GR. No. 162224, June 7, 2007, 523 SCRA 390, 400.
[27] Rollo, p. 236; Petition-In-Intervention, p. 5.
On February 10, 1998, President Fidel V. Ramos extended an interim appointment to the petitioners as Comelec Commissioners, each for a term of seven (7) years, pursuant to Section 2, Article IX-D of the 1987 Constitution.[6] Eleven days later (or on February 21, 1998), Pres. Ramos renewed the petitioners' ad interim appointments for the same position. Congress, however, adjourned in May 1998 before the CA could act on their appointments. The constitutional ban on presidential appointments later took effect and the petitioners were no longer re-appointed as Comelec Commissioners.[7] Thus, the petitioners merely served as Comelec Commissioners for more than four months, or from February 16, 1998 to June 30, 1998.[8]
Subsequently, on March 15, 2005, the petitioners applied for their retirement benefits and monthly pension with the Comelec, pursuant to R.A. No. 1568.[9] The Comelec initially approved the petitioners' claims pursuant to its Resolution No. 06-1369[10] dated December 11, 2006 whose dispositive portion reads:
[T]he Commission RESOLVED, as it hereby RESOLVES, to approve the recommendation of Director Alioden D. Dalaig, Law Department, to grant the request of former Comelec Commissioners Evalyn Fetalino and Amado Calderon for the payment of their retirement benefits, subject to release of funds for the purpose by the Department of Budget and Management.[11]
On February 6, 2007, the Comelec issued Resolution No. 07-0202 granting the petitioners a pro-rated gratuity and pension.[12] Subsequently, on October 5, 2007, the petitioners asked for a re-computation of their retirement pay on the principal ground that R.A. No. 1568,[13] does not cover a pro-rated computation of retirement pay. In response, the Comelec issued a resolution referring the matter to its Finance Services Department for comment and recommendation.[14] On July 14, 2009, the Comelec issued another resolution referring the same matter to its Law Department for study and recommendation.[15]
In the presently assailed Resolution No. 8808[16] dated March 30, 2010, the Comelec, on the basis of the Law Department's study, completely disapproved the petitioners' claim for a lump sum benefit under R.A. No. 1568. The Comelec reasoned out that:
Of these four (4) modes by which the Chairman or a Commissioner shall be entitled to lump sum benefit, only the first instance (completion of term) is pertinent to the issue we have formulated above. It is clear that the non-confirmation and non-renewal of appointment is not a case of resignation or incapacity or death. The question rather is: Can it be considered as retirement from service for having completed one's term of office?
xxxx
The full term of the Chairman and the Commissioners is seven (7) years. When there has been a partial service, what remains is called the "unexpired term." The partial service is usually called tenure. There is no doubt in the distinction between a term and tenure. Tenure is necessarily variable while term is always fixed. When the law, in this case, RA 1568 refers to completion of term of office, it can only mean finishing up to the end of the seven year term. By completion of term, the law could not have meant partial service or a variable tenure that does not reach the end. It could not have meant, the "expiration of term" of the Commissioner whose appointment lapses by reason of non-confirmation of appointment by the Commission on Appointments and non-renewal thereof by the President. It is rightly called expiration of term but note: it is not completion of term. RA 1568 requires 'having completed his term of office' for the Commissioner to be entitled to the benefits.
Therefore, one whose ad interim appointment expires cannot be said to have completed his term of office so as to fall under the provisions of Section 1 of RA 1568 that would entitle him to a lump sum benefit of five (5) years salary.[17] (emphasis, italics and underscores ours)
On this basis, the Comelec ruled on the matter, as follows:
Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE and ADOPT the study of the Law Department on the payment of retirement benefits to members of the Commission.
Consequently, the following former Chairman and Commissioners of this Commission whose appointments expired by reason of non- approval by Commission on Appointments and non-renewal by the President are not entitled to a lump sum benefit under Republic Act 1528 (sic):
This resolution shall also apply to all requests of former COMELEC Chairmen and Commissioners similarly situated. All previous resolutions which are inconsistent herewith are hereby AMENDED or REVOKED accordingly.
Let the Finance Services and Personnel Departments implement this resolution.[18] (emphasis ours)
The petitioners sought the nullification of Comelec Resolution No. 8808 via a petition for certiorari under Rule 65 of the Rules of Court. Petitioner-intervenor Manuel A. Barcelona, Jr. later joined the petitioners in questioning the assailed resolution. Like the petitioners, Barcelona did not complete the full seven-year term as Comelec Commissioner since he served only from February 12, 2004 to July 10, 2005. The petitioners and Barcelona commonly argue that:
(1) the non-renewal of their ad interim appointments by the CA until Congress already adjourned qualifies as retirement under the law and entitles them to the full five-year lump sum gratuity;
(2) Resolution No. 06-1369 that initially granted the five-year lump sum gratuity is already final and executory and cannot be modified by the Comelec; and
(3) they now have a vested right over the full retirement benefits provided by RA No. 1568 in view of the finality of Resolution No. 06-1369.[19]
In the main, both the petitioners and Barcelona pray for a liberal interpretation of Section 1 of R.A. No. 1568. They submit that the involuntary termination of their ad interim appointments as Comelec Commissioners should be deemed by this Court as a retirement from the service. Barcelona, in support of his plea for liberal construction, specifically cites the case of Ortiz v. COMELEC.[20] The Court ruled in this cited case that equity and justice demand that the involuntary curtailment of Mario D. Ortiz's term be deemed a completion of his term of office so that he should be considered retired from the service.
In addition, the petitioners also bewail the lack of notice and hearing in the issuance of Comelec Resolution No. 8808. Barcelona also assails the discontinuance of his monthly pension on the basis of the assailed Comelec issuance.[21]
On July 22, 2010, the Comelec filed its Comment[22] through the Office of the Solicitor General. The Comelec prays for the dismissal of the petition on the grounds outlined below:
First, it submits that the petitioners' reliance on Section 13, Rule 18 of the Comelec Rules of Procedure to show that Resolution No. 06-1369 has attained finality is misplaced as this resolution is not the final decision contemplated by the Rules. It also argues that estoppel does not lie against the Comelec since the erroneous application and enforcement of the law by public officers do not estop the Government from making a subsequent correction of its errors.[23]
Second, the Comelec reiterates that the petitioners are not entitled to the lump sum gratuity, considering that they cannot be considered as officials who retired after completing their term of office. It emphasizes that R.A. No. 1568 refers to the completion of the term of office, not to partial service or to a variable tenure that does not reach its end, as in the case of the petitioners. The Comelec also draws the Court's attention to the case of Matibag v. Benipayo[24] where the Court categorically ruled that an ad interim appointment that lapsed by inaction of the Commission on Appointments does not constitute a term of office.[25]
Third, it argues that the petitioners do not have any vested right on their retirement benefits considering that the retirements benefits afforded by R.A. No. 1568 are purely gratuitous in nature; they are not similar to pension plans where employee participation is mandatory so that they acquire vested rights in the pension as part of their compensation. Without such vested rights, the Comelec concludes that the petitioners were not deprived of their property without due process of law.[26]
We DISMISS the petition and DENY Barcelona's petition for intervention.
Preliminary Considerations
R.A. No. 1568 provides two types of retirement benefits for a Comelec Chairperson or Member: a gratuity or five-year lump sum, and an annuity or a lifetime monthly pension.[27] Our review of the petitions, in particular, Barcelona's petition for intervention, indicates that he merely questions the discontinuance of his monthly pension on the basis of Comelec Resolution No. 8808.[28] As the assailed resolution, by its plain terms (cited above), only pertains to the lump sum benefit afforded by R.A. No. 1568, it appears that Barcelona's petition for intervention is misdirected. We note, too, that Barcelona has not substantiated his bare claim that the Comelec discontinued the payment of his monthly pension on the basis of the assailed Resolution.
To put the case in its proper perspective, the task now before us is to determine whether the petitioners are entitled to the full five-year lump sum gratuity provided for by R.A. No. 1568. We conclude under our discussion below that they are not so entitled as they did not comply with the conditions required by law.
The petitioners are not entitled to the
lump sum gratuity under Section 1 of
R.A. No. 1568, as amended
That the petitioners failed to meet conditions of the applicable retirement law Section 1 of R.A. No. 1568[29] is beyond dispute. The law provides:
Sec. 1. When the Auditor General or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term of office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns at any time after reaching the age of sixty years but before the expiration of his term of office, he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for every year of service based upon the last annual salary that he was receiving at the time of retirement, incapacity, death or resignation, as the case may be: Provided, That in case of resignation, he has rendered not less than twenty years of service in the government; And, provided, further, That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of retirement, incapacity or resignation. [italics supplied]
To be entitled to the five-year lump sum gratuity under Section 1 of R.A. No. 1568, any of the following events must transpire:
(1) Retirement from the service for having completed the term of office;
(2) Incapacity to discharge the duties of their office; (3) Death while in the service; and
(4) Resignation after reaching the age of sixty (60) years but before the expiration of the term of office. In addition, the officer should have rendered not less than twenty years of service in the government at the time of retirement.
Death during the service obviously does not need to be considered in the present case, thus leaving retirement, incapacity and resignation as the event that must transpire in order to be entitled to the lump sum gratuity.
We note that the termination of the petitioners' ad interim appointments could hardly be considered as incapacity since it was not the result of any disability that rendered them incapable of performing the duties of a Commissioner. Thus, incapacity is likewise effectively removed from active consideration.
"Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment."[30] In this sense, resignation likewise does not appear applicable as a ground because the petitioners did not voluntarily relinquish their position as Commissioners; their termination was merely a consequence of the adjournment of Congress without action by the CA on their ad interim appointments.
This eliminative process only leaves the question of whether the termination of the petitioners' ad interim appointments amounted to retirement from the service after completion of the term of office. We emphasize at this point that the right to retirement benefits accrues only when two conditions are met: first, when the conditions imposed by the applicable law in this case, R.A. No. 1568 are fulfilled; and second, when an actual retirement takes place.[31] This Court has repeatedly emphasized that retirement entails compliance with certain age and service requirements specified by law and jurisprudence, and takes effect by operation of law.[32]
Section 1 of R.A. No. 1568 allows the grant of retirement benefits to the Chairman or any Member of the Comelec who has retired from the service after having completed his term of office. The petitioners obviously did not retire under R.A. No. 1568, as amended, since they never completed the full seven-year term of office prescribed by Section 2, Article IX-D of the 1987 Constitution; they served as Comelec Commissioners for barely four months, i.e., from February 16, 1998 to June 30, 1998. In the recent case of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946,[33] where the Court did not allow Judge Macarambon to retire under R.A. No. 910 because he did not comply with the age and service requirements of the law, the Court emphasized:
Strict compliance with the age and service requirements under the law is the rule and the grant of exception remains to be on a case to case basis. We have ruled that the Court allows seeming exceptions to these fixed rules for certain judges and justices only and whenever there are ample reasons to grant such exception. (emphasis ours; citations omitted)
More importantly, we agree with the Solicitor General that the petitioners' service, if any, could only amount to tenure in office and not to the term of office contemplated by Section 1 of R.A. No. 1568. Tenure and term of office have well-defined meanings in law and jurisprudence. As early as 1946, the Court, in Topacio Nueno v. Angeles,[34] provided clear distinctions between these concepts in this wise:
The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. There is no principle, law or doctrine by which the term of an office may be extended by reason of war. [emphasis ours]
This is the ruling that has been followed since then and is the settled jurisprudence on these concepts.[35]
While we characterized an ad interim appointment in Matibag v. Benipayo[36] "as a permanent appointment that takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office," we have also positively ruled in that case that "an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office."[37] We consequently ruled:
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments.[38] (emphasis ours; italics supplied)
Based on these considerations, we conclude that the petitioners can never be considered to have retired from the service not only because they did not complete the full term, but, more importantly, because they did not serve a "term of office" as required by Section 1 of R.A. No. 1568, as amended.
Ortiz v. COMELEC cannot be
applied to the present case
We are not unmindful of the Court's ruling in Ortiz v. COMELEC[39] which Barcelona cites as basis for his claim of retirement benefits despite the fact that like the petitioners he did not complete the full term of his office.
In that case, the petitioner was appointed as Comelec Commissioner, for a term expiring on May 17, 1992, by then President Ferdinand E. Marcos, and took his oath of office on July 30, 1985. When President Corazon Aquino assumed the Presidency and following the lead of the Justices of the Supreme Court, Ortiz together with the other Comelec Commissioners tendered his courtesy resignation on March 5, 1986. On July 21, 1986, President Aquino accepted their resignations effective immediately. Thereafter, Ortiz applied for retirement benefits under R.A. No. 1568, which application the Comelec denied. The Court, however, reversed the Comelec and held that "[t]he curtailment of [Ortiz's] term not being attributable to any voluntary act on the part of the petitioner, equity and justice demand that he should be deemed to have completed his term xxx. [That he] should be placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superior's loss of confidence in him." Thus, as "he is deemed to have completed his term of office, [Ortiz] should be considered retired from the service."[40]
A close reading of Ortiz reveals that it does not have the same fact situation as the present case and is thus not decisive of the present controversy. We note that the impact of the principle of stare decisis that Barcelona cited as basis is limited; specific judicial decisions are binding only on the parties to the case and on future parties with similar or identical factual situations.[41] Significantly, the factual situation in Ortiz is totally different so that its ruling cannot simply be bodily lifted and applied arbitrarily to the present case.
First, in Ortiz, Ortiz's appointment was a regular appointment made by then President Marcos, while the petitioners were appointed by President Ramos ad interim or during the recess of Congress.
Second, Ortiz's appointment was made under the 1973 Constitution which did not require the concurrence of the CA. Notably, the 1973 Constitution abolished the CA and did not provide for an executive limit on the appointing authority of the President. In the present case, the petitioners' ad interim appointment was made under the 1987 Constitution which mandated that an appointment shall be effective only until disapproval by the CA or until the next adjournment of Congress.
Third, in Ortiz, the Court addressed the issue of whether a constitutional official, whose "courtesy resignation" had been accepted by the President of the Philippines during the effectivity of the Freedom Constitution, may be entitled to retirement benefits under R.A. No. 1568. In the present case, the issue is whether the termination of the petitioners' ad interim appointments entitles them to the full five-year lump sum gratuity provided for by R.A. No. 1568.
No occasion for liberal construction
since Section 1 of R.A. No. 1568, as
amended, is clear and unambiguous
The petitioners' appeal to liberal construction of Section 1 of R.A. No. 1568 is misplaced since the law is clear and unambiguous. We emphasize that the primary modality of addressing the present case is to look into the provisions of the retirement law itself. Guided by the rules of statutory construction in this consideration, we find that the language of the retirement law is clear and unequivocal; no room for construction or interpretation exists, only the application of the letter of the law.
The application of the clear letter of the retirement law in this case is supported by jurisprudence. As early as 1981, in the case of In Re: Claim of CAR Judge Noel,[42] the Court strictly adhered to the provisions of R.A. No. 910 and did not allow the judge's claim of monthly pension and annuity under the aforementioned law, considering that his length of government service fell short of the minimum requirements.
Similarly, in Re: Judge Alex Z. Reyes,[43] the Court dismissed CTA Judge Reyes' invocation of the doctrine of liberal construction of retirement laws to justify his request that the last step increment of his salary grade be used in the computation of his retirement pay and terminal leave benefits, and held:
In Borromeo, the court had occasion to say: "It is axiomatic that retirement laws are liberally construed and administered in favor of the persons intended to be benefited. All doubts as to the intent of the law should be resolved in favor of the retiree to achieve its humanitarian purposes." Such interpretation in favor of the retiree is unfortunately not called for nor warranted, where the clear intent of the applicable law and rules are demonstrably against the petitioner's claim. (Paredes v. City of Manila, G.R. No. 88879, March 21, 1991). Section 4 is explicit and categorical in its prohibition and[,] unfortunately for Judge Reyes[,] applies squarely to the instant case.[44] (emphasis ours; italics supplied)
Finally, in Gov't Service Insurance System v. Civil Service Commission,[45] the Court was asked to resolve whether government service rendered on a per diem basis is creditable for computing the length of service for retirement purposes. In disregarding the petitioners' plea for liberal construction, the Court held:
The law is very clear in its intent to exclude per diem in the definition of "compensation." Originally, per diem was not among those excluded in the definition of compensation (See Section 1(c) of C.A. No. 186), not until the passage of the amending laws which redefined it to exclude per diem.
The law not only defines the word "compensation," but it also distinguishes it from other forms of remunerations. Such distinction is significant not only for purposes of computing the contribution of the employers and employees to the GSIS but also for computing the employees' service record and benefits.
x x x x
Private respondents both claim that retirement laws must be liberally interpreted in favor of the retirees. However, the doctrine of liberal construction cannot be applied in the instant petitions, where the law invoked is clear, unequivocal and leaves no room for interpretation or construction. Moreover, to accommodate private respondents' plea will contravene the purpose for which the law was enacted, and will defeat the ends which it sought to attain (cf. Re: Judge Alex Z. Reyes, 216 SCRA 720 [1992]).[46] [italics supplied; emphasis ours]
No compelling reasons exist to
warrant the liberal application
of Section 1 of R.A. No. 1568,
as amended, to the present case
We find no compelling legal or factual reasons for the application of the Court's liberality in the interpretation of retirement laws to the present case. The discretionary power of the Court to exercise the liberal application of retirement laws is not limitless; its exercise of liberality is on a case-to- case basis and only after a consideration of the factual circumstances that justify the grant of an exception. The recent case of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946[47] fully explained how a liberal approach in the application of retirement laws should be construed, viz:
The rule is that retirement laws are construed liberally in favor of the retiring employee. However, when in the interest of liberal construction the Court allows seeming exceptions to fixed rules for certain retired Judges or Justices, there are ample reasons behind each grant of an exception. The crediting of accumulated leaves to make up for lack of required age or length of service is not done indiscriminately. It is always on a case to case basis.
In some instances, the lacking element such as the time to reach an age limit or comply with length of service is de minimis. It could be that the amount of accumulated leave credits is tremendous in comparison to the lacking period of time.
More important, there must be present an essential factor before an application under the Plana or Britanico rulings may be granted. The Court allows a making up or compensating for lack of required age or service only if satisfied that the career of the retiree was marked by competence, integrity, and dedication to the public service; it was only a bowing to policy considerations and an acceptance of the realities of political will which brought him or her to premature retirement. (emphases and italics ours; citation omitted)
In the present case, as previously mentioned, Ortiz cannot be used as authority to justify a liberal application of Section 1 of R.A. No. 1568, as amended not only because it is not on all fours with the present case; more importantly, the Court in Ortiz had ample reasons, based on the unique factual circumstances of the case, to grant an exception to the service requirements of the law. In Ortiz, the Court took note of the involuntariness of Ortiz's "courtesy resignation," as well as the peculiar circumstances obtaining at that time President Aquino issued Proclamation No. 1 calling for the courtesy resignation of all appointive officials, viz:
From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his position. We cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his position at the disposal of the President. He did not categorically state therein that he was unconditionally giving up his position. It should be remembered that said letter was actually a response to Proclamation No. 1 which President Aquino issued on February 25, 1986 when she called on all appointive public officials to tender their "courtesy resignation" as a "first step to restore confidence in public administration."[48]
In stark contrast, no such peculiar circumstances obtain in the present case.
Finally, in the absence of any basis for liberal interpretation, the Court would be engaged in judicial legislation if we grant the petitioners' plea. We cannot overemphasize that the policy of liberal construction cannot and should not be to the point of engaging in judicial legislation an act that the Constitution absolutely forbids this Court to do. In the oft-cited case of Tanada v. Yulo,[49] Justice George A. Malcolm cautioned against judicial legislation and warned against liberal construction being used as a license to legislate and not to simply interpret,[50] thus:
Counsel in effect urges us to adopt a liberal construction of the statute. That in this instance, as in the past, we aim to do. But counsel in his memorandum concedes "that the language of the proviso in question is somewhat defective and does not clearly convey the legislative intent", and at the hearing in response to questions was finally forced to admit that what the Government desired was for the court to insert words and phrases in the law in order to supply an intention for the legislature. That we cannot do. By liberal construction of statutes, courts from the language used, the subject matter, and the purposes of those framing them are able to find out their true meaning. There is a sharp distinction, however, between construction of this nature and the act of a court in engrafting upon a law something that has been omitted which someone believes ought to have been embraced. The former is liberal construction and is a legitimate exercise of judicial power. The latter is judicial legislation forbidden by the tripartite division of powers among the three departments of government, the executive, the legislative, and the judicial.[51]
In the present case, Section 1 of R.A. No. 1568, by its plain terms, is clear that retirement entails the completion of the term of office. To construe the term "retirement" in Section 1 of R.A. No. 1568 to include termination of an ad interim appointment is to read into the clear words of the law exemptions that its literal wording does not support; to depart from the meaning expressed by the words of R.A. No. 1568 is to alter the law and to legislate, and not to interpret. We would thereby violate the time-honored rule on the constitutional separation of powers. The words of Justice E. Finley Johnson in the early case of Nicolas v. Alberto[52] still ring true today, viz.:
The courts have no legislative powers. In the interpretation and construction of statutes their sole function is to determine, and, within the constitutional limits of the legislative power, to give effect to the intention of the legislature. The courts cannot read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself. To depart from the meaning expressed by the words of a statute, is to alter the statute, to legislate and not to interpret. The responsibility for the justice or wisdom of legislation rests with the legislature, and it is the province of the courts to construe, not to make the laws.
To reiterate, in light of the express and clear terms of the law, the basic rule of statutory construction should therefore apply: "legislative intent is to be determined from the language employed, and where there is no ambiguity in the words, there is no room for construction."[53]
The Comelec did not violate the rule
on finality of judgments
Petitioners argue that Resolution No. 06-1369, which initially granted them a five-year lump sum gratuity, attained finality thirty (30) days after its promulgation, pursuant to Section 13, Rule 18 of the Comelec Rules of Procedure, and, thus, can no longer be modified by the Comelec.
We cannot agree with this position. Section 13, Rule 18 of the Comelec Rules of Procedure reads:
Sec. 13. Finality of Decisions or Resolutions.
a. In ordinary actions, special proceedings, provisional remedies and special reliefs a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation.
A simple reading of this provision shows that it only applies to ordinary actions, special proceedings, provisional remedies and special reliefs. Under Section 5, Rule 1 of the Comelec Rules of Procedures, ordinary actions refer to election protests, quo warranto, and appeals from decisions of courts in election protest cases; special proceedings refer to annulment of permanent list of voters, registration of political parties and accreditation of citizens' arms of the Commission; provisional remedies refer to injunction and/or restraining order; and special reliefs refer to certiorari, prohibition, mandamus and contempt. Thus, it is clear that the proceedings that precipitated the issuance of Resolution No. 06-1369 do not fall within the coverage of the actions and proceedings under Section 13, Rule 18 of the Comelec Rules of Procedure. Thus, the Comelec did not violate its own rule on finality of judgments.
No denial of due process
We also find no merit in the petitioners' contention that that they were denied due process of law when the Comelec issued Resolution No. 8808 without affording them the benefit of a notice and hearing. We have held in the past that "[t]he essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. [Thus, a] formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are given fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing."[54] In Bautista v. Commission on Elections,[55] we emphasized:
In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the right to be heard does not only refer to the right to present verbal arguments in court. A party may also be heard through his pleadings. Where opportunity to be heard is accorded either through oral arguments or pleadings, there is no denial of procedural due process. As reiterated in National Semiconductor (HK) Distribution, Ltd. vs. NLRC (G.R. No. 123520, June 26, 1998), the essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side. Hence, in Navarro III vs. Damaso (246 SCRA 260 [1995]), we held that a formal or trial-type hearing is not at all times and not in all instances essential.[56] (italics supplied)
Thus, "[a] party cannot successfully invoke deprivation of due process if he was accorded the opportunity of a hearing, through either oral arguments or pleadings. There is no denial of due process when a party is given an opportunity through his pleadings."[57] In the present case, the petitioners cannot claim deprivation of due process because they actively participated in the Comelec proceedings that sought for payment of their retirement benefits under R.A. No. 1568. The records clearly show that the issuance of the assailed Comelec resolution was precipitated by the petitioners' application for retirement benefits with the Comelec. Significantly, the petitioners were given ample opportunity to present and explain their respective positions when they sought a re-computation of the initial pro-rated retirement benefits that were granted to them by the Comelec. Under these facts, no violation of the right to due process of law took place.
No vested rights over retirement benefits
As a last point, we agree with the Solicitor General that the retirement benefits granted to the petitioners under Section 1 of R.A. No. 1568 are purely gratuitous in nature; thus, they have no vested right over these benefits.[58] Retirement benefits as provided under R.A. No. 1568 must be distinguished from a pension which is a form of deferred compensation for services performed; in a pension, employee participation is mandatory, thus, employees acquire contractual or vested rights over the pension as part of their compensation.[59] In the absence of any vested right to the R.A. No. 1568 retirement benefits, the petitioners' due process argument must perforce fail.
WHEREFORE, premises considered, we hereby DISMISS the petition for certiorari filed by petitioners Evalyn I. Fetalino and Amado M. Calderon for lack of merit. We likewise DENY Manuel A. Barcelona, Jr.'s petition for intervention tor lack of merit. No costs.
SO ORDERED.
Carpio, (Acting C.J.), Leonardo-De Castro, Peralta, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, Perlas-Bernabe, and Leonen, JJ., concur.
Sereno, C.J., on leave.
Velasco, Jr., J., no part due to relationship to party.
Bersamin, J., I join the dissent of J. Reyes.
Reyes, J., with my dissenting opinion.
** In lieu of Chief Justice Maria Lourdes P. A. Sereno per Special Order No. 1384 dated December 4, 2012.
[1] Rollo, pp. 3-42.
[2] Id. at 46-5 L
[3] The term Republic Act No. 1568 without indicating its amended status refers to the Republic Act, as amended, unless otherwise indicated.
[4] Vice Remedios A. Salazar-Fernando, now a member of the Court of Appeals.
[5] Vice Regalado E. Maambong (deceased), retired member of the Court of Appeals.
[6] The provision states:
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Member for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.
[7] Rollo, pp. 6-7.
[8] Id. at 50.
[9] Id. at 52-67.
[10] Id. at 88-89.
[11] Id. at 89.
[12] Id. at 90-92.
[13] Id. at 93.
[14] Id. at 94-97.
[15] Id. at 98-99.
[16] Supra note 2.
[19] Id. at 12-38.
[20] 245 Phil.780, 788 (1988).
[21] Rollo. p. 237.
[23] Id. at 113-116.
[24] 429 Phil. 554 (2002).
[25] Rollo, p. 119.
[26] Id. at 120-121.
[27] Section 1 of R.A. No. 1568, as amended.
[28] Supra note 20.
[29] Originally, Section 1 of R.A. No. 1568 only provided for a five-year lump sum gratuity. It reads:
Section 1. When the Auditor General, or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term of office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns upon reaching the age of sixty years, he or his heirs shall be paid in lump sum his salary for five years: Provided, That at the time of said retirement, death or resignation, he has rendered not less than twenty years of service in the government.
Subsequently, R.A. No. 1568 was amended by R.A. No. 3473 (entitled "An Act to provide under certain conditions life pension to the Auditor General and the Chairman and members of the Commission on Elections") to include a life pension and R.A. No. 3595. These amendments added the following proviso in Section 1 of R.A. No. 1568, as amended:
And, provided, further, That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of the monthly salary he was receiving on the date of retirement, incapacity or resignation.
On June 17, 1967, R.A. No. 4968 (entitled "An Act to Amend Republic Act Numbered Fifteen Hundred Sixty-Eight") abolished R.A. No. 1568, as amended. Finally, on August 4, 1969, R.A. No. 6118 (entitled "An Act to Restore the Pension System for the Auditor General and the Chairman and Members of the Commission on Elections as Provided in Republic Act Numbered One Thousand Five Hundred Sixty-Eight, as amended") re-enacted R.A. No. 1568, as amended, by R.A. No. 3473 and R.A. No. 3595.
[30] Ortiz v. Comelec, supra note 19 at 787; citations omitted.
[31] See J. Brion's Separate Concurring Opinion in Herrera v. National Power Corporation, G.R. No. 166570, December 18, 2009, 608 SCRA 475, 501, citing DBP v. COA, 467 Phil. 62 (2004).
[32] Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946, A.M. No. 14061- Ret, June 19, 2012.
[33] Ibid.
[34] 76 Phil. 12, 21-22 (1946).
[35] Aparri v. CA, et al.35 similarly discusses what a "term" connotes, as follows:
The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon the expiration of the officer's term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of Public Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration of the term for which he was elected or appointed. [emphasis ours; italics supplied; citations omitted]
A later case, Gaminde v. Commission on Audit,35 reiterated the well-settled distinction between term and tenure, viz.:
In the law of public officers, there is a settled distinction between "term" and "tenure." "[T]he term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. [emphases ours]
[36] Supra note 23.
[37] Id. at 598; emphasis ours.
[38] Ibid.
[39] Supra note 19.
[40] Id. at 788.
[41] See Concurring Opinion of J. Brion in Philippine Savings Bank, et al. v. Senate Impeachment Court, etc., G.R. No. 200238, February 9, 2012 citing Theodore O. Te, Stare In (Decisis): Reflections on Judicial Flip-flopping in League of Cities v. Comelec and Navarro v. Ermita, 85 PHIL. L. J. 784, 787 (2011). See also Negros Navigation Co., Inc. v. CA, 346 Phil. 551, (1997).
[42] Adm. Matter No. 1155-CAR, 194 Phil. 9 (1981).
[43] Adm. Matter No. 91-6-007-CTA, December 21, 1992, 216 SCRA 720.
[44] Id. at 725.
[45] G.R. Nos. 98395 and 102449, October 28, 1994, 237 SCRA 809.
[46] Id. at 816- 818.
[47] Supra note 32 citing Re: Gregorio G. Pineda, A.M. No. 6789, July 13, 1990, 187 SCRA 469, 475.
[48] Ortiz v. COMELEC, Supra note 19 at 787-788.
[49] 61 Phil. 515 (1935).
[50] See Theodore O. Te, Stare In (Decisis): Reflections on Judicial Flip-flopping in League of Cities v. Comelec and Navarro v. Ermita, 85 PHIL. L. J. 784, 787 (2011).
[51] Tanada v. Yulo, supra note 50, at 519.
[52] See Dissenting Opinion in Nicolas v. Alberto, 51 Phil. 370, 382 (1928).
[53] See Concurring Opinion of J. Brion in Philippine Savings Bank, et al. v. Senate Impeachment Court, etc., G.R. No. 200238, February 9, 2012, citing Veroy v. Layague, et al., G.R. No. L-95630, June 18, 1992 and Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989, 171 SCRA 1.
[54] Bautista v. COMELEC, 460 Phil. 459, 478 (2003).
[55] 359 Phil. 1 (1998).
[56] Id. at 9-10.
[57] Alauya, Jr. v. Commission on Elections, 443 Phil. 893, 902 (2003); citations omitted.
[58] Parreño v. Commission on Audit, G.R. No. 162224, June 7, 2007, 523 SCRA 390,400.
[59] Ibid.
REYES, J.:
At issue in this case is whether the petitioners are entitled to the full five-year lump sum gratuity provided by Republic Act (R.A.) No. 1568, as amended,[1] entitled "An Act to Provide Lite Pension to the Auditor General and the Chairman or any Member of the Commission on Elections."[2]
In deference to the majority, it is my opinion that the petitioners are entitled to a pro-rated computation of the gratuity for reasons hereinafter discussed.
R.A. No. 1568, as amended, provides for the retirement benefits due to a COMELEC or Chairperson Member. One is the gratuity or five-year lump sum and the other is the annuity or lifetime monthly pension. The bone of contention in this case pertains solely to the gratuity or five-year lump sum.
Originally, Section 1 of R.A. No. 1568 provides:
Sec. 1. When the Auditor General, or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term of office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns upon reaching the age of sixty years, he or his heirs shall be paid in lump sum his salary for five years: Provided, That at the time of said retirement, death or resignation, he has rendered not less than twenty years of service in the government.
R.A. No. 1568 was subsequently amended by R.A. Nos. 3473[3] and 3595,[4] until R.A. No. 4968,[5] which declared inoperative or abolished R.A. No. 1568, as amended. R.A. No. 1568, as amended by R.A. Nos. 3473 and 3595 was finally resurrected by R.A. No. 6118[6] by re-enacting it.
Thus, as it now stands, Section 1 provides:
Sec. 1. When the Auditor General or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term or office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns at any time after reaching the age of sixty years but before the expiration of this term of office, he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for every year of service based upon the last annual salary that he was receiving at the time of retirement, incapacity, death or resignation, as the case may be: Provided, That in case of resignation, he has rendered not less than twenty years of service in the government; And, provided, further, That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of retirement, incapacity or resignation. (Emphasis and underscoring ours)
There are only four (4) categories under which a COMELEC Chairperson or Commissioner may avail of the five-year lump sum gratuity, viz:
The termination of the petitioners' ad interim appointments cannot qualify as either incapacity or resignation.
Incapacity in this case means the inability of a public officer to perform the functions and duties concomitant to the office due to impairment. The termination of the petitioners' ad interim appointment was obviously not a result of any disability such that the petitioners cannot perform the duties of a Commissioner. The limitation on their capacity to perform the duties of their office was due to the simple reason that they have no office or responsibility to speak of since their ad interim appointments were not acted upon by the CA and were bypassed with the adjournment of Congress.
Neither can the termination of their ad interim appointments be deemed as resignation. Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment.[7] In this case, there was no intentional relinquishment by the petitioners' of their posts as the termination was a result of the adjournment of Congress without the CA acting on their appointments.
The COMELEC was correct in ruling that the only pertinent provision under which the petitioners' case may fall is retirement from service.[8] Retirement, however, entails compliance with certain age and service requirements specified by law and jurisprudence and takes effect by operation of law.[9]
R.A. No. 1568, as amended, is clear. Section 1 thereof states that "[W]hen x x x any Member of the Commission on Elections retires from the service for having completed his term of office x x x he or his heirs shall be paid in lump sum his salary for five years x x x." It is obvious from the plain language of the provision that retirement under said category presupposes completion of the term of office.
Term means the time during which the officer may claim to hold office as a matter of right, and fixes the interval after which the several incumbents shall succeed one another.[10] Particularly, term of office has been defined as the period when an elected officer or appointee is entitled to perform the functions of the office and enjoy its privileges and emoluments.[11]
Article IX-D, Section 2 of the 1987 Constitution provides for a seven (7) year term, without reappointment, for the COMELEC Chairperson and Commissioners. In this case, petitioners Fetalino and Calderon served as COMELEC Commissioners only from February 16, 1998 to June 30, 1998. Petitioner-intervenor Barcelona, on the other hand, served only from February 12, 2004 to July 10, 2005. Strictly construed, the petitioners, therefore, did not complete the full term of their office.
I believe, however, that all is not lost for the petitioners. In Ortiz v. COMELEC,[12] the Court affirmed the grant of retirement benefits in favor of then COMELEC Commissioner Mario D. Ortiz (Ortiz) despite the fact that he did not complete the full term of his office. Ortiz was initially appointed as COMELEC Commissioner by then President Ferdinand E. Marcos and took his oath of office on July 30, 1985. Immediately after the assumption of President Corazon C. Aquino (Pres. Aquino), Ortiz, together with other COMELEC Commissioners, tendered their courtesy resignations on March 5, 1986, which were accepted by Pres. Aquino. Subsequently, Ortiz filed his application for retirement benefits, which was denied by the COMELEC. Taking into consideration principles of equity and justice, the Court reversed the COMELEC's denial of Ortiz's application and directed the appropriate government agency to facilitate the processing and payment of his retirement benefits. The Court stated:
The curtailment of his term not being attributable to any voluntary act on the part of the petitioner, equity and justice demand that he should be deemed to have completed his term albeit much ahead of the date stated in his appointment paper. Petitioner's case should be placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superior's loss of confidence in him. His cessation from the service entails no removal but an expiration of his term.
As he is deemed to have completed his term of office, petitioner should be considered retired from the service. x x x.[13] (Citation omitted and emphasis ours)
While the circumstances of Ortiz are not exactly identical with that of the petitioners', this should not be a bar to the Court's application of the Ortiz ruling in this case. It should be noted that at the time of Ortiz's appointment in 1985 and courtesy resignation in 1986, there was no CA to speak of as it was abolished by the 1973 Constitution.[14] Nevertheless, the severance of the petitioners' appointment may be likened to that of Commissioner Ortiz's in that it is not "attributable to any voluntary act" on their part and their positions may be "placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superior's loss of confidence in him."[15]
Moreover, a liberal construction of R.A. No. 1568, as amended, would achieve the humanitarian purposes of the law so that efficiency, security and well-being of government employees may be enhanced. After all, retirement laws are designed to provide for the retiree's sustenance and, hopefully, even comfort, when he no longer has the capability to earn a livelihood.[16] Thus, the non-renewal of the petitioners' ad interim appointments should be tantamount to expiration of their respective terms and in line with the same dictates of justice and equity espoused in Ortiz, the petitioners, therefore, are deemed to have completed their terms of office and considered as retired from the service.
Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred compensation for services performed and his right thereto commences to vest upon his entry into the retirement system and becomes an enforceable obligation in court upon fulfillment of all conditions under which it is to be paid. Similarly, retirement benefits receivable by public employees are valuable parts of the consideration for entrance into and continuation in public employment. They serve a public purpose and a primary objective in establishing them is to induce able persons to enter and remain in public employment, and to render faithful and efficient service while so employed.[17]
The petitioners, however, are not entitled to the full five-year lump sum gratuity provided by R.A. No. 1568, as amended. Section 1 contains the proviso: "he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for every year of service based upon the last annual salary that he was receiving at the time of retirement." Said condition provides for the manner of computing the retirement benefits due to a COMELEC Chairperson or Commissioner. Consequently, a maximum of five-year lump gratuity is given to a Chairperson or Commissioner who retired and has served for at least five (5) years. If the years of service are less than five (5), then a retiree is entitled to a gratuity for every year of service. The same proviso also contemplates the situation when a Chairperson or Commissioner does not complete the full term of the office. This will occur, for example, when a Chairperson or Commissioner takes over in a case of vacancy resulting from certain causes death, resignation, disability or impeachment such that the appointee will serve only for the unexpired portion of the term of the predecessor.[18] In such case, the retiree is entitled to gratuity depending on the years of service but not to exceed five (5) years. Given that the petitioners did not serve the full length of their term of office, the computation of their lump sum gratuity should be based on the foregoing proviso.
Moreover, I do not agree with the petitioners that they were deprived of due process when the COMELEC issued the assailed resolution without affording them the right to be notified of its issuance and be heard on the matter. Neither did they acquire a vested right over their retirement benefits.
In issuing the assailed Resolution No. 8808, the COMELEC was performing a purely administrative function. Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs.[19] In Bautista v. COMELEC,[20] the Court stated that the term administrative connotes, or pertains, to administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things.[21] It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.[22] In denying the petitioners' application for retirement benefits, the COMELEC was merely applying and implementing the provisions of R.A. No. 1568, as amended, vis-a-vis the petitioners' prevailing circumstances. It was not exercising any quasi-judicial or administrative adjudicatory power such that the due process requirements of notice and hearing must be observed.[23]
Records also show that the issuance of the assailed resolution originated from the petitioners' own move to have their retirement benefits paid.[24] Petitioners, in fact, were also able to present their respective positions on the matter when they sought a re-computation of the initial retirement benefits that were granted by the COMELEC on a pro rata basis.[25]
It should be stressed that the retirement benefits granted to COMELEC Chairpersons and Commissioners under R.A. No. 1568, as amended, are purely gratuitous in nature. The petitioners cannot claim any vested right over the same as these are not similar to a pension plan where employee contribution or participation is mandatory, thus vesting in the employee a right over said pension. The rule is that where the pension is part of the terms of employment and employee participation is mandatory, employees have contractual or vested rights in the pension.[26]
WHEREFORE, I vote that the petition filed by Evelyn L Fetalino and Amado M. Calderon should be GRANTED while the petition tiled by Manuel A. Barcelona should he DENIED inasmuch as he admitted that he already received his pro-rated gratuity.[27]
[1] R.A. No. 1568 was amended by R.A. Nos. 3473 and 3595.
[2] Approved on June 16, 1956 and re-enacted by R.A. No. 6118, entitled "An Act to Restore the Pension System for the Auditor General and the Chairman
[3] Approved on June 16, 1962. The title of the law was amended to read as "(A)n Act to provide under certain conditions life pension to the Auditor General and the Chairman and members of the Commission on Elections," while the proviso "(A)nd, provided, further, That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of the monthly salary he was receiving on the date of retirement, incapacity or resignation," was added to Section 1.
[4] Approved on June 22, 1963, entitled "An Act to Amend Republic Act Numbered Fifteen Hundred Sixty-Eight."
[5] Approved on June 17, 1967, entitled, "An Act Amending further Commonwealth Act Numbered One Hundred Eighty-Six, as amended."
[6] Section 1 thereof states: "Republic Act Numbered One thousand five hundred sixty-eight, as amended by Republic Act Numbered Three thousand four hundred seventy-three and Republic Act Numbered Three thousand five hundred ninety-five providing for the pension system for the Auditor General and the Chairman and Members of the Commission on Elections, is hereby re-enacted."
[7] Ortiz v. COMELEC, 245 Phil. 780, 787 (1988).
[8] Rollo, p. 48.
[9] Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 9946, A.M. No. 14061-Ret, June 19, 2012.
[10] Gaminde v. Commission on Audit, 401 Phil. 77, 88 (2000).
[11] Casibang v. Judge Aquino, 181 Phil. 181, 190 (1979).
[12] Supra note 7.
[13] Id. at 788-789.
[14] http://comappt.gov.ph/index.php?id1=2&id2=1&id3=0, viewed on October 25, 2012.
[15] Supra note 7.
[16] Government Service Insurance System v. De Leon, G.R. No. 186560, November 17, 2010, 635 SCRA 321, 330.
[17] Supra note 7.
[18] See Funa v. The Chairman, Commission on Audit, Reynaldo A. Villar, G.R. No. 192791 April 24, 2012.
[19] Cipriano v. Commission on Elections, 479 Phil. 677, 690 (2004).
[20] 460 Phil. 459 (2003).
[21] Id. at 475-476, citing the concurring opinion of Justice Antonio in University of Nueva Caceres v. Hon. Martinez, 155 Phil. 126, 132-133 (1974).
[22] Id.
[23] Namil v. COMELEC, 460 Phil. 751, 759 (2003).
[24] Rollo, pp. 52-67.
[25] Id. at 93.
[26] GSIS, Cebu City Branch v. Montesdaros, 478 Phil. 573, 584 (2004); see also Parreño v. Commission on Audit, GR. No. 162224, June 7, 2007, 523 SCRA 390, 400.
[27] Rollo, p. 236; Petition-In-Intervention, p. 5.