Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator.

As
explained earlier, the existence of the provincial administrator position was a prerogative of the
Sanggunian Panlalawigan, and was not even a mandatory public office under the old LGC. It is
clearly not a national government position whose functions are to be devolved to the local
governments.

The dissenting opinion, on the other hand, argues that EO 503 does not apply to national
government employees only. According to the dissent, the phrase "and for related purposes" in EO
503’s title could encompass personnel not necessarily employed by national government agencies
but by local government units such as the administrator, the legal officer and the information officer,
as enumerated in Section 2(a), paragraph 8 thereof. This provision, according to the dissent, fills the
crucial gap left by RA 7160 which did not provide whether the term of an incumbent provincial
administrator would automatically become coterminous with that of the appointing authority upon RA
7160’s effectivity.

This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide
for. The phrase "and for other related purposes" can only add to EO 503 matters related to the
devolution of personnel, basic services and facilities to local government units. The impact of the
change in a local government position’s nature is clearly different from the implementation of
devolution and its ancillary effects: the former involves a change in a local government position’s
functions and concept of tenure, while the latter involves (among other things) the transfer of
national government employees to local government units. This difference is highlighted by the fact
that EO 503, as reflected by its whereas clauses, was issued to implement Section 17 of RA 7160.
In contrast, the change in the nature of the provincial administrator position may be gleaned from
Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase "and for
other related purposes" in EO 503’s title be understood to encompass the consequences of the
change in the local government position’s nature.

Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city,
municipal and/or provincial administrators would result in a legal infirmity. EO 503 was issued
pursuant to the President’s ordinance powers to provide for rules that are general or permanent in
character for the purpose of implementing the President’s constitutional or statutory
powers.41 Exercising her constitutional duty to ensure that all laws are faithfully executed, then
President Corazon Aquino issued EO 503 to ensure the executive’s compliance with paragraph (i),
Section 17 of RA 7160, which requires local government units to absorb the personnel of national
agencies whose functions shall be devolved to them. 42 This is reflected in EO 503’s title and whereas
clauses, and its limited application as discussed earlier.

Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the
Executive usurping a legislative power. The grant of permanent status to incumbent provincial
administrators, despite the clear language and intent of RA 7160 to make the position coterminous,
is an act outside the President’s legitimate powers. The power to create, abolish and modify public
offices is lodged with Congress.43 The President cannot, through an Executive Order, grant
permanent status to incumbents, when Congress by law has declared that the positions they occupy
are now confidential. Such act would amount to the President’s amendment of an act of Congress –
an act that the Constitution prohibits. Allowing this kind of interpretation violates the separation of
powers, a constitutionally enshrined principle that the Court has the duty to uphold. 44

The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys
the legal presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal
presumption of its validity stands. The EO’s validity, however, is not in question in the present case.
What is at issue is a proper interpretation of its application giving due respect to the principle of
separation of powers, and the dissenting opinion’s interpretation does violence to this principle.

Gonzales has security of tenure, but only as a primarily confidential employee

To be sure, both career and non-career service employees have a right to security of tenure.  All1âwphi1

permanent officers and employees in the civil service, regardless of whether they belong to the
career or non-career service category, are entitled to this guaranty; they cannot be removed from
office except for cause provided by law and after procedural due process. 45 The concept of security
of tenure, however, labors under a variation for primarily confidential employees due to the basic
concept of a "primarily confidential" position. Serving at the confidence of the appointing authority,
the primarily confidential employee’s term of office expires when the appointing authority loses trust
in the employee. When this happens, the confidential employee is not "removed" or "dismissed" from
office; his term merely "expires"46 and the loss of trust and confidence is the "just cause" provided by
law that results in the termination of employment. In the present case where the trust and confidence
has been irretrievably eroded, we cannot fault Governor Pimentel’s exercise of discretion when he
decided that he could no longer entrust his confidence in Gonzales.

Security of tenure in public office simply means that a public officer or employee shall not be
suspended or dismissed except for cause, as provided by law and after due process. It cannot be
expanded to grant a right to public office despite a change in the nature of the office held. In other
words, the CSC might have been legally correct when it ruled that the petitioner violated Gonzales’
right to security of tenure when she was removed without sufficient just cause from her position, but
the situation had since then been changed. In fact, Gonzales was reinstated as ordered, but her
services were subsequently terminated under the law prevailing at the time of the termination of her
service; i.e., she was then already occupying a position that was primarily confidential and had to be
dismissed because she no longer enjoyed the trust and confidence of the appointing authority. Thus,
Gonzales’ termination for lack of confidence was lawful. She could no longer be reinstated as
provincial administrator of Camarines Norte or to any other comparable position. This conclusion,
however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and
future employment in government service.

WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET
ASIDE the Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court
of Appeals in CAG.R. SP No. 97425.

SO ORDERED.