REYES, Nestor A.
Re: Request Exemption from the Application
      of Section 47, CSC MC No. 41, s. 1998;
      Transfer of Leave Credits




            Nestor A. Reyes, Labor Arbiter, National Labor Relations Commission (NLRC)-4th Division, Cebu City seeks exception from the provisions of Section 47 of CSC Memorandum Circular No. 41, s. 1998. Section 47 reads as follows:

            "SEC. 47. Transfer of leave credits. - When an official or employee transfers from one government agency or another, he can either have his accumulated vacation and/or sick leave credits commuted or transferred to his new agency.

            "The second option can be exercised as a matter of right only by an employee who does not have gaps in his service. However, a gap of not more than one month may be allowed provided same is not due to his fault.

            "The option to transfer accumulated leave credits can be exercised within one year (1) only from the employee's transfer to the new agency.

            "This provision is not applicable to transfer of leave credits of uniformed personnel from the military to the civilian service" (Underscoring ours).

            In his request, Reyes presented, as follows:

            "I resigned last July 31, 1998 and was appointed only on February 11, 1999. I had to my credit some 60 days sick/vacation leave credits which I have sought transfer to NLRC by a certification from HRMD Bu. Of Treasury relying on Section 6, Rule XVI of E.O. 292 . . . If the new interpretation of commutate (sic) is to be implemented I would be prejudiced because my new employment at NLRC has a higher salary than the former employment which is only salary grade 22 to that of SG 29.

            "It would certainly be a travesty of justice if the new rule is to be applied working the equitable principle "Law takes retroactive effect if favorable and frowns upon prospective effect which is tantamount to an EX POST FACTO LAW - A LAW that punishes an act in the future but not punishable when committed before.

            "In view thereof, I respectfully request the Honorable Commission for EQUITY and COMPASSION to take exception on my case on the application of MC No. 41, s. 1999 (sic) which works injustice and prejudicial to my case."

            When asked to comment, Rogelio A. Rayala, Chairman, National Labor Relations Commission, interposed no objection to the request of Reyes. Adopting the recommendation of the Head of the Legal and Enforcement Division. NLRC, Rayala stated as follows:

x x x

            ". . . To construe the said CSC rule strictly, and in fact the provisions of the rule is clear and unambiguous, would negate the request of LA Reyes for exemption. However, we should not forget that the Civil Service Law is a social legislation. It is well-settled that social legislations include laws that provide particular kinds of protection or benefits to society or segment thereof in furtherance of social justice --- its ultimate end is the well-being of society in general. In carrying out and interpreting the provisions, rules and regulations of social legislations - the employee's welfare should be the primordial and paramount consideration. An interpretation that should give meaning and substance to the liberal and compassionate spirit of the law must be applied in the case at bar. The policy is to extend applicability to a greater number of employees to enable them to avail of the benefits under the law, in consonance with the State's avowed policy to give maximum aid and protection to the lowly employees --- with more reason to its civil servants, such as LA Reyes (Emphasis supplied).

            "With these in light, it is our honest and firm belief that LA Reyes' request for exemption from the provisions of Section 47 of the CSC MC No. 48 (sic) s. 1998, regarding Transfer of Leave Credits based on equity and compassion should be highly considered and approved by the Honorable Civil Service Commission. His long years in government service from 1972 to 1998 Department of Agrarian Reform (DAR), Land Bank of the Philippines, Office of the City Legal Officer, and Bureau of Treasury), and the sacrifice and burden he underwent, should be given a premium and importance by the State, and not be forsaken and renounced on the grounds of mere "technicality" (Underscoring ours).

            Inasmuch as Reyes had resigned from the Bureau of the Treasury on July 31, 1998 and assumed his post at the NLRC only on February 11, 1999, it is without doubt that there is a gap in his government service. Hence, as a rule, he cannot enjoy the second option provided for in Section 47 of said memorandum circular.

            Nonetheless, Reyes is not left without any remedy. He can still enjoy his accumulated leave credits by claiming the money value of the same from the office where they were earned, in this case, the Bureau of the Treasury. This is explicitly provided for in Section 48 of MC No, 41, s. 1998, which reads as follows:

            "SEC. 48. Remedy when transfer of leave credits is denied. - An official or employee who failed to transfer his leave credits to the new office in line with the provisions in the preceding section, may claim the money value of such leave credits from the office where earned."

            However, considering that the NLRC has no objection and in fact recommended the transfer of the accumulated vacation and/or sick leave credits of Reyes to it, the Commission is inclined to grant the request for exemption of Reyes from the provisions of the above-mentioned provisions of Memorandum Circular No. 41, s. 1998. It is, therefore, understood that in the event of the severance of Reyes' relationship from public service and NLRC will still be his last place of employment, the money value of his accumulated leave credits (from the Bureau of the Treasury and NLRC) will be claimed from the agency.

            Anent the claim of Reyes that the subject provision of MC No. 41, s. 1998 is an ex post facto law, the Commission holds that it is untenable.

            An ex post facto law is one which:

"(1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act;

"(2) aggravates a crime, or makes it greater than it was, when committed;

"(3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed;

"(4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony that the law required at the time of the commission of the offense;

"(5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and

"(6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. 1"

            From the aforesaid definition as well as the classification of ex post facto laws, the constitutional2 inhibition refers only to criminal laws or penal matters which are given retroactive effect and not to laws which concern civil matters or proceedings generally, or which affect or regulate civil or private rights3.

            Thus, on the basis of the foregoing considerations, the challenged section of MC No. 41, s. 1998 is beyond the ambit of the constitutional prohibition on ex post facto law.

            WHEREFORE, the request of Nestor A. Reyes for exemption from the provisions of Section 47 of the CSC Memorandum Circular No. 41, s. 1998, is hereby granted.

            Quezon City, JAN 06 2000




Attested by:

Director III




1 In re: Kay Villegas Kami, Inc., 35 SCRA 429;
   Calder vs. Bull, 3 Dall. 386, Mekin vs.
   Wolfe, 2 Phil. 74.

2 Article III, Section 22, 1987 Constitution of the Philippines

3 Republic vs. Oasan vda. de Fernandez, et al., 99 Phil. 934