PUBLIC CORPORATION SET 7 MARY CONCEPCION BAUTISTA vs. SENATOR JOVITO R. SALONGA G.R. No.

86439, April 13, 1989.........................................................................................................................................................2 DR. EMIGDIO A. BONDOC vs.REPRESENTATIVES MARCIANO M. PINEDA et.al G.R. No. 97710, September 26, 1991.................................................................................................................................6 REPUBLIC OF THE PHILIPPINES vs. HONORABLE DOMINGO IMPERIAL G.R. No. L-8684, March 31, 1955.................................................................................................................................................10 DENNIS A. B. FUNA vs. THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, G.R. No. 192791 April 24, 2012.....................................................................................................................12 THELMA P. GAMINDE vs. COMMISSION ON AUDIT [G. R. No. 140335, December 13, 2000].........17 Primarily Confidential Positions...............................................................................................................20 MEDARDO AG. CADIENTE vs. LUIS T. SANTOS(G.R. No. L-35592 ,June 11, 1986)........................20 HONORABLE SIMPLICIO C. GRIO vs. CIVIL SERVICE COMMISSION G.R. No. 91602, February 26, 1991.................................................................................................................................................20 ROSALINDA DE PERIO SANTOS vs. EXECUTIVE SECRETARY CATALINO MACARAIG G.R. No 94070, April 10, 1992.............................................................................................................................22

Dont worry about tomorrow. It will take care of itself. You have enough to worry about today. Matthew 6: 34 CEV

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Term of Office vs. Tenure of Incumbent absent in the Mison case makes necessary a closer scrutiny. The facts are therefore essential.

MARY CONCEPCION BAUTISTA vs. SENATOR JOVITO R. SALONGA G.R. No. 86439, April 13, 1989 The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of which appointments by the President, under the 1987 Constitution, are to be made with and without the review of the Commission on Appointments. The Mison case was the first major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution which provides: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's experience under the 1935 and 1973 Constitutions, held that only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution." All other appointments by the President are to be made without the participation of the Commission on Appointments. Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid and in accordance with the Constitution. The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect and obedience accorded to it by the people, especially the officials of government, who are the subjects of its commands. Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or not the appointment by the President of the Chairman of the Commission on Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on Appointments (CA, for brevity). Once more, as in Mison, the Court will resolve the issue irrespective of the parties involved in the litigation, mindful that what really matters are the principles that will guide this Administration and others in the years to come. Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the (CHR), is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the President with the consent of the Commission on Appointments. 2 The President appoints the Chairman and Members of the Commission on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the Commission on Human Rights. It provides: (c) The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. The above conclusions appear to be plainly evident and, therefore, irresistible. However, the presence in this case of certain elements

On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion Bautista as "Acting Chairman, Commission on Human Rights." The letter of designation reads: 27 August 1987

M a d a m: You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes. Very truly yours, CORAZON C. AQUINO HON. MARY CONCEPCION BAUTISTA 3 Realizing perhaps the need for a permanent chairman and members of the Commission on Human Rights, befitting an independent office, as mandated by the Constitution, 4 the President of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent appointment as Chairman of the Commission. The appointment letter is as follows: 17 December 1988 The Honorable The Chairman Commission on Human Rights Pasig, Metro Manila M a d a m: Pursuant to the provisions of existing laws, the following are hereby appointed to the positions indicated opposite their respective names in the Commission on Human Rights: MARY CONCEPCION BAUTISTA ABELARDO L. APORTADERA, JR SAMUEL SORIANO Member HESIQUIO R. MALLILLIN Member NARCISO C. MONTEIRO Member By virtue hereof, they may qualify and enter upon the performance of the duties of the office furnishing this Office and the Civil Service Commission with copies of their oath of office. Very truly yours, CORAZON C. AQUINO 5 It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she could qualify and enter upon the performance of the duties of the office of Chairman of the Commission on Human Rights, requiring her to furnish the office of the President and the Civil Service Commission with copies of her oath of office. On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of the oath of office is as follows: OATH OF OFFICE I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati, Metro Manila having been appointed to Chairman Member

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the position of CHAIRMAN of the Commission on Human Rights, do solemnly swear that I will discharge to the best of my ability all the duties and responsibilities of the office to which I have been appointed; uphold the Constitution of the Republic of the Philippines, and obey all the laws of the land without mental reservation or purpose of evasion. SO HELP ME GOD. MARY CONCEPCION BAUTISTA SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, 1988 in Manila. MARCELO B. FERNAN Chief Justice Supreme Court of the Philippines 6 Immediately, after taking her oath of office as Chairman of the Commission on Human Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman of the Commission on Human Rights which, as previously stated, she had originally held merely in an acting capacity beginning 27 August 1987. On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on Appointments requesting her to submit to the Commission certain information and documents as required by its rules in connection with the confirmation of her appointment as Chairman of the Commission on Human Rights. 7 On 10 January 1989, the Commission on Appointments' Secretary again wrote petitioner Bautista requesting her presence at a meeting of the Commission on Appointments Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman of the Commission on Human Rights. 8 On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments stating, for the reasons therein given, why she considered the Commission on Appointments as having no jurisdiction to review her appointment as Chairman of the Commission on Human Rights. The petitioner's letter to the Commission on Appointments' Chairman reads: January 13, 1 989 SENATE PRESIDENT JOVITO R. SALONGA Chairman Commission on Appointments Senate, Manila S i r: We acknowledge receipt of the communication from the Commission on Appointments requesting our appearance on January 19, 1989 for deliberation on our appointments. We respectfully submit that the appointments of the Commission commissioners of the Human Rights Commission are not subject to confirmation by the Commission on Appointments. The Constitution, in Article VII Section 16 which expressly vested on the President the appointing power, has expressly mentioned the government officials whose appointments are subject to the confirmation of the Commission on Appointments of Congress. The Commissioners of the Commission on Human Rights are not included among those. Where the confirmation of the Commission on Appointments is required, as in the case of the Constitutional Commissions such as the Commission on Audit, Civil Service Commission and the Commission on Elections, it was expressly provided that the nominations will be subject to confirmation of Commission on Appointments. The exclusion again of the Commission on Human Rights, a constitutional office, from this enumeration is a clear denial of authority to the Commission on Appointments to review our appointments to the Commission on Human Rights. S i r: HON. CATALINO MACARAIG, JR. Executive Secretary Malacanang, Manila a. must investigate all forms of human rights violations involving civil and political rights;

b. shall monitor the government's compliance in all our treaty obligations on human rights. We submit that, the monitoring of all agencies of government, includes even Congress itself, in the performance of its functions which may affect human rights; c. may call on all agencies of government for the implementation of its mandate.

The powers of the Commission on Appointments is in fact a derogation of the Chief Executive's appointing power and therefore the grant of that authority to review a valid exercise of the executive power can never be presumed. It must be expressly granted. The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the President of Commissioners of the Commission on Human Rights. In view of the foregoing considerations, as Chairman of an independent constitutional office. I cannot submit myself to the Commission on Appointments for the purpose of confirming or rejecting my appointment. Very truly yours, MARY CONCEPCION BAUTISTA Chairman 9 In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights" 10 and informing Secretary Macaraig that, as previously conveyed to him in a letter of 25 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. The letter reads:

1 February 1989

This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights. As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments, assembled in plenary (session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. This is to inform you that the Commission on Appointments, likewise assembled in plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights. Very truly yours, RAOUL V. VICTORINO Secretary 11

Furthermore, the Constitution specifically provides that this Commission is an independent office which: On the same date (1 February 1989), the Commission on Appointments' Secretary informed petitioner Bautista that the motion for

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reconsideration of the disapproval of her "ad interim appointment as Chairman of the Commission on Human Rights" was denied by the Commission on Appointments. The letter reads as follows:

reorganization and other similar personnel actions. 17 Respondents were likewise required to comment on said amended petition with allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof. Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed her reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court required petitioner to reply to respondent Mallillin's comment . 21 Petitioner filed her reply. 22 In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal branch of government, the Court did not issue a temporary restraining order directed against it. However, this does not mean that the issues raised by the petition, as met by the respondents' comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter of constitutional issues, in the same way that it did not in Mison. As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was extended by Her Excellency, the President a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that was for the President solely to make, i.e., not an appointment to be submitted for review and confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated. The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by taking the oath of office and actually assuming and discharging the functions and duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent Commission on Appointments or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for confirmation by the Commission on Appointments.

1 February 1989 ATTY. MARY CONCEPCION BAUTISTA Commission on Human Rights Integrated Bar of the Philippines Bldg. Pasig, Metro Manila Dear Atty. Bautista: Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the Commission on Appointments, assembled in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval of your ad interim appointment as Chairperson of the Commission on Human Rights is respectfully conveyed. Thank you for your attention. Very truly yours, RAOUL V. VICTORINO Secretary 12 In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission" pending the resolution of Bautista's case which had been elevated to the Supreme Court. The news item is here quoted in full, thus Aquino names replacement for MaryCon President Aquino has named replacement for Presidential Commission on Human Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew by the Congressional commission on appointments. The President designated PCHR commissioner Hesiquio R. Mallillin as acting chairman of the Commission pending the resolution of Bautista's case which had been elevated to the Supreme Court. The President's action followed after Congressional Commission on Appointments Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on to her position after her appointment was not confirmed for the second time. For all practical purposes, Salonga said Bautista can be accused of usurpation of authority if she insists to stay on her office. In effect, the President had asked Bautista to vacate her office and give way to Mallillin (Mari Villa) 13 On 20 January 1989, or even before the respondent Commission on Appointments had acted on her "ad interim appointment as Chairman of the Commission on Human Rights" petitioner Bautista filed with this Court the present petition for certiorari with a prayer for the immediate issuance of a restraining order, to declare "as unlawful and unconstitutional and without any legal force and effect any action of the Commission on Appointments as well as of the Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman of the Commission on Human Rights, on the ground that they have no lawful and constitutional authority to confirm and to review her appointment." 14 The prayer for temporary restraining order was "to enjoin the respondent Commission on Appointments not to proceed further with their deliberation and/or proceedings on the appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc. issued in the course of their deliberations." 15 Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner filed an amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and praying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to exercise the functions of chairman and to refrain from demanding courtesy resignations from officers or separating or dismissing employees of the Commission. Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issue a temporary restraining order directing respondent Mallillin to cease and desist from effecting the dismissal, courtesy resignation, i removal and

The Court, with all due respect to both the Executive and Legislative Departments of government, and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could qualify and enter upon the performance of the duties of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission on Human Rights was a completed act on the part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23 xxx xxx xxx

The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him. xxx xxx xxx

Some point of time must be taken when the power of the executive over an officer, not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. .... xxx xxx xxx

But having once made the appointment, his (the President's) power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. xxx xxx xxx

THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989 It is respondent Commission's submission that the President, after the appointment of 17 December 1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic

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and in fact, that no new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee, through a valid qualification and assumption of its duties. Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such appointment to the Commission on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that the President (with Congress agreeing) may, from time to time move power boundaries, in the Constitution differently from where they are placed by the Constitution. The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with, is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create power where the Constitution confers none. The evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the President and Congress (the latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked off certain appointments for the President to make with the participation of the Commission on Appointments, so also has the Constitution mandated that the President can confer no power of participation in the Commission on Appointments over other appointments exclusively reserved for her by the Constitution. The exercise of political options that finds no support in the Constitution cannot be sustained. Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review presidential appointments, create power to confirm appointments that the Constitution has reserved to the President alone. Stated differently, when the appointment is one that the Constitution mandates is for the President to make without the participation of the Commission on Appointments, the executive's voluntary act of submitting such appointment to the Commission on Appointments and the latter's act of confirming or rejecting the same, are done without or in excess of jurisdiction. EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989 Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the Commission on Appointments to exercise the power of review over an appointment otherwise solely vested by the Constitution in the President. Yet, as already noted, when the President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human Rights with the advice to her that by virtue of such appointment (not, until confirmed by the Commission on Appointments), she could qualify and enter upon the performance of her duties after taking her oath of office, the presidential act of appointment to the subject position which, under the Constitution, is to be made, in the first place, without the participation of the Commission on Appointments, was then and there a complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said office to this day. Nor can respondents impressively contend that the new appointment or re-appointment on 14 January 1989 was an ad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments solely for the President to make, i.e., without the participation of the Commission on Appointments. Ad interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are for the President solely to make, that is, without the participation of the Commission on Appointments, can not be ad interim appointments. EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL. Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's appointment (nomination) by the Commission on Appointments, there was greater reason for her removal by the President and her replacement with respondent Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and academic. We do not agree that the petition has become moot and academic. To insist on such a posture is akin to deluding oneself that day is night just because the drapes are drawn and the lights are on. For, aside from the substantive questions of constitutional law raised by

petitioner, the records clearly show that petitioner came to this Court in timely manner and has not shown any indication of abandoning her petition. Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as follows: WHEREAS, the Constitution does not prescribe the term of office of the Chairman and Members of the Commission on Human Rights unlike those of other Constitutional Commissions; NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order: SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows:

The Chairman and Members of the Commission on Human Rights shall be appointed by the President. Their tenure in office shall be at the pleasure of the President. SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eighty-seven. (Sgd.) CORAZON C. AQUINO President of the Philippines By the President: (Sgd.) JOKER P. ARROYO Executive Secretary 24 Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was issued by the President, Sec. 2(c) of which provides: Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointments to any vacancy shall be only for the unexpired term of the predecessor. It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the Chairman and Members of the Commission on Human Rights which is seven (7) years without reappointment the later executive order (163-A) speaks of the tenure in office of the Chairman and Members of the Commission on Human Rights, which is "at the pleasure of the President." Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated: The distinction between "term" and "tenure" is important, for, pursuant to the Constitution, "no officer or employee in the Civil Service may be removed or suspended except for cause, as provided by law" (Art. XII, section 4), and this fundamental principle would be defeated if Congress could legally make the tenure of some officials dependent upon the pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the expiration of his term. 27 When Executive Order No. 163 was issued, the evident purpose was to comply with the constitutional provision that "the term of office and other qualifications and disabilities of the Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution). As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven (7) years, without reappointment, as provided by Executive Order No. 163, and consistent with the constitutional design to give the Commission the needed independence to perform and accomplish its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made dependent on the pleasure of the President. Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman and Members of the Commission on Human Rights shall have a "term of office." Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent as the Commission on Human Rights-and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with

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independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional. The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its being plainly at war with the constitutional intent of independence for the Commission. Thus MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be constitutionalized is the fact that regardless of who is the President or who holds the executive power, the human rights issue is of such importance that it should be safeguarded and it should be independent of political parties or powers that are actually holding the reins of government. Our experience during the martial law period made us realize how precious those rights are and, therefore, these must be safeguarded at all times. xxx xxx xxx MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of the Commission on Human Rights to be coterminous with the president, because the President's power is such that if he appoints a certain commissioner and that commissioner is subject to the President, therefore, any human rights violations committed under the person's administration will be subject to presidential pressure. That is what we would like to avoid to make the protection of human rights go beyond the fortunes of different political parties or administrations in power. 28 xxx xxx xxx MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an independent Commission on Human Rights free from executive influence because many of the irregularities on human rights violations are committed by members of the armed forces and members of the executive branch of the government. So as to insulate this body from political interference, there is a need to constitutionalize it. 29 xxx xxx xxx MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I would refer to a previous inquiry that there is still a need for making this a constitutional body free or insulated from interference. I conferred with former Chief Justice Concepcion and the acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in saying that this body should be constitutionalized so that it will be free from executive control or interferences, since many of the abuses are committed by the members of the military or the armed forces. 30 xxx xxx xxx MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to Congress, this commission will be within the reach of politicians and of public officers and that to me is dangerous. We should insulate this body from political control and political interference because of the nature of its functions to investigate all forms of human rights violations which are principally committed by members of the military, by the Armed Forces of the Philippines. 31 xxx xxx xxx MR. GARCIA. The critical factor here is political control, and normally, when a body is appointed by Presidents who may change, the commission must remain above these changes in political control. Secondly, the other important factor to consider are the armed forces, the police forces which have tremendous power at their command and, therefore, we would need a commission composed of men who also are beyond the reach of these forces and the changes in political administration. 32 xxx xxx xxx MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to function effectively, must be invested with an independence that is necessary not only for its credibility but also for the effectiveness of its work. However, we want to make a distinction in this Constitution. May be what happened was that it was referred to the wrong committee. In the opinion of the committee, this need not be a commission that is similar to the three constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be in that article. 33 xxx xxx xxx MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is not involved in the project. How sure are we that the next President of the Philippines will be somebody we can trust? Remember, even now there is a growing concern about some of the bodies, agencies and commission created by President Aquino. 34 xxx xxx xxx .... Leaving to Congress the creation of the Commission on Human Rights is giving less importance to a truly fundamental need to set up a body that will effectively enforce the rules designed to uphold human rights. 35 PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17 December 1988, and her acceptance thereof, is not to say that she

cannot be removed from office before the expiration of her seven (7) year term. She certainly can be removed but her removal must be for cause and with her right to due process properly safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file employee of the NASECO, a government-owned corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights. If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed against her with the Ombudsman. If he finds a prima facie case against her, the corresponding information or informations can be filed with the Sandiganbayan which may in turn order her suspension from office while the case or cases against her are pending before said court. 37 This is due process in action. This is the way of a government of laws and not of men. A FINAL WORD It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the Commission on Human Rights (pending decision in this case) instead of appointing another permanent Chairman. The latter course would have added only more legal difficulties to an already difficult situation. WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled to all the benefits, privileges and emoluments of said office. The temporary restraining order heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or terminating personnel of the Commission on Human Rights is made permanent. SO ORDERED.

D DR. EMIGDIO A. BONDOC vs.REPRESENTATIVES MARCIANO M. PINEDA et.al G.R. No. 97710, September 26, 1991 v This case involves a question of power. May the House of Representatives, at the request of the dominant political party therein, change that party's representation in the House Electoral Tribunal to thwart the promulgation of a decision freely reached by the tribunal in an election contest pending therein? May the Supreme Court review and annul that action of the House? Even the Supreme Court of the United States over a century ago, in Marbury vs. Madison, 2 L. ed. 60 (1803), had hesitated to embark upon a legal investigation of the acts of the other two branches of the Government, finding it "peculiarly irksome as well as delicate" because it could be considered by some as "an attempt to intrude" into the affairs of the other two and to intermeddle with their prerogatives. In the past, the Supreme Court, as head of the third and weakest branch of our Government, was all too willing to avoid a political confrontation with the other two branches by burying its head ostrich-like in the sands of the "political question" doctrine, the accepted meaning of which is that 'where the matter involved is left to a decision by the people acting in their sovereign capacity or to the sole determination by either or both the legislative or executive branch of the government, it is beyond judicial cognizance. Thus it was that in suits where the party proceeded against was either the President or Congress, or any of its branches for that matter, the courts refused to act." (Aquino vs. Ponce Enrile, 59 SCRA 183, 196.) In time, however, the duty of the courts to look into the constitutionality and validity of legislative or executive action, especially when private rights are affected came to be recognized. As we pointed out in the celebrated Aquino case, a showing that plenary power is granted either department of government may not be an obstacle to judicial inquiry, for the improvident exercise or the abuse thereof may give rise to a justiciable controversy. Since "a constitutional grant of authority is not usually unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political. The duty remains to assure that the supremacy of the Constitution is upheld" (Aquino vs. Ponce Enrile, 59 SCRA 183, 196). That duty is a part of the judicial power vested in the courts by an express grant under Section 1, Article VIII of the 1987 Constitution of the Philippines which defines judicial power as both authority and duty of the courts 'to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The power and duty of the courts to nullify in appropriate cases, the actions of the executive and legislative branches of the Government, does not mean that the courts are superior to the President and the Legislature. It does mean though that the judiciary may not shirk "the irksome task" of inquiring into the constitutionality and legality of legislative or executive action when a

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justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such action, as in this case. It is a plain exercise of the judicial power, that power vested in courts to enable them to administer justice according to law. ... It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law. (Vera vs. Avelino, 77 Phil. 192, 203.) In the local and congressional elections held on May 11, 1987, Marciano M. Pineda of the Laban ng Demokratikong Pilipino (LDP) and Dr. Emigdio A. Bondoc of the Nacionalista Party (NP) were rival candidates for the position of Representative for the Fourth District of the province of Pampanga. Each received the following votes in the canvass made by the Provincial Board of Canvassers of Pampanga: Marciano M. Pineda.................... 31,700 votes Emigdio A. Bondoc..................... 28,400 votes Difference...................................... 3,300 votes On May 19, 1987, Pineda was proclaimed winner in the election. In due time, Bondoc filed a protest (HRET Case No. 25) in the House of Representatives Electoral Tribunal ( for short) which is composed of nine (9) members, three of whom are Justices of the Supreme Court and the remaining six are members of the House of Representatives chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein (Sec. 17, Art. VI, 1987 Constitution) as follows: AMEURFINA M. HERRERA Associate Justice Supreme Court ISAGANI A. CRUZ Member Associate Justice Supreme Court FLORENTINO P. FELICIANO Associate Justice Supreme Court HONORATO Y. AQUINO Congressman 1st District Benguet LDP DAVID A. PONCE DE LEON Congressman 1st District Palawan LDP SIMEON E. GARCIA, JR. Congressman 2nd District Nueva Ecija LDP JUANITO G. CAMASURA, JR. Congressman 1st District Davao del Sur LDP JOSE E. CALINGASAN Congressman 4th District Batangas LDP ANTONIO H. CERILLES Congressman 2nd District Zamboanga del Sur (formerly GAD, now NP) After the revision of the ballots, decision in July, 1989. Chairman

By October 1990, a decision had been reached in which Bondoc won over Pineda by a margin of twenty-three (23) votes. At that point, the LDP members in the Tribunal insisted on a reappreciation and recount of the ballots cast in some precincts, thereby delaying by at least four (4) months the finalization of the decision in the case. The reexamination and re-appreciation of the ballots resulted in increasing Bondoc's lead over Pineda to 107 votes. Congressman Camasura voted with the Supreme Court Justices and Congressman Cerilles to proclaim Bondoc the winner of the contest. Moved by candor and honesty, Congressman Camasura revealed on March 4, 1991, to his 'Chief," Congressman Jose S. Cojuangco, Jr., LDP Secretary General, not only the final tally in the Bondoc case but also that he voted for Bondoc "consistent with truth and justice and self- respect," and to honor a "gentlemen's agreement" among the members of the HRET that they would "abide by the result of the appreciation of the contested ballot 1 Congressman Camasura's revelation stirred a hornets' nest in the LDP which went into a flurry of plotting appropriate moves to neutralize the pro-Bondoc majority in the Tribunal. On March 5, 1991, the HRET issued a Notice of Promulgation of Decision on March 14, 1991 at 2:30 P.M. in HRET Case No. 25. A copy of the notice was received by Bondoc's counsel on March 6, 1991. On March 13, 1991, the eve of the promulgation of the Bondoc decision, Congressman Cojuangco informed Congressman Camasura by letter 2 that on February 28, 1991 yet, the LDP Davao del Sur Chapter at Digos, Davao del Sur, by Resolution No. 03-91 had already expelled him and Congressman Benjamin Bautista from the LDP for having allegedly helped to organize the Partido Pilipino of Eduardo "Danding" Cojuangco, and for allegedly having invited LDP members in Davao del Sur to join said political party; and that as those acts are "not only inimical uncalled for, unethical and immoral, but also a complete betrayal to (sic) the cause and objectives, and loyalty to LDP," in a meeting on March 12, 1991, the LDP Executive Committee unanimously confirmed the expulsions. 3 At the same time, Congressman Cojuangco notified Speaker Ramon V. Mitra about the ouster of the two congressmen from the LDP, and asked the House of Representatives, through the Speaker, to take note of it 'especially in matters where party membership is a prerequisite. 4

Member Member

At 9:45 in the morning of March 4, 1991, the Chairman of the Tribunal, Mme. Justice Armeurfina M. Herrera, received the following letter dated March 13, 1991, from the Office of the Secretary General of the House of Representatives, informing the Tribunal that on the basis of the letter from the LDP, the House of Representatives, during its plenary session on March 13, 1991, decided to withdraw the nomination and rescind the election of Congressman Camasura, Jr. to the House of Electoral Tribunal. The letter reads as follows: 13 March 1991 Honorable Justice Ameurfina Melencio-Herrera Chairman

Member

House of Representatives Electoral Tribunal Constitution Hills Quezon City Dear Honorable Justice Melencio-Herrera:

Member

I have the honor to notify the House of Electoral Tribunal of the decision of the House of Representatives during its plenary session on 13 March 1991, to withdraw the nomination and to rescind the election of the Honorable Juanito G. Camasura, Jr. to the House Electoral Tribunal on the basis of an LDP communication which is self-explanatory and copies of which are hereto attached. Thank you. For the Secretary-General (SGD.) Josefina D. Azarcon Officer-in-charge Operations Department (p. 10, Rollo.)

Member

Member

Justices Herrera, Cruz, and Feliciano promptly apprised the Chief Justice and Associate Justices of the Supreme Court in writing, of this "distressing development' and asked to be relieved from their assignments in the HRET because By the above action (of the House) the promulgation of the decision of the Tribunal in the electoral protest entitled "Bondoc v. Pineda" (HRET Case No. 25), previously scheduled for 14 March 1991, is sought to be aborted (See the Consolidated Bank and Trust Corporation v. Hon. Intermediate Appellate Court, G.R. No. 73777-78 promulgated 12 September 1990). Even if there were no legal impediment to its promulgation, the decision which was reached on a 5 to 4 vote may now be confidently expected to be overturned on a motion for reconsideration by the party-litigant which would have been defeated. The decision in Bondoc v. Pineda was ready as early as October 1990 with a margin of 23 votes in favor of protestant Bondoc. Because some members of the Tribunal requested re-appreciation of some ballots, the finalization of the decision had to be deferred by at least 4 months.

Member

the presentation of evidence, and submission of memoranda, Bondoc's protest was submitted for

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With the re-appreciation completed, the decision, now with a margin of 107 votes in favor of protestant Bondoc, and concurred in by Justices Ameurfina A. Melencio-Herrera, Isagani A. Cruz and Florentino P. Feliciano, and Congressmen Juanita G. Camasura and Antonio H. Cerilles, is set for promulgation on 14 March 1991, with Congressmen Honorato Y. Aquino, David A. Ponce de Leon Simeon E. Garcia, Jr. and Jose E. Calingasan, dissenting. Congressman Casamura's vote in the Bondoc v. Pineda case was, in our view, a conscience vote, for which he earned the respect of the Tribunal but also the loss of the confidence of the leader of his party. Under the above circumstances an untenable situation has come about. It is extremely difficult to continue with membership in the Tribunal and for the Tribunal to preserve it. 8 integrity and credibility as a constitutional body charged with a judicial task. It is clear to us that the unseating of an incumbent member of Congress is being prevented at all costs. We believe that the Tribunal should not be hampered in the performance of its constitutional function by factors which have nothing to do with the merits of the cases before it. In this connection, our own experience teaches that the provision for proportional representation in the Tribunal found in Article VI, Section 17 of the 1987 Constitution, should be amended to provide instead for a return to the composition mandated in the 1935 Constitution, that is: three (3) members chosen by the House or Senate upon nomination of the party having the largest number of votes and three (3) of the party having the second largest number of votes: and a judicial component consisting of three (3) justices from the Supreme Court. Thereby, no party or coalition of parties can dominate the legislative component in the Tribunal. In the alternative, the Senate Electoral Tribunal could perhaps sit as the sole judge of all contests relating to the election, returns and qualifications of members of the House of Representatives. Similarly, the House of Representatives Electoral Tribunal could sit as the sole judge of all such contests involving members of the Senate. In this way, there should be lesser chances of non-judicial elements playing a decisive role in the resolution of election contests. We suggest that there should also be a provision in the Constitution that upon designation to membership in the Electoral Tribunal, those so designated should divest themselves of affiliation with their respective political parties, to insure their independence and objectivity as they sit in Tribunal deliberations. There are only three (3) remaining cases for decision by the Tribunal. Bondoc should have been promulgated today, 14 March 1991. Cabrera v. Apacible (HRET Case No. 21) is scheduled for promulgation on 31 March 1991 and Lucman v. Dimaporo (HRET Case No. 45), after the Holy Week recess. But political factors are blocking the accomplishment of the constitutionally mandated task of the Tribunal well ahead of the completion of the present congressional term. Under these circumstances, we are compelled to ask to be relieved from the chairmanship and membership in the Tribunal. xxx xxx xxx At the open session of the HRET in the afternoon of the same day, the Tribunal issued Resolution No. 91-0018 cancelling the promulgation of the decision in HRET Case No. 25. The resolution reads: In view of the formal notice the Tribunal has received at 9:45 tills morning from the House of Representatives that at its plenary session held on March 13, 1991, it had voted to withdraw the nomination and rescind the election of Congressman Camasura to the House of Representatives Electoral Tribunal,' the Tribunal Resolved to cancel the promulgation of its Decision in Bondoc vs. Pineda (HRET Case No. 25) scheduled for this afternoon. This is because, without Congressman Camasura's vote, the decision lacks the concurrence of five members as required by Section 24 of the Rules of the Tribunal and, therefore, cannot be validly promulgated. The Tribunal noted that the three (3) Justices-members of the Supreme Court, being of the opinion that this development undermines the independence of the Tribunal and derails the orderly adjudication of electoral cases, they have asked the Chief Justice, in a letter of even date, for their relief from membership in the Tribunal. The Tribunal further Noted that Congressman Cerilles also manifested his intention to resign as a member of the Tribunal. The Tribunal further Noted that Congressmen Aquino, Ponce de Leon, Garcia, Jr., and Calingasan also manifested a similar intention. (p. 37, Rollo.) On March 19, 1991, this Court, after deliberating on the request for relief of Justices Herrera, Cruz and Feliciano, resolved to direct them to return to their duties in the Tribunal. The Court observed that: ... in view of the sensitive constitutional functions of the Electoral Tribunals as the 'sole judge' of all contests relationship to the

election, returns and qualifications of the members of Congress, all members of these bodies are appropriately guided only by purely legal considerations in the decision of the cases before them and that in the contemplation of the Constitution the memberslegislators, thereof, upon assumption of their duties therein, sit in the Tribunal no longer as representatives of their respective political parties but as impartial judges. The view was also submitted that, to further bolster the independence of the Tribunals, the term of office of every member thereof should be considered co-extensive with the corresponding legislative term and may not be legally terminated except only by death, resignation, permanent disability, or removal for valid cause, not including political disloyalty. ACCORDINGLY, the Court Resolved: a) to DECLINE the request of justices Herrera, Cruz, and Feliciano to be relieved from their membership in the House of Representatives Electoral Tribunal and instead to DIRECT them to resume their duties therein: b) to EXPRESS its concern over the intrusion of non-judicial factors in the proceedings of the House of Representatives Electoral Tribunal, which performs functions purely judicial in character despite the inclusion of legislators in its membership; and c) to NOTE the view that the term of all the members of the Electoral Tribunals, including those from the legislature, is co-extensive with the corresponding legislative term and cannot be terminated at will but only for valid legal cause, and to REQUIRE the Justices-members of the Tribunal to submit the issue to the said Tribunal in the first instance. Paras J. filed this separate concurring opinion: 'I concur, but I wish to add that Rep. Camasura should be allowed to cast his original vote in favor of protestant Bondoc, otherwise a political and judicial travesty will take place.' Melencio-Herrera, Cruz and Feliciano, JJ., took no part. Gancayco, J., is on leave. On March 21, 1991, a petition for certiorari, prohibition and mandamus was filed by Dr. Emigdio A. Bondoc against Representatives Marciano M. Pineda, Magdaleno M. Palacol, Juanita G. Camasura, Jr., or any other representative who may be appointed Vice Representative Juanita G. Camasura, Jr., and the House of Representatives Electoral Tribunal, praying this Court to: 1. Annul the decision of the House of Representatives of March 13, 1991, 'to withdraw the nomination and to rescind the nomination of Representative Juanita G. Camasura, Jr. to the House of Representatives Electoral Tribunal;" 2. Issue a wilt of prohibition restraining respondent Palacol or whomsoever may be designated in place of respondent Camasura from assuming, occupying and discharging functions as a member of the House of Representatives Electoral Tribunal; 3. Issue a writ of mandamus ordering respondent Camasura to immediately reassume and discharge his functions as a member of the House of Representatives Electoral Tribunal; and 4. Grant such other relief as may be just and equitable. Upon receipt of the petition, the Court, without giving it due course, required the respondents to comment 5 on the petition within ten days from notice and to enjoin the HRET 'from reorganizing and allowing participation in its proceedings of Honorable Magdaleno M. Palacol or whoever is designated to replace Honorable Juanita G. Camasura in said House of Representatives Electoral Tribunal, until the issue of the withdrawal of the nomination and rescission of the election of said Congressman Camasura as member of the HRET by the House of Representatives is resolved by this Court, or until otherwise ordered by the Court." (p. 39, Rollo.) Congressman Juanito G. Camasura, Jr. did not oppose the petition. Congressman Marciano M. Pineda's plea for the dismissal of the petition is centered on Congress' being the sole authority that nominates and elects from its members. Upon recommendation by the political parties therein, those who are to sit in the House of Representatives Electoral Tribunal (and in the Commission on Appointments as well), hence, it allegedly has the sole power to remove any of them whenever the ratio in the representation of the political parties in the House or Senate is materially changed on account of death, incapacity, removal or expulsion from the political party; 6 that a Tribunal member's term of office is not coextensive with his legislative term, 7 for if a member of the Tribunal who changes his party affiliation is not removed from the Tribunal, the constitutional provision mandating representation based on political affiliation would be completely nullified; 8 and that the expulsion of Congressman Camasura from the LDP, is "purely a party affair" of the LDP 9 and the decision to rescind his membership in the House Electoral Tribunal is the sole prerogative of the House-of-Representative Representatives, hence, it is a purely political question beyond the reach of judicial review. 10 In his comment, respondent Congressman Magdaleno M. Palacol alleged that the petitioner has no cause of action against him because he has not yet been nominated by the LDP for membership in the HRET. 11 Moreover, the petition failed to implead the House of Representatives as an indispensable party for it was the House, not the HRET that withdrew and rescinded Congressman Camasura's membership in the HRET. 12 The Solicitor General, as counsel for the Tribunal, argued in a similar vein; that the inclusion of the HETH as a party respondent is erroneous because the petition states no cause of action against the Tribunal. The petitioner does not question any act or order of the HRET in violation of his rights. What he assails is the act of the House of Representatives of withdrawing the nomination, and

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rescinding the election, of Congressman Juanita nito Camasura as a member of the HRET. 13 Replying to the Solicitor General's Manifestation, the petitioner argued that while the Tribunal indeed had nothing to do with the assailed decision of the House of Representatives, it acknowledged that decision by cancelling the promulgation of its decision in HRET Case No. 25 to his (Bondoc's) prejudice. 14 Hence, although the Tribunal may not be an indispensable party, it is a necessary party to the suit, to assure that complete relief is accorded to the petitioner for "in the ultimate, the Tribunal would have to acknowledge, give recognition, and implement the Supreme Court's decision as to whether the relief of respondent Congressman Camasura from the Office of the Electoral Tribunal is valid." 15 In his reply to Congressman Palacol's Comment, the petitioner explained that Congressman Palacol was impleaded as one of the respondents in this case because after the House of Representatives had announced the termination of Congressman Camasura's membership in the HETH several newspapers of general circulation reported that the House of Representatives would nominate and elect Congressman Palacol to take Congressman Camasura's seat in the Tribunal. 16 Now, is the House of Representatives empowered by the Constitution to do that, i.e., to interfere with the disposition of an election contest in the House Electoral Tribunal through the ruse of "reorganizing" the representation in the tribunal of the majority party? Section 17, Article VI of the 1987 Constitution supplies the answer to that question. It provides: Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective members, Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Section 17 reechoes Section 11, Article VI of the 1935 Constitution, except the provision on the representation of the main political parties in the tribunal which is now based on proportional representation from all the political parties, instead of equal representation of three members from each of the first and second largest political aggrupations in the Legislature. The 1935 constitutional provision reads as follows: Sec. 11. The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest member of votes therein. The senior Justice in each Electoral Tribunal shall be its Chairman. (1 935 Constitution of the Philippines.) Under the above provision, the Justices held the deciding votes, aid it was impossible for any political party to control the voting in the tribunal. The 1973 Constitution did not provide for an electoral tribunal in the Batasang Pambansa. The use of the word "sole" in both Section 17 of the 1987 Constitution and Section 11 of the 1935 Constitution underscores the exclusive jurisdiction of the House Electoral Tribunal as judge of contests relating to the election, returns and qualifications of the members of the House of Representatives (Robles vs. House of Representatives Electoral Tribunal, G.R. No. 86647, February 5, 1990). The tribunal was created to function as a nonpartisan court although two-thirds of its members are politicians. It is a nonpolitical body in a sea of politicians. What this Court had earlier said about the Electoral Commission applies as well to the electoral tribunals of the Senate and House of Representatives: The purpose of the constitutional convention creating the Electoral Commission was to provide an independent and impartial tribunal for the determination of contests to legislative office, devoid of partisan consideration, and to transfer to that tribunal all the powers previously exercised by the legislature in matters pertaining to contested elections of its members. The power granted to the electoral Commission to judge contests relating to the election and qualification of members of the National Assembly is intended to be as complete and unimpaired as if it had remained in the legislature. The Electoral Tribunals of the Senate and the House were created by the Constitution as special tribunals to be the sole judge of all contests relating to election returns and qualifications of members of the legislative houses, and, as such, are independent bodies which must be permitted to select their own employees, and to supervise and control them, without any legislative interference. (Suanes vs. Chief Accountant of the Senate, 81 Phil. 818.)

To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts. The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority, an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature. xxx xxx xxx The Electoral Commission, a constitutional organ created for the specific purpose of determining contests relating to election returns and qualifications of members of the National Assembly may not be interfered with by the judiciary when and while acting within the limits of its authority, but the Supreme Court has jurisdiction over the Electoral Commission for the purpose of determining the character, scope and extent of the constitutional grant to the commission as sole judge of all contests relating to the election and qualifications of the members of the National Assembly. (Angara vs. Electoral Commission, 63 Phil. 139.) The independence of the electoral tribunal was preserved undiminished in the 1987 Constitution as the following exchanges on the subject between Commissioners Maambong and Azcuna in the 1986 Constitutional Commission, attest: MR. MAAMBONG. Thank you. My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal, either of the House or of the Senate, is it correct to say that these tribunals are constitutional creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which are created by mandate of the Constitution but they are not constitutional creations. Is that a good distinction? MR. AZCUNA. That is an excellent statement. MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House Electoral Tribunal is a constitutional body.? MR. AZCUNA. It is, Madam President. MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions? MR. AZCUNA It would be subject to constitutional restrictions intended for that body. MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera vs. Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the electoral tribunals are not separate departments of the government. Would that ruling still be valid? MR. AZCUNA. Yes, they are not separate departments because the separate departments are the legislative, the executive and the judiciary; but they are constitutional bodies. MR. MAAMBONG. Although they are not separate departments of government, I would like to know again if the ruling in Angara vs. Electoral Commission, 53 Phil. 139, would still be applicable to the present bodies we are deciding on, when the Supreme court said that these electoral tribunals are independent from Congress, devoid of partisan influence or consideration and, therefore, Congress has no power to regulate proceedings of these electoral tribunals. MR. AZCUNA. I think that is correct. They are independent although they are not a separate branch of government. MR. MAAMBONG. There is a statement that in all parliaments of the world, the invariable rule is to leave unto themselves the determination of controversies with respect to the election and qualifications of their members, and precisely they have this Committee on Privileges which takes care of this particular controversy. Would the Gentleman say that the creation of electoral tribunals is an exception to this rule because apparently we have an independent electoral tribunal? MR. AZCUNA. To the extent that the electoral tribunals are independent, but the Gentleman will notice that the wordings say: 'The Senate and the House of Representatives shall each have an Electoral Tribunal. 'It is still the Senate Electoral Tribunal and the House Electoral Tribunal. So, technically, it is the tribunal of the House and tribunal of the Senate although they are independent. MR. MAAMBONG. But both of them, as we have agreed on, are independent from both bodies? MR. AZCUNA. That is correct.

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MR. MAAMBONG. This is the bottom line of my question. How can we say that these bodies are independent when we still have six politicians sitting in both tribunals? MR. AZCUNA. Politicians can be independent, Madam President. MR. MAAMBONG. Madam President, when we discussed a portion of this in the Committee on the Executive, there was a comment by Chief Justice Concepcion-Commissioner Concepcion-that there seems to be some incongruity in these electoral tribunals, considering that politicians still sit in the tribunals in spite of the fact that in the ruling in the case of Sanidad vs. Vera, Senate Electoral tribunal Case No. 1, they are supposed to act in accordance with law and justice with complete detachment from an political considerations. That is why I am asking now for the record how we could achieve such detachment when there are six politicians sitting there. MR. AZCUNA. The same reason that the Gentleman, while chosen on behalf of the opposition, has, with sterling competence, shown independence in the proceedings of this Commission. I think we can also trust that the members of the tribunals will be independent. (pp. 111-112, Journal, Tuesday, July 22, 1986, Emphasis supplied.) Resolution of the House of Representatives violates the independence of the HRET. The independence of the House Electoral Tribunal so zealously guarded by the framers of our Constitution, would, however, by a myth and its proceedings a farce if the House of Representatives, or the majority party therein, may shuffle and manipulate the political (as distinguished from the judicial) component of the electoral tribunal, to serve the interests of the party in power. The resolution of the House of Representatives removing Congressman Camasura from the House Electoral Tribunal for disloyalty to the LDP, because he cast his vote in favor of the Nacionalista Party's candidate, Bondoc, is a clear impairment of the constitutional prerogative of the House Electoral Tribunal to be the sole judge of the election contest between Pineda and Bondoc. To sanction such interference by the House of Representatives in the work of the House Electoral Tribunal would reduce the tribunal to a mere tool for the aggrandizement of the party in power (LDP) which the three justices of the Supreme Court and the lone NP member would be powerless to stop. A minority party candidate may as well abandon all hope at the threshold of the tribunal. Disloyalty to party is not a valid cause for termination of membership in the HRET. As judges, the members of the tribunal must be non-partisan. They must discharge their functions with complete detachment, impartiality, and independence even independence from the political party to which they belong. Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of the tribunal. In expelling Congressman Camasura from the HRET for having cast a conscience vote" in favor of Bondoc, based strictly on the result of the examination and appreciation of the ballots and the recount of the votes by the tribunal, the House of Representatives committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against Congressman Camasura is, therefore, null and void. Expulsion of Congressman Camasura violates his right to security of tenure. Another reason for the nullity of the expulsion resolution of the House of Representatives is that it violates Congressman Camasura's right to security of tenure. Members of the HRET as "sole judge" of congressional election contests, are entitled to security of tenure just as members of the judiciary enjoy security of tenure under our Constitution (Sec. 2, Art. VIII, 1987 Constitution). Therefore, membership in the House Electoral Tribunal may not be terminated except for a just cause, such as, the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, or removal for other valid cause. A member may not be expelled by the House of Representatives for "party disloyalty" short of proof that he has formally affiliated with another political group. As the records of this case fail to show that Congressman Camasura has become a registered member of another political party, his expulsion from the LDP and from the HRET was not for a valid cause, hence, it violated his right to security of tenure. There is nothing to the argument of respondent Pineda that members of the House Electoral Tribunal are not entitled to security of tenure because, as a matter of fact, two Supreme Court Justices in the Tribunal were changed before the end of the congressional term, namely: Chief Justice Marcelo B. Fernan who, upon his elevation to the office of Chief Justice, was replaced by Justice Florentino P. Feliciano, and the latter, who was temporarily replaced by Justice Emilio A. Gancayco, when he (J. Feliciano) took a leave of absence to deliver a lecture in Yale University. It should be stressed, however, that those changes in the judicial composition to the HRET had no political implications at all unlike the present attempt to remove Congressman Camasura. No coercion was applied on Chief Justice Fernan to resign from the tribunal, nor on Justice Feliciano to go on a leave of absence. They acted on their own free will, for valid reasons, and with no covert design to derail the disposition of a pending case in the HRET. The case of Congressman Camasura is different. He was expelled from, and by, the LDP to punish him for "party disloyalty" after he

10

had revealed to the Secretary-General of the party how he voted in the Bondoc case. The purpose of the expulsion of Congressman Camasura was to nullify his vote in the Bondoc case so that the HRET's decision may not be promulgated, and so that the way could be cleared for the LDP to nominate a replacement for Congressman Camasura in the Tribunal. That stratagem of the LDP and the House of Representatives is clearly aimed to substitute Congressman Camasura's vote and, in effect, to change the judgment of the HRET in the Bondoc case. The judicial power of this Court has been invoked by Bondoc for the protection of his rights against the strong arm of the majority party in the House of Representatives. The Court cannot be deaf to his plea for relief, nor indifferent to his charge that the House of Representatives had acted with grave abuse of discretion in removing Congressman Camasura from the House Electoral Tribunal. He calls upon the Court, as guardian of the Constitution, to exercise its judicial power and discharge its duty to protect his rights as the party aggrieved by the action of the House. The Court must perform its duty under the Constitution "even when the violator be the highest official of the land or the Government itself" (Concurring opinion of J. Antonio Barredo in Aquino vs. Ponce-Enrile, 59 SCRA 183, 207). Since the expulsion of Congressman Camasura from the House Electoral Tribunal by the House of Representatives was not for a lawful and valid cause, but to unjustly interfere with the tribunal's disposition of the Bondoc case and to deprive Bondoc of the fruits of the Tribunal's decision in his favor, the action of the House of Representatives is clearly violative of the constitutional mandate (Sec. 17, Art. VI, 1987 Constitution) which created the House Electoral Tribunal to be the "sole judge" of the election contest between Pineda and Bondoc. We, therefore, declare null and void the resolution dated March 13, 1991 of the House of Representatives withdrawing the nomination, and rescinding the election, of Congressman Camasura as a member of the House Electoral Tribunal. The petitioner, Dr. Emigdio Bondoc, is entitled to the reliefs he prays for in this case. WHEREFORE, the petition for certiorari, prohibition and mandamus is granted. The decision of the House of Representatives withdrawing the nomination and rescinding the election of Congressman Juanita G. Camasura, Jr. as a member of the House Electoral Tribunal is hereby declared null and void ab initio for being violative of the Constitution, and Congressman Juanita G. Camasura, Jr. is ordered reinstated to his position as a member of the House of Representatives Electoral Tribunal. The HRET Resolution No. 910018 dated March 14, 1991, cancelling the promulgation of the decision in HRET Case No. 25 ("Dr. Emigdio Bondoc vs. Marciano A. Pineda") is also set aside. Considering the unconscionable delay incurred in the promulgation of that decision to the prejudice of the speedy resolution of electoral cases, the Court, in the exercise of its equity jurisdiction, and in the interest of justice, hereby declares the said decision DULY PROMULGATED, effective upon service of copies thereof on the parties, to be done immediately by the Tribunal. Costs against respondent Marciano A. Pineda. SO ORDERED.

REPUBLIC OF THE PHILIPPINES vs. HONORABLE DOMINGO IMPERIAL G.R. No. L-8684, March 31, 1955 REYES, J.B.L., J.: This is a quo warranto proceeding instituted by the Solicitor General against Honorable Domingo Imperial and Honorable Rodrigo Perez, to test the legality of their continuance in office as Chairman and Member, respectively, of the Commission on Elections. According to the Solicitor General, the first commissioners of Elections were duly appointed and qualified on July 12, 1945, with the following terms of office: Hon. Jose Lopez Vito, Chairman, for 9 years, expiring on July 12, 1954. Hon. Francisco Enage, Member, for 6 years, expiring on July 12, 1951. Hon. Vicente Vera, Member, for 3 years, expiring on July 12, 1948; that upon the death of Chairman Jose Lopez Vito in May, 1947, Member Vicente de Vera was promoted Chairman by appointment dated May 26, 1947; that in accordance with the ruling of this Court in Nacionalista Party vs. Vera, 47 Off. Gaz., 2375, and Nacionalista Party vs. Felix Angelo Bautista, 47 Off. Gaz., 2356, the term of office of Chairman De Vera would have expired on July 12, 1954, that is, the date when the term of office of the first Chairman, Honorable Jose Lopez Vito, would have expired; that Chairman Vicente de Vera died in August, 1951, before the expiration of the maximum term of nine years (on July 12, 1954) of the first Chairman of the Commission; that on August 11, 1951, the respondent Honorable Domingo Imperial was appointed Chairman to succeed Honorable Vicente de Vera; that while the appointment of the respondent Honorable Imperial provided that he was to serve "for a term expiring July 12, 1960", the term for which he could legally serve as Chairman legally expired on July 12, 1954, that is, the expiration of the nine-year term for which the first Chairman, Honorable Jose Lopez Vito, was appointed; that the respondent Honorable Rodrigo Perez was appointed Member of the Commission on December 8, 1949, for "a term of nine years expiring on

PUBLIC CORPORATION SET 7

November 24, 1958", vice Honorable Francisco Enage, who was retired on November, 1949; that the term of office of respondent Perez legally expired on July 12, 1951, the expiration of the term of six years for which Commissioner Enage, his predecessor, was appointed. Wherefore, the Solicitor General concludes that the respondents Commissioners Imperial and Perez have ceased to have any legal or valid title to the positions of Chairman and Member, respectively, of the Commission on Elections, and that therefore, their positions should be declared vacant. The respondents filed separate answer to the petition for quo warranto, both of which pray for the dismissal of the petition. The defense of respondent Honorable Domingo Imperial is substantially that Honorable Jose Lopez Vito was first appointed Chairman of the Commission on Elections on May 12, 1941, for a term of nine years expiring on May 12, 1950; that when Commissioner Lopez Vito was again appointed Chairman on July 12, 1945, his nine-year, term of office under this second appointment should not be reckoned from the date thereof, that is, July 12, 1945, but from the date of his first appointment in 1941, so that the term under his second appointment expired on May 12, 1950; that respondent Imperial having been appointed after the expiration of Chairman Lopez Vito's full term of nine years in 1950, he (respondent Imperial) should serve office for a full term of nine years, ending only on August 10, 1960. Respondent Imperial stresses the unconstitutionality of Chairman Lopez Vito's second appointment to serve up to July 12, 1954, upon the ground that under the Constitution, he (Chairman Lopez Vito) could neither be appointed for more than nine years nor be allowed to succeed himself. The other respondent, Honorable Rodrigo Perez, alleges that since Chairman Lopez Vito was the first to be appointed under the Constitution on May 13, 1941, the terms of office of all the Commissioners on Election should be reckoned from that date, May 13, 1941, to maintain the three-year difference between the dates of expiration of their respective terms as provided for by the Constitution; that the term of office of Member Francisco Enage (his predecessor) should therefore be considered as having started on May 13, 1941, and since Enage was appointed only for six years, his term of office expired on May 12, 1947; and that since respondent Perez was appointed (on December 8, 1949) after Commissioner Enage's six-year term of office had already expired, he should serve for a full term of nine years from the expiration of Enage's term of office on May 12, 1947; hence, his own term of office would expire only on May 12, 1956. Respondent Perez argues that if the computation of the Solicitor General were to be followed, that is, that Commissioner Enage's term be counted from July 12, 1945 ending on July 12, 1951, this term would end at a date very close to the expiration of Commissioner Lopez Vito's term on May 12, 1950, so there would be only a difference of fourteen months between the expiration of the terms of office of Commissioners Lopez Vito and Enage, a situation which is contrary to and violative of the Constitution that prescribes a difference of three years between the dates of the expiration of the terms of the Members of the Commission. The issues now posed demand a re-examination and application of the Constitutional amendment establishing an independent Commission on Elections (Article X) that became operative on December 2, 1940, superseding the purely statutory Commission previously created and organized along the same lines by Commonwealth Act No. 607. While this Court already had occasion to make pronouncements on the matter in previous decisions, the same are not considered decisive in view of the divergence of opinions among the members of the Court at the time said decisions were rendered. Section 1, paragraph 1, of Article X of the Constitution reads as follows: SEC. 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution. The provision that of the first three commissioners appointed, "one shall hold office for 9 years, another for 6 years, and the third for 3 years," when taken together with the prescribed term of office for 9 years, without reappointment, evidences a deliberate plan to have a regular rotation or cycle in the membership of the commission, by having subsequent members appointable only once every three years. This had already been indicated in previous opinions of this Court (Nacionalista Party vs. Angelo Bautista,1 47 Off. Gaz., 2356; Nacionalista Party vs. Vera,2 47 Off. Gaz., 2375), where it was declared that "with these periods it was the intention to have one position vacant every three years, so that no President can appoint more than one Commissioner, thereby preserving and safeguarding the independence and impartiality of the Commission" as a body, we may add, for the impartiality and independence of each individual Commissioner's tenure was safeguarded by other provisions in the same Article X of the fundamental charter (removability by impeachment alone, and stability of compensation in sec. 1; disability to practice any profession and prohibition of conflicting interest in sec. 3) That the rotation of the Commissioner's appointments at regular and fixed intervals of three years was a deliberate plan is shown by the history of the provision, and by selection of the fixed term of nine years for all subsequent appointees, since no other term would

11

give such a result. Initiated under Commonwealth Act No. 607, the rotation plan was transferred without variation to the Constitution, evidently for the purpose of preserving it from hasty and irreflexive changes. Now, the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three commissioners should start on a common date; and (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Without satisfying these conditions, the regularity of the intervals between appointments would be destroyed, and the evident purpose of the rotation (to prevent that a fouryear administration should appoint more than one permanent and regular commissioner) would be frustrated. While the general rule is that a public officer's death or other permanent disability creates a vacancy in the office, so that the successor is entitled to hold for a full term, such rule is recognized to suffer exception in those cases where the clear intention is to have vacancies appointments at regular intervals. Thus, in 43 Amer. prudence, sec. 159, p. 18, it is stated: . . . In like manner, it has been ruled that the resignation or the removal of an officer during his term and the election or appointment of a successor do not divide the term or create a new and distinct one, and that in such a case the successor is filling out his predecessor's term. It seems the term of office of one elected or appointed to fill a vacancy in a board of several officers will be held to be for the unexpired term of his predecessor only, where the clear intent of the creating power is that the entire board should not go out of office at once, but that different groups should retire at regularly recurring intervals.(Emphasis supplied). In State ex rel. Rylands vs. Pinkerman, 63 Conn. 176, 28 Atl. 110, 22 LRA 643, the Court, discussing provisions in the charter of the city of Bridgeport requiring two city Commissioners to serve for 2 years, and another two to serve for 4 years, said: . . . The evident intent of section 50 is to secure to the city at all times, so far as possible, the services of commissioners, half of whom have had the benefit of at least a year's experience in office, and to divide the membership of each half equally between the leading political parties. Parmater vs. State, 102 Ind. 90, 93. Such a board had existed in Bridgeport since 1868. The charter of that year provided for the election of two commissioners to serve for one year, and two for two years, and for the annual election thereafter of two to serve for two years, and secured a nonpartisan character to the board by allowing no one to vote for more than two out of the four, and requiring the election of deputy commissioners to replace each elected commissioner in case of a vacancy. From that time until the resignation of the entire board, in December, 1890, its membership had been annually renewed by the appointment of two commissioners for a term of two years, each belonging to a different political party from the other. Were the contention of the defendant well founded, the successors of the four commissioners who resigned in December, 1890, should have been, and in law were, appointed each for two-year term, thus totally and forever frustrating the care-fully devised scheme of alternating succession which had been followed for twenty years. (Cas. Cit., 22 LRA, 669) The following cases also support the rule: When the Constitution fixes the duration of a term of office, and at the same time provides for its being filled at a fixed time occurring periodically, it necessarily follows that, a casual vacancy occurring during such term of office, necessity must arise for filling it for the unexpired term; and although the mode of filling such vacancy is prescribed by the Constitutional, yet the incumbent only holds until the time arrives for filling the office in the regular mode and at the regular time prescribed by the Constitution. (Simpson vs. Willard, 14 S. C. 191). And in Baker vs. Kirk, 33 Ind. 517, it was held that the term of office of one appointed to fill a vacancy in one of three memberships of a board will, in the absence of any express provision therefore, be deemed to be for the unexpired term, where the statute fixes the first term at unequal lengths, so as to prevent an entire change of membership at any one time. In speaking of the reasoning to the contrary, the court said: "It would make the term of office to depend upon the pleasure or caprice of the incumbent, and not upon the will of the legislature as expressed in plain and undoubted language in the law. This construction would defeat the true intent and meaning of the legislature, 50 LRA. (N. S.), which was to prevent an entire change of the board of directors of the prison. Other cases to the same effect are collated in the editorial note in State Ex. Rel. Fish vs. Howell, 50 L. R. A. (N. S.), 345. The fact that the orderly rotation and renovation of Commissioners would be wrecked unless, in case of early vacancy, a successor should only be allowed to serve for the unexpired portion of each regular term, sufficiently explains why no express provision to that effect is made in Article X of the Constitution. The rule is so evidently fundamental and indispensable to the working of the plan that it became unnecessary to state it in so many words. The mere fact that such appointments would make the appointees serve for less than 9 years does not argue against reading such limitation into the constitution, because the nine-year term cannot be lifted out of context and independently of the provision limiting the terms of the terms of the first commissioners to nine, six and three years; and because in any event, the unexpired portion is still part and parcel of the preceding term, so that in filling the vacancy, only the tenure of the successor is shortened, but not the term of office.

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It may be that the appointing power has sufficient inducements at hand to create vacancies in the Commission, and find occasion for appointments thereto, whenever it chooses to do so. That possibility, however, would not in any way justify this Court in setting at naught the clear intention of the Constitution to have members of Commission appointed at regular 3-year intervals. It is argued that under the rule, one may be appointed for a much shorter term than nine years, say one year or even less, and his independence would be thereby reduced. The point is, however, that the majority of the Commission would not be affected (save in really exceptional cases) and independence of the majority is the independence of the whole Commission. For the same reasons it must be admitted that the terms of the first three Commissioners should be held to have started at the same moment, irrespective of the variations in their dates of appointment and qualification, in order that the expiration of the first terms of nine, six and three years should lead to the regular recurrence of the three-year intervals between the expiration of the terms. Otherwise, the fulfillment and success of the carefully devised constitutional scheme would be made to depend upon the willingness of the appointing power to conform thereto. It would be really immaterial whether the terms of the first Commissioners appointed under the Constitutional provision should be held to start from the approval of the constitutional amendment (December 2, 1940), the reorganization of the Commission under C. A. 657, on June 21, 1941, or from the appointment of the first Chairman, Honorable Jose Lopez Vito, on May 13, 1941. The point to be emphasized is that the terms of all three Commissioners appointed under the Constitution began at the same instant and that, in case of a belated appointment (like that of Commissioner Enage), the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. No other rule could satisfy the constitutional plan. Of the three starting dates given above, we incline to prefer that of the organization of the constitutional Commission on Elections under Commonwealth Act 657, on June 21, 1941, since said act implemented and completed the organization of the Commission that under the Constitution "shall be" established. Certainly the terms cannot begin from the first appointments, because appointment to a Constitution office is not only a right, but equally a duty that should not be shirked or delayed. On the basic tenets of our democratic institutions, it can hardly be conceded that the appointing power should possess discretion to retard compliance with its constitutional duty to appoint when delay would impede or frustrate the plain intent of the fundamental law. Ordinarily, the operation of the Constitution can not be made to depend upon the Legislature or the Executive, but in the present case the generality of the organization lines under Article X seems to envisage prospective implementation. Applying the foregoing ruling to the case at bar, we find that the terms of office of the first appointees under the constitution should be computed as follows: Hon. Jose Lopez Vito, Chairman, nine-year term, from June 21, 1941 to June 20, 1950. Hon. Francisco Enage, Member, six year term, from June 21, 1941 to June 20, 1947. The first 3 year term, from June 21, 1941 to June 20, 1944, was not filled. Thereafter, since the first three-year term had already expired, the appointment (made on July 12, 1945) of the Honorable Vicente de Vera must be deemed for the full term of nine years, from June 21, 1944, to June 20, 1953. The first vacancy occurred by expiration of the initial 6-year term of Commissioner Enage on June 21, 1937 (although he served as de facto Commissioner until 1949). His successor, respondent Rodrigo Perez, was named for a full nine-year term. However, on the principles heretofore laid, the nine-year term of Commissioner Perez (vice Enage) should be held to have started in June 21, 1947, to expire on June 20, 1956. The second vacancy happened upon the death of Chairman Jose Lopez Vito, who died on May 7, 1947, more than two years before the expiration of his full term. To succeed him as Chairman, Commissioner Vicente de Vera was appointed. Such appointment, if at all valid, could legally be only for the unexpired period of the Lopez Vito's term, up to June 20, 1950. To fill the vacancy created by Vera's assumption of the Chairmanship, Commissioner Leopoldo Rovira was appointed on May 22, 1947. Pursuant to the principles laid down, Rovira could only fill out the balance of Vera's term, until June 20, 1953, and could not be reappointed thereafter. Commissioner Vera's tenure as Chairman (vice Lopez Vito) expired, as we have stated, on June 20, 1950, the end of Lopez Vito's original term. A vacancy, therefore, occurred on that date that Vera could no longer fill, since his reappointment was expressly prohibited by the Constitution. The next Chairman was respondent Commissioner Domingo Imperial, whose term of nine years must be deemed to have begun on June 21, 1950, to expire on June 20, 1959. The vacancy created by the legal expiration of Rovira's term on June 20, 1953 appears unfilled up to the present. The time elapsed, as we have held, must be counted against his successor, whose legal term is for nine years, from June 21, 1953 to June 20, 1962.

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The fact must be admitted that appointments have heretofore been made with little regard for the Constitutional plan. However, if the principles set in this decision are observed, no difficulty need be anticipated for the future. And it appearing, from the foregoing, that the legal terms of office of the respondents Perez and Imperial have not as yet expired, whether the original terms started from the operation of the Constitutional amendments or the enactment of C. A. 657, the petition for quo warranto is hereby dismissed without costs.

DENNIS A. B. FUNA vs. THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, G.R. No. 192791 April 24, 2012 In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the constitutionality of the appointment of Reynaldo A. Villar as Chairman of the Commission on Audit and accordingly prays that a judgment issue declaring the unconstitutionality of the appointment. The facts of the case are as follows: On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) appointed Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for a term of seven (7) years, pursuant to the 1987 Constitution.[1] Caragues term of office started on February 2, 2001 to end on February 2, 2008. Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar (Villar) as the third member of the COA for a term of seven (7) years starting February 2, 2004 until February 2, 2011. Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14, 2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly thereafter, on June 11, 2008, the Commission on Appointments confirmed his appointment. He was to serve as Chairman of COA, as expressly indicated in the appointment papers, until the expiration of the original term of his office as COA Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an obvious bid to lend color of title to his hold on the chairmanship, insists that his appointment as COA Chairman accorded him a fresh term of seven (7) years which is yet to lapse. He would argue, in fine, that his term of office, as such chairman, is up to February 2, 2015, or 7 years reckoned from February 2, 2008 when he was appointed to that position. Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA Commissioner to serve the unexpired term of Villar as Commissioner or up to February 2, 2011. Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to President Benigno S. Aquino III, signified his intention to step down from office upon the appointment of his replacement. True to his word, Villar vacated his position when President Benigno Simeon Aquino III named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This development has rendered this petition and the main issue tendered therein moot and academic. A case is considered moot and academic when its purpose has become stale,[2] or when it ceases to present a justiciable controversy owing to the onset of supervening events,[3] so that a resolution of the case or a declaration on the issue would be of no practical value or use.[4] In such instance, there is no actual substantial relief which a petitioner would be entitled to, and which will anyway be negated by the dismissal of the basic petition.[5] As a general rule, it is not within Our charge and function to act upon and decide a moot case. However, in David v. Macapagal-Arroyo,[6] We acknowledged and accepted certain exceptions to the issue of mootness, thus: The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution, second, the exceptional character of the situation and the paramount public interest is involved, third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public, and fourth, the case is capable of repetition yet evading review. Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of Villar, We consider the instant case as falling within the requirements for review of a moot and academic case, since it asserts at least four exceptions to the mootness rule discussed in David, namely: there is a grave violation of the Constitution; the case involves a situation of exceptional character and is of paramount public interest; the constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; and the case is capable of repetition yet evading review.[7] The situation presently obtaining is

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definitely of such exceptional nature as to necessarily call for the promulgation of principles that will henceforth guide the bench, the bar and the public should like circumstance arise. Confusion in similar future situations would be smoothed out if the contentious issues advanced in the instant case are resolved straightaway and settled definitely. There are times when although the dispute has disappeared, as in this case, it nevertheless cries out to be addressed. To borrow from Javier v. Pacificador,[8] Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint in the future. Both procedural and substantive issues are raised in this proceeding. The procedural aspect comes down to the question of whether or not the following requisites for the exercise of judicial review of an executive act obtain in this petition, viz: (1) there must be an actual case or justiciable controversy before the court; (2) the question before it must be ripe for adjudication; (3) the person challenging the act must be a proper party; and (4) the issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of the case.[9] To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing as a taxpayer and citizen, lacks the necessary standing to challenge his appointment.[10] On the other hand, the Office of the Solicitor General (OSG), while recognizing the validity of Villars appointment for the period ending February 11, 2011, has expressed the view that petitioner should have had filed a petition for declaratory relief or quo warranto under Rule 63 or Rule 66, respectively, of the Rules of Court instead of certiorari under Rule 65. Villars posture on the absence of some of the mandatory requisites for the exercise by the Court of its power of judicial review must fail. As a general rule, a petitioner must have the necessary personality or standing (locus standi) before a court will recognize the issues presented. In Integrated Bar of the Philippines v. Zamora, We defined locus standi as: x x x a personal and substantial interest in the case such that the party has sustained or will sustain a direct injury as a result of the governmental act that is being challenged. The term interest means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[11] To have legal standing, therefore, a suitor must show that he has sustained or will sustain a direct injury as a result of a government action, or have a material interest in the issue affected by the challenged official act.[12] However, the Court has time and again acted liberally on the locus standi requirements and has accorded certain individuals, not otherwise directly injured, or with material interest affected, by a Government act, standing to sue provided a constitutional issue of critical significance is at stake.[13] The rule on locus standi is after all a mere procedural technicality in relation to which the Court, in a catena of cases involving a subject of transcendental import, has waived, or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not have been personally injured by the operation of a law or any other government act.[14] In David, the Court laid out the bare minimum norm before the so-called non-traditional suitors may be extended standing to sue, thusly: 1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; 2.) For voters, there must be a showing of obvious interest in the validity of the election law in question; 3.) For concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and 4.) For legislators, there must be a claim that the official action complained of infringes their prerogatives as legislators. This case before Us is of transcendental importance, since it obviously has far-reaching implications, and there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous cases. We, thus, assume a liberal stance and allow petitioner to institute the instant petition. Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of the availment of certiorari as a medium to inquire on whether the assailed appointment of respondent Villar as COA Chairman infringed the constitution or was infected with grave abuse of discretion. For under the expanded concept of judicial review under the 1987 Constitution, the corrective hand of certiorari may be invoked not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.[15] Grave abuse of discretion denotes: such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act in contemplation of law.[16]

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We find the remedy of certiorari applicable to the instant case in view of the allegation that then President Macapagal-Arroyo exercised her appointing power in a manner constituting grave abuse of discretion. This brings Us to the pivotal substantive issue of whether or not Villars appointment as COA Chairman, while sitting in that body and after having served for four (4) years of his seven (7) year term as COA commissioner, is valid in light of the term limitations imposed under, and the circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads: (2) The Chairman and Commissioners [on Audit] 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, the Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity. (Emphasis added.)[17] And if valid, for how long can he serve? At once clear from a perusal of the aforequoted provision are the defined restricting features in the matter of the composition of COA and the appointment of its members (commissioners and chairman) designed to safeguard the independence and impartiality of the commission as a body and that of its individual members.[18] These are, first, the rotational plan or the staggering term in the commission membership, such that the appointment of commission members subsequent to the original set appointed after the effectivity of the 1987 Constitution shall occur every two years; second, the maximum but a fixed term-limit of seven (7) years for all commission members whose appointments came about by reason of the expiration of term save the aforementioned first set of appointees and those made to fill up vacancies resulting from certain causes; third, the prohibition against reappointment of commission members who served the full term of seven years or of members first appointed under the Constitution who served their respective terms of office; fourth, the limitation of the term of a member to the unexpired portion of the term of the predecessor; and fifth, the proscription against temporary appointment or designation. To elucidate on the mechanics of and the adverted limitations on the matter of COA-member appointments with fixed but staggered terms of office, the Court lays down the following postulates deducible from pertinent constitutional provisions, as construed by the Court: 1. The terms of office and appointments of the first set of commissioners, or the seven, five and three-year termers referred to in Sec. 1(2), Art. IX(D) of the Constitution, had already expired. Hence, their respective terms of office find relevancy for the most part only in understanding the operation of the rotational plan. In Gaminde v. Commission on Audit,[19] the Court described how the smooth functioning of the rotational system contemplated in said and like provisions covering the two other independent commissions is achieved thru the staggering of terms: x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date [February 02, 1987, when the 1987 Constitution was ratified] irrespective of the variations in the dates of appointments and qualifications of the appointees in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. x x x In case of a belated appointment, the interval between the start of the terms and the actual appointment shall be counted against the appointee.[20] (Italization in the original; emphasis added.) Early on, in Republic v. Imperial,[21] the Court wrote of two conditions, both indispensable to [the] workability of the rotational plan. These conditions may be described as follows: (a) that the terms of the first batch of commissioners should start on a common date; and (b) that any vacancy due to death, resignation or disability before the expiration of the term should be filled only for the unexpired balance of the term. Otherwise, Imperial continued, the regularity of the intervals between appointments would be destroyed. There appears to be near unanimity as to the purpose/s of the rotational system, as originally conceived, i.e., to place in the commission a new appointee at a fixed interval (every two years presently), thus preventing a four-year administration appointing more than one permanent and regular commissioner,[22] or to borrow from Commissioner Monsod of the 1986 CONCOM, to prevent one person (the President of the Philippines) from dominating the commissions.[23] It has been declared too that the rotational plan ensures continuity in, and, as indicated earlier, secure the independence of, the commissions as a body.[24] 2. An appointment to any vacancy in COA, which arose from an expiration of a term, after the first chairman and commissioners appointed under the 1987 Constitution have bowed out, shall, by express constitutional fiat, be for a term of seven (7) years, save when the appointment is to fill up a vacancy for the corresponding unserved term of an outgoing member. In that case, the appointment shall only be for the unexpired portion of the departing commissioners term of office. There can only be an unexpired

PUBLIC CORPORATION SET 7

portion when, as a direct result of his demise, disability, resignation or impeachment, as the case may be, a sitting member is unable to complete his term of office.[25] To repeat, should the vacancy arise out of the expiration of the term of the incumbent, then there is technically no unexpired portion to speak of. The vacancy is for a new and complete seven-year term and, ergo, the appointment thereto shall in all instances be for a maximum seven (7) years. 3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the reappointment of a member of COA after his appointment for seven (7) years. Writing for the Court in Nacionalista Party v. De Vera,[26] a case involving the promotion of then COMELEC Commissioner De Vera to the position of chairman, then Chief Justice Manuel Moran called attention to the fact that the prohibition against reappointment comes as a continuation of the requirement that the commissionersreferring to members of the COMELEC under the 1935 Constitutionshall hold office for a term of nine (9) years. This sentence formulation imports, notes Chief Justice Moran, that reappointment is not an absolute prohibition. 4. The adverted system of regular rotation or the staggering of appointments and terms in the membership for all three constitutional commissions, namely the COA, Commission on Elections (COMELEC) and Civil Service Commission (CSC) found in the 1987 Constitution was patterned after the amended 1935 Constitution for the appointment of the members of COMELEC[27] with this difference: the 1935 version entailed a regular interval of vacancy every three (3) years, instead of the present two (2) years and there was no express provision on appointment to any vacancy being limited to the unexpired portion of the his predecessors term. The model 1935 provision reads: Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years and the third for three years. x x x Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes reappointment of any kind within the commission, the point being that a second appointment, be it for the same position (commissioner to another position of commissioner) or upgraded position (commissioner to chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is drawn in this regard to the Courts disposition in Matibag v. Benipayo.[28] Villars promotional appointment, so it is argued, is void from the start, constituting as it did a reappointment enjoined by the Constitution, since it actually needed another appointment to a different office and requiring another confirmation by the Commission on Appointments. Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2), Article IX(D) of the Constitution on the ban against reappointment in relation to the appointment issued to respondent Villar to the position of COA Chairman. Without question, the parties have presented two (2) contrasting and conflicting positions. Petitioner contends that Villars appointment is proscribed by the constitutional ban on reappointment under the aforecited constitutional provision. On the other hand, respondent Villar initially asserted that his appointment as COA Chairman is valid up to February 2, 2015 pursuant to the same provision. The Court finds petitioners position bereft of merit. The flaw lies in regarding the word reappointment as, in context, embracing any and all species of appointment. The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.[29] This is known as the plain meaning rule enunciated by the maxim verba legis non est recedendum, or from the words of a statute there should be no departure.[30] The primary source whence to ascertain constitutional intent or purpose is the language of the provision itself.[31] If possible, the words in the Constitution must be given their ordinary meaning, save where technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration illustrates the verbal legis rule in this wise: We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyers document, it being essential for the rule of law to obtain that it should ever be present in the peoples consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus there are cases where the need for construction is reduced to a minimum.[32] (Emphasis supplied.) Let us dissect and examine closely the provision in question:

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(2) The Chairman and Commissioners [on Audit] 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, the Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. x x x (Emphasis added.) The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a term of seven years, and if he has served the full term, then he can no longer be reappointed or extended another appointment. In the same vein, a Commissioner who was appointed for a term of seven years who likewise served the full term is barred from being reappointed. In short, once the Chairman or Commissioner shall have served the full term of seven years, then he can no longer be reappointed to either the position of Chairman or Commissioner. The obvious intent of the framers is to prevent the president from dominating the Commission by allowing him to appoint an additional or two more commissioners. The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention barred reappointment to be extended to commissioner-members first appointed under the 1987 Constitution to prevent the President from controlling the commission. Thus, the first Chairman appointed under the 1987 Constitution who served the full term of seven years can no longer be extended a reappointment. Neither can the Commissioners first appointed for the terms of five years and three years be eligible for reappointment. This is the plain meaning attached to the second sentence of Sec. 1(2), Article IX(D). On the other hand, the provision, on its face, does not prohibit a promotional appointment from commissioner to chairman as long as the commissioner has not served the full term of seven years, further qualified by the third sentence of Sec. 1(2), Article IX (D) that the appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In addition, such promotional appointment to the position of Chairman must conform to the rotational plan or the staggering of terms in the commission membership such that the aggregate of the service of the Commissioner in said position and the term to which he will be appointed to the position of Chairman must not exceed seven years so as not to disrupt the rotational system in the commission prescribed by Sec. 1(2), Art. IX(D). In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional appointment from Commissioner to Chairman, provided it is made under the aforestated circumstances or conditions. It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched, allows a promotional appointment from Commissioner to Chairman. Even if We concede the existence of an ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.[33] teaches that in case of doubt as to the import and react of a constitutional provision, resort should be made to extraneous aids of construction, such as debates and proceedings of the Constitutional Convention, to shed light on and ascertain the intent of the framers or the purpose of the provision being construed. The understanding of the Convention as to what was meant by the terms of the constitutional provision which was the subject of the deliberation goes a long way toward explaining the understanding of the people when they ratified it. The Court applied this principle in Civil Liberties Union v. Executive Secretary: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.[34] (Emphasis added.) And again in Nitafan v. Commissioner on Internal Revenue: x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.[35] (Emphasis added.) Much weight and due respect must be accorded to the intent of the framers of the Constitution in interpreting its provisions. Far from prohibiting reappointment of any kind, including a situation where a commissioner is upgraded to the position of chairman, the 1987 Constitution in fact unequivocally allows promotional appointment, but subject to defined parameters. The ensuing exchanges during the deliberations of the 1986 Constitutional Commission (CONCOM) on a draft proposal of what would eventually

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be Sec. 1(2), Art. IX(D) of the present Constitution amply support the thesis that a promotional appointment is allowed provided no one may be in the COA for an aggregate threshold period of 7 years: MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the sentence which begins with In no case, insert THE APPOINTEE SHALL IN NO CASE SERVE AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this may approximate the situation wherein a commissioner is first appointed as chairman. I am willing to withdraw that amendment if there is a representation on the part of the Committee that there is an implicit intention to prohibit a term that in the aggregate will exceed more than seven years. If that is the intention, I am willing to withdraw my amendment. MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no reappointment of any kind and, therefore, as a whole there is no way somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does not happen by including in the appointment both temporary and acting capacities. MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation wherein a commissioner is upgraded to a position of chairman. But if this provision is intended to cover that kind of situation, then I am willing to withdraw my amendment. MR. MONSOD. It is covered. MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: Appointment to any vacancy shall be only for the unexpired portion of the predecessor. In other words, if there is upgrading of position from commissioner to chairman, the appointee can serve only the unexpired portion of the term of the predecessor. MS. AQUINO: But we have to be very specific x x x because it might shorten the term because he serves only the unexpired portion of the term of the predecessor. MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired portion of the term of the predecessor. (Emphasis added.)[36] The phrase upgrading of position found in the underscored portion unmistakably shows that Sec. 1(2), Art. IX(D) of the 1987 Constitution, for all its caveat against reappointment, does not per se preclude, in any and all cases, the promotional appointment or upgrade of a commissioner to chairman, subject to this proviso: the appointees tenure in office does not exceed 7 years in all. Indeed, such appointment does not contextually come within the restricting phrase without reappointment twice written in that section. Delegate Foz even cautioned, as a matter of fact, that a sitting commissioner accepting a promotional appointment to fill up an unexpired portion pertaining to the higher office does so at the risk of shortening his original term. To illustrate the Fozs concern: assume that Carague left COA for reasons other than the expiration of his threshold 7-year term and Villar accepted an appointment to fill up the vacancy. In this situation, the latter can only stay at the COA and served the unexpired portion of Caragues unexpired term as departing COA Chairman, even if, in the process, his (Villars) own 7-year term as COA commissioner has not yet come to an end. In this illustration, the inviolable regularity of the intervals between appointments in the COA is preserved. Moreover, jurisprudence tells us that the word reappointment means a second appointment to one and the same office.[37] As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent in Visarra v. Miraflor,[38] the constitutional prohibition against the reappointment of a commissioner refers to his second appointment to the same office after holding it for nine years.[39] As Justice Dizon observed, [T]he occupant of an office obviously needs no such second appointment unless, for some valid cause, such as the expiration of his term or resignation, he had ceased to be the legal occupant thereof. [40] The inevitable implication of Justice Dizons cogent observation is that a promotion from commissioner to chairman, albeit entailing a second appointment, involves a different office and, hence, not, in the strict legal viewpoint, a reappointment. Stated a bit differently, reappointment refers to a movement to one and the same office. Necessarily, a movement to a different position within the commission (from Commissioner to Chairman) would constitute an appointment, or a second appointment, to be precise, but not reappointment. A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo Bautista, although he expressly alluded to a promotional appointment as not being a prohibited appointment under Art. X of the 1935 Constitution. Petitioners invocation of Matibag as additional argument to contest the constitutionality of Villars elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and Florentino Tuason as Commissioners, each for a term of office of seven (7) years. All three immediately took their oath of, and assumed, office. These appointments were twice renewed because the Commission on Appointments failed to act on the first two ad interim appointments. Via a petition for prohibition, some disgruntled COMELEC officials assail as infirm the appointments of Benipayo, et al. Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be specific, where the proviso [t]he

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Chairman and the Commissioners shall be appointed x x x for a term of seven years without reappointment shall apply. Justice Antonio T. Carpio declares in his dissent that Villars appointment falls under a combination of two of the four situations. Conceding for the nonce the correctness of the premises depicted in the situations referred to in Matibag, that case is of doubtful applicability to the instant petition. Not only is it cast against a different milieu, but the lis mota of the case, as expressly declared in the main opinion, is the very constitutional issue raised by petitioner.[41] And what is/are this/these issue/s? Only two defined issues in Matibag are relevant, viz: (1) the nature of an ad interim appointment and subsumed thereto the effect of a by-passed ad interim appointment; and (2) the constitutionality of renewals of ad interim appointments. The opinion defined these issues in the following wise: Petitioner [Matibag] filed the instant petition questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, et al. violate the constitutional provisions on the independence of COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. As may distinctly be noted, an upgrade or promotion was not in issue in Matibag. We shall briefly address the four adverted situations outlined in Matibag, in which, as there urged, the uniform proviso on no reappointmentafter a member of any of the three constitutional commissions is appointed for a term of seven (7) yearsshall apply. Matibag made the following formulation: The first situation is where an ad interim appointee after confirmation by the Commission on Appointments serves his full 7-year term. Such person cannot be reappointed whether as a member or as chairman because he will then be actually serving more than seven (7) years. The second situation is where the appointee, after confirmation, serves part of his term and then resigns before his seven-year term of office ends. Such person cannot be reappointed whether as a member or as chair to a vacancy arising from retirement because a reappointment will result in the appointee serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired portion of someone who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed whether as a member or as chair to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven (7) years. The fourth situation is where the appointee has previously served a term of less than seven (7) years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Sec. 1(20), Art. IX-C of the Constitution [referring to the first set of appointees (the 5 and 3 year termers) whose term of office are less than 7 years but are barred from being reappointed under any situation].[42] (Words in brackets and emphasis supplied.) The situations just described constitute an obiter dictum, hence without the force of adjudication, for the corresponding formulation of the four situations was not in any way necessary to resolve any of the determinative issues specifically defined in Matibag. An opinion entirely unnecessary for the decision of the case or one expressed upon a point not necessarily involved in the determination of the case is an obiter.[43] There can be no serious objection to the scenarios depicted in the first, second and third situations, both hewing with the proposition that no one can stay in any of the three independent commissions for an aggregate period of more than seven (7) years. The fourth situation, however, does not commend itself for concurrence inasmuch as it is basically predicated on the postulate that reappointment, as earlier herein defined, of any kind is prohibited under any and all circumstances. To reiterate, the word reappointment means a second appointment to one and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and similar provisions do not peremptorily prohibit the promotional appointment of a commissioner to chairman, provided the new appointees tenure in both capacities does not exceed seven (7) years in all. The statements in Matibag enunciating the ban on reappointment in the aforecited fourth situation, perforce, must be abandoned, for, indeed, a promotional appointment from the position of Commissioner to that of Chairman is constitutionally permissible and not barred by Sec. 1(2), Art. IX (D) of the Constitution. One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and preserve the independence of COA and its members,[44] citing what the dissenting Justice J.B.L Reyes wrote in Visarra, that once appointed and confirmed, the commissioners should be free to act as their conscience demands, without fear of retaliation or hope or reward. Pursued to its logical conclusion, petitioners thesis is that a COA member may no longer act with independence if he or she can be rewarded with a promotion or appointment, for then he or she will do the bidding of the appointing authority in the hope of being promoted or reappointed. The unstated reason behind Justice J.B.L. Reyes counsel is that independence is really a matter of choice. Without taking anything away from the gem imparted by the eminent jurist, what Chief Justice Moran said on the subject of independence is just as logically

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sound and perhaps even more compelling, as follows: A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or other hope of material reward, his enthusiasm may decline as the end of his term approaches and he may even lean to abuses if there is no higher restrain in his moral character. Moral character is no doubt the most effective safeguard of independence. With moral integrity, a commissioner will be independent with or without the possibility of reappointment.[45] The Court is likewise unable to sustain Villars proposition that his promotional appointment as COA Chairman gave him a completely fresh 7-year termfrom February 2008 to February 2015given his four (4)-year tenure as COA commissioner devalues all the past pronouncements made by this Court, starting in De Vera, then Imperial, Visarra, and finally Matibag. While there had been divergence of opinion as to the import of the word reappointment, there has been unanimity on the dictum that in no case can one be a COA member, either as chairman or commissioner, or a mix of both positions, for an aggregate term of more than 7 years. A contrary view would allow a circumvention of the aggregate 7-year service limitation and would be constitutionally offensive as it would wreak havoc to the spirit of the rotational system of succession. Imperial, passing upon the rotational system as it applied to the then organizational set-up of the COMELEC, stated: The provision that of the first three commissioners appointed one shall hold office for 9 years, another for 6 years and the third for 3 years, when taken together with the prescribed term of office for 9 years without reappointment, evinces a deliberate plan to have a regular rotation or cycle in the membership of the commission, by having subsequent members appointable only once every three years.[46] To be sure, Villars appointment as COA Chairman partakes of a promotional appointment which, under appropriate setting, would be outside the purview of the constitutional reappointment ban in Sec 1(2), Art. IX(D) of the Constitution. Nonetheless, such appointment, even for the term appearing in the underlying appointment paper, ought still to be struck down as unconstitutional for the reason as shall be explained. Consider: In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a COA member shall be for a fixed 7-year term if the vacancy results from the expiration of the term of the predecessor. We reproduce in its pertinent part the provision referred to: (2) The Chairman and Commissioners [on Audit] shall be appointed x x x for a term of seven years without reappointment. x x x Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. x x x Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of less than seven (7) years is void for violating a clear, but mandatory constitutional prescription. There can be no denying that the vacancy in the position of COA chairman when Carague stepped down in February 2, 2008 resulted from the expiration of his 7-year term. Hence, the appointment to the vacancy thus created ought to have been one for seven (7) years in line with the verbal legis approach[47] of interpreting the Constitution. It is to be understood, however, following Gaminde, that in case of a belated appointment, the interval between the start of the term and the actual appointment shall be counted against the 7-year term of the appointee. Posing, however, as an insurmountable barrier to a full 7-year appointment for Villar is the rule against one serving the commission for an aggregate term of more than seven (7) years. Where the Constitution or, for that matter, a statute, has fixed the term of office of a public official, the appointing authority is without authority to specify in the appointment a term shorter or longer than what the law provides. If the vacancy calls for a full seven-year appointment, the President is without discretion to extend a promotional appointment for more or for less than seven (7) years. There is no in between. He or she cannot split terms. It is not within the power of the appointing authority to override the positive provision of the Constitution which dictates that the term of office of members of constitutional bodies shall be seven (7) years.[48] A contrary reasoning would make the term of office to depend upon the pleasure or caprice of the [appointing authority] and not upon the will [of the framers of the Constitution] of the legislature as expressed in plain and undoubted language in the law.[49] In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution decrees, was not legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as COA Commissioner. A shorter term, however, to comply with said rule would also be invalid as the corresponding appointment would effectively breach the clear purpose of the Constitution of giving to every appointee so appointed subsequent to the first set of commissioners, a fixed term of office of 7 years. To recapitulate, a COA commissioner like respondent Villar who serves for a period less than seven (7) years cannot be appointed as chairman when such position became vacant as a result of the expiration of the 7-year term of the predecessor (Carague). Such appointment to a full term

16

is not valid and constitutional, as the appointee will be allowed to serve more than seven (7) years under the constitutional ban. On the other hand, a commissioner who resigned before serving his 7- year term can be extended an appointment to the position of chairman for the unexpired period of the term of the latter, provided the aggregate of the period he served as commissioner and the period he will serve as chairman will not exceed seven (7) years. This situation will only obtain when the chairman leaves the office by reason of death, disability, resignation or impeachment. Let us consider, in the concrete, the situation of then Chairman Carague and his successor, Villar. Carague was appointed COA Chairman effective February 2, 2001 for a term of seven (7) years, or up to February 2, 2008. Villar was appointed as Commissioner on February 2, 2004 with a 7-year term to end on February 2, 2011. If Carague for some reason vacated the chairmanship in 2007, then Villar can resign as commissioner in the same year and later be appointed as chairman to serve only up to February 2, 2008, the end of the unexpired portion of Caragues term. In this hypothetical scenario, Villars appointment to the position of chairman is valid and constitutional as the aggregate periods of his two (2) appointments will only be five (5) years which neither distorts the rotational scheme nor violates the rule that the sum total of said appointments shall not exceed seven (7) years. Villar would, however, forfeit two (2) years of his original seven (7)-year term as Commissioner, since, by accepting an upgraded appointment to Caragues position, he agreed to serve the unexpired portion of the term of the predecessor. As illustrated earlier, following Mr. Fozs line, if there is an upgrading of position from commissioner to chairman, the appointee takes the risk of cutting short his original term, knowing pretty well before hand that he will serve only the unexpired portion of the term of his predecessor, the outgoing COA chairman. In the extreme hypothetical situation that Villar vacates the position of chairman for causes other than the expiration of the original term of Carague, the President can only appoint the successor of Villar for the unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the Constitution. Upon the expiration of the original 7-year term of Carague, the President can appoint a new chairman for a term of seven (7) full years. In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to the view that the promotional appointment of a sitting commissioner is plausible only when he is appointed to the position of chairman for the unexpired portion of the term of said official who leaves the office by reason of any the following reasons: death, disability, resignation or impeachment, not when the vacancy arises out as a result of the expiration of the 7-year term of the past chairman. There is nothing in the Constitution, so Justice Mendoza counters, that restricts the promotion of an incumbent commissioner to the chairmanship only in instances where the tenure of his predecessor was cut short by any of the four events referred to. As earlier explained, the majority view springs from the interplay of the following premises: The explicit command of the Constitution is that the Chairman and the Commissioners shall be appointed by the President x x x for a term of seven years [and] appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. To repeat, the President has two and only two options on term appointments. Either he extends an appointment for a full 7-year term when the vacancy results from the expiration of term, or for a shorter period corresponding to the unexpired term of the predecessor when the vacancy occurs by reason of death, physical disability, resignation or impeachment. If the vacancy calls for a full seven-year appointment, the Chief Executive is barred from extending a promotional appointment for less than seven years. Else, the President can trifle with terms of office fixed by the Constitution. Justice Mendoza likewise invites attention to an instance in history when a commissioner had been promoted chairman after the expiration of the term of his predecessor, referring specifically to the appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P. Carag after the expiration of the latters term in 1959 as COMELEC chairman. Such appointment to the position of chairman is not constitutionally permissible under the 1987 Constitution because of the policy and intent of its framers that a COA member who has served his full term of seven (7) years or even for a shorter period can no longer be extended another appointment to the position of chairman for a full term of seven (7) years. As revealed in the deliberations of the Constitutional Commission that crafted the 1987 Constitution, a member of COA who also served as a commissioner for less than seven (7) years in said position cannot be appointed to the position of chairman for a full term of seven (7) years since the aggregate will exceed seven (7) years. Thus, the adverted Garcia appointment in 1959 made under the 1935 Constitution cannot be used as a precedent to an appointment of such nature under the 1987 Constitution. The dissent further notes that the upgrading remained uncontested. In this regard, suffice it to state that the promotion in question was either legal or it was not. If it were not, no amount of repetitive practices would clear it of invalidating taint. Lastly, Villars appointment as chairman ending February 2, 2011 which Justice Mendoza considers as valid is likewise unconstitutional, as it will destroy the rationale and policy behind the rotational system or the staggering of appointments and terms in COA as prescribed in the Constitution. It disturbs in a way the staggered rotational system of appointment under Sec. 1(2), Art. IX(D) of the 1987 Constitution. Consider: If Villars term as COA chairman up to February 2, 2011 is viewed as valid and constitutional as espoused by my esteemed colleague, then two vacancies have simultaneously occurred and two (2) COA members going out of office at once, opening positions for two (2) appointables on that date as Commissioner San Buenaventuras term also expired on that day. This is precisely one of the mischiefs the staggering of terms and the regular intervals appointments seek to address. Note that San Buenaventura was specifically appointed to succeed Villar as commissioner, meaning she merely occupied the

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position vacated by her predecessor whose term as such commissioner expired on February 2, 2011. The result is what the framers of the Constitution doubtless sought to avoid, a sitting President with a 6-year term of office, like President Benigno C. Aquino III, appointing all or at least two (2) members of the three-man Commission during his term. He appointed Ma. Gracia Pulido-Tan as Chairman for the term ending February 2, 2015 upon the relinquishment of the post by respondent Villar, and Heidi Mendoza was appointed Commissioner for a 7-year term ending February 2, 2018 to replace San Buenaventura. If Justice Mendozas version is adopted, then situations like the one which obtains in the Commission will definitely be replicated in gross breach of the Constitution and in clear contravention of the intent of its framers. Presidents in the future can easily control the Commission depriving it of its independence and impartiality. To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz: 1. The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term of seven (7) years; an appointment for a lesser period is void and unconstitutional. The appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration of the term as this will result in the distortion of the rotational system prescribed by the Constitution. 2. Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall only be for the unexpired portion of the term of the predecessor, but such appointments cannot be less than the unexpired portion as this will likewise disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D). 3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term of seven years and who served the entire period, are barred from reappointment to any position in the Commission. Corollarily, the first appointees in the Commission under the Constitution are also covered by the prohibition against reappointment. 4. A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment to the position of Chairman for the unexpired portion of the term of the departing chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of service as commissioner and the unexpired period of the term of the predecessor will not exceed seven (7) years and provided further that the vacancy in the position of Chairman resulted from death, resignation, disability or removal by impeachment. The Court clarifies that reappointment found in Sec. 1(2), Art. IX(D) means a movement to one and the same office (Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment involving a movement to a different position or office (Commissioner to Chairman) would constitute a new appointment and, hence, not, in the strict legal sense, a reappointment barred under the Constitution. 5. Any member of the Commission cannot be appointed or designated in a temporary or acting capacity. COMMISSION, for a term expiring February 2, 1999.

17

By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office.[1] However, on February 24, 1998, petitioner sought clarification from the Office of the President as to the expiry date of her term of office. In reply to her request, the Chief Presidential Legal Counsel, in a letter dated April 07, 1998[2] opined that petitioners term of office would expire on February 02, 2000, not on February 02, 1999. Relying on said advisory opinion, petitioner remained in office after February 02, 1999. On February 04, 1999, Chairman Corazon Alma G. de Leon, wrote the Commission on Audit requesting opinion on whether or not Commissioner Thelma P. Gaminde and her co-terminous staff may be paid their salaries notwithstanding the expiration of their appointments on February 02, 1999. On February 18, 1999, the General Counsel, Commission on Audit, issued an opinion that the term of Commissioner Gaminde has expired on February 02, 1999 as stated in her appointment conformably with the constitutional intent.[3] Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued notice of disallowance No. 99-002-101 (99), disallowing in audit the salaries and emoluments pertaining to petitioner and her co-terminous staff, effective February 02, 1999.[4] On April 5, 1999, petitioner appealed the disallowance to the Commission on Audit en banc. On June 15, 1999, the Commission on Audit issued Decision No. 99-090 dismissing petitioners appeal. The Commission on Audit affirmed the propriety of the disallowance, holding that the issue of petitioners term of office may be properly addressed by mere reference to her appointment paper which set the expiration date on February 02, 1999, and that the Commission is bereft of power to recognize an extension of her term, not even with the implied acquiescence of the Office of the President.[5] In time, petitioner moved for reconsideration; however, on August 17, 1999, the Commission on Audit denied the motion in Decision No. 99-129.[6] Hence, this petition.[7] The Issue The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as stated in the appointment paper, or on February 02, 2000, as claimed by her. The Courts Ruling The term of office of the Chairman and members of the Civil Service Commission is prescribed in the 1987 Constitution, as follows: Section 1 (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, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner 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.[8] The 1973 Constitution introduced the first system of a regular rotation or cycle in the membership of the Civil Service Commission. The provision on the 1973 Constitution reads: x x x The Chairman and the Commissioners shall be appointed by the Prime Minister for a term of seven years without reappointment. Of the Commissioners first appointed, one shall hold office for seven years, another for five years, and the third for three years. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor.[9] Actually, this was a copy of the Constitutional prescription in the amended 1935 Constitution of a rotational system for the appointment of the Chairman and members of the Commission on Elections. The Constitutional amendment creating an independent Commission on Elections provides as follows: Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution."[10]

WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner Reynaldo A. Villar to the position of Chairman of the Commission on Audit to replace Guillermo N. Carague, whose term of office as such chairman has expired, is hereby declared UNCONSTITUTIONAL for violation of Sec. 1(2), Art. IX(D) of the Constitution. SO ORDERED.

THELMA P. GAMINDE vs. COMMISSION ON AUDIT [G. R. No. 140335, December 13, 2000] The Case The case is a special civil action of certiorari seeking to annul and set aside two decisions of the Commission on Audit ruling that petitioners term of office as Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993, expired on February 02, 1999, as set forth in her appointment paper. The Facts On June 11, 1993, the President of the Philippines appointed petitioner Thelma P. Gaminde, ad interim, Commissioner, Civil Service Commission. She assumed office on June 22, 1993, after taking an oath of office. On September 07, 1993, the Commission on Appointment, Congress of the Philippines confirmed the appointment. We quote verbatim her appointment paper: 11 June 1993 Madam: Pursuant to the provisions of existing laws, you are hereby appointed, ad interim, COMMISSIONER, CIVIL SERVICE

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In Republic vs. Imperial,[11] we said that the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a common date, and, (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term.[12] Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms.[13] Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point of the terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 02, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter.[14] 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.[15] In concluding that February 02, 1987 is the proper starting point of the terms of office of the first appointees to the Constitutional Commissions of a staggered 7-5-3 year terms, we considered the plain language of Article IX (B), Section 1 (2), Article IX (C), Section 1 (2) and Article IX (D), Section 1 (2) of the 1987 Constitution that uniformly prescribed a seven-year term of office for Members of the Constitutional Commissions, without re-appointment, and for the first appointees terms of seven, five and three years, without re-appointment. In no case shall any Member be appointed or designated in a temporary or acting capacity. There is no need to expressly state the beginning of the term of office as this is understood to coincide with the effectivity of the Constitution upon its ratification (on February 02, 1987). On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution provides: SEC. 15. The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution.[16] What the above quoted Transitory Provisions contemplate is tenure not term of the incumbent Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, who shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. The term unless imports an exception to the general rule.[17] Clearly, the transitory provisions mean that the incumbent members of the Constitutional Commissions shall continue in office for one year after the ratification of this Constitution under their existing appointments at the discretion of the appointing power, who may cut short their tenure by: (1) their removal from office for cause; (2) their becoming incapacitated to discharge the duties of their office, or (3) their appointment to a new term thereunder, all of which events may occur before the end of the one year period after the effectivity of the Constitution. However, the transitory provisions do not affect the term of office fixed in Article IX, providing for a seven-five-three year rotational interval for the first appointees under this Constitution. At the time of the adoption of the 1987 Constitution, the incumbent Chairman and members of the Civil Service Commission were the following: (1) Chairperson Celerina G. Gotladera. She was initially appointed as OIC Chairman on March 19, 1986, and appointed chairman on December 24, 1986, which she assumed on March 13, 1987. (2) Atty. Cirilo G. Montejo. On June 25, 1986, President Corazon C. Aquino appointed him Commissioner, without any term. He assumed office on July 9, 1986, and served until March 31, 1987, when he filed a certificate of candidacy for the position of Congressman, 2nd District, Leyte, thereby vacating his position as Commissioner. His tenure was automatically cut-off by the filing of his certificate of candidacy. (3) Atty. Mario D. Yango. On January 22, 1985, President Ferdinand E. Marcos appointed him Commissioner for a term expiring January 25, 1990. He served until February 2, 1988, when his term ended in virtue of the transitory provisions referred to. On May 30, 1988, President Aquino re-appointed him to a new three-year term and served until May 31, 1991, exceeding his lawful term, but not exceeding the maximum of seven years, including service before the ratification of the 1987 Constitution. Under this factual milieu, it was only Commissioner Yango who was extended a new term under the 1987 Constitution. The period consumed between the start of the term on February 02, 1987, and his actual assumption on May 30, 1988, due to his belated appointment, must be counted against him.

18

Given the foregoing common starting point, we compute the terms of the first appointees and their successors to the Civil Service Commission under the 1987 Constitution by their respective lines, as follows: First line : Chairman seven-year term. February 02, 1987 to February 01, 1994. On January 30, 1988, the President nominated Ms. Patricia A. Sto. Tomas Chairman, Civil Service Commission. On March 02, 1988, the Commission on Appointments confirmed the nomination. She assumed office on March 04, 1988. Her term ended on February 02, 1994. She served as de facto Chairman until March 04, 1995. On March 05, 1995, the President appointed then Social Welfare Secretary Corazon Alma G. de Leon, Chairman, Civil Service Commission, to a regular seven-year term. This term must be deemed to start on February 02, 1994, immediately succeeding her predecessor, whose term started on the common date of the terms of office of the first appointees under the 1987 Constitution. She assumed office on March 22, 1995, for a term expiring February 02, 2001. This is shown in her appointment paper, quoted verbatim as follows: March 5, 1995 Madam: Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the Constitution, you are hereby appointed, ad interim, CHAIRMAN, CIVIL SERVICE COMMISSION, for a term expiring February 2, 2001. By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. (Sgd.) FIDEL V. RAMOS Second line : Commissioner Five-year term. February 02, 1987 to February 02, 1992. On January 30, 1988, the President nominated Atty. Samilo N. Barlongay Commissioner, Civil Service Commission. On February 17, 1988, the Commission on Appointments, Congress of the Philippines, confirmed the nomination. He assumed office on March 04, 1988. His term ended on February 02, 1992. He served as de facto Commissioner until March 04, 1993. On June 11, 1993, the President appointed Atty. Thelma P. Gaminde Commissioner, Civil Service Commission, for a term expiring February 02, 1999.[18] This terminal date is specified in her appointment paper. On September 07, 1993, the Commission on Appointments confirmed the appointment. She accepted the appointment and assumed office on June 22, 1993. She is bound by the term of the appointment she accepted, expiring February 02, 1999. In this connection, the letter dated April 07, 1998, of Deputy Executive Secretary Renato C. Corona[19] clarifying that her term would expire on February 02, 2000, was in error. What was submitted to the Commission on Appointments was a nomination for a term expiring on February 02, 1999. Thus, the term of her successor[20] must be deemed to start on February 02, 1999, and expire on February 02, 2006. Third line : Commissioner Three-year term. February 02, 1987 to February 02, 1990. Atty. Mario D. Yango was incumbent commissioner at the time of the adoption of the 1987 Constitution. His extended tenure ended on February 02, 1988. In May, 1988, President Corazon C. Aquino appointed him Commissioner, Civil Service Commission to a new three-year term thereunder. He assumed office on May 30, 1988. His term ended on February 02, 1990, but served as de facto Commissioner until May 31, 1991. On November 26, 1991, the President nominated Atty. Ramon P. Ereeta as Commissioner, Civil Service Commission. On December 04, 1991, the Commission on Appointments confirmed the nomination. He assumed office on December 12, 1991, for a term expiring February 02, 1997.[21] Commendably, he voluntarily retired on February 02, 1997. On February 03, 1997, President Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr. Commissioner, Civil Service Commission, for a term expiring February 02, 2004. He assumed office on February 11, 1997. Thus, we see the regular interval of vacancy every two (2) years, namely, February 02, 1994, for the first Chairman,[22] February 02, 1992, for the first five-year term Commissioner,[23] and February 02, 1990, for the first three-year term Commissioner.[24] Their successors must also maintain the two year interval, namely: February 02, 2001, for Chairman;[25] February 02, 1999, for Commissioner Thelma P. Gaminde, and February 02, 1997, for Commissioner Ramon P. Ereeta, Jr. The third batch of appointees would then be having terms of office as follows: First line : Chairman, February 02, 2001 to February 02, 2008; Second line: Commissioner, February 02, 1999 to February 02, 2006;[26] and, Third line: Commissioner, February 02, 1997 to February 02, 2004,[27] thereby consistently maintaining the two-year interval. The line of succession, terms of office and tenure of the Chairman and members of the Civil Service Commission may be outlined as

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follows:[28] Chairman (7-year original) Sto. Tomas 1st appointee Feb. 02, 1987 to Feb. 02, 1994 De Leon 2nd appointee (incumbent) _______ - 3rd appointee Feb. 02, 1994 to Feb. 02, 2001 Feb. 02, 2001 to Feb. 02, 2008 2nd Member (5-year original) Barlongay 1st appointee Feb. 02, 1987 to Feb. 02, 1992 Gaminde 2nd appointee Feb. 02, 1992 to Feb. 02, 1999 Valmores 3rd appointee (incumbent) 3rd Member (3-year original) Yango - 1st appointee Feb. 02, 1987 to Feb. 02, 1990 Ereeta 2nd appointee Feb. 02, 1990 to Feb. 02, 1997 Erestain, Jr. 3rd appointee Feb. 02, 1997 to (incumbent) The Fallo WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde as Commissioner, Civil Service Commission, under an appointment extended to her by President Fidel V. Ramos on June 11, 1993, expired on February 02, 1999. However, she served as de facto officer in good faith until February 02, 2000, and thus entitled to receive her salary and other emoluments for actual service rendered. Consequently, the Commission on Audit erred in disallowing in audit such salary and other emoluments, including that of her co-terminous staff. ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar as they disallow the salaries and emoluments of Commissioner Thelma P. Gaminde and her coterminous staff during her tenure as de facto officer from February 02, 1999, until February 02, 2000. This decision shall be effective immediately. No costs. SO ORDERED. Feb. 02, 2004 May 30, 1988 to May 31, 1991 Dec. 12, 1991 to Feb. 02, 1997 Feb. 11, 1997 to Feb. 02, 2004 Feb. 02, 1999 to Feb. 02, 2006 Term March 04, 1988 to March 04, 1993 June 11, 1993 to Feb. 02, 2000 Sept. 08, 2000 to Feb. 02, 2006 Tenure Term Tenure Mar. 04, 1988 to March 08, 1995 March 22, 1995 to Feb. 02, 2001 Term Tenure

19

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PRIMARILY CONFIDENTIAL POSITIONS

20

MEDARDO AG. CADIENTE vs. LUIS T. SANTOS(G.R. No. L-35592

,June 11, 1986)

highest degree of trust that the latter entertains for the counsel selected. As stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 4176 (citing De los Santos vs. Mallaare 87 Phil. 289), the phrase primarily confidential' "denotes not only confidence in the 'aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse, without embarrassment on freedom from misgivings of betrayals of personal trust on confidential matters of state. (Emphasis supplied). The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the officer holding such position is separated from the service, such cessation entails no removal but an expiration of his term. In the case of Hernandez vs. Villegas, L-17287, June 30, 1965, 14 SCRA 548, it was held It is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office-two different causes for the termination of official relations recognized in the Law of Public Officers. In the case at bar, when the respondent City Mayor of Davao terminated the services of the petitioner, he was not removed or dismissed. There being no removal or dismissal it could not, therefore, be said that there was a violation of the constitutional provision that "no officer or employee in the civil service shall be suspended or dismissed except for cause as provided by law" (Article XII-B, Section 1(3), 1973 Constitution) The matter of expiration of a term of an officer holding a primarily confidential position, as distinguished from a removal or dismissal, was further explained by this Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise: When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power, and the pleasure turns into a displeasure, the incumbent is not removed or dismissed from office-his term merely expires, in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and cannot be deemed removed or dismissed therefrom, upon expiration of said term. The main difference between the former the primarily confidential officer-and the latter is that the latter's term is fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not removed or dismissed from office-his term merely expired, The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in the case Corpus vs. Cuaderno, L23721, March 31, 1965, 13 SCRA 591. In said case We stated that: The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures, and thus their cessation involves no removal. WHEREFORE, the petition is hereby DENIED for lack of merit. SO ORDERED.

Petition for review on certiorari of the decision of the Court of First Instance of Davao City, Branch I, in Civil Case No. 7571, entitle Ag. Cadierte vs. Mayor Luis T. Santos, et al." promulgated on August 23, 1972, which dismissed the petition for mandamus, quo warranto, with preliminary injunction filed by herein petitioner. On September 13, 1971, petitioner Cadiente was appointed by then Mayor Elias B. Lopez as City Legal Officer of Davao City. The appointment was duly attested to and/or approved as "permanent" by the Civil Service Commission under Section 24(b) of R.A. 2260. On January 6, 1972, the new and then incumbent City Mayor Luis T. Santos, herein respondent, sent a letter (Annex "H" to the Petition, p. 43, Rollo) to the petitioner advising the latter that his services as City Legal Officer of Davao City "are dispensed with effective upon receipt of said letter" on the ground that the position of City Legal Officer was primarily confidential in nature. This was the opinion rendered by the City Fiscal of Davao City on January 6, 1972, after being requested to submit his legal opinion on said matter. Respondent City Mayor appointed respondent Atty. Victor Clapano as City Legal Officer on January 6, 1972 to take effect on said date. Petitioner appealed to the Civil Service Commission on January 7, 1982, which rendered its decision in its lst Indorsement dated March 2, 1972, therein holding that the termination, removal and/or dismissal of petitioner is "without cause and without due process" and that the position of City Legal Officer "is not included among those positions enumerated in Sec. 5 of R.A. 2260 as belonging to the non-competitive service." Subsequently, on April 7, 1972, the City Council of Davao City passed Resolution No. 210, series of 1972, therein considering and recognizing herein petitioner Atty. Medardo Ag. Cadiente, as the rightful City Legal Officer of Davao City (Rollo, pp. 54-58). Despite this resolution, the public respondents in this case who are the City Mayor, the City Treasurer, and the City Auditor of Davao City, still declined and refused to recognize petitioner as the one entitled to the disputed position of City Legal Officer of Davao City. Meanwhile, in an Indorsement (Annex "O" to the Petition, p. 59) dated February 8, 1972, the Civil Service Commission returned the appointment of respondent Clapano to respondent City Mayor with the information that said office (Civil Service Commission) "overlooked the fact that the appointee was more than 57 years old at the time of his appointment and, therefore, authority for his appointment be first secured from the Office of the President pursuant to Section 6 of R.A. 728, as reinforced by Section 5, Civil Service Rule IV, which states that "no person shall be appointed or reinstated in the service if he is already 57 years of age, unless the President of the Philippines ... determines that he possesses special qualifications and his services are needed. Petitioner thus filed with the Court of First Instance of Davao City, Branch I, Civil Case No. 7571, for mandamus, quo warranto with preliminary injunction against the herein respondents, praying therein that: (a) respondent City Mayor be ordered to reinstate and/or allow him to continue performing his duties and functions as City Legal Officer of Davao City; (b) the appointment of respondent Clapano be declared illegal and invalid; and (c) respondents City Mayor, City Treasurer, and City Auditor be ordered to pay him all his salaries, wages, allowances, emoluments an other benefits due him as City Legal Officer from the time of his illegal dismissal until the termination of the suit. On August 23, 1972, the trial court rendered its decision dismissing the aforestated case, as it ruled that: The positions of Municipal Attorney, Provincial Attorney and City Legal Officer are by their very nature, primarily confidential, and therefore, belong to the non-competetive service under paragraph 1, section 5, Republic Act 2260, as amended, because the functions attached to the offices require the highest trust and confidence of the appointing authority on the appointee.... The approval of, and attestation to the appointment of petitioner Cadiente as permanent under Section 24(b) of R.A. 2260, as amended, by the Commissioner of Civil Service did not make the appointment permanent and the position fall under the competetive service. If, as the Court has found, the position is primarily confidential, petitioner Cadiente held office at the pleasure of respondent Mayor and the position belongs to the non-competitive service. Motion for reconsideration of said decision having been denied in an Order dated September 23, 1972, the present petition to compel reinstatement and payment of back salaries, was filed with this Court on October 7, 1972. In the Resolution of this Court dated December 28, 1972, said petition was given due course. In resolving the merits of the instant case, We find as an undeniable fact that the position of a City Legal Officer is one which is "primarily confidential". This Court held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extended to said officer. The relationship existing between a lawyer and his client, whether a private individual or a public officer, is one that depends on the

HONORABLE SIMPLICIO C. GRIO vs. CIVIL SERVICE COMMISSION G.R. No. 91602, February 26, 1991 The main issue in this petition is whether or not the position of a provincial attorney and those of his legal subordinates are primarily confidential in nature so that the services of those holding the said items can be terminated upon loss of confidence. The facts of this case are simple. Petitioner Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He held this position from April 3, 1973 up to June 2, 1986 when he offered to resign and his resignation was accepted by the then Acting Governor. In his resignation letter, petitioner Demaisip recommended the elevation of respondent Teotimo Arandela from Senior Legal Officer to Provincial Attorney. OIC Governor Licurgo Tirador later on decided to appoint respondent Arandela as the Provincial Attorney. Respondent Cirilo Gelvezon, on the other hand, was promoted from Legal Officer II to Senior Legal Officer. Respondents Teodolfo Dato-on and Nelson Geduspan were appointed to the position of Legal Officer II. On February 2, 1988, petitioner Simplicio Grio assumed office as the newly elected governor of Iloilo. One month later, he informed

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respondent Arandela and all the legal officers at the Provincial Attorney's Office about his decision to terminate their services. In his letter, petitioner Grio made mention of an article pertaining to the Iloilo office of the Provincial Attorney which appeared in the Panay News and which "undermined that trust and confidence" that he reposed on them. Petitioner Demaisip was reappointed by Governor Grio as the Provincial Attorney, The latter, on the other hand, arranged the replacements of the other legal officers. Respondent Cirilo Gelvezon was replaced by petitioner Santos Aguadera, respondent Nelson Geduspan was replaced by petitioner Manuel Casumpang and petitioner Manuel Travia took the place of respondent Teodolfo Dato-on. On March 15, 1988, petitioner Governor Grio formally terminated the services of the respondents herein on the ground of loss of trust and confidence. This action taken by the governor was appealed by respondents to the Merit Systems Protection Board of the Civil Service Commission. On March 9, 1989, the Merit Systems Board issued an Order declaring the respondents' termination illegal and ordering that they be immediately restored to their positions with back salaries and other emoluments due them. This was appealed by petitioner Grio to the Civil Service Commission. In Resolution No. 89-736 dated October 9, 1989, the Civil Service Commission affirmed the Order of the Merit Systems Protection Board, and directed that the respondents be restored to their former legal positions and be paid back salaries and other benefits. Petitioners filed a Motion for Reconsideration of the above-mentioned Decision of the Civil Service Commission. The motion was denied on December 7, 1989 in Resolution No. 89-920.

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When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power, and the pleasure turns into a displeasure, the incumbent is not removed or dismissed from office his term merely expires, in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and cannot be deemed removed or dismissed therefrom, upon expiration of said term. The main difference between the former the primary confidential officer and the latter is that the latter's term is fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not removed or dismissed from office his term merely expired. The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in the case Corpus vs. Cuaderno, L23721, March 31, 1965, 13 SCRA 591. In said case We stated that: The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures, and thus their cessation involves no removal. 2 In Besa vs. Philippine National Bank, 3 where petitioner, who was the Chief Legal Counsel with the rank of Vice President of the respondent Philippine National Bank, questioned his being transferred to the position of Consultant on Legal Matters in the Office of President, this Court, considering said position to be primarily confidential held It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of any lawyer for that matter, is impressed with a highly technical aspect. As had been pointed out, however, it does not mean that thereby a client is precluded from substituting in his stead another practitioner. That is his right; Ms decision to terminate the relationship once made is impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enough that his right to compensation earned be duly respected. In that sense, it is equally clear that where the position partakes of the attributes of being both technical and confidential, there can be no insistence of a fixed or a definite term if the latter aspect predominates. To paraphrase the language of the Chief Justice in the opinion previously cited, the incumbent of a primarily confidential position, as was the case of petitioner, should realize that at any time the appointing power may decide that his services are no longer needed. As thus correctly viewed, Corpus v. Cuaderno cannot be read as lending support to petitioner's efforts to retain his position as Chief Legal Counsel of respondent Bank, contrary to its wishes as so explicitly declared in its Resolution No. 1053. The question now is should the ruling in Cadiente be made applicable to a provincial attorney? According to the petitioners, Cadiente must be applied because by the nature of the functions of a provincial attorney and a city legal officer, their positions are both primarily confidential. Respondents, on the other hand, maintain that since the Civil Service Commission has already classified the position of private respondent Arandela as a career position and certified the same as permanent, he is removable only for cause, and therefore Cadiente is not applicable. We agree with the petitioners and answer the question earlier propounded in the affirmative. A city legal officer appointed by a city mayor to work for and in behalf of the city has for its counterpart in the province a provincial attorney appointed by the provincial governor. In the same vein, a municipality may have a municipal attorney who is to be named by the appointing power. The positions of city legal officer and provincial attorney were created under Republic Act No. 5185 which categorized them together as positions of "trust", to wit: Sec. 19. Creation of positions of Provincial Attorney and City Legal officer. To enable the provincial and city governments to avail themselves of the full time and trusted services of legal officers, the positions of provincial attorney and city legal officer may be created and such officials shall be appointed in such manner as is provided for under Section four of this Act. For this purpose the functions hitherto performed by the provincial and city fiscals in serving as legal adviser and legal officer for civil cases of the province and city shall be transferred to the provincial attorney and city legal officer, respectively. (Emphasis supplied.) 4 By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serve as the legal adviser and legal officer for the civil cases of the province and the city that they work for. Their services are precisely categorized by law to be "trusted services." A comparison of the functions, powers and duties of a city legal officer as provided in the Local Government Code with those of the provincial attorney of Iloilo would reveal the close similarity of the two positions. Said functions clearly reflect the highly confidential nature of the two offices and the need for a relationship based on trust between the officer and the head of the local government unit he serves. The "trusted services" to be rendered by the officer would mean such trusted services of a lawyer to his client which is of the highest degree of trust. 5 The fact that the position of respondent Arandela as provincial attorney has already been classified as one under the career service and certified as permanent by the Civil Service Commission cannot conceal or alter its highly confidential nature. As in Cadiente

Hence, this petition for review whereby petitioners seek the reversal of Resolution No. 89-736 of the Civil Service Commission and Resolution No. 89-920 which denied the Motion for Reconsideration. We shall first discuss whether the position of a provincial attorney is primarily confidential so that the holder thereof may be terminated upon loss of confidence. In Cadiente vs. Santos, 1 this Court ruled that the position of a city legal officer is undeniably one which is primarily confidential in this manner: In resolving the merits of the instant case, We find as an undeniable fact that the position of a City Legal Officer is one which is "primarily confidential." This Court held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extended to said officer. The relationship existing between a lawyer and his client, whether a private individual or a public officer, is one that depends on the highest degree of trust that the latter entertains for the counsel selected. As stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 417 (citing De los Santos vs. Mallare, 87 Phil. 289), the phrase "primarily confidential" "denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse, without embarrassment or freedom from misgivings of betrayals of personal trust on confidential matters of state. (Emphasis supplied.) The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endure; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the officer holding such position is separated from the service, such cessation entails no removal but an expiration of his term. In the case of Hernandez vs. Villegas, L-17287, June 30, 1965, 14 SCRA 548, it was held It is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office two different causes for the termination of official relations recognized in the Law of Public Officers. In the case at bar, when the respondent City Mayor of Davao terminated the services of the petitioner, he was not removed or dismissed. There being no removal or dismissal it could not, therefore, be said that there was a violation of the constitutional provision that "no officer or employee in the civil service shall be suspended or dismissed except for cause as provided by law" (Article XII-B, Section 1 (3), 1973 Constitution). The matter of expiration of a term of an officer holding a primarily confidential position, as distinguished from a removal or dismissal, was further explained by this Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise:

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where the position of the city legal officer was duly attested as permanent by the Civil Service Commission before this Court declared that the same was primarily confidential, this Court holds that the position of respondent Arandela as the provincial attorney of Iloilo is also a primarily confidential position. To rule otherwise would be tantamount to classifying two positions with the same nature and functions in two incompatible categories. This being the case, and following the principle that the tenure of an official holding a primarily confidential position ends upon loss of confidence, 6 the Court finds that private respondent Arandela was not dismissed or removed from office when his services were terminated. His term merely expired. The attorney-client relationship is strictly personal because it involves mutual trust and confidence of the highest degree, irrespective of whether the client is a private person or a government functionary. 7 The personal character of the relationship prohibits its delegation in favor of another attorney without the client's consent. 8 However, the legal work involved, as distinguished from the relationship, can be delegated. 9 The practice of delegating work of a counsel to his subordinates is apparent in the Office of the Provincial Attorney wherein it can be gleaned from the power granted to such officer to exercise administrative supervision and control over the acts and decision of his subordinates. 10 It is therefore possible to distinguish positions in the civil service where lawyers act as counsel in confidential and non-confidential positions by simply looking at the proximity of the position in question in relation to that of the appointing authority. Occupants of such positions would be considered confidential employees if the predominant reason they were chosen by the appointing authority is the latter's belief that he can share a close intimate relationship with the occupant which measures freedom of discussion, without fear of embarrassment or misgivings of possible betrayal of personal trust on confidential matters of state. 11 This implies that positions in the civil service of such nature would be limited to those not separated from the position of the appointing authority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy. This is an additional reason why the positions of "City Legal Officer" and "Private Secretary to the President" were considered primarily confidential by the Court. 12 On the other hand, a customs policeman serving in the Harbor Patrol, in relation to the Commissioner of Customs, and an executive assistant, stenographer, or clerk in the Office of the President, were not considered so by the Court. 13 There is no need to extend the professional relationship to the legal staff which assists the confidential employer above described. Since the positions occupied by these subordinates are remote from that of the appointing authority, the element of trust between them is no longer predominant. The importance of these subordinates to the appointing authority now lies in the contribution of their legal skills to facilitate the work of the confidential employee. At this level of the bureaucracy, any impairment of the appointing authority's interest as a client, which may be caused through the breach of residual trust by any of these lower-ranked lawyers, can be anticipated and prevented by the confidential employee, as a reasonably competent office head, through the exercise of his power to "review, approve, reverse, or modify" their acts and decisions. 14 At this level, the client can be protected without need of imposing upon the lower-ranked lawyers the fiduciary duties inherent in the attorney-client relationship. Hence, there is now no obstacle to giving full effect to the security of tenure principle to these members of the civil service. Thus, with respect to the legal assistants or subordinates of the provincial attorney namely, Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan, the Cadiente and Besa rulings cannot apply. To recall, said cases specifically dealt with the positions of city legal officer of the city and chief legal counsel of the PNB. There was no reference to their legal staff or subordinates. As head of their respective departments, the city legal officer, the provincial attorney or the PNB chief legal counsel cannot be likened to their subordinates. The latter have been employed due to their technical qualifications. Their positions are highly technical in character and not confidential, so they are permanent employees, and they belong to the category of classified employees under the Civil Service Law. Thus, the items of Senior Legal Officer and Legal Officer II remain permanent as classified by the Civil Service Commission. Consequently, the holders of the said items, being permanent employees, enjoy security of tenure as guaranteed under the Constitution. This notwithstanding, petitioners contend that respondents are estopped from protesting the termination of their services because of their actions which, if taken together, would allegedly reveal that they have accepted their termination, such as: applying for clearances, not remaining in office and signing their payroll for March 15, 1988 acknowledging therein that their appointment "terminated/expired." We cannot agree with petitioners in this regard. The respondents did the above-mentioned acts because their services were actually dispensed with by petitioner Governor Grio. As a consequence of their termination, they could not remain in office and as required of any government employee who is separated from the government service, they had to apply for clearances. However, this did not mean that they believed in principle that they were validly terminated. The same should not prevent them from later on questioning the validity of said termination. The facts clearly show that respondents protested their termination with the Civil Service Commission within a month from the time of their termination. The Court holds that the said protest was filed within a reasonable period of time.

22

WHEREFORE, and in view of the foregoing, the petition is GRANTED with respect to the position of provincial attorney of Iloilo. Respondent Teotimo Arandela is hereby ordered to vacate said position upon the finality of this Decision. The Decision of the respondent Civil Service Commission pertaining to respondents Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan is hereby AFFIRMED. SO ORDERED.

ROSALINDA DE PERIO SANTOS vs. EXECUTIVE SECRETARY CATALINO MACARAIG G.R. No 94070, April 10, 1992 This is a petition for certiorari* seeking to set aside Administrative Order No. 122 of the Office of the President, finding the petitioner guilty of dishonesty and meting upon her, after appreciating certain mitigating circumstances in her favor, the penalty of reprimand with a warning that a repetition of the same or similar offense will be dealt with more severely. The President affirmed Assignment Order No. 58/88 dated April 27, 1988 of the Secretary of Foreign Affairs recalling the petitioner to the home office from her post as permanent representative to the Philippine Mission to the United Nations and other International Organizations (MISUNPHIL, for short) in Geneva, Switzerland (pp. 84-99, Rollo). Petitioner Rosalinda de Perio-Santos, a career service officer with the rank of Chief of Mission II and Ambassador Extraordinary and Plenipotentiary, was appointed on July 24, 1986, by her Excellency, President Corazon C. Aguino, to the position of Permanent Representative of the Philippines to the Philippine Mission to the United Nations and other International Organizations with station in Geneva, Switzerland (Annexes A and B, pp. 33-34, Rollo). On April 6, 1987, petitioner sought a leave of absence from the Department of Foreign Affairs (DFA) to spend the Easter Holidays in New York, U.S.A., with her mother, brothers and sisters at no expense to the Government (p. 84, Rollo). She bought two (2) nontransferable, non-refundable discounted tickets costing SFr. 1,597 for herself and her adopted daughter Pia. Before they could leave Geneva, petitioner received instructions from the home office directing her to proceed to Havana as a member of the Philippine delegation to the UNCTAD G-77 Preparatory Conference from April 20-26, 1987 (Ibid.). For the official trip outside her station, she was entitled, under the "Foreign Service Personnel Manual on Travel, Per Diems, and Daily Allowance Abroad," to SFr. 2,996 for the cost of economy roundtrip fare from Geneva-New York-Geneva portion of her Geneva-New YorkHavana-New York-Geneva trip. (Annexes C and D, pp. 35-37, Rollo) Instead of buying an economy roundtrip ticket, she used for the Geneva-New York-Geneva portion of her trip the two (2) discounted tickets costing only SFr. 1,597 for herself and her daughter Pia. They left Geneva for New York en route to Havana on April 15, 1987. On the same day, the DFA approved her application for a leave of absence with pay from April 27 to May 1, 1987 (Ibid.). After the Havana Conference, she and her daughter spent her vacation leave in New York before returning to Geneva (Ibid.). Instead of claiming reimbursement for SFr. 2,996, she requested, and received, reimbursement of only SFr. 1,597 which she spent for the Geneva to New York, and New York to Geneva portion of her trip, thereby effecting savings of SFr.1,399 for the Government (p.35, Rollo). On September 16, 1987, the DFA sent her a cable (GE-202/87) requesting clarification on "why Mission paid for plane ticket of infant Pia de Perio-Santos (petitioner's daughter) Geneva-New York-Geneva per CV 216/87 when she was not authorized to accompany her adopting mother at government expense.(Ibid.) Petitioner replied that the air fare tickets were for her only and did not include her daughter whose trip was paid from her personal funds (p. 86, Rollo). On September 21, 1987, the DFA required her to refund the amount representing her daughter's round-trip ticket since DFA received a copy of the "facture" from the travel agency showing that the amount of SFr.1,597 was in payment of (a) 1 billet adulteGeneva/New York/Geneva SFr. 950, and (b) 1 billet enfant-Geneva/New York/Geneva SFr. 673; and that the sum of SFr. 673 represented the cost of her daughter's portion of the ticket (p. 86, Ibid.). Instead of refunding only the sum of Sfr. 673 to the Government, petitioner returned the full amount of SFr.1,597 (Annex E, pp. 38 and 86, Rollo). She thereafter claimed payment for one round-trip economy plane ticket (Geneva-New York-Geneva) in the amount of SFr. 2,996 to which she was entitled under the Foreign Service Personnel Manual on Travel, Per Diems and Daily Allowance Abroad. On October 5, 1987, Deputy Armando Maglaque, and some MISUNPHIL employees filed administrative charges against her for "incompetence; inefficient; corrupt and dishonest activities; rude and uncouth manners; abusive and high-handed behavior; irregular and highly illegal transactions involving funds of the mission." The charges were referred to Ambassador Luis Ascalon for initial

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investigation (Comment, p. 182, Rollo). Petitioner explained the circumstances of the purchase of the discounted tickets. On November 26, 1987, Ambassador Ascalon submitted his findings which, with the complaints, were referred to a 5-man Ad Hoc Investigation Committee for preliminary investigation (p. 86, Rollo). The Committee found a prima facie case against petitioner for (1) dishonesty; (2) violation of existing rules and regulations; (3) incompetence and inefficiency; and (4) conduct prejudicial to the best interest of the service. Ambassador Eduardo Rosal also charged her with estafa before the Tanodbayan. The case was dismissed for insufficiency of evidence (p. 87, Rollo). On November 23, 1987, DFA recalled her to Manila for consultation. She came home on November 29, 1987 (p. 86, Rollo). On March 17, 1988, the Board of Foreign Service Administration (BFSA) constituted a new 5-man investigating committee to evaluate the evidence presented by the parties. Three (3) members of the committee, (Atty. Pineda and Ambassadors Pastores and Garrido) found her liable for misconduct only, and recommended dismissal of the other charges. They also recommended that she be reprimanded and recalled to Manila. Ambassador Arague dissented with respect to the penalty, which he thought should include a six-month suspension. Atty. De Vera found all the charges against Ambassador de Perio-Santos "to be unmeritorious." (pp. 87-88, Rollo.) authority of the President, denied the motion for reconsideration.

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In due time she filed this petition for certiorari alleging that the President's "reprimand and recall orders are not supported by substantial evidence and were issued with gross abuse of discretion and serious error of law" (p. 15, Rollo). The petition has merit. The general rule is that the factual findings of administrative agencies are binding on this Court and controlling on the reviewing authorities if supported by substantial evidence (Planters Products, Inc. vs. NLRC, 169 SCRA 328; Doruelo vs. Ministry of National Defense, 169 SCRA 448). Courts of justice will not interfere with purely administrative matters rendered by administrative bodies within the scope of their power and authority (Gegare vs. CA, 177 SCRA 471). A careful review of the records fails to yield any evidence of dishonesty on the part of the petitioner, or an intent to cheat and defraud the government. Her failure to disclose the fact that her discounted tickets included the fare for her child, was harmless and inconsequential as the two (2) discounted Geneva-New York-Geneva tickets for herself and her daughter were in fact inseparable, intransferable, non-cancellable and non-refundable, in effect one whole fare only, for purposes of the discount. The mother and daughter tickets were, in the words of the petitioner, "married to each other" (p. 8, Rollo). One without the other would not have been entitled to the discount. And if she left her daughter behind, it would have made no difference in the fare because the ticket was not refundable. Using the discounted tickets was beneficial to the Government for they cost 50% less than an economy roundtrip ticket that the petitioner was entitled to purchase for the same trip if she travelled alone. She obviously saved money (SFr.1,399) for the government by using her discounted tickets even if her daughter's fare was included therein. Since petitioner was moved by the best of motives in using the discounted tickets which she had purchased before she received the order to attend the UNCTAD conference in Havana, her action should be commended instead of condemned (Hernandez vs. Chairman, Commission on Audit, 179 SCRA 39). Petitioner's problems probably would not have arisen if before embarking on the Havana trip she had asked DFA for permission to use the two (2) discounted round-trip tickets for the Geneva-New York-Geneva portion of her trip. Her inadvertence was construed by the Government as lack of candor and honesty on her part. The Court believes however that she did not intend to falsify or conceal the truth when she filed a claim for the refund of the total cost of her discounted tickets (SFr.1,597). Her claim for the whole discounted fare was based on the fact that her daughter's ticket was inseparable from her own fare. They had to go together to be entitled to the special discount. Their fare was indivisible, hence, the Government's offer to shoulder only the petitioner's portion of the discounted fare (SFr. 950), excluding her daughter's portion (SFr. 647) was neither fair nor reasonable. In view of the DFA's objection to the refund of the entire discounted fare to her, the petitioner returned the whole amount of SFr.1,597 which she had earlier received from the DFA, and asked, in return, for the cost of the regular economy fare (SFr. 2,966) which she was legally entitled to purchase for her trip. Thereupon, the Secretary reprimanded her for misconduct and recalled her to the home office. On appeal to the Office of the President, the latter ironically found her guilty of the more serious offense of dishonesty, reprimanded her therefor, and recalled her to Manila. We hold that under the circumstances above narrated, the petitioner's actuation constituted neither dishonesty nor misconduct, hence, the reprimand that was meted to her was unmerited. Nevertheless, the Court is not disposed to disturb the order of the DFA and the Office of the President recalling the petitioner to the home office. There is no merit in the petitioner's contention that her tour of duty in Geneva was for four (4) years, as provided in Section 260 of P.D. No. 1578 ("Instituting the Administrative Code of 1978'), thus: (b) Tour of duty (1) The tour of duty of a foreign service officer at any post shall be four (4) years commencing on the date of his arrival at the post, after which he shall be transferred to another post. (p. 15, Rollo) As pointed out by the Solicitor General, P.D. 1578 was one of those unpublished "secret" decrees which this Court in Taada, et al. vs. Tuvera, et al., 146 SCRA 446, declared to be inoperative or without legal force and effect. P.D. 1578 was expressly repealed on May 5, 1987, by Executive Order No. 168, entitled "REPEALING PRESIDENTIAL DECREE NO. 1578 ENTITLED 'INSTITUTING THE ADMINISTRATIVE CODE OF 1978.'" The applicable law therefore is Section 6, Part B, Title III, of R.A. 708, "The Foreign Service Act of the Philippines," enacted on June 5, 1952, providing that: Sec. 6. Assignments and Transfers A Foreign Service Officer may be assigned by the Secretary to serve in the Department or in a diplomatic or consular post abroad: Provided, however, that the minimum period during which he may serve in any foreign post shall be one year and the maximum period four years, except in case of emergency or extraordinary circumstances, in which event he may be tranferred from one foreign post to another or to the Department by the order of the Secretary without regard to his length of service in his former post. (Emphasis supplied; p. 202, Rollo.)

The BFSA met en banc on April 22, 1988 to consider the memorandum-report of the new Investigating Committee. On April 26, 1988, the BFSA, through its Chairman, Undersecretary Jose D. Ingles, submitted a memorandum to the Secretary of Foreign Affairs (SFA), adopting the findings and recommendations of the investigating committee. In a letter-decision dated April 27, 1988 (p. 50, Rollo), the Secretary of Foreign Affairs affirmed the BFSA's recommendation declaring Ambassador de Perio-Santos guilty of the lesser offense of misconduct, instead of dishonesty, meted to her the penalty of reprimand, and recalled her to the home office. Petitioner filed a motion for reconsideration on the ground that she was denied due process when she was declared guilty of misconduct although it was not one of the charges against her. Conceding that point, the Secretary ordered the records remanded to the BFSA for hearing to give petitioner an opportunity to defend herself against the charge of misconduct which was deemed to have been filed by the Secretary himself since an administrative complaint can be initiated directly by the Department Head (Sec. 37[b], P.D. 807) (p. 91, Rollo). Insisting that no formal charge of misconduct had been filed against her, and that hence, there was nothing to investigate (p. 91, Rollo), petitioner refused to attend the hearing. Consequently, in his resolution of August 18, 1988, Secretary Manglapus declared his decision of April 27, L988, "final and executory, effective immediately." (Annex Q, p. 72, Rollo) Petitioner appealed that resolution to the Office of the President, where it was docketed as O.P. Case No. 3903 (p. 91, Rollo). On January 24, 1989, President Aquino nominated Narcisa L. Escaler as Ambassador and Permanent Representative to the United Nations and other International Organizations in Geneva in lieu of the petitioner. The nomination was confirmed by the Commission on Appointments on March 15, 1989 (pp. 191, 224, Rollo). On March 30, 1989, President Aquino issued Administrative Order No. 122 (Annex S, pp. 84-99, Rollo) finding petitioner guilty of dishonesty (instead of misconduct) and imposed upon her the penalty of reprimand, with recall to the home office. The finding of dishonesty was based on: 1. The certification which was made in support of her request for reimbursement of the discounted round-trip ticket stating that "she purchased the said round trip ticket, which consists of two (2) one-way tickets (instead of two roundtrip tickets), one from Geneva to New York and the other from New York to Geneva, as shown in the attached receipt ('quittance') of payment to the travel agency. Hence, she was reimbursed, per Check No. UBS-4455589 dated May 7, 1987." (p. 95, Rollo) 2. The allegation in her telex ZGE-373-87 (in answer to DFA cable of September 16, 1987) that the Geneva Mission "never paid for the trip of Ambassador de Perio-Santos' daughter to Mexico which was paid from ambassador's personal fund" (although the DFA in fact refunded Pia's portion of the discounted round-trip tickets from Geneva-New York-Geneva). (p. 95, Rollo) Petitioner filed a motion for reconsideration and a supplemental memorandum and letter addressed to the President (Annexes X, Y and Z, pp. 146-265, Rollo). In a Resolution dated January 9, 1990 (Annex AA, pp. 166-167, Rollo), respondent Executive Secretary Catalino Macaraig, Jr., by

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Since the petitioner had been appointed to her post on July 24, 1986, she had already served the minimum one-year period of service when her recall on April 22, 1988 came. Her reassignment to Manila did not have to be explained and justified by the Secretary of Foreign Affairs nor the President of the Philippines (p. 51, Rollo). The presidential prerogative to determine the assignments of the country's diplomatic personnel is unquestionable. As discussed in the Solicitor General's "Comment" on the petition for certiorari and prohibition The conduct of the country's foreign affairs is vested on the President through respondent Manglapus as alter ego of the President. As head of the Department of Foreign Affairs, he is mandated by law to maintain the country's representation with foreign governments, the United Nations (UN), Association of Southeast Asian Nations (ASEAN), and other international and regional organizations. The foreign service officers and employees abroad represent the interest of the Philippines under the direction, supervision and control of the Chief Executive through respondent Secretary. xxx xxx xxx

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Petitioner may not justifiably assail the appointment of Narcisa Escaler as her replacement in Geneva because the power to appoint is essentially discretionary. The appointing power, the President, has the right of choice which she may exercise freely, according to her best lights (Pamantasan ng Lungsod ng Maynila vs. Court of Appeals, 140 SCRA 22). This Court may not order the reinstatement of the petitioner to her former position in Geneva for that would be tantamount to a usurpation by this Court of the power of appointment, which is the exclusive prerogative of the Chief Executive (Article VII, Section 16, 1987 Constitution). It would violate the system of separation of powers which inheres in our democratic republican form of government. The recall order issued by the Secretary of Foreign Affairs (Assignment Order No. 58/88) was a valid exercise of his authority as an alter ego of the President (Villena vs. Secretary of Interior, 67 Phil. 451). His acts, "performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the latter (Cruz, Political Law, p. 188, 1987 Edition). His order recalling the petitioner to the home office, having been affirmed by the President, any doubts as to its validity and propriety have thereby been laid to rest. WHEREFORE, Administrative Order No. 122 of the Office of the President, insofar as it finds the petitioner guilty of dishonesty and reprimands her therefor, is hereby set aside. However, the order recalling her to the home office in Manila is affirmed. No costs.

Considering that the conduct of foreign relations is primarily an executive prerogative, courts may not inquire into the wisdom or unwisdom in the exercise thereof. This is a principle laid down by the courts from time immemorial. The power to conduct foreign policy and its necessary element of assigning the, country's representatives abroad is best addressed to the wisdom of the executive branch and not to be unduly interfered with by the judiciary (U.S. v. Curtiss Wright Export Corp., 299 U.S. 304; Missouri v. Holland, 352 U.S. 416; U.S. v. Belmont, 301 U.S. 324; U.S. v. Pink, 315 U.S. 203; Jones v. U.S., 137 U.S. 202, 212; Oetegen v. Central Leather Co., 246 U.S. 297, 302; Foster v. Neilson, 2 Pet. 253, 30709; Williams v. Suffolf Insurance Co., 13 Pet. 414, 419-20; Zemel v. Rusk, 381 U.S. 17; Harisiades vs. Shughnessy, 342 U.S. 580; Chicago Southern Air Lines Inc. v. Loatherman S.S. Corp., 333 U.S. 103; Haig v. Agee, 453 U.S. 280). In States which follow the principle of separation of powers like the United States and the Philippines, the President holds actual executive power, including the power to conduct foreign relations (Public International Law, Coquia and Santiago, 1984 ed., p. 480). On this, textwriters are nign unanimous: The head of State, as the State's Chief organ and representative in the totality of its international intercourse, with the consequence that all his, legally relevant international acts are considered acts of his state. Such acts comprises chiefly the reception and sending of diplomatic agents, and consuls, conclusion of treaties, and recognition of states. (Ibid, p. 481, citing Fenwick, International Law, 554 [1965], at p. 758.) The conduct of the external affairs of the State is an executive prerogative. As head of the State, the President deals with foreign states and governments with respect to matters relating to entering into treaties, maintaining diplomatic relations, extending or withholding recognition. Chief Justice Marshall described the President of the United States as the 'sole organ of the nation in its external relations and its sole representative with foreign nations.' This apt description likewise applies to the President of the Philippines." (Aonuevo-Taro, The 1987 Constitution of the Philippines Explained, 1989 ed., p. 263-264.) Thus, the assignment to and recall from posts of ambassadors are prerogatives of the President, for her to exercise as the exigencies of the foreign service and the interests of the nation may from time to time dictate. (pp. 204-207, Rollo.) The petitioner's designation as the permanent representative of the Philippine Government to the United Nations and other International Organizations in Geneva (Annex B, p. 34, Rollo), was one based on the special trust and confidence which the appointing power, the President, had in the appointee. Once that trust and confidence ceased to exist, the incumbent's continuance in the position became untenable. The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures (Corpus vs. Cuaderno, 13 SCRA 591). When that confidence is lost and the officer holding the position is separated from the service, such cessation is not removal from office but merely an expiration of his/her term (Cadiente vs. Santos, 142 SCRA 280). An incumbent of a primarily confidential position holds office at the pleasure of the appointing power. When the pleasure turns into displeasure, the incumbent is not removed or dismissed from office his term merely expires (Ingles vs. Mutuc, 26 SCRA 171). "Primarily confidential" denotes "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state" (Pinero vs. Hechanova, 18 SCRA 417; citing De los Santos vs. Mallare, 87 Phil. 289). It is the fact of loss of confidence, not the reason for it, that is important and controlling. As holder of a primarily confidential position, petitioner's foreign assignment was at the pleasure of the President. The recall order terminating her tour of duty in Geneva and returning her to the home office was merely a change of post or transfer of location of work.