Aytona vs. Castillo

No. L-19313. January 19, 1962.
DOMINADOR R. AYTONA, petitioner, vs. ANDRES V. CASTILLO, ET

AL., respondents.
Political law; Appointing power; Midnight or last minut appointment; Rule;
Exception.As a rule, once an appointment is issued, it cannot be reconsidered
specially where the appointee has qualied. On the other hand, the authorities admit
of exceptional circumstances justifying revocation such as when mass ad-interim
appointments (350) issued in the last hours of an outgoing Chief Executive are to be
considered by the Commission on Appointments that is different from that existing at
the time of the appointment and the names are to be submitted by an incoming Chief
Executive who may not wholly approve of the selections especially if it is doubtful
that the outgoing President exercised double care in extending such appointments.
Same; Same; Malacaang's practice; Reasons for. is Malacaang's practice,
which is logical, to submit ad-interim appointments only when the Commission on
Appointments is in session. One good reason for the practice is that only those who
have accepted the appointment and qualied are submitted for conrmation.
Same; Executive department; Care-taker administration; Extent of authority.
After the proclamation of the election of an incoming Chief Executive, the outgoing
Chief Executive is no more than a "care-taker" administration. He is duty bound to
prepare for the orderly transfer of authority to the incoming President and he should
not do acts which, he ought to know, would embarrass or obstruct the policies of his
successor. It is not for him to use his powers as incumbent President to continue the
political warfare that had ended or to avail himself of presidential prerogatives to
serve partisan purposes.
Same; Same; Same; Filling of vacancies.The lling up of vacancies in
important positions, if few, and so spaced as to afford some assurance of deliberate
action and careful consideration of the need for the appointment and the appointee's
qualications may be undoubtedly permitted. But the issuance of 350 appointments
in one night and the planned induction of almost all of them a few hours before the
inau-
2
2 SUPREME COURT REPORTS ANNOTATED
Aytona vs. Castillo Aytona vs. Castillo
guration of the new President may, with some reason, be regarded by the latter as an
abuse of presidential prerogatives.
Same; Same; Same; Same; Double care necessary. When the President makes
ad-interim appointments, he exercises a special prerogative and is bound to be
prudent to insure approval of his selection either by previous consultation with the
members of the Commission or by thereafter explaining to them the reason for such
selection. Where the Commission on Appointments that will consider the appointees
is different from that existing at the time of the appointment and where the names are
to be submitted by his successor who may not wholly approved of the selections, the
President should be doubly careful in extending such appointments.
Same; Separation of powers; Power of appointment; Case at bar.The
separation of powers, under the circumstances in the instant case, prevents the
Supreme Court to disregard a presidential directive issued by an incoming President
cancelling "midnight" or "last minute" appointments.
Same; Public ofcers; Appointment; Equitable rights; Case at bar.Once the
appointee has qualied, the latter's equitable rights can be set up to deny the power to
revoke the appointment. Yet it is doubtful if such equity might be set up in the present
case where rush conditional appointments, hurried maneuvers and other happenings
detracted from that degree of good faith, morality and propriety which form the basic
foundation of claims to equitable relief.
PADILLA, J., concurring:
Political law; Ad-interim appointments dened. Adinterim appointments that
the President may make during the recess of the Congress are those made during a
period of time from the adjournment of the Congress to the opening session, regular
or special, of the same Congress.
Same; Same; Recess dened.The term "recess" in its broadest sense, means
and refers to the intervening period between adjournment of a regular session of one
hundred days exclusive of Sundays, or of a special session which cannot continue
longer than thirty days, and the convening thereof in regular session once every year
on the fourth Monday of January or in special session to consider general legislation
or only such subjects as he (the President) may designate. And such intervening
period refers to the Same Congress that had adjourned and was to be convened. Such
intervening period cannot refer to two different Congresses, one that has adjourned
and one newly chosen or elected to meet in regular session as provided for by the
Constitution, or in special session by the call of the President.
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VOL. 4, JANUARY
19, 1962
3
Same; Same; "The next adjournment of Congress" dened.Ad-interim
appointments made during the recess of the Congress are effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress. Therefore, such appointments ceased to be valid after the term of the
Congress existing at the time of the making of such appointments had ended or
expired. Since that Congress no longer exists and hence can no longer convene and
then "adjourn."
BAUTISTA ANGELO, J., concurring:
Political law; Ad-interim appointments; Recess dened.The term "recess " has
a de nite legal meaning. It means the interval between a session of Congress that has
adjourned and another of the same Congress. It does not refer to the interval between
the session of one Congress and that of another. In that case the interval is not
referred to as a "recess" but adjournment sine die.
Same; Ad-interim appointment; When deemed complete body.The
Commission on Appointments under our constitutional set-up is not a continuing
body but one that co-exists with the Congress that has created it. This is so because
said Commission is a creation of the Senate and of the House of Representatives.
While the Senate is a continuing body, the House ceases at the end of its fourth year.
It cannot therefore be continuing it being a creation of a body half of which is alive
and the other half has ceased to exist.
Same; Ad-interim appointment; When deemed complete.An ad-inte rim
appointment to be complete must be submitted to the Commission on Appointments
once the same is constituted. It cannot be submitted to the Commission on
Appointments of a different Congress but only to the Commission on Appointments
of the Congress that has created it.
Same; Same; Same; Appointee must assume ofce.An ad-interim appointment
is not complete until the appointee takes the oath of ofce and actually takes
possession of the position or enters upon the discharge of its duties.
CONCEPCION, J., concurring in part and dissenting in part:
Prohibition and mandamus; Issued only when right is clear.The grant of writs
of prohibition and mandamus is ordinarily within the sound discretion of the courts,
to be exercised on equitable principles and that the writs should be issued when the
right to the relief is clear.
Political law; Appointment; When irrevocable.Save where the incumbent has
a temporary appointment or is removable at the will of the appointing power, an
appointment
4
once complete, by the performance of all acts required by law of the appointing
power, is irrevocable.
Same; Same; Error or fraud; Effect.An appointment may be revoked by
reason of error of fraud in the manner of appointment but not if the fraud or mistake
refers to the intent of the appointing power in choosing a particular appointee.
Same; Ad-interim appointment; When complete and irrevocable.An ad-
interim appointment made during a recess of Congress, is complete and irrevocable
upon the performance of the last act required by law from the appointing power, even
without previous notice to the appointee or acceptance by him, or without subsequent
action of the legislative organ that may terminate its effectivity.
Same; Same; Same; Where ad-interim must be acted upon by another agency.
The irrevocability of the ad-interim appointment is more apparent where the House,
Commission on Appointments or other agency of Congress charged with the function
of terminating the effectivity of such appointment, may act thereon, by approving or
disapproving the same.
Same; Same; Continuity of Commission on Appointments immaterial.The
question whether the Commission on Appointments is or is not a continuing body
cannot affect the determination of whether the appointment may still be revoked once
issued. It is only required by the Constitution that such Commission must have an
opportunity to approve or disapprove the appointment and its inaction, despite such
opportunity must be understood as an expression of unwillingness to approve it.
Same; Same; Revocation.The revocation of an appointment, if feasible,
should be communicated to the appointee before the moment he qualied. Any
revocation thereafter, is tantamount to removal.
Same; Same; Where appointee has qualied.Once an appointee has qualied,
he acquires a legal, not merely equitable right, which cannot be taken away from him
either by revocation of the appointment or by removal except for cause and with
previous notice and hearing.
Same; Same; Recess dened.The term "recess" appearing in Section 10 (4) of
Article VII of our Constitution should be construed to mean "while Congress is not in
session" and this is conrmed by the practice consistently observed in the Philippines
for time immemorial.
Same; Appointment; Aspects.Appointments made by the President have two
(2) aspects, namely, the legal and the political. The rst refers to his authority to
make the appointments. The second deals with the wisdom in the exercise of such
authority, as well as with its propriety, whether a given vacancy or number of
vacancies should be lled, or who
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VOL. 4, JANUARY
19, 1962
5
among several qualied persons shall be chosen, or whether a given appointment or
number of appointments will favor the political party to whom the power of
appointment belongs and will injure the interest of a rival political party and to what
extent, are, essentially and typically political matters.
Same; Same; When a political question arises.The question of whether certain
appointments should be sanctioned or turned down by reason of the improper,
immoral or malevolent motives with which said matters were allegedly handled is
clearly political and as such its determination belongs not to the courts of justice but
to the political organ established to check possible abuses in the exercise of the
appointing powerthe Commission on Appointments.
Same; Separation of powers; Executive department. The principle of
separation of powers forbids inquiry into the motives of the Executive department in
making the appointments.
BARRERA, J., dissenting:
Political law; Appointments; Recess dened; Distinguished from adjournment.
Recess means the period after the nal adjournment of Congress for the session and
before the next session begins while an adjournment during a session of Congress
means a merely temporary suspension of business from day to day, or for such brief
periods of time as are agreed upon by the joint action of the two houses.
Same; Constitution; Interpretation of term recess.Paragraph 4, Section 10 of
Article VII of the Constitution speaks of "recess" without making any distinction
between the sessions of one Congress and the sessions of another. When the law
makes no distinction, no distinction should be made, especially if to do so would
result in a strained interpretation thereof and defeat the evident purpose of the
framers of the Constitution.
Same; Commission on Appointments; Continuing body. The Commission on
Appointments as a constitutional body continues to exist but only its membership
changes periodically. It is not a creature of the Congress.
Same; Ad-interim appointment; Does not lapse with end of term of ofce of
Congressmen in Commission on Appointments.An ad-interim appointment does
not automatically lapse with the ending of the term of ofce of the twelve
Congressmen composing one-half of the membership of the Commission on
Appointments. The Commission is a continuing body.
Same; Same; Can not be revoked once appointee has quatied.An ad-interim
appointment can not be recalled or
6
withdrawn after the appointee has qualied for the position to which he was
appointed.
Same; Judiciary; Not repository of all remedies.The judiciary is not the
repository of remedies for all political or social evils. It has no power to revise even
arbitrary or unfair action of the other departments taken in pursuance of the power
committed exclusively to those departments by the Constitution There is still the
ultimate remedy by the people in the exercise of their sovereign right which is the
source of all authority.
Same; Same; Role of courts.The role of courts in our scheme of government is
to interpret the law and render justice under it. This simply means that whatever may
be the personal feelings as to the propriety, morality, or wisdom of any ofcial act or
actuation of a public ofcer or any agency of the government within their respective
competence brought to the attention of the Court for adjudicaion, they should not be
permitted to prevail over clear legal Considerations, for ours is a regime under the
Rule of Law.
ORIGINAL ACTION in the Supreme Court. Prohibition and mandamus
with preliminary injunction.
The facts are stated in the resolution of the Court.
R E S O L U T I O N
BENGZON, C.J.:
Without prejudice to the subsequent promulgation of a more extended
opinion, the Court adopted today, the following resolutions:
On December 29, 1961, then President Carlos P. Garcia appointed
Dominador R. Aytona as ad interim Governor of the Central Bank. On the
same day, the latter took the corresponding oath.
On December 30, 1961, at noon, President-elect Diosdado Macapagal
assumed ofce; and on December 31, 1961, he issued Administrative
Order No. 2 ) recallin withdrawing, and cancelling all ad interim
appointments made by President Garcia after December 13, 1961 (date
when he, Macapagal, had been proclaimed elected by the Congress). On
January 1, 1962, President Macapagal ap-
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1962
7
pointed Andres V. Castillo as ad interim Governor of the Central Bank,
and the latter qualied immediately.
On January 2, 1962, both appointees exercised the powers of their
ofce, although Castillo informed Aytona of his title thereto; and some
unpleasantness developed in the premises of the Central Bank. However,
the next day and thereafter, Aytona was denitely prevented from holding
ofce in the Central Bank.
So, he instituted this proceeding which is practically, a quo warranto,
challenging Castillo's right to exercise the powers of Governor of the
Central Bank. Aytona claims he was validly appointed, had qualied for
the post, and therefore, the subsequent appointment and qualication of
Castillo was void, because the position was then occupied by him. Castillo
replies that the appointment of Aytona had been revoked by Administrative
Order No. 2 ) of Ma pagal; and so, the real issue is whether the new
President had power to issue the order of cancellation of the ad interim
appointments made by the past President, even after the appointees had
already qualied.
The record shows that President Garcia sent to the Commission on
Appointmentswhich was not then in sessiona communication dated
December 29, 1961, submitting; "for conrmation" ad interim
appointments of assistant director of lands, councilors, mayors, members
of the provincial boards, scals, justices of the peace, ofcers of the army,
etc.; and the name of Dominador R. Aytona as Governor of the Central
Bank occupies number 45, between a justice of the peace and a colonel of
the Armed Forces.
Another communication of President Garcia bearing the same date,
submitted a list of ad interim appointments of Foreign Affairs ofcers,
judges, scals, chiefs of police, justices of the peace, mayors, councilors,
etc. number 63 of which was that of Dominador R. Aytona for Governor of
the Philippines in the Boards of International Monetary Fund, International
Bank for Reconstruction and Development, etc.
A third communication likewise dated December 29, 1961, addressed
to the Commission on Appointments submitted for conrmation 124
names of persons appointed
8
as judges of rst instance, members of provincial boards, and boards of
government corporations, scals, justices of the peace, even one associate
justice of this Court occupying position No. 3 6 a nd two assoc iate jus ti
ces Court of Appeals (9 and 10) between an assistant of the Solicitor-
General' s Ofc e, and the chai rm an of th of tax appeals of Pasay City,
who in turn are followed by judges of rst instance, and inserted between
the latter is the name of another associate justice of the Court of Appeals.
There were other appointments thus submitted by President Garcia on
that date, December 29, 1961. All in all, about three hundred fty (350)
"midnight" or "lastminute" appointments.
In revoking the appointments, President Macapagal is said to have
acted for these and other reasons: (1) the outgoing President should have
refrained from lling vacancies to give the new President opportunity to
consider names in the light of his new policies, which were approved by
the electorate in the last elections; (2) these scandalously hurried
appointments in mass do not fall within the intent and spirit of the
constitutional provision authorizing the issuance of ad interim
appointments; (3) the appointments were irregular, immoral and unjust,
because they were issued only upon the condition that the appointee would
immediately qualify obviously to prevent a recall or revocation by the
incoming President, with the result that those deserving of promotion or
appointment who preferred to be named by the new President declined and
were by-passed; and (4) the abnormal conditions surrounding the
appointment and qualications evinced a desire on the part of the outgoing
President merely subvert the policies of the incoming administration.
It is admitted that many of the persons mentioned in the communication
to the Commission on Appointments dated December 29, 1961, did not
qualify. There is evidence that in the night of December 29, there was a
scramble in Malacaan of candidates for positions trying to get their
written appointments or having such appointments changed to more
convenient places, after some last-
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VOL. 4,
JANUARY 19,
1962
9
minute bargaining. There was unusual hurry in the issuance of the
appointments 9 7 whi ch w ere not cou through the Department Heads 9 7
a nd in the confus a woman appointed judge was designated "Mr." and a
man was designated "Madam." One appointee who got his appointment
and was required to qualify, resorted to the rush of asking permission to
swear before a relative ofcial, and then never qualied.
We are informed, it is Malacaan's practicewhich we nd to be
logicalto submi t ad interim appointments only when the Commission
on Appointments is in session. One good reason for the practice is that
only those who have accepted the .appointment and qualied are submitted
for conrmation. Nevertheless, this time, Malacaan submitted its
appointments on the same day they were issued; and the Commission was
not then in session; obviously because it foresaw the possibility that the
incoming President would refuse to submit later the appointees of his
predecessor. As a result, as already adverted to, some persons whose
names were submitted for conrmation had not qualied nor accepted
their appointments. Because of the haste and irregularities, some judges of
rst instance qualied for districts wherein no vacancies existed, because
the incumbents had not qualif ied for other districts to which they had been
supposedly transferred or promoted.
Referring specically to judges who had not qualied, the course of
conduct adopted by Former Chief Justice Moran is cited. Being
ambassador in Spain and desiring to return to this Court even as associate
justice, Moran was tendered an ad interim appointment thereto by
President Quirino, after the latter had lost the election to President
Magsaysay, and before leaving the Presidency. Said Ambassador declined
to qualify being of the opinion that the matter should be left to the
incoming newly-elected President.
Of course, nobody will assert that President Garcia ceased to be such
earlier than at noon of December 30, 1961. But it is common sense to
believe that after the proclamation of the election of President Macapagal,
his was no more than a "care-taker" administration. He was duty
10
bound to prepare for the orderly transfer of authority to the incoming
President, and he should not do acts which he ought to know, would
embarrass or obstruct the policies of his successor. The time for debate had
passed; the electorate had spoken. It was not for him to use his powers as
incumbent President to continue the political warfare that had ended or to
avail himself of presidential prerogatives to serve partisan purposes. The
lling up of vacancies in important positions, if few, and so spaced as to
afford some assurance of deliberate action and careful consideration of the
need for the appointment and the appointee's qualif ications may
undoubtedly be permitted. But the issuance of 350 appointments in one
night and the planned induction of almost all of them a few hours before
the inauguration of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to ll all vacant positions1 irrespective of
tness and other conditions, and thereby to deprive the new administration
of an opportunity to make the corresponding appointments.
Normally, when the President makes appointments with the consent of
the Commission on Appointments, he has the benet of their advice. When
he makes ad interim appointments, he exercises a special prerogative and
is bound to be prudent to insure approval of his selection either by
previous consultation with the members of the Commission or by
thereafter explaining to them the reason for such selection. Where,
however, as in this case, the Commission on Appointments that will
consider the appointees is different from that existing at the time of the
appointment2 and where the names are to be submitted by his successor,
who may not wholly approve of the selections, the President should be
doubly careful in extending such appointments. Now, it is hard to believe
that in signing 350 appointments in one night, President Garcia exercised
such "double care" which was required and expected of him; and therefore,
there seems to be force to the conten-
_______________
1 These positions had been vacant for months.
2 The 4th Congress expired at midnight December 29, 1961.
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1962
11
tion that these appointments fall beyond the intent and spirit of the
constitutional provision granting to the Executive authority to issue ad
interim appointments.
Under the circumstances above described, what with the separation of
powers, this Court resolves that it must decline to disregard the
Presidential Administrative Order No. 2, cancelling such "midnight" or
"last-minute" appointments.
Of course, the Court is aware of many precedents to the effect that once
an appointment has been issued, it cannot be reconsidered, specially where
the appointee has qualif ied. But none of them refer to mass ad interim
appointments (three hundred and fty), issued in the last hours of an
outgoing Chief Executive, in a setting similar to that outlined herein. On
the other hand, the -authorities admit of exceptional circumstances
justifying revocation3 and if any circumstances justify revocation, those
described herein should t the exception.
Incidentally, it should be stated that the underlying reason for denying
the power to revoke after the appointee has qualied is the latter's
equitable rights. Yet it is doubtful if such equity might be successfully set
up in the present situation, considering the rush conditional appointments,
hurried maneuvers and other happenings detracting from that degree of
good faith, morality and propriety which form the basic foundation of
claims to equitable relief. The appointees, it might be argued, wittingly or
unwittingly cooperated with the stratagem to beat the deadline, whatever
the resultant consequences to the dignity and efciency of the public
service. Needless to say, there are instances wherein not only strict legality,
but also fairness, justice and righteousness should be taken into account.
WHEREFORE, the Court exercising its judgment and discretion in the
matter, hereby dismiss the action, without costs.
Labrador, Reyes, J.B.L., Paredes and De Leon, JJ., concur.
_______________
3 89 A. L. R., 135 Anno.
12
Padilla and Bautista Angelo, JJ., concur in a separate opinion.
Concepcion, J., concurs in part and dissents in part.
Barrera, J., dissents.
Dizon, J., concurs with the opinion of Justice Padilla.
PADILLA, J.. concurring:
Once more this Court has to pass upon and determine a controversy that
calls for an interpretation of the provisions of the Constitution. The facts
that gave rise to this petition need not be re-stated as they are set forth in
the opinion rendered /for the Court. The question is whether the
appointment of a person to a public ofce by a President whose term of
ofce was about to expire or cease is lawful or does not contravene the
Constitution; or, if lawful after the appointee has taken his oath, until when
would such appointment be valid and effective. The constitutional point
involved seems to have been overlooked by the framers of the
Constitution. It would seem that the framers, well-meaning persons that
they were, never foresaw an eventuality such as the one confronting the
Republic. The framers never thought and anticipated that a citizen elevated
by the people to such an exalted ofce as the President of the Republic,
would perform an act which, though not expressly prohibited by the
Constitution and the law, ought not to be done, since a sense of propriety
would be enough to stop him from performing it.
The petitioner invokes section 10, paragraph 4, article VII, of the
Constitution which provides that
The President shall have the power to make appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.
Under these constitutional provisions there seems to be n o ix do ubt tha t
the Pre sid ent may make the app and if approved by the Commission on
Appointments, it would unquestionably be lawful, valid and effective, but
if disapproved or not acted upon by the Commission on Appointments then
the appointment becomes ineffectual and the appointee ceases and can no
longer perform the duties of the ofce to which he had been appointed.
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VOL. 4,
JANUARY 19,
1962
13
It is urged that the petitioner's appointment having been made by the
President during the recess of the Congress and he having taken his oath,
the appointment is lawful, valid and effective until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress should the Commission on Appointments fail to act on it.
Ad interim appointments that the President may make during the recess,
of the Congress are those made during a period of time from the
adjournment of the Congress to the opening session, regular or special, of
the same Congress. In other words, if the President had convened in a
special session the fourth Congress whose term was to expire on the 30th
of December 1961 and during such session the ad interim appointments
had been conrmed by the Commission on Appointments there would be
little doubt that the appointments would be lawful and valid.
The government established by the Constitution is one of checks and
balances to preclude and prevent arrogation of powers by ofcers elected
or appointed under it.
Under the provisions of the Constitution "The term of ofce of Senators
shall be six years and shall begin on the thirtieth day of December next
following their election."1 And "The term of ofce of the Members of the
House of Representatives shall be four years and shall begin on the
thirtieth day of December next following their election."2 Under section
10, paragraph 4, article VII, of the Constitution, above quoted, the
President may make appointments during the recess of the Congress, "but
such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress."
The term "recess", in its broadest sense, means and refers to the
intervening period between adjournment of a regular session of one
hundred days exclusive of Sundays, or of a Special session which cannot
continue longer than thirty days, and the convening thereof in regular
session once every year on the fourth Monday of January
_______________
1 Secti on 3, Article VI.
2 Secti on 6, Article VI.
14
or in special session to consider general legislation or only such subjects as
he (the President) may designate.3 And such intervening period refers to
the same Congress that had adjourned and was to be convened. Such
intervening period cannot refer to two different Congresses, one that has
adjourned and one newly chosen or elected to meet in regular session as
provided for by the Constitution, or in special session by the call of the
President.
"The term of the President x x x shall end at noon on the thirtieth day of
December following the expiration of four years after (his) election and
the term of (his) successor shall begin from such time."4
If the ad interim appointments made by the President during the recess
of the Congress are effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congressa limitation
on the power of the Presidentthere is a cogent and strong reason for
holding to be the intent of the framers of the Constitution that such
appointments made by him ceased to be valid and effective after the term
of the Congress existing at the time of the making of such appointments
had ended or expired. The end or expiration of the term of the Congress
existing at the time of the making of the ad interim appointments by the
President is a stronger cause or reason for the lapse or ineffectuality of
such appointments than "the next adjournment of the Congress." Since that
Congress no longer exists and hence can no longer convene and then
"adjourn." The effectivity and validity of the appointment of the petitioner
as Governor of the Central Bank ceased, lapsed and expired on the thirtieth
of December 1961. He is no longer entitled to hold the ofce to which he
had been appointed. My vote, therefore, is for the denial of the petition.
DIZON, J.:
I concur with the foregoing concurring opinion of Mr. Justice Padilla, the
same being based on an additional
_______________
3 Section 9, Article VI.
4 Section 4, Article VII.
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VOL. 4,
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1962
15
ground justifying denial of the petition under consideration.
BAUTISTA ANGELO, J., concurring:
In addition to the reasons stated in the resolution adopted by this Court on
January 19, 1962, h i wi sh to expr the following views:
1. The "midnight appointments" made by President Garcia were
extended by him under Section 10, Paragraph 4, Article VII of the
Constitution which provides: "The President shall have the power to make
appointments during the recess of the Congress, but such appointments
shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress." It is clear
that these appointments can only be made during the recess of Congress
because they are ad interim appointments.
The term "recess" has a denite legal meaning. It means the interval
between a session of Congress that has adjourned and another of the same
Congress. It does not refer to the interval between the session of one
Congress and that of another. In that case the interval is not referred to as a
"recess" but an adjournment sine die. Thus, in the case of Tipton v. Parker,
71 Ark. 194, the court said: "The 'recess' here referred to by Judge Cooley
means the intermission between sittings of the same body at its regular or
adjourned session, and not to the interval between the nal adjournment of
one body and the convening of another at the next regular session. When
applied to a legislative body, it means a temporary dismissal, and not an
adjournment sine die" Since the appointments in question were made after
the Fourth Congress has adjourned sine die and ceased to function on
December 30, 1961, they cannot partake of the nature of ad interim
appointments within the meaning of the Constitution.
2. The Commission on Appointments under our constitutional set-up is
not continuing body but one that co-exists with the Congress that has
created it. This is so because said Commission is a creation of the Senate
and of the House of Representatives. While the Senate is a
16
continuing body, the House ceases at the end of its fourth year. It cannot
theref ore be continuing it being a creation of a body half of which is alive
and the other half has ceased to exist. This theory can also be gleaned from
the proceedings of the constitutional convention.
Thus, the preliminary draft of the Philippine Constitution provides for a
permanent Commission and for the holding of sessions of the Commission
even during the recess of Congress. After mature deliberation the proposal
was defeated and a substitute was adopted which is now embodied in
Article VI, Section 12, of our Constitution. As a matter of fact, as nally
adopted, the Commission on Appointments has to be organized upon the
convening of a new Congress after the election of the Speaker of the
House of Representatives or of the President of the Senate, as the case may
be, as provided for in Section 13, Article VI of the Constitution (Article
VII, Preliminary Draft of the Constitution, Vol. 2, Aruego: The Framing of
the Constitution, pp. 982, 987).
An ad interim appointment, to be complete, needs to be submitted to
the Commission on Appointments once the same is constituted. This is
reected in the Constitution when it provides that "such appointments shall
be effective only until disapproval by the Commission on Appointments,
or until the next adjournment of the Congress" (Section 10, Paragraph 4,
Article VII). This means that it must be submitted to the Commission on
Appointments of the Congress that has created it. It cannot be submitted to
the Commission on Appointments of a different Congress. Since the
appointments in question were submitted to the Commission on
Appointments which ceased to function on December 30, 1961, they
lapsed upon the cessation of said Commission. Consequently, they can be
recalled by the new Chief Executive.
3. An ad interim appointment is not complete until the appointee takes
the oath of ofce and actually takes possession of the position or enters
upon the discharge of its duties. The mere taking of the oath of ofce
without actual assumption of ofce is not sufcient to constitute the
appointee the actual occupant thereof who may not be removed therefrom
except for cause (McChes-
17
VOL. 4,
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1962
17
ney v. Sampson, 23 S.W. 2d. 584). The case of Summers v. Ozaeta, 81
Phil., 754, cannot be cited as a precedent as to when an ad interim
appointment becomes permanent and binding. That case involves a
cadastral judge who was given an ad interim appointment as judge at
large. After assuming the ofce and discharging his duties, his
appointment was not conrmed. He claimed that he could still revert to his
former position as cadastral judge. True, this Court made a statement
therein that an ad interim appointment becomes permanent after taking the
oath of ofce, but such statement is merely an obiter dictum because the
case could have been decided on the doctrine that, having accepted an
incompatible ofce, petitioner was deemed to have abandoned the position
of cadastral judge.
In relying on certain cases for the proposition that once an appointee
has taken the oath of ofce his appointment becomes irrevocable petitioner
fails to consider that in said cases there had either been an actual discharge
of duty and actual physical possession or assumption of ofce following
the oath-taking as to constitute the appointee the occupant of the position
from which he cannot be removed without cause. Even the case of
Marbury v. Madison, 1 Cranch, U.S. 137, 2 ) L. E d., 61, 69, ca nn ot be i
nv o precedent, for there the appointees were merely nominated and their
nominations conrmed by the Commission on Appointments even if they
have later taken their oath of ofce. Certainly, they can no longer be
deprived of their appointments for then the executive would be acting in
disregard of the conrming body which is a coordinate and independent
body not subject to his control.
Since the appointments in question were made not in the light of the
views herein expressed, h i am of the opi that they did not ripen into valid
and permanent appointments and as such were properly recalled by the
new Chief Executive.
CONCEPCION, J., concurring in part and dissenting in part:
It is well settled that the granting of writs of prohibition and mandamus is
ordinarily within the sound discretion of the courts, to be exercised on
equitable princi-
18
ples, and that said writs should be issued when the right to the relief is
clear (55 C.J.S. 25, 29, 73 C.J.S. 18). Insofar as the majority resolution
relied upon discretion and the equities of the case in denying said writs, h i
concu therefore, in the aforementioned resolution.
However, h i cann ot se e m y way cl ear to subs cr the observations
therein made representing the motives allegedly underlying petitioner's
appointment and that of many others who are not parties in this case, and
justifying the revocation of such appointments. My reasons, among others,
are:
1. Save where the incumbent has a temporary appointment or is
removable at the will of the appointing power, an appointment once
complete, by the performance of all acts required by law of the appointing
power, is irrevocable.
"An appointment to ofce may be revoked at any time before the appointment
becomes nal and complete, but not thereafter unless the appointee is removable at
the will of the appointing power. For the purpose of this rule, an appointment to
ofce is complete when the last act required of the person or body vested with the
appointing power has been performed. Where by constitutional, statutory, or other
legal provision it is required that certain steps be taken to make an effective
appointment, it has been held that the appointment becomes complete beyond the
possibility of recall when the last of the prescribed steps is taken, and that, where no
method of appointment is provided, an appointment does not become effective and
beyond recall until the appointing ofcer by some act or word evinces a nal intent to
vest the appointee with title to the ofce." (67 C.J.S., pp. 161-162)
"After the act of appointment is complete, the appointing authority may not
revoke its former appointment and make another. And appointment to ofce is
complete when the last act required of the person or body vested with the appointing
power has been performed." (56 C.J., p. 954)
"In all jurisdictions where appointment to ofce is regarded as an executive
function, as here, an appointment to ofce once made is incapable of revocation or
cancellation by the appointing executive in the absence of a statutory or constitutional
power of removal. Barrett v. Duff, 114 Kan. 220; 217 P. 918; People v. Mizner, 36 Ca
l. 519, State v. Williams, 222 121 S.W. 64, 17 Ann. Cas. 1006; Draper v. State, 175
Ala. 547, 57 So. 772, Ann. Cas. 1914D, page 305, Annotation." (McChesney v.
Sampson, 23 S.W. 2d., 584)
19
VOL. 4,
JANUARY 19,
1962
19
May an appointment be revoked by reason of error or fraud? This question
was taken up in Ex rel Coogan vs. Barbour (22 A 686) and Ex rel Scoeld
vs. Starr (63 A 512). The rst involved a City Charter providing that its
common council shall, in joint convention, appoint a prosecuting attorney.
In such convention, Coogan obtained a majority of the votes cast and of
the convention. Upon announcement of this result, a member of the
convention offered a resolution declaring Coogan elected, but the
resolution was defeated. Then, two resolutions were offered and approved:
one declaring that the ballots taken were null and of no effect by reason of
errors in the same and another declaring Barbour elected prosecuting
attorney. The issue was who had been appointed thereto. The court held
that it was Coogan, he having obtained a clear majority and there having
been no error or fraud in the voting, although it did not deny the power of
the convention to correct errors and to nullify the effects of fraud in the
voting by invalidating the same and calling another election, had the
proceedings been tainted with such error or fraud.
The second case referred to a similar provision in a city charter, to the
effect that appointments by the common council shall be by ballot and that
the person receiving a plurality of ballots shall be elected. The rst
balloting taken for the election of the city surveyor of Brigeport resulted in
25 ballots being cast. It was announced that there was one ballot more than
members voting, and that there were 13 ballots for Scoeld, 11 for Starr
and one blank ballot. Scoeld maintained that this result amounted to his
appointment precluding the council from taking a new ballot but such
pretense was rejected. Inasmuch as the number of ballots cast exceeded the
number of persons voting, the council was justied in believing that the
proceeding was not free from suspicion of fraud or mistake in the voting
and, accordingly in taking another vote.
In both cases, the fraud or mistake alluded to referred to the manner of
voting or of counting the ballots cast, not to the intent of the voters in
choosing a particular appointee.
20
2. An ad interim appointment, made during a recess of Congress, is
complete and irrevocable upon the performance of the last act required by
law from the appointing power, even without previous notice to the
appointee, or acceptance by him, or without subsequent action of the
legislative organ that may terminate its effectivity.
"In the case of appointment made by a single executive such as a governor, mayor,
etc., it is undisputed that the appointment once made is irrevocable.
x x x x x x x
"Where an appointment subject to conrmation by the senate is made by a
governor during a recess of the senate, x x x the quest ion ar is es as to w heth er such
an app may be reconsidered and withdrawn by the governor before it is acted upon by
the Senate.
x x x x x x x
"In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. 918, where appointments made
by the governor during a recess of the legislature, which appointments could not be
conrmed by the senate as required by law until the next session of that body, were
revoked by the governor's successor, and other persons were appointed to the ofces,
such action by him being taken after the senate had convened and had taken under
advisement the conrmation of the persons rst appointed to the ofces, but before
the senate had taken any denite action with regard to such conrmation, and the
senate, conrmed the rst appointee, but, despite this act of the senate, commissions
were issued by the governor to the second appointee, it was held, in reliance upon the
terms of the statutes which provided that the governor should 'appoint' persons to
such ofces with the advice and consent of the senate, as distinguished from the
provision of the Constitution of the United States governing appointments by the
President, which provides that the President shall 'nominate' and, by and with the
advice and.consent of the senate, shall 'appoint' persons to ofce, that the act of the
governor in making the rst appointments was nal and exhausted the power of the
governor's ofce in that regard unless and until the appointments were rejected by the
senate, and that, therefore, the persons appointed by the rst governo were entitled to
the ofce. In the words of the court, 'The power of the governor having been
exercised, he had no further control over the respective ofces unless and until the
appointees had been rejected by the senate.' In reaching this result, the court
emphasized the difference between a nomination and an appointment, holding that,
where the statute relating to appointments by the governor with the consent of the
senate
21
VOL. 4, JANUARY
19, 1962
21
provides that the governor shall appoint persons to the ofce with the consent of the
senate, rather than merely nominate persons for consideration by the senate, the
appointment is nal and conclusive without conrmation. x x x.
"Likewise in McChesney v. Sampson (1930) 232 Ky 395, 2:' S.W. (2d.) 584, the
act of a governor in making a recess appointment was held to be not merely a
nomination subject to revocation by the governor at any time prior to action thereon
by the senate, but a nal and irrevocable appointment subject only to rejection by the
senate. In support of this result, it was said: 'It is urged that appointment to the ofce
consists of two separate acts, one by the governor and one by the senate, and until
both have acted there is no appointment such as to bring the incumbent within the
protection of the law. Even so, the two powers do not act concurrently, but
consecutively, and action once taken and completed by the executive is not subject lo
reconsideration or recall, xxx The fact that the title to the ofce, and the tenure of the
ofcer, are subject to the action of the senate, does not render incomplete the act of
the chief executive in making the appointment. The appointment alone confers upon
the appointee for the time being the right to take and hold the ofce, and constitutes
the last act respecting the matter to be performed by the executive power.'
x x x x x x x x x
"In People ex rel. Byder v. Mizner (1857) 7 Cal. 519, in holding that an
appointment made by a governor to ll an ofce which had expired during a recess of
the legislature was not merely an appointment to ll a vacancy which would expire at
the 'Mid of the next session of the legislature, but was an appointment for a full term,
and that the act of the governor during a subsequent session of the legislature, in
appointing another to the ofce and asking his conrmation by the legislature. was
unauthorized and void, it was said that, the power of the executive having been once
exercised, he had no further control over the ofce until the appointee has been
rejected by the senate." (89 ALR, pp. 138. 139, 140.)
3. The irrevocability of the ad interim appointment adverted to above
becomes more apparent when we consider that the House, Commission on
Appointments or other agency of Congress charged with the function of
terminating the effectivity of such appointment, may act thereon, by
approving or disapproving the same, even though the Executive had not
submitted or forwarded it to said House, Commission or agency of
Congress, and even though either the outgoing or the incoming Executive
shall have submitted for conrmation the name of a subsequent appointee
in lieu of the rst one.
22
Aytona vs. Castill Aytona vs. Castill
This was the situation met in People ex rel. Emerson vs. Shawver (30
Wyo. 366, 222 Pac. 11). The facts therein were: On July 1, 1919, Governor
Carey of Wyoming appointed Emerson as state engineer, to ll the vacancy
caused by the resignation of its incumbent. Upon the expiration of the
latter's term, Governor Carey reappointed Emerson for a full term of six
(6) years, from and after April 1, 1921. This last appointment was
conrmed by the state legislature at its next session in 1923. Prior thereto,
however, Governor Carey's term had expired and his successor had
appointed Shawver as state engineer. Thereupon Shawver ousted Emerson
from such ofce. It was held that Emerson had a better right thereto; that
his appointment in 1921 was a completed appointment, requiring no action
by the Senate to entitle him to hold said ofce; that a recess appointment
once made by "the executive is not subject to reconsideration or recall,
"even though not as yet conrmed by the Senate, inasmuch as," the
appointment alone confers upon the appointee for the time being the right
to take and hold the ofce, and constitutes the last act respecting the matter
to be performed by the executive power"; and that, although the term of
Governor Carey had expired and neither he nor his successor had
forwarded Emerson's appointment to the Senate for conrmation or
requested the Senate to act upon said appointment, the same had been
validly conrmed by said body, for
'The provision as to the ofce here in question found in the Constitution does not say
that the appointment made b y the Governor shall be conrmed by the Senate when
requested by the former, or upon a communication by him submitting the matter to
the Senate. And we perceive 110 substantial reason for adding by construction any
such restriction upon the Senate's right to act." (People v. Shawver, 222 P. 11; see,
also, Commonwealth v. Waller, 145 Pa. 235, 23 Atl. 382; State v. Williams, 20 S.C.
13: Richardson v. Henderson, 4 , Wy o. 5 35 , 35 Pac. and other cases cited in the
Shawver case.)
4. The foregoing goes to show, also, that the question whether the
Commission on Appointments is or is not a continuing body can not affect
the determination of this case. Besides, the constitutional provision making
an adinterim appointment, if not disapproved by the Commis-
23
VOL. 4,
JANUARY 19,
1962
23
sion on Appointments, effective only until the next adjournment of
Congress, clearly indicates that such Commission must have an
opportunity to approve or disapprove the appointment and that its inaction,
despite such opportunity, at the session of Congress next following the
making of the appointmentduring which it could have met, and,
probably, did meetmust be understood as an expression of unwillingness
to stamp its approval upon the act of the executive. No such opportunity
exists when the outgoing Congress has not held any session, regular or
special after the making of the appointment and before the expiration of
the term of said Congress, and the new Congress has not, as yet, organized
itself or even met.
5. The American rule concerning irrevocability of appointments is
bolstered up in the Philippines by Section 3 of Article XII of the
Constitution, which provides that 9 "no ofcer of employee in the Civil
Service shall be removed except for cause as provided by law." (Article
VII, Section 4.)
In fact, in his concurring opinion in Eraa vs. Vergel de Dios (85 Phil.,
17), our distinguished Chief Justice pointed out that the revocation of an
appointment, if feasible, "should be communicate d to the appoi ntee b efo
re ment he qualied," and that "any revocation thereafter, is tantamount to
removal and must be judged according to the rules applicable to the
removal" (italics ours). In the present case, the revocation of petitioner's
appointment was not communicated to him before he qualied by taking
his oath of ofce. It is not even claimed that any of the statutory causes for
removal of petitioner herein exists, or that the procedure prescribed for
such removal has been complied with.
6. Once an appointee has qualied, he acquires a legal, not merely
equitable right, which is protected not only by statute, but, also by the
Constitution, for it cannot be taken away from him, either by revocation of
the appointment or by removal, except for cause, and with previous notice
and hearing, consistently with said Section 4 , Article XII of our
fundamental law, and with the constitutional requirement of due process
(Segovia vs. Noel. 47 Phil., 547; Sec. 67 C.J.S . 11 7, 42 Am. Jur. 887)
24
also, People ex rel Ryan v. Green, 58 N. v. 295; People vs. Gardner, 59
Barb. 198; II Lewis Sutherland Statutory Construction, pp. 1161 and 1162;
Mechem on Public Ofcers, Sec. 389; 22 R. C. L. 377-378; 25 Am. Dec.
690-691, 703).
7. The case of Tipton vs. Parker (74 S. W., 298) has been cited in
support of the theory that Congress of the Philippines was not in "recess"
on December 29, 1961, and that, accordingly, ad interim appointments
could not validly be made in such date. The question involved in said case
was whether a committee of the Senate of Arkansas could be authorized by
the same to function after the adjournment sine die of the regular session
of the state General Assembly. The State Supreme Court considered as
decisive authority the view expressed by Judge Cooley, to the effect that a
legislative committee "has no authority to sit during a recess of a House
which appointed him, without its permission to that effect". The issue thus
hinged on the meaning of the term "recess" as used by Judge Cooley.
Resolving this question, said court held that the recess referred to by Judge
Cooley was "only the intermission between the sittings of the same body at
its regular or adjourned session and not to the interval between the nal
adjournment of one body and the convening of another at the next regular
session".
In this connection, it should be noted that, as an agency of the Senate,
the committee involved in said case could not operate for its principal
beyond the latter's term. Moreover, under the Constitution of Arkansas, the
regular biennial session of the General Assembly could not exceed 60
days, unless by a vote of 2/3 of the members of each of the two Houses of
the legislature. Inasmuch as the Senate could not, without the concurrence
of the House, directly extend the period of its regular session, neither
could it, without such concurrence, indirectly extend said period, by
granting its aforementioned committee the authority to function beyond
said period. As stated by the Court "the committee, being the mere agency
of the body which appointed it, dies when the body itself dies, unless it is
continued by law", which the Senate may not enact. without the
concurrence of the House.
25
VOL. 4,
JANUARY 19,
1962
25
The decision in said case did not seek to dene the meaning of the term
"recess" as used in any constitution or statute. It did not even refer to the
authority to make appointments during "recess". It has absolutely no
bearing, therefore, on the issue before us.
Upon the other hand, Dr. Jose M. Aruego, a prominent member of the
constitutional convention, says, in his work on "The Framing of the
Philippine Constitution" Vol I, pp. 434-435), that the draft of the provision
on ad interim appointments by the President, as submitted by the
corresponding committee, followed the principles of the Jones Law and
that the recommendation of the committee was readily approved on the o f
lo or of the convent ion, alt the committee on style gave said provision its
present phraseology. Pursuant to the Jones Law, "appointments made while
the Senate is not in session shall be effective either until disapproval or
until the next adjournment of the Senate". Hence, the term "recess"
appearing in Section 10(4) of Article VII of our Constitution should be
construed to mean "while Congress is, not in session" and this is conrmed
by the practice consistently observed in the Philippines for time
immemorial, as well as the ad interim appointment extended by President
Macapagal to respondent Castillo.
8. The case of McChesney vs. Sampson (23 S. W. 2d. 584) has, also,
been invoked in support of the proposition that "an ad interim appointment
is not complete until the appointee takes the oath of ofce and actually
takes possession of the position or enters upon the discharge of its duties"
and that, before such actual taking of possession, though after the oath
taking, the appointee may be removed without cause.
We have not found in said case anything justifying such claim. The
issue in said case was whether a state governor could recall an
unconrmed appointment of McChesney to the state text-book
commission when there had been no session of the Senate subsequent to
the appointment, and such issue was decided in the negative.
Although, in addition to accepting the appointment, McChesney had
qualied and exercised the function of the ofce, the decision of the Court
clearly indicates that
26
it was not necessary o f or him ei th er to dis cha rge th of the ofce or
even to take the oath of ofce, in order to render his appointment
irrevocable. The Court explicitly declared that the appointment, once
"completed by the executive is not subject to reconsideration or recall;"
that the appointment "is complete when the appointing authority has
performed the acts incumbent upon him to accomplish the purpose;" and
that in the case of recess appointments, like that of McChesney," the
appointment alone confers upon the appointee for the time being the right
to take and hold the ofce and constitutes the last act respecting the matter
to be performed by the executive power" completing the appointment and
rendering the same irrevocable.
In short, the McChesney case is authority for the petitioner herein.
9. Most, if not all appointments made by the President have two (2)
aspects, namely, the legal and the political. The rst refers to his authority
to make the appointments. The second deals with the wisdom in the
exercise of such authority, as well as with its propriety. Whether a given
vacancy or number of vacancies should be lled, or who among several
qualied persons shall be chosen, or whether a given appointment or
number of appointments will favor the political party to whom the power
of appointment belongs and will injure the interest of a rival political party
and to what extent, are, to my mind, essentially and typically political
matters. Hence, 9 7 belie that the question whether certain appointments
should be sanctioned or turned down by reason of the improper, immoral
or malevolent motives with which said matters were allegedly handled is,
likewise, clearly political, and, as such, its determination belongs, not to
the courts of justice (Vera vs. Avelino, 77 Phil., 192, 205 ; 16 C. J. S.
689-690; Willoughby on the Constitution, Vol. III 1326-1327), but to the
political organ established precisely to check possible abuses in the
exercise of the appointing powert he Commission on Appointments.
Indeed, I can hardly conceive of any question more patently and
characteristically political than this one, or more appropriate for
determination of said body. Neither
27
VOL. 4,
JANUARY 19,
1962
27
the possible or probable control thereof by members of the Nacionalista
Party nor the number of ofces or appointments involved can affect the
nature of the issue. Surely, its political character is the same whichever
political party may have the largest number of votes in the Commission on
Appointments. The big number of said appointments merely tend to make
more manifest the political complexion thereof and its non-justiciable
nature.
10. In Osmea vs. Pendatum (L-17144, October 28, 1960), we refused
to disturb the action of the House of Representatives in suspending a
member thereof 9 7 w had made derogatory imputations against the
President of the Philippines 9 7 up on the gr ound that such im tions
constituted a breach of the courtesy due to a coordinate branch of the
Government. Yet, in the present case, imputations similarly derogatory to
the same branch of the Government are, in effect, made in the majority
resolution.
I cannot see how such imputations can be reconciled with the position
taken by this Court in the Osmea case and in other cases (Barcelona vs.
Baker, 5 Phil., 87; Severino vs. Governor-General, 16 Phil., 366; Abueva
vs. Wood, 45 Phil., 612; Alejandrino vs. Quezon, 46 Phil. 85; Mabanag vs.
Lopez Vito, 78 Phil., 1; Cabili vs. Francisco, L-4638, May 8, 1951) in
which it "fastidiously observed" the theory of separation of powers
(Osmea vs. Pendatum, supra). Thus, in Santos vs. Yatco (55 Off. Gaz.
8641), in which a department head was sought to be enjoined from
electioneering, in view of the explicit provision of the Civil Service Act of
1959 (Republic Act No. 2260, section 29), prohibiting all ofcers and
employees in the civil service, "whether in the competitive or classied, or
noncompetitive or unclassied service," from engaging directly or
indirectly in partisan political activities or taking part in any election
except to vote, we held that the issue therein raised was one of
"impropriety as distinguished from illegality," and that, as such, it "is not
justiciable by this Court." In Mabanag vs. Lopez Vito (78 Phil., 1), we
refused to decide, upon the same ground, whether specied numbers of
votes constituted three-fourths of all members of each House of Congress.
In Vera vs. Avelino
28
(77 Phil., 192), we not only declared that "the judiciary is not the
repository of remedies for all political or social evils," but, also, quoted
with approval the statement, made in Alejandrino vs. Quezon (46 Phil.,
81), to the effect that "the judicial department has no power to revise even
the most arbitrary and unfair action of the legislative department, or of
either House thereof, taken in pursuance of the power committed
exclusively to that department by the Constitution." (Italics ours.)
11. In the present case, we have completely reversed our stand on the
principle of separation of powers. We have inquired into the motives of the
Executive department in making the appointments in question, although it
is well settled, under the aforementioned principle, that:
"Generally courts cannot inquire into the motive, policy, wisdom, or expediency of
legislation.
The justice, wisdom, policy, necessity, or expediency; of a law which is within its
powers are for the. legislature, and are not open to inquiry by the courts, except as an
aid to proper interpretation." (16 C.J.S. 471-478)
If this is true as regards the legislative branch of the government, 9 7 c an
se e no valid r eas on, and none pointed out, why the same norm should
not govern our relations, with the executive department. However, we have
not merely disregarded such norm. We are, also, in effect, restraining the
Commission on Appointmentsan organ of a coordinate, co-equal branch
of the Govern- mentfrom acting on the questioned appointments. What
is more, we are virtually assuming in advance that said bodywhich has
not been organized as yet and whose membership is still undetermined
will not act in harmony with the spirit of our Constitution.
12. It is trite to say that certain moral and political aspects of the issue
before us cannot but produce a strong aversion towards the case of
petitioner herein and the hundreds of others appointed under the same
conditions as he was. Although members of the bench must always
endeavor to minimize the inuence of emotional factors tending to affect
the objectivity essential to a fair and impartial appraisal of the issues
submitted for their deter-
29
VOL. 4,
JANUARY 19,
1962
29
mination, it is only naturaland , I venture to add, fortunate (for,
otherwise, how could they hope to do justice to their fellowmen?)th at
they should basically react as other members of the human family. This is
probably the reason why Justice Douglas of the Federal Supreme Court of
the U.S., said, in Abel v. U.S. (1 Lawyers Edition, 2d, 668, 688):
"Cases of notorious criminalslike cases of small, miserable onesare apt to make
bad law. When guilt permeates a record, even judges sometimes relax and let the
police take shortcuts not sanctioned by constitutional procedures. x x x. The harm in
the given case may seem excusable. But the practices generated by the precedent
have far-reaching consequences that are harmful and injurious beyond measurement."
Let us hope that no such consequences will ow from the precedent
established in this case.
BARRERA, J., dissenting:
The instant case started with a simple petition for prohibition and
mandamus with preliminary injunction instituted by petitioner Aytona who
claims to have been duly appointed ad interim Governor of the Central
against respondent Castillo who, allegedly accompanied by his
correspondent Colonel Gutierrez and a host of heavily armed Philippine
Constabulary Rangers, interferred with and prevented the petitioner in the
discharge of his duties and prerogatives as such Governor of the Central
Bank. During the hearing, however, and imme-diately thereafter, a great
amount of extraneous matter affecting persons not parties to the
proceedings has been introduced into the case and a veritable avalanche of
memoranda after memoranda and manifestations after manifestations
swelled the records and helped involve the issues. One among the dozens
who asked to be admitted as amici curiae, even presented an answer in
behalf of the people to support the side of the respondents. Unfortunately,
in the confusion, the case of the immediate parties became obscured by
considerations of circumstances and matters for and with which petitioner
and respondents are not responsible and are not directly connected.
30
In my opinion, the fundamental questions which this Court is called upon
to resolve in the present case are specically:
1. (1)
Is the ad-interim appointment of petitioner Aytona valid when
extended?
2. (2)
If so, did it automatically lapse with the ending of the term of ofce
of the twelve Congressmen composing one-half of the membership
of the Commission on Appointments?
3. (3)
May this appointment be legally recalled or withdrawn after Aytona
has qualied?
Before entering into the discussion of the "propriety, morality and
wisdom" of the appointment, it is necessary, 9 7 believ e, t hat the foreg
oing legal propos itio ns mu be cleared out.
I. The Validity of Aytona's Appointment:
Aytona's ad interim appointment is assailed on the theory that it was not
made during a "recess" of Congress as provided in paragraph 4, section 10
of Article VII of the Constitution. It is claimed for the respondents that the
word "recess" means "the intermission between sittings of the same body
at its regular or adjourned session, and not to the interval between the nal
adjournment of one body and the convening of another at the next regular
session. When applied to a legislative body, it means a temporary
dismissal, and not an ajournment sine die." In support of this view, counsel
cites the case of Tipton v. Parker, 71 Ark. 193, from which the foregoing
quotation was taken.
An examination of this case, however, discloses that it did not refer to
the power of the President to make ad interim appointments. The
pronouncement was made in connection with the interpretation of Section
17, Article 4 , of the Constitu ti on of th e State of Ark ansa involved the
validity of the certicate of the auditor with reference to the legality of the
expenses of a committee of the State Senate authorized by the latter to
make certain investigations beyond the duration of the session of the
General Assembly. The court. in declaring the certicate without sanction
of law, stated:
"The Senate has no power by resolution of its own to extend its session, and neither
did it have power to such separate .
31
VOL. 4, JANUARY
19, 1962
31
resolution to continue its committee, a mere agency of the body, beyond the term of
the body itself which created it." in view of the provisions of the aforementioned
Section 17, Article 5 of the state Constitution prescribing "that the regular biennial
session of the Legislature shall not exceed 60 days, unless by 2/3 vote of the
members elected to each house, and section 23 requiring a vote of the majority of
each house to enact a law or pass a resolution having the force and effect of a law".
Apparently an opinion of Judge Cooley seemingly to the contrary was cited to refute
this view of the court, and so the decision went on to say:
"Each house, says Judge Cooley, must also be allowed to proceed in its own way
in the collection of such information as may seem important to a proper discharge of
its functions; and whenever it is deemed desirable that witnesses should be examined,
the power and the authority to do so is very properly referred to a committee, with
any such powers short of nal legislative or judicial action as may seem necessary or
expedient in the particular case. Such a committee has no authority to sit dining a
recess of the house which has appointed it, without its permission to that effect. But
the house is at liberty to confer such authority if it sees t."
It is in this connection and evidently in a desire to explain the opinion of
Judge Cooley that the court made the prouncement relied upon by
respondents, thus:
" x x x. The recess here referred to by Judge Cooley we think should be construed to
mean only the intermission between sittings of the same body at its regular or
adjourned session, and not to the interval between the nal adjournment of one body
and the convening of another at the next regular session. When applied to a
legislative body, it means a temporary dismissal, and not an adjournment sine die."
The conclusion reached by the court can not be otherwise. The case refers
to the powers of one house of the state Legislature, with the concurrence of
the other, to confer authority upon its own committee to act beyond the
duration of the session of the General Assembly. Certainly, Judge Cooley's
view that each house has power to confer authority to its committee to act
during a recess must be understood to exist only during the life of the
house creating "the committee. It can not go beyond it? own existence, that
is. beyond its adjournment sine die.
32
But this ruling is no argument that the Executive's power to make
appointments during such adjournment sine die does not exist just because
a house of the legislature lacks power to authorize its committee to act
during the same adjournment. One refers to the power of a defunct body to
act beyond its life; the other refers to the power of another authority, the
executive, to perform its functions after the expiration of that other body.
Non-existence of the rst does not mean non-existence of the other.
It is to be noted that the different counsel advocating the cause of the
respondents are not even agreed in the application of their interpretation of
the word "recess". Some of them argue that the interregnum which they
contend is not recess, comprises the entire period between the adjournment
of the 4th Congress in May, 1961 and the opening of the 1st session of the
5th Congress on January 22, 1962, so that all ad interim appointments
extended during this period are null and void. Others claim that such
interregnum is that period between December 13, 1961, date of
adjournment of the last session of the 4th Congress, and January 22, 1962.
It seems that President Macapagal is of this same view because his
administrative Order No. 2 . specical ly ref er s t appointments made after
December 13, 1961. Still others, at least one, advanced the theory during
the oral argument that the banned period is that between the adjournment
of the 4th Congress in May, and December 30, 1961, excluding therefrom
the period between this last date and January 22, 1962. Obviously, this
theory was advanced in an effort to lend validity to the appointments
recently made by President Macapagal, for if the entire period between
May or December, 1961 to January 22, 1962 is held not a recess, but an
adjournment sine die, then all appointments heretofore made by the
present Chief Executive would suffer the same defect as those extended by
former President Garcia. This last argument is unavailing because it,
likewise, is untenable, tested upon the same authority cited by counsel. i.e.,
that the term "recess" means "the intermission between s ittings of the
same body," Since the 5th Congress has not as yet even
33
VOL. 4,
JANUARY 19,
1962
33
convened, the period between December 30 and January 22 can not be a
recess of the 5th Congress because it, denitely, is not an intermission
between sittings of the same body.
In the circumstances, it seems it is an over-statement to say that the
term "recess has a denite legal meaning in the sense attributed to it in the
Tipton vs. Parker case. The confusion in the minds of the several counsels
for the respondents as to the application of the alleged meaning of the
term, indicates a belabored effort on their part to impute a meaning to
satisfy their case. Upon the other hand, we nd in "Hinds Precedents of the
House of Representatives" (Vol. 5, pp. 852-853), a legislative
interpretation by the United States Senate made during the discussion of
the term "recess of the Senate" in connection with the President's1 power to
make appointments, as follows:
"The word 'recess' is one of ordinary, not technical, signication, and it is evidently
used in the constitutional provision in its common and popular sense. It means in
Article II, above referred to, precisely what it means in Article III, in which it is again
used. Conferring power upon the executive of a State to make temporary appointment
of a Senator, it says:
'And if vacancies happen, by resignation or otherwise, during the recess of the legislature of
any State, the executive thereof may make temporary appointments until the next meeting of
the legislature, which shall then ll such vacancies.'
"It means just what was meant by it in the Article of Confederation, in which it is
found in the following provision:
The United States in Congress assembled shall have authority to appoint a committee to sit
in the recess of Congress, it be denominated a committee of the States, and to consist of one
delegate from each State.'
"It was evidently intended by the framers of the Constitution that it should mean
something real, not something imaginary; something actual, not something ctitious.
They used the word as the mass of mankind then understood it and now understand it.
It means, in our judgment, in this connection the period of time when the Senate is
not sitting in regular or extraordinary session as a branch of the Congress, or in
extraordinary session for the discharge of executive func-
_______________
1 The power of the U.S. President to make appointments is by and with the advice and consent of
the Senate.
34
tions; when its members owe no duty of attendance; when its Chamber is empty;
when, because of its absence, it cannot receive communications from the President or
participate as a body in making appointments."
The Attorney General of the United States was also of this view when he
stated:
"The recess of the Senate during which the President shall have power to ll a
vacancy that may happen, means the period after the nal adjournment of Congress
for the session and before the next session begins; while an adjournment during a
session of Congress means a merely temporary suspension of business from day to
day, or for such brief periods of time as are agreed upon by the joint action of the two
houses. The President is not authorized to appoint an ofcer during the current
holiday adjournment of the Senate, which will have the effect of an appointment
made in the recess occuring between two sessions of the Senate." (President
Appointme nt OfcersHolid ay Rece ss, 1 90 1, 23 Op . At ty. Gen. C.A. Const.
Art. 2, Sec. 2[2].
It is worthwhile to note that our Constitution in its paragraph 4, Section 10
of Article VII speaks of "recess" without making any distribution between
the sessions of one congress and the sessions of another. And it is not trite
to say that when the law makes no distinction, no distinction should be
made, especially if to do so would result in a strained interpretation thereof
and defeat the evident purpose of the framers of the Constitutionin t his
insta nc e, to re nder it cert ai n t times there should be, whether the
Congress is in session or not, an ofcer for every ofce, entitled to
discharge the duties thereof. (5 Hinds, op. cit., p. 853.)
II. Lapsing of Aytona's Appointment:
It is contended for the respondents that since 12 members of the
Commission on Appointments ceased to be such upon the expiration of
their term of ofce at midnight of December 29, 1961, the Commission on
Appointments likewise ceased to exist on the theory that the creation can
not exist beyond the life of its creator at least with respect to one-half of its
members. This seems to stem from the wrong notion that the Commission
on Appointments is a creature of the Congress. This confuses the
Commission on Appointments as a constitutional body with its members.
The body continues
35
VOL. 4,
JANUARY 19,
1962
35
to exist, but only its membership changes periodically. When the
Constitution provides in Section 13 of Article 6 thereof that "the Electoral
Tribunals and the Commission on Appointments shall be constituted
within 30 days after the Senate and the House of Representatives shall
have been organized with the election of their President and Speaker,
respectively", it did not mean that the Senate and the House of
Representatives thereby ate said bodies, no more than the President can be
said to create the Supreme Court by appointing the Justices therein. It
simply ordained that the Commission be constituted or organized by
electing the members thereof. whose positions have already been created
in virtue of Section 12 of the same Constitution. To hold that the Electoral
Tribunals and the Commission on Appointments are non-existing during
the period from December 30, 1961 to January 22, 1962 (and during the
corresponding periods every four years thereafter) will result in an
absurdity and a situation destructive of the normal processes provided in
the Constitution. One of such absurd results would be that no electoral
protest against any elected and proclaimed congressman or senator can be
legally led with the Electoral Tribunals within the period prescribed by
their rules, that is. within fteen days following the proclamation of the
results of the election, which period falls within the time when the
Electoral Tribunals (as is the case of Commission on Appointments) are
allegedly non-existent.
The proceedings in the Constitutional Convention are cited to support
the theory that the Commission on Appointments is not a permanent
commission. A review of the records, however, of that convention reveals
that what was intended in the proposed draft was to authorize the
Commission on Appointments to hold sessions even when the Congress is
not in session. The mere fact that such a proposal was defeated and,
consequently, the word "permanent" was not adopted in the nal text, does
not import that the Constitution meant to give an off and on existence to
the Commission on Appointments lapsing every four years when the
twelve of its members cease to be such. On the contrary, it seems more
logical to hold
36
that the legal existence of the Commission as well as the Electoral
Tribunals continue irrespective of the vacancies that may exist in the
membership thereof. It is for this reason that the personnel of these bodies
do not cease periodically, but continue to perform their duties in their
respective ofces for which they are legally paid their salaries by the
government.
It seems clear, therefore, that the Commission on Appointments did not
lapse on December 29, 19-61. Neither did the appointment of Aytona lapse
on that date because the same could not be acted upon by the Commission
on Appointments during the recess of the Congress.
III. May the appointment of Aytona be legally recalled or withdrawn
after he has qualied for the position to which he was appointed?
Precedents are to the effect that when once an appointment has been
extended by the Chief Executive who, as is provided in our Constitution,
has the sole power of appointment subject only to the consent of the
Commission on Appointments, and the appointee has accepted the
appointment, the same becomes complete and the appointing power can
not withdraw it except in cases where the tenure of the appointee is at the
Chief Executive's pleasure or upon grounds justifying removal and after
due process. This is not because the appointment constitutes a contract (for
truly a public ofce can not be subject of any contract), but because of the
provisions of the Constitution itself to the effect that "no ofcer or
employee in the Civil Service shall be removed or suspended except for
cause as provided by law." If, therefore, the recall or the withdrawal of the
appointment of Aytona was not authorized by law, then his assumption of
the functions of his ofce on January 2, 1962 was clearly within his legal
right and the interference of Castillo, aggravated by the assistance or at
least the presence of members of the Armed Forces, was clearly unlawful.
The foregoing disposes, in my opinion, the legal issues and the rights of
the parties in the present case. But against these, to me, clear mandates of
the Constitution
37
VOL. 4,
JANUARY 19,
1962
37
and the legal and judicial precedents, respondents have appealed to this
Court for it to exercise "judicial statesmanship" invoking the spirit of the
Constitution. It is claimed that there was a manifest abuse of power by the
outgoing President in extending, on the eve of the expiration of his term,
some three hundred and fty ad interim appointments to ll an equal
number of vacancies in the different branches of the government; that no
proper consideration was given of the merits of the appointees, it
appearing that in the case of at least some of the appointees to the
judiciary, their assurance of an immediate assumption of ofce or the
taking of oath was made a condition precedent to the appointments, and
that there was a wild scramble in Malacaan among the appointees on the
night of December 29. We are scandalized by this and expect the Court to
apply the remedy. What of the proceedings in Congress during the last day
of session when bills after bills are passed in a manner not too dissimilar to
the described scene in Malacaang? Can the Supreme Court be expected to
correct this too by declaring all such laws as invalid just as we are asked to
invalidate these appointments?
Be this as it may, whatever may be our personal views on this matter, h
i agr ee w ith Mr. Jus tice Conce pcio not all wrongs or even abuse of
power can be corrected by the exercise of the high prerogatives of the
Supreme Court vested in it by the Constitution. As 9 7 ta ke it, higher and
more delicate is the prerogative, the greater should be the degree of self-
restraint in the exercise thereof, lest the ne and tested scale of checks and
balances set up by the Constitution be jarred. In the same manner that we
expect circumspection and care, even double care, on the part of the other
two co-equal coordinate departments of the government, so must we be
most cautious and slow in judging the morality, propriety and good faith
involved in the actuations of the other departments in matters coming
within their competence. The remedy, h i believ e, un der the cir stances is
with the Commission on Appointments to which the appointments have
been submitted. The mere fact that it is expected that the Commission on
Appoint
38
38 SUPREME COURT R EPORTS A NNOTATED
Antony vs. Castill Antony vs. Castill
ments would be controlled by the party of the outgoing' President is
immaterial, because legal processes can not be made to depend upon the
fortunes of political parties. for there is still the ultimate remedy by the
people in the exercise of their sovereign right which is the source of all
authority. At any rate, as has already been aptly said: the judiciary is not
the repository of remedies for all political or social evils, and that the
judicial department has no power to revise even arbitrary or unfair action
of the other departments t aken in pursuance of the power committed e
xclusively to those departments by the Constitution.
May I add: all the scandalous circumstances brought to the attention of
this Court did not link the petitioner herein, save for the fact that his
appointment was extended on the same day as those issued under the
unusual and irregular circumstances attending the other appointments. If al
all, there is evidence in favor of Aytona to the effect that insofar as he is
concerned, his appointment to the position of Governor of the Central
Bank has been under consideration for a long time and that he is qualied
for the position. It can not, therefore, be said that with re spect t o him
there was no mature deliberation and due consideration of his
qualications and of the need of the service. The charge was made that the
position of Governor of the Central Bank has been vacant for several
months and that the President should have lled it earlier. Yet, when the
President actually lled it as he did, he is criticized claiming that there was
no immediate need for such action in view of the fact that there was an
Acting Governor. That it was really necessary to ll the position is
evidenced by the act of President Macapagal himself in making his own
appointment hardly twenty-four hours after he recalled the appointment of
Aytona.
Summarizing, I would say that all the circumstances cited by the
respondents that have surrounded the issuance of the appointments in
question, have to do with the mode or manner of the exercise of the
authority to make the appointments, quite apart from the existence of the
authority itself. The observance of good faith, morality
39
VOL. 4,
JANUARY 19,
1962
39
and propriety by the other two co-equal coordinate departments in the
performance of their functions must be secured by their sense of duty and
ofcial oath and not by any supervisory power of the courts.
The role of courts in our scheme of government is to interpret the law
and render justice under it. This simply means that whatever may be our
own personal feelings as to the propriety, morality, or wisdom of any
ofcial act or actuation of a public ofcer or any agency of the government
within their respective competence brought to the attention of the Court for
adjudication, they should not be permitted to prevail over clear legal
considerations, for ours is a regime under the Rule of Law.
In view of the foregoing, h i am constrai ne d to reg my dissent.
Action dismissed.
N O T E S
When an appointment is deemed complete; Rule; exceptions.As a
general rule, an appointment once made is irrevocable and not subject to
reconsideration. The rule is qualied, however, where the assent,
conrmation or approval of some other ofcer or body is needed before
the appointment may issue and be deemed complete. ln such a case, the
appointment is complete only when such assent or conrmation is
obtained (Mitra v. Subido. L-21691, Sept. 15, 1967, 21 SCRA 127,
reiterating Gorospe v. Secre tary of Public Works, L-11090, Jan. 31, 1959
which held that an appointment to a position in the civil service made by
an ofcer duly empowered to make it is not nal and complete until after
the Commissioner of Civil Service has certied that such appointment may
be made).
An assignment to a particular station is not necessary to complete the
appointment. The approval thereof by the Commissioner of Civil Service
gives the appointment the stamp of nality. The subsequent assignment of
the appointees according to the exigencies of the service does not in any
way detract from the perfection attained by the appointment beforehand.
A contrary rule will erase altogether the demarcation line between
appointment and assignmen
40
Gamboa vs. Tan Gamboa vs. Tan
as two distinct concepts in the law of public ofcers (Ibaez a l Iba ez v.
Commiss io n on Elect ions, L- 26558, April 27, 1967, 19 SCRA 1002)
Political QuestionSee Gonzales v. Commission on Elections,
L-28196, Nov. 9, 1967, 21 SCRA 774 and the annotation on "Judicial
Deference to Political Question," 21 SCRA 822.
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Aytona vs. Castillo

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Aytona vs. Castillo

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No. L-19313. January 19, 1962.

DOMINADOR R. AYTONA, petitioner, vs. ANDRES V. CASTILLO, ET

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