Professional Documents
Culture Documents
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 officers; Appointment; Equitable rights; Case at bar.Once the
appointee has qualified, 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.
VOL. 4, JANUARY
19, 1962
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 adinterim 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 qualified. Any
revocation thereafter, is tantamount to removal.
VOL. 4, JANUARY
19, 1962
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 office of
Congressmen in Commission on Appointments.An ad-interim appointment does
not automatically lapse with the ending of the term of office 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 quatified.An ad-interim
appointment can not be recalled or
6
withdrawn after the appointee has qualified 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 official act or
actuation of a public officer 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.
VOL. 4,
7
JANUARY 19,
1962
Aytona vs. Castillo
pointed Andres V. Castillo as ad interim Governor of the Central Bank,
and the latter qualified immediately.
On January 2, 1962, both appointees exercised the powers of their
office, 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 definitely prevented from holding
office 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 qualified for
the post, and therefore, the subsequent appointment and qualification of
Castillo was void, because the position was then occupied by him. Castillo
VOL. 4,
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JANUARY 19,
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Aytona vs. Castillo
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 official, and then never qualified.
We are informed, it is Malacaan's practicewhich we find 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 qualified are submitted
10
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 fill all vacant positions1 irrespective of
fitness 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 benefit 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
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JANUARY 19,
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Aytona vs. Castillo
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 fifty), 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 fit the exception.
Incidentally, it should be stated that the underlying reason for denying
the power to revoke after the appointee has qualified 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 efficiency 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
12
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 office by a President whose term of
office 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 office 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.
VOL. 4,
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JANUARY 19,
1962
Aytona vs. Castillo
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 confirmed 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 officers elected
or appointed under it.
Under the provisions of the Constitution "The term of office of Senators
shall be six years and shall begin on the thirtieth day of December next
following their election."1 And "The term of office 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
14
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 office 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
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JANUARY 19,
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Aytona vs. Castillo
16
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 finally
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
reflected 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 office and actually takes possession of the position or enters
upon the discharge of its duties. The mere taking of the oath of office
without actual assumption of office is not sufficient to constitute the
appointee the actual occupant thereof who may not be removed therefrom
except for cause (McChes17
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JANUARY 19,
1962
Aytona vs. Castillo
18
19
VOL. 4,
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JANUARY 19,
1962
Aytona vs. Castillo
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 Scofield
vs. Starr (63 A 512). The first 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 first
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 Scofield, 11 for Starr
and one blank ballot. Scofield 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 justified 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
exercised, he had no further control over the respective offices 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
exercised, he had no further control over the office until the appointee has been
rejected by the senate." (89 ALR, pp. 138. 139, 140.)
22
'The provision as to the office here in question found in the Constitution does not say
that the appointment made b y the Governor shall be confirmed 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 Commis23
VOL. 4,
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JANUARY 19,
1962
Aytona vs. Castillo
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 officer 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
24
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,
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JANUARY 19,
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Aytona vs. Castillo
The decision in said case did not seek to define 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 confirmed
26
VOL. 4,
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JANUARY 19,
1962
Aytona vs. Castillo
the possible or probable control thereof by members of the Nacionalista
Party nor the number of offices 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 officers and
employees in the civil service, "whether in the competitive or classified, or
noncompetitive or unclassified 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 specified numbers of
votes constituted three-fourths of all members of each House of Congress.
In Vera vs. Avelino
28
28
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)
VOL. 4,
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JANUARY 19,
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Aytona vs. Castillo
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 flow from the precedent
established in this case.
30
VOL. 4, JANUARY
19, 1962
31
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 final 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 fit."
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
32
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JANUARY 19,
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Aytona vs. Castillo
convened, the period between December 30 and January 22 can not be a
recess of the 5th Congress because it, definitely, 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 definite 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
"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 fictitious.
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
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 fill a
vacancy that may happen, means the period after the final 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 officer 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 OfficersHolid ay Rece ss, 1 90 1, 23 Op . At ty. Gen. C.A. Const.
Art. 2, Sec. 2[2].
VOL. 4,
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Aytona vs. Castillo
36
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Aytona vs. Castillo
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 fifty ad interim appointments to fill 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 office 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 selfrestraint in the exercise thereof, lest the fine 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
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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 qualified
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
qualifications 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 filled it earlier. Yet, when the
President actually filled 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 fill 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
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VOL. 4,
39
JANUARY 19,
1962
Aytona vs. Castillo
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