2A Public Officers
Atty. Noel Ostrea
Selected Cases: Law on Public Officers
Selected Cases: Law on Public Officers
6. TOPACIO VS.ONG
Date: December 18, 2008 GR Number: 179895
Key Issue:
Is the appointment of a Justice of the Sandiganbayan valid?
YES. Ong was subsequently declared a Natural-born citizen in a separate
RTC decision. (see footnote 3)
FACTS:
● ·Petition for certiorari and prohibition seeks to prevent Justice Gregory
Ong from further exercising the powers, duties and responsibilities of a
Sandiganbayan Associate Justice
○ In the previous case, Kilosbayan Foundation v Ermita, (July 3, 2007),
enjoined Ong from accepting an appointment to the position of
Associate Justice of the Supreme Court or assuming the position and
discharging the functions of that office, until he shall successfully
completed all necessary steps to show that he is a natural born Filipino
Citizen and correct the records of his birth and citizenship.
● Petitioner implored respondent OSG to initiate post-haste a quo
warranto proceeding against Ong in the latter’s capacity as an
incumbent AJ of Sandiganbayan
○ Invoking par 1 section 7 Art VIII of the Constitution1 in conjunction
with the Courts Decision in Kilosbayan Foundation v Ermita, petitioner
points out that Natural-Born citizenship is also a qualification for
appointment as member of the Sandiganbayan and that Ong has failed
to meet the citizenship requirement from the time of his appointment as
such in October 1998
ISSUE:
1
Article VIII SECTION 7. (1) No person shall be appointed Member of the Supreme Court or
any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of
the Supreme Court must be at least forty years of age, and must have been for fifteen years or
more a judge of a lower court or engaged in the practice of law in the Philippines.
IN OCTOBER OF 1998, RESPONDENT WAS NOT DULY-
QUALIFIED UNDER THE FIRST SENTENCE OF PARAGRAPH 1,
SECTION 7, OF THE 1987 CONSTITUTION, TO BE APPOINTED
AN ASSOCIATE JUSTICE OF THE SANDIGANBAYAN, MERELY
ON THE STRENGTH OF AN IDENTIFICATION CERTIFICATE
ISSUED BY THE BUREAU OF IMMIGRATION AND A 1ST
INDORSEMENT DATED 22 MAY 1997 ISSUED BY THE
SECRETARY OF JUSTICE, BECAUSE, AS OF OCTOBER 1998,
RESPONDETS BIRTH CERTIFICATE INDICATED THAT
RESPONDENT IS A CHINESE CITIZEN AND BECAUSE, AS OF
OCTOBER 1998, THE RECORDS OF THIS HONORABLE COURT
DECLARED THAT RESPONDENT IS A NATURALIZED FILIPINO
CITIZEN
RULING:
● Topacio’s contention:
○ Ong should immediately desist from holding the position of
Associate Justice of the Sandiganbayan since he is disqualified on
the basis of citizenship, whether gauged from his birth certificate
which indicates him to be a Chinese citizen or against his bar
records bearing out his status as a naturalized Filipino citizen, as
declared in Kilosbayan Foundation v. Ermita.
○ Ong’s contention
● Kilosbayan Foundation v. Ermita 2 did not annul or declare null his
appointment as Justice of the Supreme Court, but merely enjoined him
2
Additional info about Ong’s Citizenship from the cited case: “As to his citizenship,
respondent Ong traces his ancestral lines to one Maria Santos of Malolos, Bulacan, born on
November 25, 1881, who was allegedly a Filipino citizen who married Chan Kin, a Chinese
citizen; that these two had a son, Juan Santos; that in 1906 Chan Kin died in China, as a result
of which Maria Santos reverted to her Filipino citizenship; that at that time Juan Santos was a
minor; that Juan Santos thereby also became a Filipino citizen;6 that respondent Ong’s mother,
Dy Guiok Santos, is the daughter of the spouses Juan Santos and Sy Siok Hian, a Chinese
citizen, who were married in 1927; that, therefore, respondent’s mother was a Filipino citizen
at birth; that Dy Guiok Santos later married a Chinese citizen, Eugenio Ong Han Seng, thereby
becoming a Chinese citizen; that when respondent Ong was eleven years old his father,
Eugenio Ong Han Seng, was naturalized, and as a result he, his brothers and sisters, and his
mother were included in the naturalization.
Respondent Ong subsequently obtained from the Bureau of Immigration and the DOJ a
certification and an identification that he is a natural-born Filipino citizen under Article IV,
Sections 1 and 2 of the Constitution, since his mother was a Filipino citizen when he was
born.”
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from accepting his appointment, and that there is no definitive
pronouncement therein that he is not a natural-born Filipino. He
informs that he, nonetheless, voluntarily relinquished the appointment
to the Supreme Court out of judicial statesmanship
○ Things that happened after filing of present petition:
■ By Manifestation and Motion to Dismiss of January 3,
2008, Ong informs that the RTC, by Decision of October
24, 2007, already granted his petition and recognized him as
a natural-born citizen. The Decision having, to him, become
final, he caused the corresponding annotation thereof on his
Certificate of Birth.
● 3Invoking the curative provisions of the 1987 Constitution, Ong
explains that his status as a natural-born citizen inheres from birth and
the legal effect of such recognition retroacts to the time of his birth.
● Ong thus concludes that in view of the RTC decision, there is no more
legal or factual basis for the present petition, or at the very least this
petition must await the final disposition of the RTC case which to him
involves a prejudicial issue.
● Remember this case was instituted via Quo Warranto
○ The rightful authority of a judge, in the full exercise of his public
judicial functions, cannot be questioned by any merely private
suitor, or by any other, except in the form especially provided by
3
On November 21, 2007, Gregory Ong was declared natural-born Filipino citizen. In a
Judgment, Leoncio Janolo Jr., Branch 264, Pasig regional trial court granted Ong's petition to
be recognized as a natural-born Filipino citizen, qualifying him to be an associate justice of the
Supreme Court. The Civil Registrar of San Juan, Metro Manila was directed to annotate in the
Certificate of Birth of Ong the decision. Ong acquired Philippine citizenship when he was still
a minor on the basis of the naturalization of his father, Eugenio Ong Han Seng. The judgment
dismissed objections to Ong’s appointment to the Supreme Court of the Philippines and tenure
at the Sandiganbayan, further holding that the petitioner and oppositor were not the real
adversarial litigants in their citizenship issue, ruling the 2 foundations are “merely would-be
oppositors and not actual or bona fide oppositors,” and they are “not real parties in interest who
actually stand to be injured or prejudiced by a judgment or decree” granting Ong’s petition. [14]
On November 20, 2007, the Supreme Court of the Philippines received the judgment of
Regional Trial Court, Br. 264, Pasig City (in Sp. Proc. No. 11767, entitled "In re: amendment /
correction / supplementation or annotation of entry in the certificate of live birth of Gregory S.
Ong vs. the Local Civil Register of San Juan; Kilosbayan and Bantay Katarungan,
oppositors"), which ruled that Ong is a natural born Filipino citizen.[15]
law. To uphold such action would encourage every disgruntled
citizen to resort to the courts, thereby causing incalculable mischief
and hindrance to the efficient operation of the governmental
machine
● The present case is different from Kilosbayan Foundation v. Ermita,
given Ongs actual physical possession and exercise of the functions of
the office of an Associate Justice of the Sandiganbayan, which is a
factor that sets into motion the de facto doctrine.
● Suffice it to mention that a de facto officer is one who is in possession
of the office and is discharging its duties under color of authority, and
by color of authority is meant that derived from an election or
appointment, however irregular or informal, so that the incumbent is
not a mere volunteer, If a person appointed to an office is subsequently
declared ineligible therefor, his presumably valid appointment will give
him color of title that will confer on him the status of a de facto officer
○ A judge de facto assumes the exercise of a part of the prerogative
of sovereignty, and the legality of that assumption is open to the
attack of the sovereign power alone. Accordingly, it is a well-
established principle, dating back from the earliest period and
repeatedly confirmed by an unbroken current of decisions, that the
official acts of a de facto judge are just as valid for all purposes as
those of a de jure judge, so far as the public or third persons who
are interested therein are concerned
● the Court declares that Ong may turn out to be either a de jure officer
who is deemed, in all respects, legally appointed and qualified and
whose term of office has not expired, or a de facto officer who enjoys
certain rights, among which is that his title to said office may not be
contested except directly by writ of quo warranto, which contingencies
all depend on the final outcome of the RTC case.
Assigned: Lynnette Chung
7. FUNA VS. AGRA
Date: February 19, 2013 GR Number: G.R. No. 191644
Key Issue/s:
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Is the appointment of an acting Secretary of Justice who is also
concurrently holding another position in the government valid?
No. To hold an office means to possess or to occupy the office, or
to be in possession and administration of the office, which implies
nothing less than the actual discharge of the functions and duties of
the office. It is of no moment that the designation was in an
acting or temporary capacity.
FACTS:
Facts alleged:
Petitioner in his capacity as a taxpayer, a concerned citizen and a
lawyer:
● March 1, 2010: President Gloria M. Macapagal-Arroyo
appointed Agra as the Acting Secretary of Justice following the
resignation of Secretary Agnes VST Devanadera in order to vie
for a congressional seat in Quezon Province;
● March 5, 2010: President Arroyo designated Agra as the
Acting Solicitor General in a concurrent capacity;
● August 5, 2010: During the pendency of the suit, President
Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as
the Solicitor General.
Respondents:
● January 12, 2010: he was then the Government Corporate
Counsel when President Arroyo designated him as the Acting
Solicitor General in place of Solicitor General Devanadera who
had been appointed as the Secretary of Justice;
● March 5, 2010: President Arroyo designated him also as the
Acting Secretary of Justice vice Secretary Devanadera who had
meanwhile tendered her resignation in order to run for Congress
representing a district in Quezon Province in the May 2010
elections; he then relinquished his position as the Government
Corporate Counsel; and that pending the appointment of his
successor, Agra continued to perform his duties as the Acting
Solicitor General.
Supreme Court:
● Notwithstanding the conflict in the versions of the parties, the
fact that Agra has admitted to holding the two offices
concurrently in acting capacities is settled, which is sufficient
for purposes of resolving the constitutional question that petitioner
raises herein.
Arguments:
Petitioner:
● The prohibition under Section 13, Article VII of the 1987
Constitution does not distinguish between an appointment or
designation of a Member of the Cabinet in an acting or
temporary capacity, on the one hand, and one in a permanent
capacity, on the other hand; and that Acting Secretaries, being
nonetheless Members of the Cabinet, are not exempt from the
constitutional ban.
The Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold
any other office or employment during their tenure. [1987
CONST, ART VII, Sec. 13(1)]
Hence, exceptions are:
(1) Unless otherwise provided in the Constitution (eg Section 3,
Article VII, authorizing the Vice President to become a
member of the Cabinet) ; or
(2) Ex Officio positions (eg the Secretary of Justice being ex
officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.)
● The position of the Solicitor General is not an ex officio
position in relation to the position of the Secretary of Justice,
considering that the Office of the Solicitor General (OSG) is an
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independent and autonomous office attached to the Department of
Justice (DOJ). He insists that the fact that Agra was extended
an appointment as the Acting Solicitor General shows that he
did not occupy that office in an ex officio capacity because an
ex officio position does not require any further warrant or
appointment.
Respondents:
● Agra’s concurrent designations as the Acting Secretary of Justice
and Acting Solicitor General were only in a temporary capacity,
the only effect of which was to confer additional duties to him.
Thus, as the Acting Solicitor General and Acting Secretary of
Justice, Agra was not "holding" both offices in the strict
constitutional sense. An appointment, to be covered by the
constitutional prohibition, must be regular and permanent,
instead of a mere designation.
● Even on the assumption that Agra’s concurrent designation
constituted "holding of multiple offices," his continued service as
the Acting Solicitor General was akin to a hold-over; Agra
continued his service as the Acting Solicitor General "until his
successor is elected and qualified" to "prevent a hiatus in the
government pending the time when a successor may be chosen
and inducted into office;" and that during his continued service
as the Acting Solicitor General, he did not receive any
salaries and emoluments from the OSG after becoming the
Acting Secretary of Justice on March 5, 2010.
ISSUE:
Did the designation of Agra as the Acting Secretary of Justice,
concurrently with his position of Acting Solicitor General, violate the
constitutional prohibition against dual or multiple offices for the
Members of the Cabinet and their deputies and assistants?
RULING:
WHEREFORE, the Court GRANTS the petition for certiorari and
prohibition; ANNULS AND VOIDS the designation of Hon. Alberto
C. Agra as the Acting Secretary of Justice in a concurrent capacity
with his position as the Acting Solicitor General for being
unconstitutional and violative of Section 13, Article VII of the 1987
Constitution; and DECLARES that Hon. Alberto C. Agra was a de
facto officer during his tenure as Acting Secretary of Justice.
I. The designation of Agra as Acting Secretary of Justice
concurrently with his position of Acting Solicitor General was
unconstitutional and void for being in violation of the
constitutional prohibition under Section 13, Article VII of the 1987
Constitution.
● It was of no moment that Agra’s designation was in an
acting or temporary capacity. The text of Section 13, plainly
indicates that the intent of the Framers of the Constitution was to
impose a stricter prohibition on the Members of his Cabinet in so
far as holding other offices or employments was concerned. To
hold an office means to possess or to occupy the office, or to
be in possession and administration of the office, which
implies nothing less than the actual discharge of the functions
and duties of the office. To construe differently is to "open the
veritable floodgates of circumvention of an important
constitutional disqualification of officials in the Executive
Department and of limitations on the President’s power of
appointment in the guise of temporary designations of Cabinet
Members, undersecretaries and assistant secretaries as officers-in-
charge.
● Agra’s concurrent designations as Acting Secretary of Justice
and Acting Solicitor General did not come within the
definition of an ex officio capacity.
○ The term ex officio means "from office; by virtue of office."
Ex officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any
other appointment or authority other than that conferred by
the office." The ex officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The reason
is that these services are already paid for and covered by the
compensation attached to his principal office.
○ Powers and functions of the OSG are neither required by the
primary functions nor included by the powers of the DOJ,
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and vice versa. The OSG, while attached to the DOJ, is not
a constituent unit of the latter, as, in fact, the Administrative
Code of 1987 decrees that the OSG is independent and
autonomous. The Solicitor General is now vested with a
cabinet rank.
■ Assuming that Agra, as the Acting Solicitor General, was
not covered by the stricter prohibition under Section 13,
due to such position being merely vested with a cabinet
rank, he nonetheless remained covered by the general
prohibition under Article IX. (Appointive officials shall not
hold any other governmental position, unless otherwise
allowed by law or his position’s primary functions [1987
CONST, ART IX-B, Sec. 7(2)])
II. Effect of declaration of unconstitutionality of Agra’s concurrent
appointment; the de facto officer doctrine
● A de facto officer is one who derives his appointment from one
having colorable authority to appoint, if the office is an
appointive office, and whose appointment is valid on its face. He
may also be one who is in possession of an office, and is
discharging its duties under color of authority, by which is meant
authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.
○ All official actions of Agra as a de facto Acting Secretary
of Justice, assuming that was his later designation, were
presumed valid. Consequently, the acts of the de facto officer
are just as valid for all purposes as those of a de jure
officer, in so far as the public or third persons who are
interested therein are concerned.
○ Agra is entitled to emoluments. In cases where there is no de
jure, officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties
pertaining thereto, is legally entitled to the emoluments of the
office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office.
Additional Notes:
● Other issues raised:
○ Legal standing of Funa: This case before Us is of
transcendental importance, since it obviously has "far-
reaching implications," and there is a need to promulgate
rules that will guide the bench, bar, and the public in
future analogous cases. We, thus, assume a liberal stance
and allow petitioner to institute the instant petition.
○ On being moot and academic: Although the controversy could
have ceased due to the intervening appointment of and
assumption by Cadiz as the Solicitor General during the
pendency of this suit, and such cessation of the controversy
seemingly rendered moot and academic the resolution of the
issue of the constitutionality of the concurrent holding of the
two positions by Agra, the Court should still go forward
and resolve the issue. The issue involves a probable
violation of the Constitution, and relates to a situation of
exceptional character and of paramount public interest
by reason of its transcendental importance to the people.
● Funa is also the petitioner in Funa v. Ermita
○ He questioned the constitutionality of the designation of then
Undersecretary of the Department of Transportation and
Communications (DOTC) Maria Elena H. Bautista as
concurrently the Officer-in-Charge of the Maritime Industry
Authority.
Assigned: Emkay Evangelista
8. RE: NOMINATION ATTY. LYNDA CHAGUILE
Date: December 10, 2013 GR Number: AM 13-04-03-SC
Key Issue/s:
The appointment of Atty. Chaguile as IBP Governor for Northern Luzon
was not in accord with the IBP by-laws. How does this affect her powers
and authority?
Accordingly, Supreme Court hold that all official actions of Atty.
Chaguile as de facto IBP Governor for Northern Luzon must be deemed
valid, binding, and effective, as though she were the officer validly
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appointed and qualified for the office. It follows that her participation
and vote in the election for IBP EVP held on May 22, 2013 are in order.
SUMMARY:
Admin Matter 1:
Sought to invalidate (IBP Resolution which approved) the nomination of
Chaguile as replacement of Habawel, IBP Governor for Northern Luzon
because it was made by appointment but not election. Election was required
by the IBP By-laws therefore de facto officer however her term already
expired so it resolves the subsequent actions made during occupancy – it is
valid.
Admin Matter 2: (Not relevant in the key issue)
Nullify election of Joyas and restrain from discharging the duties of
Integrated Bar of the Philippines EVP/Acting president because of alleged
bias. Joyas acted as Chairman of Executive committee and therefore have
the power to designate Secretary Marohomsalic as COMELEC to handle
the EVP Elections of which both of them were nominees. There is no bias,
Joyas simply performs his duties and allowed to designate other functions to
the secretary. (Note: the COMELEC they refer here is like an internal
committee lang ata? For their elections)
ADMIN MATTER 1 FACTS:
● Ubano questions the IBP Resolution nominating Chaguile.
● An official in the IBP ipso facto resigns his post when s/he files
certificate of candidacy (COC) and resignation takes effect at the start
of the campaign period. Habawel filed a certification of candidacy to
run governor in Ifugao.
● Atty Habawel nominated Chaguile.
● Libarious, IBP President, approves without voting the succession of
Chaguile as IBP Governor for the Northern Luzon and according to
Ubano the amended IBP By-laws under Section 44 of the require that a
successor be elected.
● Ubano claims that the appointment of Chaguie is not effective since the
position is not yet vacant and he is claiming that vacancy is different
from a position that has been resigned from. According to Ubano it is
clear in the By-laws of the IBP there must be first a “vacancy” before
electing a successor. There were also six individuals
● IBP cited 7 “traditions” however rebutted by Ubano by NCC Art 7 that
misuse or disobservance cannot be excused by customs
● Ubano now filed a motion to restrict Chaguile to perform her duties,
however, as pointed out by the IBP in its comment dated July 8, 2013,
her term expired on June 30, 2013.
ADMIN MATTER 2 FACTS: (Not relevant)
● Atty. Ubano questions the election of the IBP EVP that was won by
Joyas. He was also a nominee for the IBP EVP position.
● The votes were: 5 for Joyas and 4 for Ubano. The president of the IBP,
Libarios, resigned as it also filed a COC.
● Joyas acted as acting as its chairman of the IBP executive committee.
Given Joyas position, he designated the Commission on Elections for
the election of the IBP EVP.
● Atty. Ubano made an issue out of Atty. Vicente M. Joyas' having
designated IBP National Secretary Nasser A. Marohomsalic as
Chairman of the Commission on Elections considering that Atty. Joyas
supposedly lacked the authority to do so. Atty. Ubano made much of
Atty. Joyas' status as IBP Governor for Southern Luzon. Atty. Ubano.
ISSUES:
Admin Matter 1:
Whether or not the subsequent acts of Chaguile are valid?
Admin Matter 2:
Whether or not the election of Joyas as IBP EVP is valid? (Whether there
was bias or patent hostility in the election of the IBP EVP?)
DISPOSITIVE PORTION:
WHEREFORE, the Motion to Declare dated March 27, 2013 as Ultra
Vires or Invalid the Urgent Motion to Defer/Restrain Performance of Duties
as Successor Governor of IBP Northern Luzon Region dated April 22, 2013
and the Very Urgent Motion to Restrain Atty. Chaguile from Voting in the
EVP Election on May 22, 2013 dated May 20, 2013 filed by Atty. Marlou
B. Ubano are DENIED for being moot and academic.
We DECLARE that Atty. Lynda Chaguile was indeed a de facto officer
during her tenure as IBP Governor for Northern Luzon and that her acts as
de facto officer — including her having voted in the May 22, 2013 election
for the Executive Vice President of the Integrated Bar of the Philippines —
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are valid, binding, and effective. The Urgent Omnibus Motion to (1) Nullify
the EVP Election on May 22, 2013 and (2) Restrain Gov. Vicente M. Joyas
of Southern Luzon Region from Discharging the Duties of EVP/Acting
President until the Final Resolution of the Issues is DENIED
RULING:
● Even the issue on Chaguie appointment is now moot, the court ruled on
the actions as the occupant of this office
● First ground: Absurd to insist that a vacancy must actually and literally
exist
● On the second ground, the third paragraph of Section 44 of the IBP
By--Laws clearly provides that "the delegates from the region shall
by majority, elect a successor from among the members of the
Chapter to which the resigned governor is a member." There is no
ambiguity in this text. SC is surprised that the IBP — an institution
expected to uphold the rule of law — has chosen to rely on "tradition"
to validate its action.
● It is, therefore, clear that Atty. Chaguile's designation as IBP
Governor for Northern Luzon is tainted with irregularity, and
therefore, invalid.
● When her term Atty. Chaguile acted as and performed the functions of
the IBP Governor for Northern Luzon. This is an accomplished fact
which no amount of legal abstraction can undo. It is in this context,
with the backdrop of this consummated truth, that we rule on the
Administrative Matters before us. Given these circumstances, SC hold
that Atty. Chaguile took on the role of IBP Governor for Northern
Luzon in a de facto capacity.
● Moreover, as against a mere usurper, “it is the color of authority, not
the color of title that distinguishes an officer de facto from a usurper.
● Elements:
○ There must be a de jure office
○ There must be color of right or general acquiescence by the public;
and
○ There must be actual physical possession of the office in good
faith,
● On the second element, either one of color of right or general
acquiescence by the public can suffice and the opposition of six
individuals cannot negate the “general acquiescence” even they are
delegates of IBP Northern Luzon it doesn’t contemplate public.
Furthermore there is definitely a color of title – the color of title exist
by a color of know election or appointment but this is however void by
want of power by the electing/appointing body.
● Accordingly, Supreme Court hold that all official actions of Atty.
Chaguile as de facto IBP Governor for Northern Luzon must be
deemed valid, binding, and effective, as though she were the officer
validly appointed and qualified for the office. It follows that her
participation and vote in the election for IBP EVP held on May 22,
2013 are in order.
Admin Matter 2:
● Joyas is acting as chairman because it is evident that its principal
purpose is to ensure that the functions of the IBP National President
shall continue to be performed despite IBP National President Roan
Libarios' resignation.
● In sum, we fail to see how the election could have been tainted with the
presiding officer's absolute lack of independence, manifest bias and
prejudice, patent hostility, and inordinate haste. SC finds no reason to
invalidate the election.
SEPARATE OPINION:
VELASCO, JR, J dissenting:
The essential elements of de facto officership are:
1. There must be a de jure office;

2. There must be color of right or authority;
3. There must be actual physical possession of the office in good faith;
and
4. There must be a general acquiescence by the public or recognition
by the public who deals with him of his authority as holder of the
position.
● First, there could be NO color of authority for Atty. Chaguile's
designation as IBP Governor of Northern Luzon since her
designation as governor is void on its face since in the by-laws
itself it is illegal.
● There is bad faith, she is a long time member, she knew very well.
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● Lastly, the opposition negates public acquiescence.
Assigned: Clar Napa
9. MONROY V. CA
Date: January 26, 1998 GR Number: 123989
Key Issue/s:
What is the extent of the right to compensation of a de facto officer?
Rightful incumbent of a public office may recover from an officer de
facto the salary received by the latter during the time of his wrongful
tenure, even though he entered into the office in good faith and under the
color of title. A de facto officer, not having good title, takes the
salaries at his risk and must therefore account to the de jure officer
for whatever amount of salary he received during the period of his
wrongful retention of the public office
FACTS:
● Petitioner Roberto Monroy was the incumbent Mayor of Navotas,
Rizal, when on Sept 15, 1961, his certificate of candidacy as
representative of the first district of Rizal in the forthcoming
elections was filed with the Commission on Elections. Three days later
he filed a letter withdrawing said certificate of candidacy.
COMELEC approved the withdrawal
● ·But on September 21, 1961, respondent Felipe del Rosario, then the
vice-mayor of Navotas, took his oath of office as municipal mayor on
the theory that petitioner had forfeited the said office upon his filing of
the certificate of candidacy in question. An injunction suit was filed
● CFI:
1. the former had ceased to be mayor of Navotas, Rizal, after
his certificate of candidacy was filed
2. Respondent del Rosario became municipal mayor upon his
having assumed office as such on September 21, 1961;
3. petitioner must reimburse, as actual damages, the salaries to
which respondent was entitled as Mayor from September 21,
1961 up to the time he can reassume said office; and
4. petitioner must pay respondent P1,000.00 as moral damages.
● CA: affirmed in toto
● Petitioner:
○ CFI and CA- had no jurisdiction to review a resolution of the
Commission on Elections
○ the certificate of candidacy was filed without his knowledge and
consent and, hence, the Commission's approval of its withdrawal
invalidated such certificate for all legal purpose
ISSUE:
Whether or not Monroy must reimburse, as actual damages, the salaries to
which respondent was entitled as Mayor from September 21, 1961 up to the
time he can reassume said office
RULING: YES
WHEREFORE, finding no error in the judgment appealed from, the same
is, as it is hereby, affirmed in toto. Costs against petitioner.
Payment of Compensation
● Petitioner:
○ Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been
proclaimed and had assumed office but was later on ousted in an
election protest, is a de facto officer during the time he held the
office of senator, and can retain the emoluments received even as
against the successful protestant.
● SC:
○ It is the general rule then, i.e., "that the rightful incumbent of a
public office may recover from an officer de facto the salary
received by the latter during the time of his wrongful tenure, even
though he entered into the office in good faith and under color of
title" that applies in the present case.
○ The resulting hardship occasioned by the operation of this rule to
the de facto officer who did actual work is recognized; but it is far
more cogently acknowledged that the de facto doctrine has been
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formulated, not for the protection of the de facto officer principally,
but rather for the protection of the public and individuals who get
involved in the official acts of Persons discharging the duties of an
office without being lawful officers.
○ The question of compensation involves different principles and
concepts however. Here, it is possession of title, not of the office,
that is decisive.
○ A de facto officer, not having good title, takes the salaries at his
risk and must therefore account to the de jure officer for
whatever amount of salary he received during the period of his
wrongful retention of the public office
○ Re: Rodriguez case: not applicable here for absence of factual and
legal similarities. The Rodriguez case involved a senator who had
been proclaimed as duly elected, assumed the office and was
subsequently ousted as a result of an election contest. But the case
at bar does not involve a proclaimed elective official who will be
ousted because of an election contest. The present case for
injunction and quo warranto involves the forfeiture of the office of
municipal mayor by the incumbent occupant thereof and the claim
to that office by the vice-mayor because of the operation of Sec. 27
of the Rev. Election Code.
OTHER RELATED DISCUSSION
Forfeiture of position
● the withdrawal of his certificate of candidacy did not restore petitioner
to his former position.
● Sec. 27 of the Rev. Election Code providing that — Any elective
provincial, municipal or city official running for an office, other than
the one which he is actually holding, shall be considered resigned from
his office from the moment of the filing of his certificate of candidacy,"
makes the forfeiture automatic and permanently effective upon the
filing of the certificate of for another office.
● Petitioner's contention that the certificate of candidacy was filed
without his knowledge and consent and, hence, the Commission's
approval of its withdrawal invalidated such certificate for all legal
purposes, is untenable. It nowhere appears that the Commission's
resolution expressly invalidated the certificate. The withdrawal of a
certificate of candidacy does not necessarily render the certificate
void ab initio. Once filed, the permanent legal effects produced
thereby remain even if the certificate itself be subsequently
withdrawn.
● Moreover, both the trial court and the Court of Appeals expressly
found as a fact that the certificate in question was filed with petitioner's
knowledge and consent. And since the nature of the remedy taken by
petitioner before Us would allow a discussion of purely legal questions
only, such fact is deemed conceded
CFI and CA jurisdiction
● The Constitution empowers the Commission on Elections to decide,
save those involving the right to vote, all administrative questions
affecting elections
● However, in this case there appears to be no decision, order or ruling of
the Commission on any administrative question or controversy. There
was no dispute before the Commission. Respondent never contested the
filing of petitioner's certificate of candidacy. Neither has he disputed
before that body the withdrawal thereof. And even if there was a
controversy before the Commission, the same did not and could not
possibly have anything to do with the conduct of elections.
● What the parties are actually controverting is whether or not
petitioner was still the municipal mayor after September 15, 1961.
This purely legal dispute has absolutely no bearing or effect on the
· no bearing or effect on the conduct of the elections for the
seat of Congressman for the first district of Rizal.
Assigned: Rexchelle Aiyla Anonas
10. CORPUZ VS. COURT OF APPEALS
Date: July 1, 1967 GR Number: 23258
Key Issue/s:
“Last act of appointment”
The case focused on the validity of one’s appointment when it lacks the
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last act which is the approval by MTRCB.
Ruling: A public official or employee who assumed office under an
incomplete appointment is merely a de facto officer for the duration of
his occupancy of the office for the reason that he assumed office under
color of a known appointment which is void by reason of some defect or
irregularity in its exercise.Undeniably, under the facts here, CORPUZ
was such a de facto officer.
FACTS:
● Petitioner Corpuz was appointed as MTRCB’s legal counsel
(supervising legal staff officer), which was approved by Asst. Regional
Director Santos of NCR. Subsequently, he was appointed as Attorney
V under SSL. As MTRCB’s legal counsel, it is his duty to attend board
meetings pursuant to Memo 11. On Aug 1991, MTRCB passed Reso.
8-1-91 entitled “An Act to Declare the Appointments of the
Administrative and Subordinate Employees of this Board Null and
Void.” That the past and present chairmen of MTRCB failed to submit
for approval the appointments of admin. and subordinate employees to
MTRCB before forwarding them to CSC in violation of PD No. 876-A
and PD No. 1986 (law creating MTRCB). The also resolved to appoint
new ones at the discretion or initiative of the chairman within one
month and that during the interregnum, the present admin. and
subordinate employees shall hold positions in a holdover capacity. The
said resolution was certified by MTRCB secretary and approved by
MTRCB en banc.
● Petitioner Corpuz was unaware of the said resolution and he was on
leave. The resolution was also undated, and was kept secret until its
announcement on March 12, 1993 and its contents was posted on
MTRCB bulletin board. Nothing was immediately done to implement
the resolution.
● On July 14, 1992, Mendez was appointed as MTRCB chairman and
new members of the board were also appointed with Mendez assuming
office in August 1992. At the MTRCB meeting (January 19, 1993),
Mendez was informed about the resolution. An Ad Hoc Committee of
MTRCb looked into the appointments made by former chairman
Morato and their qualifications.
● The Committee resolved to recommend to MTRCB the approval of
appointments except that of Corpuz and seven others. Mendez was
informed at a regular meeting that his appointment was disapproved
effective June 30, 1993. No party attached to their pleadings a copy of
the MTRCB reso disapproving the appointment.
● Corpuz and Rigo filed a complaint with CSc requesting for formal
investigation and hearing, stating that Mendez discovered that the
appointments extended by Morato were not submitted to MTRCB for
approval. The CSC ruled in favor of Corpuz, that the appointments
signed by Morato were presumed to have been made in compliance
with all legal reqs including board approval, that Corpuz already
acquired security of tenure since no action was brought within a
reasonable time to impugn his appointment, and can no longer be
separated from service except for a cause and after observing due
process. CSC restored him to his position.
● Meanwhile, Corpuz became a permanent employee of the Ombudsman.
MTRCB filed a petition for certiorari with CA. CA ruled that Corpuz’s
appointment was without MTRCB’s approval and is thus void.
● PD 1986, the law creating MTRCB, Section 6 provides that the Board
has the power to suspend or dismiss for cause any employee and/or
approve or disapprove the appointment, transfer or detail of employees.
THE RECORD SHOWS THAT CORPUZ’S APPOINTMENT WAS
NOT APPROVED BY THE BOARD as mandated by PD 1986 Sec.
16. In the case of Tomali v. CSC, SC reiterated the importance of
compliance with legal requirements for appointment to civil service
position to make it fully effective. Without the favorable certification or
approval of the Commission, in cases when such an approval is
required, no title to the office can yet be deemed to be permanent;
vested in favor of the appointee, and the appointment can still be
recalled or withdrawn by the appointing authority.
● It appearing that respondent Atty. Corpuz appointment was not
approved by the Board, the same cannot be considered as a valid
appointment. As such, he cannot invoke security of tenure, even if he
has rendered service for a number of years. Neither the silence nor
failure of the Board to recall the private respondent’s appointment
constitute consent or confirmation. The employee, whose appointment
was not approved, may only be considered as a de facto officer. Not
being a permanent employee of MTRCB, the tenure of respondent
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Atty. Corpuz ceased when he was not properly appointed under present
law. HENCE THIS PETITON under rule 45 of ROC.
ISSUE:
W/N Corpuz’s right to security of tenure was violated.
RULING:
No.
Corpuz said that he does not seek reinstatement but only seeks continuity of
his government service from the time he was illegally dismissed (June 30
1993) up to the time he was permanently employed in the off. of
ombudsman (aug 22, 1994).
As provided by PD 1986 Sec. 2 and Sec. 16, there are 2 stages in the
process of appointing MTCB personnel, other than its Secretary, namely:
(a) recommendation by the Chairman which is accomplished by the signing
of the appointment paper, which is among his powers under Section 5(d)
above; and (b) approval or disapproval by the MTRCB of the appointment.
As to the Secretary, it is the MTRCB itself that is empowered to appoint
said official pursuant to Section 16.
It is long settled in the law of public offices and officers that where the
power of appointment is absolute, and the appointee has been determined
upon, no further consent or approval is necessary, and the formal evidence
of the appointment, the commission, may issue at once. Where, however,
the assent or confirmation of some other officer or body is required, the
commission can issue or the appointment may be complete only when such
assent or confirmation is obtained. In either case, the appointment becomes
complete when the last act required of the appointing power is
performed.Until the process is completed, the appointee can claim no vested
right in the office nor invoke security of tenure. Hence, in the case of
CORPUZ, since the last act required for the completion of his appointment,
viz., approval by the MTRCB itself, was not obtained, as a matter of fact,
the MTRCB ultimately disapproved it, his appointment ceased to have
effect, if at all, and his services were properly terminated.
This Court held that compliance with the legal requirements for an
appointment to a civil service position is essential to make it fully effective.
That the employee involved had, in fact, assumed office and performed the
functions and duties thereof is of no moment, for it matters not that the
appointee had served for several years. Those years of service cannot
substitute for the want of consent of another body required by law to
complete the appointment. The tolerance, acquiescence or mistake of the
proper officials resulting in non-observance of the requirements of law or
rules to complete the appointment does not render the requirements
ineffective and unenforceable.
A public official or employee who assumed office under an incomplete
appointment is merely a de facto officer for the duration of his occupancy of
the office for the reason that he assumed office under color of a known
appointment which is void by reason of some defect or irregularity in its
exercise.Undeniably, under the facts here, CORPUZ was such a de facto
officer.
[Dispositive Portion]
WHEREFORE, the instant petition is DENIED and the assailed decision
of 13 October 1995 of the Court of Appeals in CA-G.R. SP-No.37694 is
AFFIRMED.
Assigned: Rein Domasig
11. CASTANEDA VS. YAP
Date: August 22, 1952 GR Number: 5379
Key Issue/s:
Non-eligibility based on age
The age requirement is based on public policy(not mentioned why) and is
important in determining if he has the right to an elective office. The
person should get the age required when elected ( current jurisprudence
says at the time the officer took office unless specifically stated
otherwise)
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FACTS:
● This case is about Yap who was ineligible to run for municipal mayor
since he failed to meet the age requirement of 23 since he was born on
Jan. 16, 1929 and the time of elections were november 13, 1951.
● He claimed that the petitioner is estopped from questioning his election
since he failed to raise it before the elections.
ISSUE: WON the petitioner is estopped and that the respondent can
hold office since he was in good faith.
RULING:
● Petitioner is not estopped in challenging his requirements since the
election code back then required that it can only be questioned after
proclamation.
● Good faith does not cure a candidate’s ineligibility
● The age requirement is based on public policy. No specific damage or
harm need to be shown. A registered candidate may question his right
to office through a quo warranto proceeding.
Assigned: Johan Fabia
12. MAQUERA VS. BORRA
Date: March 17, 1981 GR Number: L-24761
Key Issue/s:
Is a surety bond qualification requirement valid?
No. RA 4421 requiring a candidate to post surety bond equivalent to one
year salary of position to which he is a candidate, and shall be forfeited in
favor of the government if the candidate, except the winner, fails to
obtain at least 10% of the vote cast for the office is unconstitutional.
The effect is to impose property qualifications in order that a person
could run for a public office, which property qualifications are
inconsistent with the nature and essence of the Republican system
ordained in the Constitution and the principle of social justice
underlying the same.
FACTS:
● RA 4421 was passed; required "all candidates for national, provincial,
city and municipal offices" to "post a surety bond equivalent to the one-
year salary or emoluments of the position to which he is a candidate,
which bond shall be forfeited in favor of the national, provincial, city or
municipal government concerned if the candidate, except when
declared winner, fails to obtain at least 10% of the votes cast for the
office to which he has filed his certificate of candidacy, there being not
more than four (4) candidates for the same office;"
● In compliance, COMELEC required all candidates for President, VP,
Senator, Members of House of Representatives to file a surety bond by
a bonding company.
● Thus every candidate has to pay premium charged by the bonding
company and to offer his own properties or amount of the bond.
● The effect is, therefore, to prevent or disqualify from running for those
positions although having the qualifications prescribed by the
Constitution if they cannot file the surety bond owing to failure to pay
the premium charged and/or lack of the property necessary for said
counterbond
ISSUE: Is a surety bond qualification requirement valid? NO.
RULING:
● That said property qualifications are inconsistent with the nature and
essence of the Republican system ordained in our Constitution and the
principle of social justice underlying the same, for said political system
is premised upon the tenet that sovereignty resides in the people and all
government authority emanates from them, and this, in turn, implies
necessarily that the right to vote and to be voted for shall not be
dependent upon the wealth of the individual concerned, whereas social
justice presupposes equal opportunity for all, rich and poor alike, and
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that, accordingly, no person shall, by reason of poverty, be denied the
chance to be elected to public office
● It is also not predicated upon the necessity of defraying certain
expenses or of compensating services given in connection with
elections, and is, therefore, arbitrary and oppressive.
Assigned: Phoebe Reyes
13. AGUILA VS. GENATO
Date: March 17, 1981 GR Number: 55151
Key Issue/s:
Nature of Eligibility
Eligibility to an office should be construed as of a continuing nature and
must exist at the commencement of the term and during occupancy of the
office.
FACTS:
● Respondent Borje was elected Director of the Misamis Occidental
Electric Cooperative, Inc., II (MOELCI II). His office was to be held
for three years starting March 25, 1979.
● Section 21 of PD 269 provides that
○ "The provision of any law or regulation to the contrary
notwithstanding, an officer or employee of the government shall be
eligible for membership in any cooperative if he meets the
qualifications therefor and he shall not be precluded from being
elected to or holding any position therein, or from receiving such
compensation or fee in relation thereto as may be authorized by the
by-laws; Provided, That elective officers of the government, except
barrio captains and councilors, shall be ineligible to become
officers and/or directors of any cooperative. . .”
● Its By-laws also states that no person shall be eligible to become or to
remain a Board member of the Cooperative who holds an elective
official in the government above the level of a Barangay Captain
● Borje then filed his certificate of candidacy for the position of member
of the Sangguniang Panglungsod of Ozamiz City in the January 1980
elections.
● The National Electrification Administration (NEA) issued a
memorandum stating that all officials and employees of electric
cooperatives who run for public office, win and assume office, shall be
considered resign.
○ The NEA Deputy Administrator sent a telegram to the Acting
General Manager of MOECL II stating that should Borje be
elected, he shall be considered resigned from his position as
Director.
○ Borje moved for reconsideration and requested that he be allowed
to serve the unexpired term of his office but the same was denied.
● Borje filed a petition before respondent Judge Genato’s court seeking a
declaration of entitlement to remain and to serve his unexpired term as
Director of MOELCI II until March, 1982.
● Borje won the elections and assumed office. Meanwhile, respondent
Judge Genato issued ex-parte, a temporary Restraining Order
commanding Deputy Administrator and General Manager not to
enforce the telegraphic instruction and instead, let Borje retain his
position as Director.
ISSUE:
Whether or not respondent Judge committed grave abuse of discretion
in issuing the Restraining Order, which had the effect of allowing Borje
to retain his position as Director? YES.
RULING:
WHEREFORE, finding that respondent Judge acted with grave abuse of
discretion tantamount to lack of jurisdiction in issuing the Restraining Order
dated 6 June 1980, the said Order is hereby annulled and set aside, and the
Petition in Special Civil Case No. 0511 of the Court below hereby ordered
dismissed. The temporary Restraining Order heretofore issued by this Court
is hereby made permanent.LLphil
● By having been elected as member of the Sangguniang Panglungsod of
Ozamiz City, Borje render himself ineligible to continue as serveing as
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a Director of MOECL II by virtue of the clear mandate of PD 269

which provides that elective officials are ineligible to beocme officers
The following elements should always concur in the making of a valid
and/or directs of any cooperative, except for “barrio captains and
(which should be understood as both complete and effective)
councilors.”
appointment: (1) authority to appoint and evidence of the exercise of the
○ “Barrio” modifies both captains and councilors.
authority; (2) transmittal of the appointment paper and evidence of the
● Its By-laws also explicitly state that no person can remain a member of
transmittal; (3) a vacant position at the time of appointment; and (4)
the Board if he “holds an elective office above the level of barrio
receipt of the appointment paper and acceptance of the appointment by
captain.”
the appointee who possesses all the qualifications and none of the
● Private respondent's argument that PD 269 (sec. 21) does not prohibit
disqualifications.
Board members of a cooperative from continuing in their position prior
to their election, and that pursuant to section 24 of PD No. 269 he is
Possession of appointment paper
entitled, as Director, "to hold office for the term for which he is elected
and until his successor is elected and qualified," is untenable.
It is not enough that the President signs the appointment paper. There
Eligibility to an office should be construed as of a continuing
should be evidence that the appointment paper to be issued. Release of
nature and must exist at the commencement of the term and
the appointment paper through MRO is an unequivocal act that signifies
during occupancy of the office. The fact that private respondent may
the President’s intent of its issuance.
have been qualified at the time he assumed the Directorship is not
sufficient to entitle him to continue holding office, if during the
The possession of the original appointment paper is not indispensable to
continuance of his incumbency he ceases to be qualified.
authorize an appointee to assume office. If it were indispensable, then a
loss of the original appointment paper, which could be brought about by
negligence, accident, fraud, fire or theft, corresponds to a loss of the
Assigned: Gia Mordeno office. However, in case of loss of the original appointment paper, the
appointment must be evidenced by a certified true copy issued by the
proper office, in this case the MRO.
14. VELICARIA-GARAFIL VS. OFFICE OF THE PRESIDENT
FACTS:
Date: June 16, 2015 GR Number: 203372
● Prior to the conduct of May 2010 elections, President Arroyo
issued more than 800 appointments to various positions in several
Key Issue/s:
government offices.
● For the purposes of the 2010 elections, March 10 was the cut-off
Nature of appointment
date for valid appointments and the next day, March 11 was the
start of the ban on midnight appointments.
The Constitution allows the President to exercise the power of
appointment during the period not covered by the appointment ban, and
Appointments:
disallows (subject to an exception) the President from exercising the
power of appointment during the period covered by the appointment ban.
G.R. No. 203372
The paper evidencing Atty. Velicaria-Garafil’s appointment as State
Process of appointment
Solicitor II at the OSG was dated 5 March 2010. There was a transmittal

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letter dated 8 March 2010 of the appointment paper from the Office of the noise from the new political mandarins against the so-called ‘midnight
President (OP), but this transmittal letter was received by the appointments.”
Malacañang Records Office (MRO) only on 13 May 2010. There was no
indication as to the OSG’s date of receipt of the appointment paper. On 19
Names Date of Transmi Receipt Oath of Assu
March 2010, the OSG’s Human Resources Department called up Atty.
Appoin ttal By Office mpti
Velicaria-Garafil to schedule her oath-taking. Atty. Velicaria-Garafil took
tment Letter MRO on
her oath of office as State Solicitor II on 22 March 2010 and assumed her
position on 6 April 2010. Velicaria- Mar Mar Ma Marc April
Garafil ch 5 ch 8 rch h 22 6
G.R. No. 206290 13
The paper evidencing Atty. Venturanza’s appointment as Prosecutor IV
(City Prosecutor) of Quezon City was dated 23 February 2010. It is Ventura Feb. Mar Ma Marc Marc
apparent, however, that it was only on 12 March 2010 that the OP, in a nza 23 ch 9 rch h 15 h 15
letter dated 9 March 2010, transmitted Atty. Venturanza’s appointment 12
paper to then Department of Justice (DOJ) Secretary Alberto C. Agra.
During the period between 23 February and 12 March 2010, Atty. Villanu Mar Ma April
Venturanza, upon verbal advice from Malacañang of his promotion but eva ch 3 y4 13
without an official copy of his appointment paper, secured clearances from
the Civil Service Commission (CSC), Sandiganbayan, and the DOJ. Atty. Rosquit Mar Ma Marc
Venturanza took his oath of office on 15 March 2010, and assumed office a ch 5 y h 18
on the same day. 13

G.R. No. 209138 Tamond Mar March

The paper evidencing Villanueva’s appointment as Administrator for
Visayas of the Board of Administrators of the CDA was dated 3 March
2010. There was no transmittal letter of the appointment paper from the OP.
Villanueva took her oath of office on 13 April 2010.
The paper evidencing Rosquita’s appointment as Commissioner,
representing Region I and the Cordilleras, of the NCIP was dated 5 March
2010.20 Like Villanueva, there was no transmittal letter of the appointment
paper from the OP. Rosquita took her oath of office on 18 March 2010.
G.R. No. 212030
The paper evidencing Atty. Tamondong’s appointment as member,
representing the private sector, of the SBMA Board of Directors was dated
1 March 2010. Atty. Tamondong admitted that the appointment paper was
received by the Office of the SBMA Chair on 25 March 2010 and that he
took his oath of office on the same day. He took another oath of office on 6
July 2010 as “an act of extra caution because of the rising crescendo of
ong ch 1 25 and
July 6
Issuance of EO 2
● On 30 June 2010, President Benigno S. Aquino III (President Aquino)
took his oath of office as President of the Republic of the Philippines.
On 30 July 2010, President Aquino issued EO 2 recalling,
withdrawing, and revoking appointments issued by President
Macapagal- Arroyo which violated the constitutional ban on
midnight appointments.
● In one of its whereas clauses, it was mentioned that based on
established jurisprudence, an appointment is deemed complete only
upon acceptance of the appointee.
● Section 1 of EO 2 provides that Those made on or after March 11,
2010, including all appointments bearing dates prior to March 11, 2010
where the appointee has accepted, or taken his oath, or assumed

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public office on or after March 11, 2010, except temporary
appointments in the executive positions when continued vacancies will
prejudice public service or endanger public safety as may be
determined by the appointing authority shall be considered as midnight
appointments.
● Pursuant to EO 2, on Aug. 6, 2010, Sol. Gen. Cadiz instructed Senior
Assistant Solicitor General to inform the officers and employees
affected by EO 2 that they were terminated from the next day.
ISSUES:
1. Whether petitioner’s appointments violate Section 15, Article VII
of the 1987 Constitution
2. Whether EO 2 is constitutional
RULING:
The petitions have no merit. All of petitioners’ appointments are
midnight appointments and are void for violation of Section 15, Article
VII of the 1987 Constitution. EO 2 is constitutional.
Midnight Appointments
This ponencia and the dissent both agree that the facts in all these cases
show that “none of the petitioners have shown that their appointment
papers (and transmittal letters) have been issued (and released) before
the ban.” The dates of receipt by the MRO, which in these cases are the
only reliable evidence of actual transmittal of the appointment papers by
President Macapagal-Arroyo, are dates clearly falling during the
appointment ban. Thus, this ponencia and the dissent both agree that all the
appointments in these cases are midnight appointments in violation of
Section 15, Article VII of the 1987 Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a government post is a
process that takes several steps to complete. Any valid appointment,
including one made under the exception provided in Section 15, Article VII
of the 1987 Constitution, must consist of the President signing an
appointee’s appointment paper to a vacant office, the official transmittal of
the appointment paper (preferably through the MRO), receipt of the
appointment paper by the appointee, and acceptance of the appointment by
the appointee evidenced by his or her oath of office or his or her assumption
to office.
Subject to only one exception, appointments made during this period are
thus automatically prohibited under the Constitution, regardless of the
appointee's qualifications or even of the President's motives. The period for
prohibited appointments covers two months before the elections until the
end of the President's term.
The petitioners failed to raise any valid ground for the Court to declare
EO2, or any part of it, unconstitutional.
Process of Appointment
The following elements should always concur in the making of a valid
(which should be understood as both complete and effective) appointment:
(1) authority to appoint and evidence of the exercise of the authority; (2)
transmittal of the appointment paper and evidence of the transmittal; (3) a
vacant position at the time of appointment; and (4) receipt of the
appointment paper and acceptance of the appointment by the appointee who
possesses all the qualifications and none of the disqualifications. The
concurrence of all these elements should always apply, regardless of when
the appointment is made, whether outside, just before, or during the
appointment ban. These steps in the appointment process should always
concur and operate as a single process. There is no valid appointment if the
process lacks even one step.
Appointing Authority
- The President's exercise of his power to appoint officials is
provided for in the Constitution and laws.
- Discretion is an integral part in the exercise of the power of
appointment
- The choice of the appointee is a fundamental component of the
appointing power.
Transmittal
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- There should be evidence that President intended the appointment
paper to be issued.
- Release of the appointment paper through the MRO is an
unequivocal act that signifies the President's intent of its issuance.
- MRO – underscores the purpose of the release of papers
through his office; gate-keeper of the Malacanang palace; all the
incoming and outgoing documents and correspondence must pass
through the MRO; official custodian; in-charge of the official
release of documents.
Vacant Position
- Appointment can only be made to a vacant office. It cannot be
made to an occupied office.
- The incumbent must first be legally removed, or his appointment,
validly terminated, before one could be validly installed to succeed
him.
Acceptance by the Qualified Appointee
- Acceptance is indispensable to complete an appointment.
- Assuming office and taking the oath amount to acceptance of the
appointment.
- An oath of office is a qualifying requirement for a public office, a
prerequisite to the full investiture of the office.
Petitioners have failed to show compliance with all four elements of a valid
appointment. They cannot prove with certainty that their appointment
papers were transmitted before the appointment ban took effect. On the
other hand, petitioners admit that they took their oaths of office during the
appointment ban.
Assigned: Dece Fulache
15. TORRES VS. BORJA
Date: March 21, 1974 GR Number: 31947
Key Issue/s:
Discretionary nature of Appointment
Discretion if not plenary, at least sufficient, should thus be granted to
those entrusted with the responsibility of administering the officers
concerned, primarily the department heads. They are in the most
favorable position to determine who can best fulfill the functions of the
office thus vacated. Unless, therefore, the law speaks in the most
mandatory and peremptory tone, considering all the circumstances, there
should be, as there has been, full recognition of the wide scope of such
discretionary authority.
FACTS:
● The position of penal supervisor in the Bureau of Prisons was vacant.
● Santos, acting director, recommended to then SOJ Juan Ponce Enrile,
that Oscar Borja be the successor.
● Petitioner Antonio Torres, who was then training officer, protested the
proposed promotion of Borja, claiming that he was academically better
prepared as he had two degrees, Bachelor of Arts and Bachelor of
Science and he had five civil service eligibilities.
● Initially, the objection to Borja’s promotion was well taken. However,
after a second indorsement was made by Santos, Enrile gave due course
to the appointment of Borja to said position.
● The appointment was questioned in the CSC, but it was upheld.
● Thus, this petition. Torres asserts a right to the contested office,
alleging that his failure to be chosen for the position amounted to a
violation of the Constitutional requirements, both substantive and
procedural. He relies on the merit and fitness principle as provided in
Art. XII, Sec. 1 of the 1935 Constitution. (Note: Art. IX, B Sec. 2 (2) –
the current provision in the 1987 Constitution which provides for the
merit and fitness qualification)
ISSUE: Whether or not the court should set aside the decision reached by
three high ranking officials that Borja rather than Torres should be the
appropriate choice for the position of penal supervisor - NO
RULING:
WHEREFORE, the petition for certiorari is denied. No costs.
1. No violation of merit and fitness principle
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○ The plea that only merit and fitness should be the gauge of promotion
the public service finds support, as noted, in both the 1935 Constitution
Key Issue/s:
and the present Charter.
○ The test then should be, after being clear what kind of work is to be
Role of CSC
done, who can do it best.
As long as the appointee is qualified the Civil Service Commission has
○ Respondent Borja appeared to have both experience and seniority on
no choice but to attest to and respect the appointment even if it be proved
his side. Moreover, he is possessed of the ability to discharge the task
that there are others with superior credentials. The law limits the
incumbent on a penal supervisor. He had earned the promotion then.
Commission’s authority only to whether or not the appointees possess the
What is more, there was no disregard of the constitutional principle of
legal qualifications and the appropriate civil service eligibility, nothing
merit and fitness.
else. If they do then the appointments are approved because the
○ Whatever advantage may inhere in petitioner having finished college
Commission cannot exceed its power by substituting its will for that of
work, with respondent Borja merely completing his high school, is
the appointing authority . Neither can we.
more than offset by the latter’s seniority of more than nine years and
the experience that was his as a junior inspector, overseer and security
officer. FACTS:

2. Wide scope of discretion of appointing power
○ The law does not impose a rigid or mechanistic formula on the
appointing power, compliance with which is inexorable and a deviation
therefrom fatal. Far from it. If there be adherence to the concept that
public office is a public trust, as there ought to be, the criterion should
be what public welfare demands, what satisfies public interest. For it is
axiomatic that public needs could best be attended to by officials about
whose competency and ability there is no question. To that
overmastering requirement, personal ambition must of necessity yield.
○ Discretion if not plenary, at least sufficient, should thus be granted to
those entrusted with the responsibility of administering the officers
concerned, primarily the department heads. They are in the most
favorable position to determine who can best fulfill the functions of the
office thus vacated. Unless, therefore, the law speaks in the most
mandatory and peremptory tone, considering all the circumstances,
there should be, as there has been, full recognition of the wide scope of
such discretionary authority.
Assigned: Maan Galang
16. RIMONTE VS. CIVIL SERVICE COMMISSION
Petitioner was the incumbent Planning Officer III in the Office of the
Ombudsman Conrado M. Vasquez issued Office Order No. 90-32 directing
the implementation of the "performance appraisal system" as a basis for
evaluation of providing for the "General Policy and Procedural Guidelines
in the Placement of Personnel for the New Staffing Pattern".
Petitioner applied to different positions including any of the positions of
Records Officer V of the Central Records Division.
Petitioner was appointed to the position of Associate Graft Investigation
Officer III while Henrietta F. Roque was appointed Records Officer V.
Petitioner filed a protest on Roque's appointment to CSC and assailed that
he has the better qualifications than her. However, CSC denied his protest.
ISSUE:
1. Whether CSC commits grave abuse of discretion.
2. Whether the appointment made by the appointing authority may be
disregarded on the ground that someone has better qualification than
the appointed officer.

Date: May 29, 1995 GR Number: 112045

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RULING:
makes ad interim appointments, he exercises a special prerogative and is
bound to be prudent to insure approval of his selection either previous
1. No. CSC is correct in ruling that the appointment of Roque to the
consultation with the members of the Commission or by thereafter
position is proper and that she is qualified to the disputed position.
explaining to them the reason such selection. Where, however, as in this
case, the Commission on Appointments that will consider the appointees
The CSC is the single arbiter of all contests relating to Civil Service; as
is different from that existing at the time of the appointment and where
such its judgement are unappealable and subject only to certiorari
the names are to be submitted by successor, who may not wholly approve
jurisdiction of the Court.
of the selections, the President should be doubly careful in extending
CSC did not commit grave abuse of discretion in the exercise of its
such appointments. Now, it is hard to believe that in signing 350
jurisdiction in attesting to the appointment of Roque. As long as the
appointments in one night, President Garcia exercised such "double care"
appointee is qualified, the CSC has no choice but to attest and to respect the
which was required and expected of him; and therefore, there seems to be
appointment even if it be proved that there are others with superior
force to the contention that these appointments fall beyond the intent and
credentials. The law limits the Commission's authority only to whether or
spirit of the constitutional provision granting to the Executive authority to
not the appointees possess the legal qualifications and the appropriate civil
issue ad interim appointments.
service eligibility, nothing else.
Midnight appointment (see above)
In this case, CSC founds out that Roque possesses all qualifications to the
position. Now the discretion to appoint her leaves to the appointing
authority. FACTS:

2. No. The power of appointment is essentially discretionary provided the ● [note: the events occurred under the 1935 constitution when there was
appointee is qualified. Even though someone is said to be better or proved no specific constituitonal provision prohibiting midnight appointments]
to have superior credentials, the head of the agency who is the appointing ● On December 29, 1961, President Garcia extended 350 ad interim
power is the one most knowledgeable to decide who can best perform the appointments (CONA was not in session). Among whom is Aytona
functions of the office. who was appointed as Governor of the Central Bank. Aytona qualified
and took his oath the same day.
● On December 30, 1961, President-elect Macapagal assumed office.
Assigned: Meg Reyes
● On December 31, 1961 he issued Administrative Order No 2. (AO2)
cancelling all 350 ad interim appointments by President Garcia.
17. AYTONA VS. CASTILLO ● On January 1, 1962, President Macapagal elected Castillo as ad interim
Governor of the Central Bank. Castillo qualified immediately.
Date: September 26, 1994 GR Number: 19313 ● On January 2, 1962, both Aytona and Castillo exercised powers of their
office, although Castillo informed Aytona of his title. Hostility
developed within the Central Bank. The next day, Aytona was
Key Issue/s:
definitely prevented from holding office.
● Aytona instituted this quo warranto proceeding challenging Castillos’s
Ad-interim appointment;
right to office. Aytona contends that he was validly appointed and
qualified for the post. Since the post was validly occupied, Castillo’s
Normally, when the President makes appointments the consent of the
subsequent appointment was void.
Commission on Appointments, he has benefit of their advice. When he

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● Castillo replies that the appointment of Aytona had been revoked by 18. MATIBAG VS. BENIPAYO
Administrative Order No. 2 of Macapagal.
Date: April 2, 2002 GR Number: 149036
ISSUE: WON President Macapagal's AO2 cancelling the "midnight
appointments" was valid? YES.
Key Issue/s:
RULING:
Nature of ad-interim appointment;
WHEREFORE, the Court exercising its judgment and discretion in the
Permanence
matter, hereby dismiss the action, without costs.
An ad interim appointment is a permanent appointment because it takes
effect immediately and can no longer be withdrawn by the President once
● Of course, nobody will assert that President Garcia ceased to be the
the appointee has qualified into office.
President earlier than at noon of December 30, 1961. But it is common
sense to believe that after the proclamation of the election of President
Effectivity
Macapagal, his was no more than a "care-taker" administration. He was
The Constitution imposes no condition on the effectivity of an ad interim
duty bound to prepare for the orderly transfer of authority the incoming
appointment, and thus an ad interim appointment takes effect
President, and he should not do acts which he ought to know, would
immediately. The appointee can at once assume office and exercise, as a
embarrass or obstruct the policies of his successor. The time for debate
de jure officer, all the powers pertaining to the office.
had passed; the electorate had spoken. It was not for him to use powers
as incumbent President to continue the political warfare that had ended
The ad interim appointment remains effective until such disapproval or
or to avail himself of presidential prerogatives to serve partisan
next adjournment, signifying that it can no longer be withdrawn or
purposes. The filling up vacancies in important positions, if few, and so
revoked by the President.
spaced to afford some assurance of deliberate action and careful
consideration of the need for the appointment and the appointee's
Distinction: Exercise of presidential prerogative when Congress is in
qualifications may undoubtedly be permitted. But the issuance of 350
session and when Congress is in recess.
appointments in one night and planned induction of almost all of them
In Pacete vs. Secretary of the Commission on Appointments, we ruled the
a few hours before the inauguration of the new President may, with
the difference between appointment when Congress is in session and
some reason, be regarded by the latter as an abuse Presidential
appointment when Congress is in recess. In the former, the President
prerogatives, the steps taken being apparently a mere partisan effort to
nominates, and only upon the consent of the Commission on
fill all vacant positions irrespective of fitness and other conditions, and
Appointments may the person thus named assume office. It is not so with
thereby deprive the new administration of an opportunity to make the
reference to ad interim appointments. It takes effect at once. The
corresponding appointments.
individual chosen may thus qualify and perform his function without loss
● Under the circumstances above described, what with the separation of
of time. His title to such office is complete. In the language of the
powers, this Court resolves that it must decline to disregard the
Constitution, the appointment is effective ‘until disapproval by the
Presidential Administrative Order No. 2, cancelling such "midnight" or
Commission on Appointments or until the next adjournment of the
"last-minute" appointments.
Congress.’

Assigned: IC San Pedro Ad interim appointment vs. an appointment in temporary or acting

capacity

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While an ad interim appointment is permanent and irrevocable except as
provided by law, an appointment or designation in a temporary or acting
capacity can be withdrawn or revoked at the pleasure of the appointing
power. A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly.
When an ad interim appointment becomes complete and irrevocable
Thus, an ad interim appointment becomes complete and irrevocable once
the appointee has qualified into office. The withdrawal or revocation of
an ad interim appointment is possible only if it is communicated to the
appointee before the moment he qualifies, and any withdrawal or
revocation thereafter is tantamount to removal from office.
Termination
An ad interim appointment can be terminated for two causes specified in
the Constitution—first, by the disapproval of his ad interim appointment
by the Commission on Appointments, and, second, by the adjournment of
Congress without the Commission on Appointments acting on his
appointment.
Renewal of by-passed ad interim appointees
A by-passed appointment is one that has not been finally acted upon on
the merits by the Commission on Appointments at the close of the
session of Congress.
The established practice under the present Constitution is that the
President can renew the appointments of by-passed ad interim
appointees. The prohibition on reappointment in Section 1 (2), Article
IX-C of the Constitution applies neither to disapproved nor by-passed ad
interim appointments. A by-passed ad interim appointment can be
revived by a new ad interim appointment because there is no final
disapproval under Section 16, Article VII of the Constitution, and such
new appointment will not result in the appointee serving beyond the fixed
term of seven years.
An ad interim appointment that has lapsed by inaction of the Commission
on Appointments does not constitute a term of office—the period from
the time the ad interim appointment is made to the time it lapses is
neither a fixed term nor an unexpired term.
Petitioner: Ma. J. Angelina G. Matibag
Respondents:
● Alfredo Benipayo - as Chairman of COMELEC
● Resurrection Z. Borra - as COMELEC Commissioner
● Florentino Tuason - as COMELEC Commissioner
● Velma J. Cinco - Director IV of the COMELEC’s Education and
Information Department
● Gideon C. De Guzman - Officer-in-Charge, Finance Services
Department of COMELEC
FACTS:
[Background]
Sorry, I have to include the dates for you to know why their appointments
were being questioned.
Feb. 2, 1999 - the COMELEC en banc appointed petitioner as “Acting
Director IV” of the EID.
2000
Jan. 11 - COMELEC Chairperson Harriet O. Demetriou was appointed to
serve until Feb. 15, 2002, the original expiry date of the term of her
predecessor, Justice Bernardo Pardo (Likewise, the original expiry date of
the term of Commissioner Flores and Commissioner Desamito both falling
after the May 2001 elections.)
Feb. 15 - then Chairperson Harriet O. Demetriou renewed the appointment
of petitioner as Director IV of EID in a “Temporary” capacity.
Dec. 13 - Following the decision of this Court in Gaminde vs. Commission
on Appointments (GAMINDE RULING), the terms of office of
constitutional officers first appointed under the Constitution would have to
be counted starting February 2, 1987, the date of ratification of the
Constitution, regardless of the date of their actual appointment. By this
reckoning, the terms of office of three Commissioners of the COMELEC,
including the Chairman, would end on February 2, 2001.
Dec. 28 - Chairperson Demetriou stated in a Manifestation that she was
vacating her office on February 2, 2001, as she believed any delay in
choosing her successor might create a “constitutional crisis” in view of the
proximity of the May 2001 national elections.
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2001
During an election year, Congress normally goes on voluntary recess
between February and June considering that many of the members of the
House of Representatives and the Senate run for re-election. In 2001, the
Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.
Feb. 2 - Chairperson Demetriou and Commissioner Flores vacated their
office
Feb. 15 - Commissioner Rufino S.B. Javier renewed again the appointment
of petitioner to the same position in a “Temporary” capacity
Mar. 22 - President GMA appointed, ad interim, Benipayo as COMELEC
Chairman and Borra and Tucson as COMELEC Commissioners, each for a
term of seven years and all expiring on February 2, 2008. Benipayo took his
oath of office and assumed the position of COMELEC Chairman. Borra and
Tuason likewise took their oaths of office and assumed their positions as
COMELEC Commissioners.
Concededly, there was no more time for Benipayo, Borra and Tuason, who
were originally extended ad interim appointments only on March 22, 2001,
to be confirmed by the Commission on Appointments before the May 14,
2001 elections.
May 22 - The Office of the President submitted to the Commission on
Appointments the ad interim appointments of Benipayo, Borra and Tuason
for confirmation. However, this was not acted upon.
Jun. 1 - President Arroyo renewed the ad interim appointments of
Benipayo, Borra and Tuason to the same positions and for the same term of
seven years, expiring on February 2, 2008. They took their oaths of office
for a second time.
June 5 - The OP transmitted their appointments to CA
Jun. 8 - President Macapagal Arroyo renewed again the ad interim
appointments of Benipayo, Borra and Tuason to the same positions. The
Office of the President submitted their appointments for confirmation to the
Commission on Appointments. They took their oaths of office anew.
Sep. 6 - President Macapagal Arroyo renewed once again the ad interim
appointments of Benipayo as COMELEC Chairman and Borra and Tuason
as Commissioners, respectively, for a term of seven years expiring on
February 2, 2008. They all took their oaths of office anew
[Main issue in the case]
1. Benipayo, as COMELEC Chairman issued a Memorandum addressed
to petitioner as Director IV of the EID and to Cinco as Director III also
of the EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department.
2. COMELEC EID Commissioner in-Charge Mehol K. Sadain objected to
petitioner’s reassignment in a Memorandum addressed to COMELEC
en banc. Commissioner Sadain questioned Benipayo’s failure to consult
the Commissioner-in-Charge of the EID in the reassignment of
petitioner. Petitioner also requested Benipayo to reconsider her relief as
Director IV of the EID and her reassignment to the Law Department
citing CSC Memorandum 7: reminding heads of government offices
that “transfer and detail of employees are prohibited during the election
period beginning January 2 until June 13, 2001.”
3. Benipayo denied her request for reconsideration citing COMELEC
Resolution No. 3300 “COMELEC…has resolved… to appoint, hire
new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its mandated
functions during the prohibited period, provided that the changes in the
assignment of its field personnel within the thirty-day period before
election day shall be effected after due notice and hearing.
4. Petitioner appealed the denial of her request for reconsideration to
COMELEC en banc. Petitioner also filed an administrative and
criminal complaint with the Law Department against Benipayo,
alleging her reassignment violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258, Civil Service
Memorandum Circular No. 07, s. 001, and other pertinent
administrative and civil service laws, rules and regulations.
5. During the pendency of her complaint before the Law Department,
petitioner filed the instant petition questioning the appointment and the
right to remain in office of Benipayo, Borra and Tuason, as Chairman
and Commissioners of the COMELEC, respectively.
Petitioner
- claims that the ad interim appointments of Benipayo, Borra and Tuason
violate the constitutional provisions on the independence of the
COMELEC, as well as on the prohibitions on temporary appointments
and reappointments of its Chairman and members.
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- assails as illegal her removal as Director IV of the EID and her
reassignment to the Law Department. Simultaneously, petitioner
challenges the designation of Cinco as Officer-in-Charge of the EID.
- questions the legality of the disbursements made by COMELEC Finance
Services Department Officer-in-Charge Gideon C. De Guzman to
Benipayo, Borra and Tuason by way of salaries and other emoluments.
ISSUES:
1. Whether or not the instant petition satisfies all the requirements before
this Court may exercise its power of judicial review in constitutional
cases; - ALL REQUIREMENTS SATISFIED
2. Whether or not the assumption of office by Benipayo, Borra and
Tuason on the basis of the ad interim appointments issued by the
President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution; - PERMANENT
APPOINTMENT
3. Assuming that the first ad interim appointments and the first
assumption of office by Benipayo, Borra and Tuason are legal,
whether or not the renewal of their ad interim appointments and
subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of
the Constitution; - NOT VIOLATIVE
4. Whether or not Benipayo’s removal of petitioner from her position as
Director IV of the EID and her reassignment to the Law Department is
illegal and without authority, having been done without the approval of
the COMELEC as a collegial body; - NOT ILLEGAL
5. Whether or not the Officer-in-Charge of the COMELEC’s Finance
Services Department, in continuing to make disbursements in favor of
Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.
-DID NOT ACT IN EXCESS OF JURISDICTION
RULING:
WHEREFORE, the petition is dismissed for lack of merit. Costs against
petitioner.
First Issue: Propriety of Judicial Review
All the requisites to exercise judicial review are met (only 2nd-4th were
questioned)
(2) Petitioner’s personal and substantial injury, if Benipayo is not the lawful
COMELEC Chairman, clothes her with the requisite locus standi to raise
the constitutional issue in this petition.
(3) Petitioner questioned the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason when she filed her petition
before this Court, which is the earliest opportunity for pleading the
constitutional issue before a competent body. Furthermore, this Court may
determine, in the exercise of sound discretion, the time when a
constitutional issue may be passed upon. There is no doubt petitioner raised
the constitutional issue on time.
(4) The legality of petitioner’s reassignment hinges on the constitutionality
of Benipayo’s ad interim appointment and assumption of office. Unless the
constitutionality of Benipayo’s ad interim appointment and assumption of
office is resolved, the legality of petitioner’s reassignment from the EID to
the Law Department cannot be determined. Clearly, the lis mota of this case
is the very constitutional issue raised by petitioner.
The petitioner has complied with all the requisite technicalities. Moreover,
public interest requires the resolution of the constitutional issue raised by
petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Permanence
An ad interim appointment is a permanent appointment because it takes
effect immediately and can no longer be withdrawn by the President once
the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its
permanent character. The Constitution itself makes an ad interim
appointment permanent in character by making it effective until
disapproved by the Commission on Appointments or until the next
adjournment of Congress.
Effectivity
The second paragraph of Section 16, Article VII of the Constitution
provides as follows:
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Atty. Noel Ostrea
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The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress.
Thus, the ad interim appointment remains effective until such disapproval or
next adjournment, signifying that it can no longer be withdrawn or revoked
by the President. The fear that the President can withdraw or revoke at any
time and for any reason an ad interim appointment is utterly without basis.
The Constitution imposes no condition on the effectivity of an ad interim
appointment, and thus an ad interim appointment takes effect immediately.
The appointee can at once assume office and exercise, as a de jure officer,
all the powers pertaining to the office.
Distinction: Exercise of presidential prerogative when Congress is in
session and when Congress is in recess.
In Pacete vs. Secretary of the Commission on Appointments, we ruled the
the difference between appointment when Congress is in session and
appointment when Congress is in recess. In the former, the President
nominates, and only upon the consent of the Commission on Appointments
may the person thus named assume office. It is not so with reference to ad
interim appointments. It takes effect at once. The individual chosen may
thus qualify and perform his function without loss of time. His title to such
office is complete. In the language of the Constitution, the appointment is
effective ‘until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.’
Ad interim to mean “in the meantime” and not “for the time being”
This argument is not new and was answered by this Court in Pamantasan
ng Lungsod ng Maynila vs. Intermediate Appellate Court, where we
explained that such is not the meaning nor the use intended in the context of
Philippine law. The term is not descriptive of the nature of the appointments
given to him. Rather, it is used to denote the manner in which said
appointments were made, that is, done by the President of the Pamantasan
in the meantime, while the Board of Regents, which is originally vested by
the University Charter with the power of appointment, is unable to act.
Thus, the term “ad interim appointment”, as used in letters of appointment
signed by the President, means a permanent appointment made by the
President in the meantime that Congress is in recess. It does not mean a
temporary appointment that can be withdrawn or revoked at any time. The
term, although not found in the text of the Constitution, has acquired a
definite legal meaning under Philippine jurisprudence.
When an ad interim appointment becomes complete and irrevocable
An ad interim appointee who has qualified and assumed office becomes at
that moment a government employee and therefore part of the civil service.
He enjoys the constitutional protection that “[n]o officer or employee in the
civil service shall be removed or suspended except for cause provided by
law.”
Thus, an ad interim appointment becomes complete and irrevocable once
the appointee has qualified into office. The withdrawal or revocation of an
ad interim appointment is possible only if it is communicated to the
appointee before the moment he qualifies, and any withdrawal or revocation
thereafter is tantamount to removal from office. Once an appointee has
qualified, he acquires a legal right to the office which is protected not only
by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process.
Termination
An ad interim appointment can be terminated for two causes specified in
the Constitution.
1. The first cause is the disapproval of his ad interim appointment by the
Commission on Appointments.
2. The second cause is the adjournment of Congress without the
Commission on Appointments acting on his appointment.
These two causes are resolutory conditions expressly imposed by the
Constitution on all ad interim appointments.
Ad interim appointment vs. an appointment in temporary or acting capacity
While an ad interim appointment is permanent and irrevocable except as
provided by law, an appointment or designation in a temporary or acting
capacity can be withdrawn or revoked at the pleasure of the appointing
power. A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly. This is the kind of appointment that the
Constitution prohibits the President from making to the three independent
constitutional commissions, including the COMELEC.
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In the instant case, the President did in fact appoint permanent
Commissioners to fill the vacancies in the COMELEC, subject only to
confirmation by the Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during the recess of
Congress. The ad interim appointments of Benipayo, Borra and Tuason are
expressly allowed by the Constitution which authorizes the President,
during the recess of Congress, to make appointments that take effect
immediately.
The need to appoint Benipayo, Borra and Tuason
The reinstatement in the present Constitution of the ad interim appointing
power of the President was for the purpose of avoiding interruptions in vital
government services that otherwise would result from prolonged vacancies
in government offices, including the three constitutional commissions.
If Benipayo, Borra and Tuason were not extended ad interim appointments
to fill up the three vacancies in the COMELEC, there would only have been
one division functioning in the COMELEC instead of two during the May
2001 elections. The Constitution requires that “all xxx election cases shall
be hear and decided in division,” the remaining one division would have
been swamped with election cases.
Moreover, since under the Constitution motions for reconsideration “shall
be decided by the Commission en banc”, the mere absence of one of the
four remaining members would have prevented a quorum, a less than ideal
situation considering that the Commissioners are expected to travel around
the country before, during and after the elections. There was a great
probability that disruptions in the conduct of the May 2001 elections could
occur because of the three vacancies in the COMELEC. The successful
conduct of the May 2001 national elections, right after the tumultuous
EDSA II and EDSA III events, was certainly essential in safeguarding and
strengthening our democracy.
Evidently, the exercise by the President in the instant case of her
constitutional power to make ad interim appointments prevented the
occurrence of the very evil sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution.
Two modes in appointing officials who are subject to confirmation by the
Commission on Appointments
This power to make ad interim appointments is lodged in the President to be
exercised by her in her sound judgment. Under the second paragraph of
Section 16, Article VII of the Constitution, the President can choose either
of two modes in appointing officials who are subject to confirmation by the
Commission on Appointments.
1. First, while Congress is in session, the President may nominate the
prospective appointee, and pending consent of the Commission on
Appointments, the nominee cannot qualify and assume office.
2. Second, during the recess of Congress, the President may extend an ad
interim appointment which allows the appointee to immediately
qualify and assume office.
Whether the President chooses to nominate the prospective appointee or
extend an ad interim appointment is a matter within the prerogative of the
President because the Constitution grants her that power. This Court cannot
inquire into the propriety of the choice made by the President in the exercise
of her constitutional power, absent grave abuse of discretion amounting to
lack or excess of jurisdiction on her part, which has not been shown in the
instant case.
The President’s power to extend ad interim appointments may indeed
briefly put the appointee at the mercy of both the appointing and confirming
powers. This situation, however, is only for a short period—from the time
of issuance of the ad interim appointment until the Commission on
Appointments gives or withholds its consent. The Constitution itself
sanctions this situation, as a tradeoff against the evil of disruptions in vital
government services. This is also part of the check-and-balance under the
separation of powers, as a trade-off against the evil of granting the President
absolute and sole power to appoint. The Constitution has wisely subjected
the President’s appointing power to the checking power of the legislature.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner: Assuming the first ad interim appointments and the first
assumption of office by Benipayo, Borra and Tuason are constitutional, the
renewal of the their ad interim appointments and their subsequent
assumption of office to the same positions violate the prohibition on
reappointment under Section 1 (2), Article IX-C of the Constitution that the
Chairman and Commissioners shal be appointed for a term of seven years
withour reappointment.
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Ad Interim appointment that is by-passed
An ad interim appointment that is by-passed because of lack of time or
failure of the Commission on Appointments to organize is another matter. A
by-passed appointment is one that has not been finally acted upon on the
merits by the Commission on Appointments at the close of the session of
Congress. There is no final decision by the Commission on Appointments
to give or withhold its consent to the appointment as required by the
Constitution. Absent such decision, the President is free to renew the ad
interim appointment of a by-passed appointee.
Under the Rules of the Commission on Appointments, a bypassed
appointment can be considered again if the President renews the
appointment. President can renew the ad interim appointments of by-passed
appointees.
Section 17. Unacted Nominations or Appointments Returned to the
President. Nominations or appointments submitted by the President of the
Philippines which are not finally acted upon at the close of the session of
Congress shall be returned to the President and, unless new nominations or
appointments are made, shall not again be considered by the Commission.
Justice Roberto Concepcion, Jr. explained in his concurring opinion in
Guevara vs. Inocentes why by-passed ad interim appointees could be
extended new appointments:
An ad interim appointment ceases to be effective upon disapproval by the
Commission, because the incumbent can not continue holding office over
the positive objection of the Commission. It ceases, also, upon “the next
adjournment of the Congress”, simply because the President may then
issue new appointments—not because of implied disapproval of the
Commission deduced from its inaction during the session of Congress, for,
under the Constitution, the Commission may affect adversely the interim
appointments only by action, never by omission. If the adjournment of
Congress were an implied disapproval of ad interim appointments made
prior thereto, then the President could no longer appoint those so by-
passed by the Commission. But, the fact is that the President may
reappoint them, thus clearly indicating that the reason for said termination
of the ad interim appointments is not the disapproval thereof allegedly
inferred from said omission of the Commission, but the circumstance that
upon said adjournment of the Congress, the President is free to make ad
interim appointments or reappointments
The established practice under the present Constitution is that the President
can renew the appointments of by-passed ad interim appointees. The
prohibition on reappointment in Section 1 (2), Article IX-C of the
Constitution applies neither to disapproved nor by-passed ad interim
appointments. A disapproved ad interim appointment cannot be revived by
another ad interim appointment because the disapproval is final under
Section 16, Article VII of the Constitution, and not because a reappointment
is prohibited under Section 1 (2), Article IX-C of the Constitution.
A by-passed ad interim appointment can be revived by a new ad interim
appointment because there is no final disapproval under Section 16, Article
VII of the Constitution, and such new appointment will not result in the
appointee serving beyond the fixed term of seven years.
Four situations where Section 1 (2), Article IX-C of the Constitution “[t]he
Chairman and the Commissioners shall be appointed x x x for a term of
seven years without reappointment.” wil apply
There are four situations where this provision will apply.
1. Where an ad interim appointee to the COMELEC, after confirmation
by the Commission on Appointments, serves his full seven-year term.
2. Where the appointee, after confirmation, serves a part of his term and
then resigns before his seven-year term of office ends.
3. Where the appointee is confirmed to serve the unexpired term of
someone who died or resigned, and the appointee completes the
unexpired term.
4. Where the appointee has previously served a term of less than seven
years, and a vacancy arises from death or resignation. This provision
refers to the first appointees under the Constitution whose terms of
office are less than seven years, but are barred from ever being
reappointed under any situation.
Not one of these four situations applies to the case of Benipayo, Borra or
Tuason.
When would “without reappointment” apply
The phrase “without reappointment” applies only to one who has been
appointed by the President and confirmed by the Commission on
Appointments, whether or not such person completes his term of office.
There must be a confirmation by the Commission on Appointments of the
previous appointment before the prohibition on reappointment can apply.
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To hold otherwise will lead to absurdities and negate the President’s power
to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually
fails to act, for lack of time, on the ad interim appointments first issued to
appointees. If such ad interim appointments can no longer be renewed, the
President will certainly hesitate to make ad interim appointments because
most of her appointees will effectively be disapproved by mere inaction of
the Commission on Appointments. This will nullify the constitutional
power of the President to make ad interim appointments, a power intended
to avoid disruptions in vital government services. This Court cannot
subscribe to a proposition that will wreak havoc on vital government
services.
Applying all these in this case
The ad interim appointments and subsequent renewals of appointments of
Benipayo, Borra and Tuason do not violate the prohibition on
reappointments because there were no previous appointments that were
confirmed by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The same ad interim
appointments and renewals of appointments will also not breach the seven-
year term limit because all the appointments and renewals of appointments
of Benipayo, Borra and Tuason are for a fixed term expiring on February 2,
2008.
Any delay in their confirmation will not extend the expiry date of their
terms of office. Consequently, there is no danger whatsoever that the
renewal of the ad interim appointments of these three respondents will
result in any of the evils intended to be exorcised by the twin prohibitions in
the Constitution. The continuing renewal of the ad interim appointment of
these three respondents, for so long as their terms of office expire on
February 2, 2008, does not violate the prohibition on reappointments in
Section 1 (2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner
Power of Chairman to transfer or reassign
We have ruled that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the powers of that office
for so long as his ad interim appointment remains effective. Under Section
7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code,
the Chairman of the COMELEC is vested with the following power:
Section 7. Chairman as Executive Officer; Powers and Duties. The
Chairman, who shall be the Chief Executive Officer of the Commission,
shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in
accordance with the provisions of the Civil Service Law.
The Chairman, as the Chief Executive of the COMELEC, is expressly
empowered on his own authority to transfer or reassign COMELEC
personnel in accordance with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure the approval of the
COMELEC en banc.
Petitioner in temporary or acting capacity
Petitioner’s appointment papers dated February 2, 1999, February 15, 2000
and February 15, 2001, attached as Annexes “X”, “Y” and “Z” to her
Petition, indisputably show that she held her Director IV position in the EID
only in an acting or temporary capacity. Petitioner is not a Career
Executive Service (CES) officer, and neither does she hold Career
Executive Service Eligibility, which are necessary qualifications for holding
the position of Director IV as prescribed in the Qualifications Standards
(Revised 1987) issued by the Civil Service Commission. Obviously,
petitioner does not enjoy security of tenure as Director IV.
Having been appointed merely in a temporary or acting capacity, and not
possessed of the necessary qualifications to hold the position of Director IV,
petitioner has no legal basis in claiming that her reassignment was contrary
to the Civil Service Law. This time, the vigorous argument of petitioner that
a temporary or acting appointment can be withdrawn or revoked at the
pleasure of the appointing power happens to apply squarely to her situation.
Reassignment during election period
Petitioner assails her reassignment, carried out during the election period, as
a prohibited act under Section 261 (h) of the Omnibus Election Code, which
provides as follows:
Section 261. Prohibited Acts.—The following shall be guilty of an
election offense:
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xxx
(h) Transfer of officers and employees in the civil service. Any public
official who makes or causes any transfer or detail whatever of any officer
or employee in the civil service including public school teachers, within
the election period except upon prior approval of the Commission.
Contrary to petitioner’s allegation that Benipayo failed to secure the
approval of COMELEC en banc, the COMELEC did in fact issue
COMELEC Resolution No. 3300 dated November 6, 2000 exempting the
COMELEC from Section 261 (h) of the Omnibus Election Code.
NOW, THEREFORE, the Commission on Elections by virtue of the
powers conferred upon it by the Constitution, the Omnibus Election Code
and other election laws, as an exception to the foregoing prohibitions, has
RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees
or fill new positions and transfer or reassign its personnel, when
necessary in the effective performance of its mandated functions during
the prohibited period, provided that the changes in the assignment of its
field personnel within the thirty-day period before election day shall be
effected after due notice and hearing.
The proviso in COMELEC Resolution No. 3300, requiring due notice and
hearing before any transfer or reassignment can be made within thirty days
prior to election day, refers only to COMELEC field personnel and not to
head office personnel like the petitioner. Under the Revised Administrative
Code, the COMELEC Chairman is the sole officer specifically vested with
the power to transfer or reassign COMELEC personnel. The COMELEC
Chairman will logically exercise the authority to transfer or reassign
COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will
mean amending the Revised Administrative Code, an act the COMELEC en
banc cannot legally do.
Applying the law in this case
The COMELEC Chairman is the official expressly authorized by law to
transfer or reassign COMELEC personnel. The person holding that office,
in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC
Resolution No. 3300, approved the transfer or reassignment of COMELEC
personnel during the election period. Thus, Benipayo’s order reassigning
petitioner from the EID to the Law Department does not violate Section 261
(h) of the Omnibus Election Code. For the same reason, Benipayo’s order
designating Cinco Officer-in-Charge of the EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the discussion above, Gideon C. De Guzman, Officer-in-Charge
of the Finance Services Department of the Commission on Elections, did
not act in excess of jurisdiction in paying the salaries and other emoluments
of Benipayo, Borra, Tuason and Cinco.
Assigned: Ritz Alejandro
19. SARMIENTO VS. MISON
Date: December 17, 1987 GR Number: 79974
Key Issue/s:
Presidential Appointment Power
Doctrine: Except as to those officers whose appointments require the
consent of the Commission on Appointments by express mandate of the
first sentence in Sec. 16 Article VII, appointments of other officers are
left to the President without need of confirmation by the Commission on
Appointments.
The power to appoint is generally executive or presidential in character.
FACTS:
● This case is a prohibition case filed by taxpayers, lawyers, members of
the Integrated Bar, professors of Constitutional Law where they seek 1)
to enjoin Commissioner Salvador Mison of the Bureau of Custom from
performing the functions of his office and 2) for Sec. Carague of the
Department of Budget to be enjoined from disbursing the payment of
Mison’s Salary and emoluments. The petitioners contend that Mison’s
appointment was unconstitutional for not having been confirmed by the
Commission on Appointments.
● Respondents on the other hand maintain the constitutionality of Mison's
appointment without the confirmation of the Commission on
Appointments.
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ISSUE:
Whether Mison’s appointment required the confirmation of the Commission
on Appointments - No. The post of Commissioner of the Bureau of
Customs does not belong to the 1st group provided by the Constitution.
Should the 2nd, 3rd, and 4th groups of officers be appointed by the
President with or without the consent (confirmation) of the Commission on
Appointments? - No. The intention of the framers of the Constitution was
for the CONA to confirm officers belonging to the first group as provided
by Sec. 16 Article VII of the 1987 Constitution.
RULING:
WHEREFORE, the petition and petition in intervention, should be, as they
are, hereby DISMISSED. Without costs. SO ORDERED.
● The 4 groups under Section 16 Article VII are:
○ First, the heads of the executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from the
rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution;
○ Second, all other officers of the Government whose appointments
are not otherwise provided for by law;
○ Third, those whom the President may be authorized by law to
appoint;
○ Fourth, officers lower in rank whose appointments the Congress
may by law vest in the President alone.
● Historical Context:
○ 1935 Consti: All presidential appointments needs CONA
confirmation
○ 1973 Consti: The appointing power of the president is absolute.
● Given the two extremes (1935 Consti and 1973 Consti), it is not
difficult for the Court to state that the framers of the 1987
Constitution and the people adopting it, struck a "middle ground"
by requiring the consent (confirmation) of the Commission of
Appointments for the first group of appointments and leaving to
the President, without such confirmation, the appointment of other
officers, i.e., those in the second and third groups as well as those in
the fourth group, i.e., officers lower in rank.
● Except as to those officers whose appointments require the consent
of the Commission on Appointments by express mandate of the
first sentence in Sec. 16 Article VII, appointments of other officers
are left to the President without need of confirmation by the
Commission on Appointments. [DOCTRINE]
● It is evident that the position of Commissioner of the Bureau of
Customs (a bureau head) is not one of those within the first group
of appointments where the consent of the Commission on
Appointments is required.
● Moreover, the President is expressly authorized by law to appoint the
Commissioner of the Bureau of Customs under Sec. 601 of RA 1937
otherwise known as the Tariff and Customs Code of the Philippines.
Despite these laws approved during the effectivity of the 1935
Constitution, these laws should be read in harmony with Sec. 16 Art.
VII of the 1987 Constitution.
Assigned: Kyle Lu
20. CALDERON VS. CARALE
Date: April 23, 1992 GR Number: 91636
Key Issue/s:
Presidential Appointment Power
1.) Confirmation by the Commission on Appointments is required
only for presidential appointees mentioned in the first sentence
of Section 16, Article VII, including, those officers whose
appointments are expressly vested by the Constitution itself in
the president (like sectoral representatives to Congress and
members of the constitutional commissions of Audit, Civil Service
and Election).
2.) Confirmation is not required when the President appoints other
government officers whose appointments are not otherwise
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provided for by law or those officers whom he may be
authorized by law to appoint (like the Chairman and Members of
the Commission on Human Rights). Also, as observed in Mison,
when Congress creates inferior offices but omits to provide for
appointment thereto, or provides in an unconstitutional manner
for such appointments, the officers are considered as among
those whose appointments are not otherwise provided for by law.
FACTS:
● Pursuant to the doctrines enunciated in the case of Mison (appointment
of Commissioner of Customs), Bautista (appointment of Chairman of
CHR) and Teresita Quintos Deles (appointment of sectoral
representatives). Two doctrines are controlling (please refer to the
doctrine above and remember it).
● In March 1989, RA 6715 (Herrera-Veloso Law), amending the
Labor Code (PD 442) was approved. It provides in Section 13 thereof
as follows:
"xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other
Commissioners shall all be appointed by the President, subject to
confirmation by the Commission on Appointments. xxx xxx xxx
● President Aquino appointed the Chairman and Commissioners of
the National Labor Relations Commission (NLRC) representing the
public, workers and employers sectors. The appointments stated that
the appointees may qualify and enter upon the performance of the
duties of the office. Labor Secretary Franklin Drilon then issued
Administrative Order No. 161, designating the places of assignment of
the newly appointed commissioners.
● The petition questions the constitutionality and legality of the
permanent appointments extended by the President of the
Philippines to the respondents Chairman and Members of the
NLRC, without submitting the same to the Commission on
Appointments for confirmation pursuant to the Labor Code (Art.
215) as amended by R.A. 6715.
● Petitioner insists on a mandatory compliance with RA 6715. According
to petitioner, the law is not an an encroachment on the appointing
power of the executive contained in Section 16, Art. VII, of the
Constitution, as Congress may, by law, require confirmation by the
Commission on Appointments of other officers appointed by the
President additional to those mentioned in the first sentence of Section
16 of Article VII of the Constitution. Petitioner claims that the Mison
and Bautista rulings are not decisive of the issue in this case for in
the case at bar, the President issued permanent appointments to
the respondents without submitting them to the CA for
confirmation despite passage of a law (RA 6715) which requires the
confirmation by the Commission on Appointments of such
appointments.
● The Solicitor General, on the other hand, contends that RA 6715 which
amended the Labor Code transgresses Section 16, Article VII by
expanding the confirmation powers of the Commission on
Appointments without constitutional basis.
ISSUE:
● Whether Congress may, by law, require confirmation by the
Commission on Appointments of appointments extended by the
President to government officers additional to those expressly
mentioned in the first sentence of Sec. 16, Art. VII of the
Constitution whose appointments require confirmation by the
Commission on Appointments. |||
RULING:
● No, To the extent that RA 6715 requires confirmation by the
Commission on Appointments of the appointments of respondents
Chairman and Members of the NLRC, it is unconstitutional because:
● It amends by legislation, the first sentence of Sec. 16, Art. VII of
the Constitution by adding thereto appointments requiring
confirmation by the Commission on Appointments
● It amends by legislation the second sentence of Sec. 16, Art. VII of
the Constitution, by imposing the confirmation of the Commission
on Appointments on appointments which are otherwise entrusted
only with the President.
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● The NLRC Chairman and Commissioners fall within the second

sentence of Section 16, Article VII of the Constitution, the "third
groups" of appointees referred to in Mison, i.e. those whom the
President may be authorized by law to appoint. Undeniably, the
Chairman and Members of the NLRC are not among the officers
mentioned in the first sentence of Section 16, Article VII whose
appointments requires confirmation by the Commission on
Appointments.
● Sec. 16, Art. VII of the 1987 Constitution was deliberately, not
unconsciously, intended by the framers of the 1987 Constitution to be a
departure from the system embodied in the 1935 Constitution where
the Commission on Appointments exercised the power of confirmation
over almost all presidential appointments, leading to many cases of
abuse of such power of confirmation.

Assigned: Ray Consolacion

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