Public Corporation

G.R. No. 203372 June 16, 2015 123659. G.R. No. 209138 filed by Villanueva and Rosquita is
a Petition for Certiorari,6 seeking to nullify the
ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner, Decision7 dated 28 August 2013 of the CA in CA-G.R. SP Nos.
vs. 123662, 123663, and 123664.8 Villanueva and Rosquita filed
OFFICE OF THE PRESIDENT and HON. SOLICITOR a Petition-in-Intervention in the consolidated cases before the
GENERAL JOSE ANSELMO I. CADIZ, Respondents. CA. G.R. No. 212030 is a Petition for Review on
G.R. No. 206290 Certiorari,9 assailing the Decision10 dated 31 August 2012 of
the CA in CAG.R. SP No. 123664 and Resolution11 dated 7
ATTY. DINDO G. VENTURANZA, Petitioner, April 2014 of the CA in CAG.R. SP Nos. 123662, 123663, and
vs. 123664.12
OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her
capacity as the Secretary of the Department of Justice, CLARO Facts of the Cases
A. ARELLANO, in his capacity as the Prosecutor General, and Prior to the conduct of the May 2010 elections, then President
RICHARD ANTHONY D. FADULLON, in his capacity as the Gloria Macapagal-Arroyo (President Macapagal-Arroyo) issued
Officer-in-Charge of the Office of the City Prosecutor of more than 800 appointments to various positions in several
Quezon City,Respondents. government offices.
G.R. No. 209138 The ban on midnight appointments in Section 15, Article VII
IRMA A. VILLANUEVA and FRANCISCA B. of the 1987 Constitution reads:
ROSQUITA, Petitioners, Two months immediately before the next presidential
vs. elections and up to the end of his term, a President or Acting
COURT OF APPEALS and THE OFFICE OF THE President shall not make appointments, except temporary
PRESIDENT, Respondents. appointments to executive positions when continued
G.R. No. 212030 vacancies therein will prejudice public service or endanger
public safety.
EDDIE U. TAMONDONG, Petitioner,
vs. Thus, for purposes of the 2010 elections, 10 March 2010 was
EXECUTIVE SECRETARY PAQUITO N. OCHOA, the cutoff date for valid appointments and the next day, 11
JR., Respondent. March 2010, was the start of the ban on midnight
appointments. Section 15, Article VII of the 1987 Constitution
DECISION recognizes as an exception to the ban on midnight
appointments only "temporary appointments to executive
CARPIO, J.: positions when continued vacancies therein will prejudice
public service or endanger public safety." None of the
The present consolidated cases involve four petitions: G.R.
petitioners claim that their appointments fall under this
No. 203372 with Atty. Cheloy E. Velicaria-Garafil (Atty.
exception.
Velicaria-Garafil), who was appointed State Solicitor II at the
Office of the Solicitor General (OSG), as petitioner; G.R. No. Appointments
206290 with Atty. Dindo G. Venturanza (Atty. Venturanza),
who was appointed Prosecutor IV (City Prosecutor) of Quezon G.R. No. 203372
City, as petitioner; G.R. No. 209138 with Irma A. Villanueva
(Villanueva), who was appointed Administrator for Visayas of The paper evidencing Atty. Velicaria-Garafil's appointment as
the Board of Administrators of the Cooperative Development State Solicitor II at the OSG was dated 5 March 2010.13 There
Authority (CDA), and Francisca B. Rosquita (Rosquita), who was a transmittal letter dated 8 March 2010 of the
was appointed Commissioner of the National Commission of appointment paper from the Office of the President (OP), but
Indigenous Peoples (NCIP), as petitioners; and G.R. No. this transmittal letter was received by the Malacañang Records
212030 with Atty. Eddie U. Tamondong (Atty. Tamondong), Office (MRO) only on 13 May 2010. There was no indication
who was appointed member of the Board of Directors of the as to the OSG's date of receipt of the appointment paper. On
Subic Bay Metropolitan Authority (SBMA), as petitioner. All 19 March 2010, the OSG's Human Resources Department
petitions question the constitutionality of Executive Order No. called up Atty. Velicaria-Garafil to schedule her oath-taking.
2 (EO 2) for being inconsistent with Section 15, Article VII of Atty. Velicaria-Garafil took her oath of office as State Solicitor
the 1987 Constitution. II on 22 March 2010 and assumed her position on 6 April
2010.
Petitioners seek the :reversal of the separate Decisions of the
Court of Appeals (CA) that dismissed their petitions and G.R. No. 206290
upheld the constitutionality of EO 2. G.R. No. 203372 filed by The paper evidencing Atty. Venturanza's appointment as
Atty. Velicaria-Garafil is a Petition for Review on Prosecutor IV (City Prosecutor) of Quezon City was dated 23
Certiorari,1 assailing the Decision2 dated 31 August 2012 of February 2010.14 It is apparent, however, that it was only on
the CA in CA-G.R. SP No. 123662. G.R. No. 206290 filed by 12 March 2010 that the OP, in a letter dated 9 March 2010,
Atty. Venturanza is a Petition for Review on transmitted Atty. Venturanza's appointment paper to then
Certiorari,3 assailing the Decision4 dated 31 August 2012 and Department of Justice (DOJ) Secretary Alberto C.
Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No. Agra.15 During the period between 23 February and 12 March
1
 Public Corporation
2010, Atty. Venturanza, upon verbal advice from Malacañang
of his promotion but without an official copy of his
appointment paper, secured clearances from the Civil Service
Commission (CSC),16 Sandiganbayan,17 and the
DOJ.18 Atty. Venturanza took his oath of office on 15 March
2010, and assumed office on the same day.
G.R. No. 209138
The paper evidencing Villanueva's appointment as
Administrator for Visayas of the Board of Administrators of the
CDA was dated 3 March 2010.19 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 2010.21 Atty. Tamondong
admitted that the appointment paper was received by the
Office of the SBMA Chair on 25 March 201022 and that he
took his oath of office on the same day.23 He took another
oath of office on 6 July 2010 as "an act of extra caution
because of the rising crescendo of noise from the new political temporary appointments in the executive positions when
mandarins against the so-called 'midnight appointments."'24
To summarize, the pertinent dates for each petitioner are as
follows:
Date of Date of Date of Receipt Date of Oath Assumption of
Appointment Letter Transmittal Letter by MRO of Office Office
22
a- 5 March 2010 8 March 2010 13 May 2010
2010
15
23 February 2010 9 March 2010 12 March 2010
2010
3 March 2010 4 May 2010 13 April 2010
18 March temporary or casual, or creates and fills any new position,
5 March 2010 13 May 2010
2010
25 March
1 March 2010 2010
6 July 2010
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.
The entirety of EO 2 reads:
EXECUTIVE ORDER NO. 2
RECALLING, WITHDRAWING, AND REVOKING
APPOINTMENTS ISSUED BY THE PREVIOUS
ADMINISTRATION IN VIOLATION OF THE CONSTITUTIONAL
BAN ON MIDNIGHT APPOINTMENTS, AND FOR OTHER
PURPOSES.
WHEREAS, Sec. 15, Article VII of the 1987 Constitution
provides that "Two months immediately before the next
presidential elections and up to the end of his term, a
President or Acting President shall not make appointments,
except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or
endanger public safety."; WHEREAS, in the case of "In re:
Appointments dated March 30, 1998 of Hon. Mateo Valenzuela
and Hon. Vallarta as Judges of the Regional Trial Court of
Branch 62 of Bago City and Branch 24 of Cabanatuan City,
respectively" (A.M. No. 98-5-01-SC Nov. 9, 1998), the
Supreme Court interpreted this provision to mean that the
President is neither required to make appointments nor
allowed to do so during the two months immediately before
the next presidential elections and up to the end of her term.
The only known exceptions to this prohibition are (1)
continued vacancies will prejudice public service or endanger
public safety and in the light of the recent Supreme Court
decision in the case of De Castro, et al. vs. JBC and PGMA,
G.R. No. 191002, 17 March 2010, (2) appointments to the
Judiciary;
WHEREAS, Section 261 of the Omnibus Election Code provides
that:
March "Section 261. Prohibited Acts.-The following shall be guilty of
6
anApril 2010offense:
election
(g) Appointments of new employees, creation of new position,
promotion, or giving salary increases. - During the period of
March forty-five days before a regular election and thirty days before
15 March 2010
a special election.
(1) Any head, official or appointing officer of a government
office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations, who
appoints or hires any new employee, whether provisional,
except upon prior authority to the Commission. The
Commission shall not grant the authority sought unless it is
satisfied that the position to be filled is essential to the proper
functioning of the office or agency concerned, and that the
and
position shall not be filled in a manner that may influence the
election.
As an exception to the foregoing provisions, a new employee
may be appointed in the case of urgent need:
Provided, however, that notice of the appointment shall be
given to the Commission within three days from the date of
2
Public Corporation
the appointment. Any appointment or hiring in violation of this
provision shall be null and void.
(2) Any government official who promotes or gives any
increase of salary or remuneration or privilege to any
government official or employee, including those in
government-owned or controlled corporations.";
WHEREAS, it appears on record that a number of
appointments were made on or about 10 March 2010 in
complete disregard of the intent and spirit of the constitutional
ban on midnight appointment and which deprives the new
administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an
appointment is deemed complete only upon acceptance of the
appointee;
WHEREAS, in order to strengthen the civil service system, it is
necessary to uphold the principle that appointments to the
civil service must be made on the basis of merit and fitness, it
is imperative to recall, withdraw, and revoke all appointments
made in violation of the letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of
the powers vested in me by the Constitution as President of
the Philippines, do hereby order and direct that:
SECTION 1. Midnight Appointments Defined. - The following
appointments made by the former President and other
appointing authorities in departments, agencies, offices, and
instrumentalities, including government-owned or controlled
corporations, shall be considered as midnight appointments:
(a) 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
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.
(b) Those made prior to March 11, 2010, but to take effect
after said date or appointments to office that would be vacant
only after March 11, 2010.
(c) Appointments and promotions made during the period of
45 days prior to the May 10, 2010 elections in violation of
Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight
Appointments. Midnight appointments, as defined under
Section 1, are hereby recalled, withdrawn, and revoked. The
positions covered or otherwise affected are hereby declared
vacant.
SECTION 3. Temporary designations. - When necessary to
maintain efficiency in public service and ensure the continuity
of government operations, the Executive Secretary may
designate an officer-in-charge (OIC) to perform the duties and
discharge the responsibilities of any of those whose
appointment has been recalled, until the replacement of the
OIC has been appointed and qualified.
SECTION 4. Repealing Clause. - All executive issuances,
orders, rules and regulations or part thereof inconsistent with
the provisions of this Executive Order are hereby repealed or
modified accordingly.
SECTION 5. Separability Clause. - If any section or provision
of this executive order shall be declared unconstitutional or
invalid, the other sections or provision not affected thereby
shall remain in full force and effect.
SECTION 6. Effectivity. - This Executive order shall take effect
immediately.
DONE in the City of Manila, this 30th day of July, in the year
Two Thousand and Ten.
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
(Sgd.) BENIGNO S. AQUINO III
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as
Solicitor General (Sol. Gen. Cadiz). On 6 August 2010, Sol.
Gen. Cadiz instructed a Senior Assistant Solicitor General to
inform the officers and employees affected by EO 2 that they
were terminated from service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010
without any knowledge of her termination. She was made to
return the office-issued laptop and cellphone, and was told
that her salary ceased as of 7 August 2010. On 12 August
2010, Atty. Velicaria-Garafil was informed that her former
secretary at the OSG received a copy of a memorandum on
her behalf. The memorandum, dated 9 August 2010, bore the
subject "Implementation of Executive Order No. 2 dated 30
July 2010" and was addressed to the OSG's Director of Finance
and Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No.
193327) before this Court on 1 September 2010. The petition
prayed for the nullification of EO 2, and for her reinstatement
as State Solicitor II without loss of seniority, rights and
privileges, and with full backwages from the time that her
salary was withheld.26
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile
transmission an undated copy of DOJ Order No. 556. DOJ
Order No. 556, issued by DOJ Secretary Leila M. De Lima (Sec.
De Lima), designated Senior Deputy State Prosecutor Richard
Anthony D. Fadullon (Pros. Fadullon) as Officer-in-Charge of
the Office of the City Prosecutor in Quezon City. In a letter to
Sec. De Lima dated 15 September 2010, Atty. Venturanza
asked for clarification of his status, duties, and functions since
DOJ Order No. 556 did not address the same. Atty. Venturanza
also asked for a status quo ante order to prevent Pros.
Fadullon ·from usurping the position and functions of the City
Prosecutor of Quezon City. Atty. Venturanza also wrote a letter
to President Aquino on the same day, and sought
3
Public Corporation
reaffirmation of his promotion as City Prosecutor of Quezon
City.
On 6 October 2010, Atty. Venturanza received a letter dated
25 August 2010 from Sec. De Lima which directed him to
relinquish the office to which he was appointed, and to cease
from performing its functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition,
Mandamus with Urgent Prayer for Status Quo Ante Order,
Temporary Restraining Order and/or Preliminary Mandatory
Injunction (G.R. No. 193 867) before this Court on 14 October
2010.27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on
the basis of EO 2. On 3 August 2010, Villanueva and Rosquita
sought to intervene in G.R. No. 192991.28 On 1 October 2010,
Executive Secretary Paquito N. Ochoa, Jr. revoked Rosquita's
appointment as NCIP Commissioner.29 On 13 October 2010,
Villanueva and Rosquita notified this Court that they wanted
to intervene in Atty. Tamondong's petition (G.R. No. 192987)
instead.
G.R. No. 212030
Atty. Tamondong was removed from the SBMA Board of
Directors on 30 July 2010. He filed a petition for prohibition,
declaratory relief and preliminary injunction with prayer for
temporary restraining order (G.R. No. 192987) before this
Court on 9 August 2010. The petition prayed for the
prohibition of the implementation of EO 2, the declaration of
his appointment as legal, and the declaration of EO 2 as
unconstitutional.30
Referral to CA
There were several petitions31 and motions for
intervention32 that challenged the constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring
the petitions, motions for intervention, as well as various
letters, to the CA for further proceedings, including the
reception and assessment of the evidence from all parties. We
defined the issues as follows:
1. Whether the appointments of the petitioners and
intervenors were midnight appointments within the coverage
of EO 2;
2. Whether all midnight appointments, including those of
petitioners and intervenors, were invalid;
3 . Whether the appointments of the petitioners and
intervenors were made with undue haste, hurried maneuvers,
for partisan reasons, and not in accordance with good faith;
and
4. Whether EO 2 violated the Civil Service Rules on
Appointment.33
This Court gave the CA the authority to resolve all pending
matters and applications, and to decide the issues as if these
cases were originally filed with the CA.
Rulings of the CA
Even though the same issues were raised in the different
petitions, the CA promulgated separate Decisions for the
petitions. The CA consistently ruled that EO 2 is constitutional.
The CA, however, issued different rulings as to the evaluation
of the circumstances of petitioners' appointments. In the
cases of Attys. Velicaria-Garafil and Venturanza, the CA stated
that the OP should consider the circumstances of their
appointments. In the cases of Villanueva, Rosquita, and Atty.
Tamondong, the CA explicitly stated that · the revocation of
their appointments was proper because they were midnight
appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on
31 August 2012. The CA ruled that EO 2 is not
unconstitutional. However, the CA relied on Sales v.
Carreon34 in ruling that the OP should evaluate whether Atty.
Velicaria-Garafil's appointment had extenuating circumstances
that might make it fall outside the ambit of EO 2.
The dispositive portion of the CA's Decision reads:
WHEREFORE, the petition for certiorari and mandamus [is]
DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT
unconstitutional.
The issue on whether or not to uphold petitioner's
appointment as State Solicitor II at the OSG is hereby referred
to the Office of the President which has the sole authority and
discretion to pass upon the same.
SO ORDERED.35
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-
G.R. SP No. 123664. The dispositive portion reads as follows:
WHEREFORE, premises considered, the instant Petition is
hereby DISMISSED. Executive Order No. 2 is hereby declared
NOT UNCONSTITUTIONAL. Accordingly, the revocation of
Atty. Eddie Tamondong's appointment as Director of Subic
Bay Metropolitan Authority is VALID for being a midnight
appointment.
SO ORDERED.39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether
petitioners' appointments violate Section 15, Article VII of the
1987 Constitution, and (2) whether EO 2 is constitutional.
Ruling of the Court
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. Villanueva and Rosquita, petitioners in G.R. No.
209138, did not appeal the CA's ruling under Rule 45, but
instead filed a petition for certiorari under Rule 65. This
procedural error alone warrants an outright dismissal of G.R.
4
Public Corporation
No. 209138. Even if it were correctly filed under Rule 45, the
petition should still be dismissed for being filed out of
time.40 There was also no explanation as to why they did not
file a motion for reconsideration of the CA's Decision. 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."41The 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.
Aytona v. Castillo (Aytona)42 is the basis for Section 15,
Article VII of the 1987 Constitution. Aytona defined "midnight
or last minute" appointments for Philippine
jurisprudence.1âwphi1 President Carlos P. Garcia submitted
on 29 December 1961, his last day in office, 350
appointments, including that of Dominador R. Aytona for
Central Bank Governor. President Diosdado P. Macapagal
assumed office on 30 December 1961, and issued on 31
December 1961 Administrative Order No. 2 recalling,
withdrawing, and cancelling all appointments made by
President Garcia after 13 December 1961 (President
Macapagal's proclamation date). President Macapagal
appointed Andres V. Castillo as Central Bank Governor on 1
January 1962. This Court dismissed Aytona's quo warranto
proceeding against Castillo, and upheld Administrative Order
No. 2's cancellation of the "midnight or last minute"
appointments. We wrote:
x x x But the issuance of 350 appointments in one night and
the planned induction of almost all of them a few hours before
the inauguration of the new President may, with some reason,
be regarded by the latter as an abuse of Presidential
prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness
and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding
appointments.
x x x Now it is hard to believe that in signing 350 appointments
in one night, President Garcia exercised such "double care"
which was required and expected of him; and therefore, there
seems to be force to the contention that these appointments
fall beyond the intent and spirit of the constitutional provision
granting to the Executive authority to issue ad interim
appointments.
Under the circumstances above described, what with the
separation of powers, this Court resolves that it must decline
to disregard the Presidential .Administrative Order No. 2,
cancelling such "midnight" or "last-minute" appointments.
Of course the Court is . aware of many precedents to the
effect that once an appointment has been issued, it cannot be
reconsidered, specially where the appointee has qualified. But
none of them refer to mass ad interim appointments (three
hundred and fifty), issued in the last hours of an outgoing
Chief Executive, in a setting similar to that outlined herein. On
the other hand, the authorities admit of exceptional
circumstances justifying revocation and if any circumstances
justify revocation, those described herein should fit the
exception.
Incidentally, it should be stated that the underlying reason for
denying the power to revoke after the appointee has qualified
is the latter's equitable rights. Yet it is doubtful if such equity
might be successfully set up in the present situation,
considering the rush conditional appointments, hurried
maneuvers and other happenings detracting from that degree
of good faith, morality and propriety which form the basic
foundation of claims to equitable relief. The appointees, it
might be argued, wittingly or unwittingly cooperated with the
stratagem to beat the deadline, whatever the resultant
consequences to the dignity and efficiency of the public
service. Needless to say, there are instances wherein not only
strict legality, but also fairness, justice and righteousness
should be taken into account.43
During the deliberations for the 1987 Constitution, then
Constitutional Commissioner (now retired Supreme Court
Chief Justice) Hilario G. Davide, Jr. referred to this Court's
ruling in Aytona and stated that his proposal seeks to prevent
a President, whose term is about to end, from preempting his
successor by appointing his own people to sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end
of the term of the President, he may prolong his rule indirectly
by appointing people to these sensitive positions, like the
commissions, the Ombudsman, the judiciary, so he could
perpetuate himself in power even beyond his term of office;
therefore foreclosing the right of his successor to make
appointments to these positions. We should realize that the
term of the President is six years and under what we had
voted on, there is no reelection for him. Yet he can continue
to rule the country through appointments made about the end
of his term to these sensitive positions.44
The 1986 Constitutional Commission put a definite period, or
an empirical value, on Aytona's intangible "stratagem to beat
the deadline," and also on the act of "preempting the
President's successor," which shows a lack of "good faith,
morality and propriety." 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
Constitution, with a specific exception, ended the President's
5
Public Corporation
power to appoint "two months immediately before the next
presidential elections." For an appointment to be valid, it must
be made outside of the prohibited period or, failing that, fall
under the specified exception.
The dissent insists that, during the prohibited period, an
appointment should be viewed in its "narrow sense." In its
narrow sense, an appointment is not a process, but is only an
"executive act that the President unequivocally exercises
pursuant to his discretion."45 The dissent makes acceptance
of the appointment inconsequential. The dissent holds that an
appointment is void if the appointment is made before the ban
but the transmittal and acceptance are made after the ban.
However, the dissent holds that an appointment is valid, or
"efficacious," if the appointment and transmittal are made
before the ban even if the acceptance is made after the ban.
In short, the dissent allows an appointment to take effect
during the ban, as long as the President signed and
transmitted the appointment before the ban, even if the
appointee never received the appointment paper before the
ban and accepted the appointment only during the ban.
The dissent's view will lead to glaring absurdities. Allowing the
dissent's proposal that an appointment is complete merely
upon the signing of an appointment paper and its transmittal,
excluding the appointee's acceptance from the appointment
process, will lead to the absurdity that, in case of non-
acceptance, the position is considered occupied and nobody
else may be appointed to it. Moreover, an incumbent public
official, appointed to another public office by the President,
will automatically be deemed to occupy the new public office
and to have automatically resigned from his first office upon
transmittal of his appointment paper, even if he refuses to
accept the new appointment. This will result in chaos in public
service.
Even worse, a President who is unhappy with an incumbent
public official can simply appoint him to another public office,
effectively removing him from his first office without due
process. The mere transmittal of his appointment paper will
remove the public official from office without due process and
even without cause, in violation of the Constitution.
The dissent's proferred excuse (that the appointee is not
alluded to in Section 15, Article VII) for its rejection of
"acceptance by the appointee" as an integral part of the
appointment process ignores the reason for the limitation of
the President's power to appoint, which is .to prevent the
outgoing President from continuing to rule the country
indirectly after the end of his term. The 1986 Constitutional
Commission installed a definite cut-off date as an objective
and unbiased marker against which this once-in-every-six-
years prohibition should be measured.
The dissent's assertion that appointment should be viewed in
its narrow sense (and is not a process) only during the
prohibited period is selective and time-based, and ignores
well-settled jurisprudence. For purposes of complying with the
time limit imposed by the appointment ban, the dissent' s
position cuts short the appointment process to the signing of
the appointment paper and its transmittal, excluding the
receipt of the appointment paper and acceptance of the
appointment by the appointee.
The President exercises only one kind of appointing power.
There is no need to differentiate the exercise of the President's
appointing power outside, just before, or during the
appointment ban. The Constitution allows the President to
exercise the power of appointment during the period not
covered by the appointment ban, and disallows (subject to an
exception) the President from exercising the power of
appointment during the period covered by the appointment
ban. The concurrence of all steps in the appointment process
is admittedly required for appointments outside the
appointment ban. There is no justification whatsoever to
remove acceptance as a requirement in the appointment
process for appointments just before the start of the
appointment ban, or during the appointment ban in
appointments falling within the exception. The existence of
the appointment ban makes no difference in the power of the
President to appoint; it is still the same power to appoint. In
fact, considering the purpose of the appointment ban, the
concurrence of all steps in the appointment process must be
strictly applied on appointments made just before or during
the appointment ban.
In attempting to extricate itself from the obvious
consequences of its selective application, the dissent glaringly
contradicts itself:
Thus, an acceptance is still necessary in order for the
appointee to validly assume his post and discharge the
functions of his new office, and thus make the appointment
effective. There can never be an instance where the
appointment of an incumbent will automatically result in his
resignation from his present post and his subsequent
assumption of his new position; or where the President can
simply remove an incumbent from his current office by
appointing him to another one. I stress that acceptance
through oath or any positive act is still indispensable before
any assumption of office may occur.46 (Emphasis added)
The dissent proposes that this Court ignore well-settled
jurisprudence during the appointment ban, but apply the
same jurisprudence outside of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an
appointment is a process that begins with the selection by the
appointing power and ends with acceptance of the
appointment by the appointee, stands. As early as the 1949
case of Lacson v. Romero, this Court laid down the rule that
acceptance by the appointee is the last act needed to make
an appointment complete. The Court reiterated this rule in the
1989 case of Javier v. Reyes. In the 1996 case of Garces v.
Court of Appeals, this Court emphasized that acceptance by
the appointee is indispensable to complete an appointment.
The 1999 case of Bermudez v. Executive Secretary, cited in
the ponencia, affirms this standing rule in our jurisdiction, to
wit:
"The appointment is deemed complete once the last act
required of the appointing authority has been complied with
and its acceptance thereafter by the appointee in order to
render it effective."47
The dissent's assertion creates a singular exception to the
well-settled doctrine that appointment is a process that begins
with the signing of the appointment paper, followed by the
6
Public Corporation
transmittal and receipt of the appointment paper, and
becomes complete with the acceptance of the appointment.
The dissent makes the singular exception that during the
constitutionally mandated ban on appointments, acceptance
is not necessary to complete the appointment. The dissent
gives no reason why this Court should make such singular
exception, which is contrary to the express provision of the
Constitution prohibiting the President from making
appointments during the ban. The dissent's singular exception
will allow the President, during the ban on appointments, to
remove from office incumbents without cause by simply
appointing them to another office and transmitting the
appointment papers the day before the ban begins,
appointments that the incumbents cannot refuse because
their acceptance is not required during the ban. Adoption by
this Court of the dissent's singular exception will certainly
wreak havoc on the civil service.
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.
And, unlike the dissent's proposal, there is no need to further
distinguish between an effective and an ineffective
appointment when an appointment is valid.
Appointing Authority
The President's exercise of his power to appoint officials is
provided for in the Constitution and laws.48 Discretion is an
integral part in the exercise of the power of
appointment.49 Considering that appointment calls for a
selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., "the choice of a person
to fill an office constitutes the essence of his appointment,"
and Mr. Justice Malcolm adds that an "[a]ppointment to office
is intrinsically an executive act involving the exercise of
discretion." In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court we held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for himself
who is best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the
appointing power x x x x
Indeed, the power of choice is the heart of the power to
appoint. Appointment involves an exercise of discretion of
whom to appoint; it is not a ministerial act of issuing
appointment papers to the appointee. In other words, the
choice of the appointee is a fundamental component of the
appointing power.
Hence, when Congress clothes the President with the power
to appoint an officer, it (Congress) cannot at the same time
limit the choice of the President to only one candidate. Once
the power of appointment is conferred on the President, such
conferment necessarily carries the discretion of whom to
appoint. Even on the pretext of prescribing the qualifications
of the officer, Congress may not abuse such power as to divest
the appointing authority, directly or indirectly, of his discretion
to pick his own choice. Consequently, when the qualifications
prescribed by Congress can only be met by one individual,
such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular
restriction on the power of appointment.50
Transmittal
It is not enough that the President signs the appointment
paper. There should be evidence that the President intended
the appointment paper to be issued. It could happen that an
appointment paper may be dated and signed by the President
months before the appointment ban, but never left his locked
drawer for the entirety of his term. Release of the
appointment paper through the MRO is an unequivocal act
that signifies the President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of
1958, Governing the Organization and Functions of the
Executive Office and General Matters of Procedure Therein.
Initially called the Records Division, the MRO functioned as an
administrative unit of the Executive Office. Memorandum
Order No. 1 assigned the following functions:
a. Receive, record and screen all incoming correspondence,
telegrams, documents and papers, and
(1) Forward those of a personal and unofficial nature to the
President's Private Office; and
(2) Distribute those requiring action within the Office or
requiring staff work prior to presentation to the President to
the appropriate units within the Office.
b. Follow up on correspondence forwarded to entities outside
the Office to assure that prompt replies are made and copies
thereof furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal
papers of the President, and keep them in such condition as
to meet the documentary and reference requirements of the
Office.
e. Keep and maintain a filing and records system for acts,
memoranda, orders, circulars, correspondence and other
documents affecting the Office for ready reference and use.
f. Issue certified true copies of documents on file in the
Division m accordance with prevailing standard operating
procedure.
g. Keep a separate record of communications or documents
of confidential nature.
h. Have custody of the Great Seal of the Republic of the
Philippines.
7
Public Corporation
i. Prepare and submit to the approving authority, periodic
disposition schedules of non-current records which have no
historical, legal and/or claim value.
j. With the approval of the Executive Secretary, assist other
offices in the installation or improvement of their records
management system; and
k. Give instructions or deliver lectures and conduct practical
training to in-service trainees from other offices and to
students from educational institutions on records
management.51
The Records Division was elevated to an Office in 1975, with
the addition of the following functions:
1. Maintain and control vital documents and essential records
to support the functions of the OP in its day to day activities;
2. Monitor the flow of communications' from their time of
receipt up to their dispatch;
3. Service the documentary, information and reference
requirements of top management and action officers of the
OP, and the reference and research needs of other
government agencies and the general public;
4. Ensure the proper storage, maintenance, protection and
preservation of vital and presidential documents, and the
prompt disposal of obsolete and valueless records;
5. Effect the prompt publication/dissemination of laws,
presidential issuances and classified documents;
6. Provide computerized integrated records management
support services for easy reference and retrieval of data and
information; and
7. To be able to represent the OP and OP officials in response
to Subpoena Duces Tecum and Testificandum served by
courts and other investigating bodies.52
For purposes of verification of the appointment paper's
existence and authenticity, the appointment paper must bear
the security marks (i.e., handwritten signature of the
President, bar code, etc.) and must be accompanied by a
transmittal letter from the MRO.
The testimony of Mr. Mariani to Dimaandal, Director IV of the
MRO, underscores the purpose of the release of papers
through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1,
series of 1958 to (1) receive, record, and screen all incoming
correspondence, telegrams, documents, and papers; (2)
follow up on correspondence forwarded to entities outside the
Office of the President ("OP") to assure that prompt replies
are made and copies thereof furnished the OP; (3) timely
dispatch all outgoing documents and correspondence; (4)
have custody of records of the OP, except personal papers of
the President, and keep them in such condition as to meet the
documentary and reference requirements of the Office; (5)
keep and maintain a filing and records system for Acts,
Memoranda, Orders, Circulars, correspondence, and other
pertinent documents for ready reference and use; ( 6) issue
certified copies of documents on file as requested and in
accordance with prevailing standard operating procedures; (7)
maintain and control vital documents and essential records to
support the OP in its day-to-day activities; (8) monitor the flow
of communications from the time of receipt up to their
dispatch; and (9) other related functions.
xxxx
Q: As you previously mentioned, the MRO is the custodian of
all documents emanating from Malacañang pursuant to its
mandate under Memorandum Order No. 1, Series of 1958. Is
the MRO required to follow a specific procedure in dispatching
outgoing documents?
A: Yes.
Q: Is this procedure observed for the release of an
appointment paper signed by the President? A: Yes. It is
observed for the release of the original copy of the
appointment paper signed by the President.
Q: Can you briefly illustrate the procedure for the release of
the original copy of the appointment paper signed by the
President?
A: After an appointment paper is signed by the President, the
Office of the Executive Secretary (OES) forwards the
appointment paper bearing the stamp mark, barcode, and
hologram of the Office of the President, together with a
transmittal letter, to the MRO for official release. Within the
same day, the MRO sends the original copy of the
appointment paper together with the transmittal letter and a
delivery receipt which contains appropriate spaces for the
name of the addressee, the date released, and the date
received by the addressee. Only a photocopy of the
appointment is retained for the MRO's official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxxx
Q: What is the legal basis for the issuance of the MRO Service
Guide, if any?
A: The MRO Service Guide was issued pursuant to
Memorandum Circular No. 35, Series of 2003 and
Memorandum Circular No. 133, Series of 2007.
xxxx
Q: Do you exercise any discretion in the release of documents
forwarded to the MRO for transmittal to various offices?
A: No. We are mandated to immediately release all documents
and correspondence forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today,
when is it officially released by the MRO to the department or
agency concerned?
A: The document is released within the day by the MRO if the
addressee is within Metro Manila. For example, in the case of
the appointment paper of Dindo Venturanza, the OES
8
Public Corporation
forwarded to the MRO on March 12, 2010 his original
appointment paper dated February 23, 2010 and the
transmittal letter dated March 9, 2010 prepared by the OES.
The MRO released his appointment paper on the same day or
on March 12, 2010, and was also received by the DOJ on
March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an office or
department within Malacañan without going through the
MRO?
A: If a document does not pass through the MRO contrary to
established procedure, the MRO cannot issue a certified true
copy of the same because as far as the MRO is concerned, it
does not exist in our official records, hence, not an official
document from the Malacañang. There is no way of verifying
the document's existence and authenticity unless the
document is on file with the MRO even if the person who
claims to have in his possession a genuine document furnished
to him personally by the President. As a matter of fact, it is
only the MRO which is authorized to issue certified true copies
of documents emanating from Malacañan being the official
custodian and central repository of said documents. Not even
the OES can issue a certified true copy of documents prepared
by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the
Malacañang Palace. All incoming and outgoing documents and
correspondence must pass through the MRO. As the official
custodian, the MRO is in charge of the official release of
documents.
Q: What if an appointment paper was faxed by the Office of
the Executive Secretary to the appointee, is that considered
an official release by the MRO?
A: No. It is still the MRO which will furnish the original copy of
the appointment paper to the appointee. That appointment
paper is, at best, only an "advanced copy."
Q: Assuming the MRO has already received the original
appointment paper signed by the President together with the
transmittal letter prepared by the OES, you said that the MRO
is bound to transmit these documents immediately, that is, on
the same day?
A: Yes.
Q: Were there instances when the President, after the original
appointment paper has already been forwarded to the MRO,
recalls the appointment and directs the MRO not to transmit
the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the
MRO, was there any instance when it was directed to recall
the appointment and retrieve the documents already
transmitted? A: Yes, but only in a few instances. Sometimes,
when the MRO messenger is already in transit or while he is
already in the agency or office concerned, we get a call to hold
the delivery. Q: You previously outlined the procedure
governing the transmittal of original copies of appointment
papers to the agency or office concerned. Would you know if
this procedure was followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the
procedure has been followed. However, it was unusually
disregarded when the appointments numbering more than
800 were made by then President Arroyo in March 2010. The
MRO did not even know about some of these appointments
and we were surprised when we learned about them in the
newspapers.
Q: You mentioned that then President Arroyo appointed more
than 800 persons in the month of March alone. How were you
able to determine this number?
A: My staff counted all the appointments made by then
President An-oyo within the period starting January 2009 until
June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments
made by then President Arroyo in the month of March 2010
compared to the other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and
the graphical representation thereof.
Q: If those documents will be shown to you, will you be able
to recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of
presidential appointees per month since January 2009 until
June 2010, and a graphical representation thereof. Can you
go over these documents and tell us the relation of these
documents to the ones you previously mentioned?
A: These are [sic] the Certification with the table of statistics
I prepared after we counted the appointments, as well as the
graph thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010,
how many appointment papers and transmittal letters were
released through the MRO?
A: Only 133 appointment papers were released through the
MRO.
Q: In some of these transmittal letters and appointment
papers which were not released through the MRO but
apparently through the OES, there were portions on the stamp
of the OES which supposedly indicated the date and time it
was actually received by the agency or office concerned but
were curiously left blank, is this regular or irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery
receipt attached to the transmittal letter is filled out
9
Public Corporation
completely because the dates when the original appointment
papers were actually received are very material. It is a
standard operating procedure for the MRO personnel to ask
the person receiving the documents to write his/her name, his
signature, and the date and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment
papers apparently released by the OES are concerned, what
is the actual date when the agency or the appointee
concerned received it?
A: I cannot answer. There is no way of knowing when they
were actually received because the date and time were
deliberately or inadvertently left blank.
Q: Can we say that the date appearing on the face of the
transmittal letters or the appointment papers is the actual date
when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual
that the person who received these documents did not
indicate the date and time when it was received because these
details are very important.53
The MRO's exercise of its mandate does not prohibit the
President or the Executive Secretary from giving the
appointment paper directly to the appointee. However, a
problem may arise if an appointment paper is not coursed
through the MRO and the appointment paper is lost or the
appointment is questioned. The appointee would then have to
prove that the appointment paper was directly given to him.
Dimaandal's counsel made this manifestation about
petitioners' appointment papers and their transmittal:
Your Honors, we respectfully request for the following
markings to be made:
1. A) The Transmittal Letter pertinent to the appointment of
petitioner DINDO VENTURANZA dated March 9, 2010 as
Exhibit "2-F" for the respondents;
B) The delivery receipt attached in front of the letter bearing
the date March 12, 2010 as Exhibit "2-F-l";
C) The Appointment Paper of DINDO VENTURANZA dated
February 23, 2010 as Exhibit "2-G" for the respondents;
2. A) The Transmittal Letter pertinent to the appointment of
CHELOY E. VELICARIA-GARAFIL turned over to the MRO on
May 13, 2010 consisting of seven (7) pages as Exhibits "2-H,"
"2-H-l," "2-H-2," "2-H-3," "2-H-4," "2-H-5," and "2-H-6"
respectively for the respondents;
i. The portion with the name "CHELOY E. VELICARIAGARAFIL"
as "State Solicitor II, Office of the Solicitor General" located
on the first page of the letter as Exhibit "2-H-7;"
ii. The portion rubber stamped by the Office of the Executive
Secretary located at the back of the last page of the -letter
showing receipt by the DOJ with blank spaces for the date and
time when it was actually received as Exhibit "2-H-8;"
B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL
dated March 5, 2010 as Exhibit "2-I" for the respondents;
xxxx
4. A) The Transmittal Letter pertinent to the appointment of
EDDIE U. TAMONDONG dated 8 March 2010 but turned over
to the MRO only on May 6, 2010 consisting of two (2) pages
as Exhibits "2-L" and "2-L-l" respectively for the respondents;
(a) The portion with the name "EDDIE U. TAMONDONG" as
"Member, representing the Private Sector, Board of Directors"
as Exhibit "2-L-2";
(b) The portion rubber stamped by the Office of the Executive
Secretary located at the back of the last page of the letter
showing receipt by Ma. Carissa O. Coscuella with blank spaces
for the date and time when it was actually received as Exhibit
"2-L-3";
xxxx
8. A) The Transmittal Letter pertinent to the appointments of
x x x FRANCISCA BESTOYONG-ROSQUITA dated March 8,
2010 but turned over to the MRO on May 13, 2010 as Exhibit
"2-T" for the respondents;
xxxx
(c) The portion with the name "FRANCISCA
BESTOYONGROSQUIT A" as "Commissioner, Representing
Region I and the Cordilleras" as Exhibit "2-T-3·"
(d) The portion rubber stamped by the Office of the Executive
Secretary at the back thereof showing receipt by Masli A.
Quilaman of NCIP-QC on March 15, 2010 as Exhibit "2-T-4;"
xxxx
D) The Appointment Paper of FRANCISCA
BESTOYONGROSQUIT A dated March 5, 2010 as Exhibit "2-
W" for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of
IRMA A. VILLANUEVA as Administrator for Visayas, Board of
Administrators, Cooperative Development Authority,
Department of Finance dated March 8, 2010 as Exhibit "2-X"
for the respondents;
(a) The portion rubber stamped by the Office of the Executive
Secretary at the back thereof showing receipt by DOF with
blank spaces for the date and time when it was actually
received as Exhibit "2-X-1 ;"
B) The Appointment Paper of IRMA A. VILLANUEVA dated
March 3, 2010 as Exhibit "2-Y" for the respondents.54
The testimony of Ellenita G. Gatbunton, Division Chief of File
Maintenance and Retrieval Division of the MRO, supports
Dimaandal's counsel's manifestation that the transmittal of
petitioners' appointment papers is questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was
appointed as State Solicitor II of the Office of the Solicitor
General, was her appointment paper released through the
MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to
the MRO on May 13, 2010. The transmittal letter that was
10
Public Corporation
turned over to the MRO was already stamped "released" by
the Office of the Executive Secretary, but the date and time
as to when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over
to the MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as
member of the Board of Directors of Subic Bay Metropolitan
Authority, was her [sic] appointment paper released through
the MRO?
A: No. His appointment paper dated March 1, 2010, with its
corresponding transmittal letter, was merely turned over to
the MRO on May 6, 2010. The transmittal letter that was
turned over to the MRO was already stamped "released" by
the Office of the Executive Secretary, but the date and time
as to when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over
to the MRO.
xxxx
Q: In the case of Francisca Bestoyong-Resquita who was
appointed as Commissioner of the National Commission on
Indigenous Peoples, representing Region 1 and the
Cordilleras, was her appointment paper released thru the
MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to
the MRO on May 13, 2010. The transmittal letter that was
turned over to the MRO was already stamped "released" by
the Office of the Executive Secretary and received on March
15, 2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over
to the MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as
Administrator for Visayas of the Cooperative Development
Authority, was her appointment paper released thru the MRO?
A: No. Her appointment paper dated March 3, 2010, with its
corresponding transmittal letter, was merely turned over to
the MRO on May 4, 2010. The transmittal letter that was
turned over to the MRO was already stamped "released" by
the Office of the Executive Secretary, but the date and time
as to when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over
to the MR0.55
The possession of the original appointment paper is not
indispensable to 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
office.56 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. Vacant
Position
An appointment can be made only to a vacant office. An
appointment 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.57
To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson)
occupied the post of provincial fiscal of Negros Oriental. He
was later nominated and confirmed as provincial fiscal of
Tarlac. The President nominated and the Commission on
Appointments confirmed Honorio Romero (Romero) as
provincial fiscal of Negros Oriental as Lacson's replacement.
Romero took his oath of office, but Lacson neither accepted
the appointment nor assumed office as provincial fiscal of
Tarlac. This Court ruled that Lacson remained as provincial
fiscal of Negros Oriental, having declined the appointment as
provincial fiscal of Tarlac. There was no vacancy to which
Romero could be legally appointed; hence, Romero's
appointment as provincial fiscal ofNegros Oriental vice Lacson
was invalid.
The appointment to a government post like that of provincial
fiscal to be complete involves several steps. First, comes the
nomination by the President. Then to make that nomination
valid and permanent, the Commission on Appointments of the
Legislature has to confirm said nomination. The last step is
the acceptance thereof by the appointee by his assumption of
office. The first two steps, nomination and confirmation,
constitute a mere offer of a post. They are acts of the
Executive and Legislative departments of the Government. But
the last necessary step to make the appointment complete
and effective rests solely with the appointee himself. He may
or he may not accept the appointment or nomination. As held
in the case of Borromeo vs. Mariano, 41 Phil. 327, "there is no
power in this country which can compel a man to accept an
office." Consequently, since Lacson has declined to accept his
appointment as provincial fiscal of Tarlac and no one can
compel him to do so, then he continues as provincial fiscal of
Negros Oriental and no vacancy in said office was created,
unless Lacson had been lawfully removed as such fiscal of
Negros Oriental.59
Paragraph (b ), Section 1 of EO 2 considered as midnight
appointments those appointments to offices that will only be
vacant on or after 11 March 2010 even though the
appointments are made prior to 11 March 2010. EO 2
remained faithful to the intent of Section 15, Article VII of the
1987 Constitution: the outgoing President is prevented from
continuing to rule the country indirectly after the end of his
term.
Acceptance by the Qualified Appointee
11
Public Corporation

Acceptance is indispensable to complete an appointment.

Assuming office and taking the oath amount to acceptance of
the appointment.60 An oath of office is a qualifying
requirement for a public office, a prerequisite to the full
investiture of the office.61

Javier v. Reyes62 is instructive in showing how acceptance is

indispensable to complete an appointment. On 7 November
1967, petitioner Isidro M. Javier (Javier) was appointed by
then Mayor Victorino B. Aldaba as the Chief of Police of
Malolos, Bulacan. The Municipal Council confirmed and
approved Javier's appointment on the same date. Javier took
his oath of office on 8 November 1967, and subsequently
discharged the rights, prerogatives, and duties of the office.
On 3 January 1968, while the approval of Javier's appointment
was pending with the CSC, respondent Purificacion C. Reyes
(Reyes), as the new mayor of Malolos, sent to the . CSC a
letter to recall Javier's appointment. Reyes also designated
Police Lt. Romualdo F. Clemente as Officer-in-Charge of the
police department. The CSC approved Javier's appointment as
permanent on 2 May 1968, and even directed Reyes to
reinstate Javier. Reyes, on the other hand, pointed to the
appointment of Bayani Bernardo as Chief of Police of Malolos,
Bulacan on 4 September 1967. This Court ruled that Javier's
appointment prevailed over that of Bernardo. It cannot be said
that Bernardo accepted his appointment because he never
assumed office or took his oath.

Excluding the act of acceptance from the appointment process

leads us to the very evil which we seek to avoid (i.e.,
antedating of appointments). Excluding the act of acceptance
will only provide more occasions to honor the Constitutional
provision in the breach. The inclusion of acceptance by the
appointee as an integral part of the entire appointment
process prevents the abuse of the Presidential power to
appoint. It is relatively easy to antedate appointment papers
and make it appear that they were issued prior to the
appointment ban, but it is more difficult to simulate the entire
appointment process up until acceptance by the appointee.

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.

Petitioners have failed to raise any valid ground for the Court
to declare EO 2, or any part of it, unconstitutional.
Consequently, EO 2 remains valid and constitutional.

WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and

212030 are DENIED, and the petition in G.R. No. 209138 is
DISMISSED. The appointments of petitioners Atty. Cheloy E.
Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Venturanza
(G.R. No. 206290), Irma A. Villanueva, and Francisca B.
Rosquita (G.R. No. 209138), and Atty. Eddie U. Tamondong
(G.R. No. 212030) are declared VOID. We DECLARE that
Executive Order No. 2 dated 30 July 2010 is VALID and
CONSTITUTIONAL.

SO ORDERED.

12
Public Corporation
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G.
ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER
OF THE BUREAU OF CUSTOMS, AND GUILLERMO
CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents,
COMMISSION ON APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional
boundaries. In this petition for prohibition, the petitioners,
who are taxpayers, lawyers, members of the Integrated Bar
of the Philippines and professors of Constitutional Law, seek
to enjoin the respondent Salvador Mison from performing the
functions of the Office of Commissioner of the Bureau of
Customs and the respondent Guillermo Carague, as Secretary
of the Department of Budget, from effecting disbursements in
payment of Mison's salaries and emoluments, on the ground
that Mison's appointment as Commissioner of the Bureau of
Customs is unconstitutional by reason of its not having been
confirmed by the Commission on Appointments. The
respondents, on the other hand, maintain the constitutionality
of respondent Mison's appointment without the confirmation
of the Commission on Appointments.
Because of the demands of public interest, including the need
for stability in the public service, the Court resolved to give
due course to the petition and decide, setting aside the finer
procedural questions of whether prohibition is the proper
remedy to test respondent Mison's right to the Office of
Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court
allowed the Commission on Appointments to intervene and file
a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed
by intervenor's reply thereto. The parties were also heard in
oral argument on 8 December 1987.
This case assumes added significance because, at bottom line,
it involves a conflict between two (2) great departments of
government, the Executive and Legislative Departments. It
also occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of
relatively clear provisions in the Constitution. In cases like this,
we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated in Gold Creek Mining
Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to
give effect to the intent of the framers of the organic law and
of the people adopting it. The intention to which force is to be
given is that which is embodied and expressed in the
constitutional provisions themselves.
The Court will thus construe the applicable constitutional
provisions, not in accordance with how the executive or the
legislative department may want them construed, but in
accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the
heads of the departments, agencies, commissions or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.
It is readily apparent that under the provisions of the 1987
Constitution, just quoted, there are four (4) groups of officers
whom the President shall appoint. These four (4) groups, to
which we will hereafter refer from time to time, 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; 2
Second, all other officers of the Government whose
appointments are not otherwise provided for by law; 3
Third, those whom the President may be authorized by law to
appoint;
Fourth, officers lower in rank 4 whose appointments the
Congress may by law vest in the President alone.
The first group of officers is clearly appointed with the consent
of the Commission on Appointments. Appointments of such
officers are initiated by nomination and, if the nomination is
confirmed by the Commission on Appointments, the President
appoints. 5
The second, third and fourth groups of officers are the present
bone of contention. Should they be appointed by the President
with or without the consent (confirmation) of the Commission
on Appointments? By following the accepted rule in
constitutional and statutory construction that an express
enumeration of subjects excludes others not enumerated, it
would follow that only those appointments to positions
expressly stated in the first group require the consent
(confirmation) of the Commission on Appointments. But we
need not rely solely on this basic rule of constitutional
construction. We can refer to historical background as well as
to the records of the 1986 Constitutional Commission to
determine, with more accuracy, if not precision, the intention
of the framers of the 1987 Constitution and the people
adopting it, on whether the appointments by the President,
under the second, third and fourth groups, require the consent
13
Public Corporation
(confirmation) of the Commission on Appointments. Again, in
this task, the following advice of Mr. Chief Justice J. Abad
Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a
constitutional provision must be presumed to have been
framed and adopted in the light and understanding of prior
and existing laws and with reference to them. "Courts are
bound to presume that the people adopting a constitution are
familiar with the previous and existing laws upon the subjects
to which its provisions relate, and upon which they express
their judgment and opinion in its adoption." (Barry vs. Truax
13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935
Constitution, it is provided that —
xxx xxx xxx
(3) The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the army from
the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law
to appoint; but the Congress may by law vest the appointment
of inferior officers, in the President alone, in the courts, or in
the heads of departments.
(4) The President shall havethe power to make appointments
during the recess of the Congress, but such appointments
shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on
Appointments, shall appoint ambassadors, other public
ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of bureaus
and offices, the officers of the Armed Forces of the Philippines
from the rank of Brigadier General or Commodore, and all
other officers of The government whose appointments are not
herein otherwise provided for, and those whom he may be
authorized by law to appoint. However, the Batasang
Pambansa may by law vest in the Prime Minister, members of
the Cabinet, the Executive Committee, Courts, Heads of
Agencies, Commissions, and Boards the power to appoint
inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential
appointments required the consent (confirmation) of the
Commission on Appointments. It is now a sad part of our
political history that the power of confirmation by the
Commission on Appointments, under the 1935 Constitution,
transformed that commission, many times, into a venue of
"horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the
authoritarian pattern in which it was molded and remolded by
successive amendments, placed the absolute power of
appointment in the President with hardly any check on the
part of the legislature.
Given the above two (2) extremes, one, in the 1935
Constitution and the other, in the 1973 Constitution, 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 on 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 of lower rank.
The proceedings in the 1986 Constitutional Commission
support this conclusion. The original text of Section 16, Article
VII, as proposed by the Committee on the Executive of the
1986 Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the
consent of a Commission on Appointment, shall appoint the
heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain
and all other officers of the Government whose appointments
are not otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may by
law vest the appointment of inferior officers in the President
alone, in the courts, or in the heads of
departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart
provision in the 1935 Constitution. When the frames discussed
on the floor of the Commission the proposed text of Section
16, Article VII, a feeling was manifestly expressed to make the
power of the Commission on Appointments over presidential
appointments more limited than that held by the Commission
in the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be
recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take
a few minutes of our time to lay the basis for some of the
amendments that I would like to propose to the Committee
this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the
Commission on Appointments be limited to the department
heads, ambassadors, generals and so on but not to the levels
of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there
were two (2) major changes proposed and approved by the
Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement of
confirmation by the Commission on Appointments; and (2) the
exclusion of appointments made under the second
sentence 9 of the section from the same requirement. The
14
Public Corporation
records of the deliberations of the Constitutional Commission
show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on
page 7, Section 16, line 26 which is to delete the words "and
bureaus," and on line 28 of the same page, to change the
phrase 'colonel or naval captain to MAJOR GENERAL OR REAR
ADMIRAL. This last amendment which is co-authored by
Commissioner de Castro is to put a period (.) after the word
ADMIRAL, and on line 29 of the same page, start a new
sentence with: HE SHALL ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one.
The first proposed amendment is to delete the words "and
bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners,
what would be the justification of the proponent for such a
deletion?
MR. FOZ: The position of bureau director is actually quite low
in the executive department, and to require further
confirmation of presidential appointment of heads of bureaus
would subject them to political influence.
MR. REGALADO: The Commissioner's proposed amendment
by deletion also includes regional directors as distinguished
from merely staff directors, because the regional directors
have quite a plenitude of powers within the regions as
distinguished from staff directors who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the
supervisiopn of the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner
Foz? The Commissioner proposed an amendment to delete
'and bureaus on Section 16. Who will then appoint the bureau
directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but
their appointment shall no longer be subject to confirmation
by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same
answer of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of
the Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that
this matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by
one. We will first vote on the deletion of the phrase 'and
bureaus on line 26, such that appointments of bureau
directors no longer need confirmation by the Commission on
Appointment.
Section 16, therefore, would read: 'The President shall
nominate, and with the consent of a Commission on
Appointments, shall appoint the heads of the executive
departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase
'and bureaus' on page 7, line 26? (Silence) The Chair hears
none; the amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed
amendment on page 7, line 28. 1 propose to put a period (.)
after 'captain' and on line 29, delete 'and all' and substitute it
with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts
the proposed amendment because it makes it clear that those
other officers mentioned therein do not have to be confirmed
by the Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment
to his amendment, so that after "captain" we insert the
following words: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for
in the Constitution whose appointments are vested in the
President, as a matter of fact like those of the different
constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in
Section 16 is not an exclusive list of those appointments which
constitutionally require confirmation of the Commission on
Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of
the words I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed
amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN
THIS CONSTITUTION.
15
Public Corporation
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE
APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified by the
Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes
those officers which the Constitution does not require
confirmation by the Commission on Appointments, like the
members of the judiciary and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the
modification made by Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment
of Commissioners Foz and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted by
the Committee? (Silence) The Chair hears none; the
amendment, as amended, is approved 10 (Emphasis
supplied).
It is, therefore, clear that appointments to the second and
third groups of officers can be made by the President without
the consent (confirmation) of the Commission on
Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales,
that the second sentence of Sec. 16, Article VII reading-
He (the President) shall also appoint all other officers of the
Government whose appointments are not otherwise provided
for by law and those whom he may be authorized by law to
appoint . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the
President shall "in like manner" appoint the officers mentioned
in said second sentence. In other words, the President shall
appoint the officers mentioned in said second sentence in the
same manner as he appoints officers mentioned in the first
sentence, that is, by nomination and with the consent
(confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second
sentence is not necessarily supportive of the conclusion he
arrives at. For, as the Solicitor General argues, the word "also"
could mean "in addition; as well; besides, too" (Webster's
International Dictionary, p. 62, 1981 edition) which meanings
could, on the contrary, stress that the word "also" in said
second sentence means that the President, in addition to
nominating and, with the consent of the Commission on
Appointments, appointing the officers enumerated in the first
sentence, can appoint (without such consent (confirmation)
the officers mentioned in the second sentence-
Rather than limit the area of consideration to the possible
meanings of the word "also" as used in the context of said
second sentence, the Court has chosen to derive significance
from the fact that the first sentence speaks of nomination by
the President and appointment by the President with the
consent of the Commission on Appointments, whereas, the
second sentence speaks only of appointment by the President.
And, this use of different language in two (2) sentences
proximate to each other underscores a difference in message
conveyed and perceptions established, in line with Judge
Learned Hand's observation that "words are not pebbles in
alien juxtaposition" but, more so, because the recorded
proceedings of the 1986 Constitutional Commission clearly
and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII
of the 1987 Constitution, there are officers whose
appointments require no confirmation of the Commission on
Appointments, even if such officers may be higher in rank,
compared to some officers whose appointments have to be
confirmed by the Commission on Appointments under the first
sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the
appointment of the Central Bank Governor requires no
confirmation by the Commission on Appointments, even if he
is higher in rank than a colonel in the Armed Forces of the
Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely
underscore the purposive intention and deliberate judgment
of the framers of the 1987 Constitution that, 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, Art. VII, appointments of other officers
are left to the President without need of confirmation by the
Commission on Appointments. This conclusion is inevitable, if
we are to presume, as we must, that the framers of the 1987
Constitution were knowledgeable of what they were doing and
of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or
presidential in character. Limitations on or qualifications of
such power should be strictly construed against them. Such
limitations or qualifications must be clearly stated in order to
be recognized. But, it is only in the first sentence of Sec. 16,
Art. VII where it is clearly stated that appointments by the
President to the positions therein enumerated require the
consent of the Commission on Appointments.
As to the fourth group of officers whom the President can
appoint, the intervenor Commission on Appointments
underscores the third sentence in Sec. 16, Article VII of the
1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions, or
boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment
of lower-ranked officers in the President alone, this implies
that, in the absence of such a law, lower-ranked officers have
to be appointed by the President subject to confirmation by
the Commission on Appointments; and, if this is so, as to
lower-ranked officers, it follows that higher-ranked officers
should be appointed by the President, subject also to
confirmation by the Commission on Appointments.
16
Public Corporation
The respondents, on the other hand, submit that the third
sentence of Sec. 16, Article VII, abovequoted, merely declares
that, as to lower-ranked officers, the Congress may by law
vest their appointment in the President, in the courts, or in the
heads of the various departments, agencies, commissions, or
boards in the government. No reason however is submitted
for the use of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the
considered opinion, after a careful study of the deliberations
of the 1986 Constitutional Commission, that the use of the
word alone" after the word "President" in said third sentence
of Sec. 16, Article VII is, more than anything else, a slip
or lapsus in draftmanship. It will be recalled that, in the 1935
Constitution, the following provision appears at the end of par.
3, section 1 0, Article VII thereof —
...; but the Congress may by law vest the appointment of
inferior officers, in the President alone, in the courts, or in the
heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears
immediately after the provision which makes practically all
presidential appointments subject to confirmation by the
Commission on Appointments, thus-
3. The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the
Government whose appointments are not herein provided for,
and those whom he may be authorized by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a
general rule, presidential appointments to confirmation by the
Commission on Appointments, the same 1935 Constitution
saw fit, by way of an exception to such rule, to provide that
Congress may, however, by law vest the appointment of
inferior officers (equivalent to 11 officers lower in rank"
referred to in the 1987 Constitution) in the President alone, in
the courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the
clear and expressed intent of its framers was to exclude
presidential appointments from confirmation by the
Commission on Appointments, except appointments to offices
expressly mentioned in the first sentence of Sec. 16, Article
VII. Consequently, there was no reason to use in the third
sentence of Sec. 16, Article VII the word "alone" after the
word "President" in providing that Congress may by law vest
the appointment of lower-ranked officers in the President
alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the
President) may be authorized by law to appoint is already
vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the
same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have
stated merely that, in the case of lower-ranked officers, the
Congress may by law vest their appointment in the President,
in the courts, or in the heads of various departments of the
government. In short, the word "alone" in the third sentence
of Sec. 16, Article VII of the 1987 Constitution, as a literal
import from the last part of par. 3, section 10, Article VII of
the 1935 Constitution, appears to be redundant in the light of
the second sentence of Sec. 16, Article VII. And, this
redundancy cannot prevail over the clear and positive intent
of the framers of the 1987 Constitution that presidential
appointments, except those mentioned in the first sentence of
Sec. 16, Article VII, are not subject to confirmation by the
Commission on Appointments.
Coming now to the immediate question before the Court, 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. As a matter of fact, as already
pointed out, while the 1935 Constitution includes "heads of
bureaus" among those officers whose appointments need the
consent of the Commission on Appointments, the 1987
Constitution on the other hand, deliberately excluded the
position of "heads of bureaus" from appointments that need
the consent (confirmation) of the Commission on
Appointments.
Moreover, the President is expressly authorized by law to
appoint the Commissioner of the Bureau of Customs. The
original text of Sec. 601 of Republic Act No. 1937, otherwise
known as the Tariff and Customs Code of the Philippines,
which was enacted by the Congress of the Philippines on 22
June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs
shall have one chief and one assistant chief, to be known
respectively as the Commissioner (hereinafter known as the
'Commissioner') and Assistant Commissioner of Customs, who
shall each receive an annual compensation in accordance with
the rates prescribed by existing laws. The Assistant
Commissioner of Customs shall be appointed by the proper
department head.
Sec. 601 of Republic Act No. 1937, was amended on 27
October 1972 by Presidential Decree No. 34, amending the
Tariff and Customs Code of the Philippines. Sec. 601, as thus
amended, now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau
of Customs shall have one chief and one assistant chief, to be
known respectively as the Commissioner (hereinafter known
as Commissioner) and Deputy Commissioner of Customs, who
shall each receive an annual compensation in accordance with
the rates prescribed by existing law. The Commissioner and
the Deputy Commissioner of Customs shall be appointed by
the President of the Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were
approved during the effectivity of the 1935 Constitution, under
which the President may nominate and, with the consent of
the Commission on Appointments, appoint the heads of
bureaus, like the Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep.
Act No. 1937 and PD No. 34 have to be read in harmony with
Sec. 16, Art. VII, with the result that, while the appointment
of the Commissioner of the Bureau of Customs is one that
devolves on the President, as an appointment he is
17
Public Corporation

authorizedby law to make, such appointment, however, no

longer needs the confirmation of the Commission on
Appointments.

Consequently, we rule that the President of the Philippines

acted within her constitutional authority and power in
appointing respondent Salvador Mison, Commissioner of the
Bureau of Customs, without submitting his nomination to the
Commission on Appointments for confirmation. He is thus
entitled to exercise the full authority and functions of the office
and to receive all the salaries and emoluments pertaining
thereto.

WHEREFORE, the petition and petition in intervention should

be, as they are, hereby DISMISSED. Without costs.

SO ORDERED.

18
Public Corporation
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON
APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL
AND BAR COUNCIL AND HUMAN RIGHTS AND
HESIQUIO R. MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent
Hesiquio R. Mallillin
PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs.
Mison, 1 would have settled the question of which
appointments by the President, under the 1987 Constitution,
are to be made with and without the review of the Commission
on Appointments. The Mison case was the first major case
under the 1987 Constitution and in construing Sec. 16, Art.
VII of the 1987 Constitution which provides:
The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the
heads of the departments, agencies, commissions or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.
this Court, drawing extensively from the proceedings of the
1986 Constitutional Commission and the country's experience
under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of
Sec. 16, Art. VII are to be reviewed by the Commission on
Appointments, namely, "the heads of the executive
department, ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are
vested in him in this Constitution." All other appointments by
the President are to be made without the participation of the
Commission on Appointments. Accordingly, in the Mison case,
the appointment of therein respondent Salvador M. Mison as
head of the Bureau of Customs, without the confirmation of
the Commission on Appointments, was held valid and in
accordance with the Constitution.
The Mison case doctrine did not foreclose contrary opinions.
So with the very provisions of Sec. 16, Art. VII as designed by
the framers of the 1987 Constitution. But the Constitution, as
construed by this Court in appropriate cases, is the supreme
law of the land. And it cannot be over-stressed that the
strength of the Constitution, with all its imperfections, lies in
the respect and obedience accorded to it by the people,
especially the officials of government, who are the subjects of
its commands.
Barely a year after Mison, the Court is again confronted with
a similar question, this time, whether or not the appointment
by the President of the Chairman of the Commission on
Human Rights (CHR), an "independent office" created by the
1987 Constitution, is to be made with or without the
confirmation of the Commission on Appointments (CA, for
brevity). Once more, as in Mison, the Court will resolve the
issue irrespective of the parties involved in the litigation,
mindful that what really matters are the principles that will
guide this Administration and others in the years to come.
Since the position of Chairman of the Commission on Human
Rights is not among the positions mentioned in the first
sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation
of the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the (CHR),
is to be made without the review or participation of the
Commission on Appointments.
To be more precise, the appointment of the Chairman and
Members of the Commission on Human Rights is not
specifically provided for in the Constitution itself, unlike the
Chairmen and Members of the Civil Service Commission, the
Commission on Elections and the Commission on Audit, whose
appointments are expressly vested by the Constitution in the
President with the consent of the Commission on
Appointments. 2
The President appoints the Chairman and Members of the
Commission on Human Rights pursuant to the second
sentence in Section 16, Art. VII, that is, without the
confirmation of the Commission on Appointments because
they are among the officers of government "whom he (the
President) may be authorized by law to appoint." And Section
2(c), Executive Order No. 163, 5 May 1987, authorizes the
President to appoint the Chairman and Members of the
Commission on Human Rights. It provides:
(c) The Chairman and the Members of the Commission on
Human Rights shall be appointed by the President for a term
of seven years without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the
predecessor.
The above conclusions appear to be plainly evident and,
therefore, irresistible. However, the presence in this case of
certain elements — absent in the Mison case — makes
necessary a closer scrutiny. The facts are therefore essential.
On 27 August 1987, the President of the
Philippines designated herein petitioner Mary Concepcion
Bautista as "Acting Chairman, Commission on Human Rights."
The letter of designation reads:
27 August 1987
M a d a m:
19
Public Corporation

You are hereby designated ACTING CHAIRMAN, COMMISSION Republic of the Philippines, and obey all the laws of the land
ON HUMAN RIGHTS, to succeed the late Senator Jose W. without mental reservation or purpose of evasion.
Diokno and Justice J. B. L. Reyes.
SO HELP ME GOD.
Very truly yours,
MARY CONCEPCION BAUTISTA
CORAZON C. AQUINO
SUBSCRIBED AND SWORN TO before me this 22nd day of
HON. MARY CONCEPCION BAUTISTA 3 December in the year of Our Lord, 1988 in Manila.

Realizing perhaps the need for a permanent chairman and MARCELO B. FERNAN
members of the Commission on Human Rights, befitting an
independent office, as mandated by the Constitution, 4 the Chief Justice
President of the Philippines on 17 December 1988 extended Supreme Court of the Philippines 6
to petitioner Bautista a permanent appointment as Chairman Immediately, after taking her oath of office as Chairman of
of the Commission. The appointment letter is as follows: the Commission on Human Rights, petitioner Bautista
17 December 1988 discharged the functions and duties of the Office of Chairman
of the Commission on Human Rights which, as previously
The Honorable stated, she had originally held merely in an acting capacity
The Chairman beginning 27 August 1987.
Commission on Human Rights
Pasig, Metro Manila On 9 January 1989, petitioner Bautista received a letter from
the Secretary of the Commission on Appointments requesting
M a d a m: her to submit to the Commission certain information and
documents as required by its rules in connection with the
Pursuant to the provisions of existing laws, the following are confirmation of her appointment as Chairman of the
hereby appointed to the positions indicated opposite their Commission on Human Rights. 7 On 10 January 1989, the
respective names in the Commission on Human Rights: Commission on Appointments' Secretary again wrote
MARY CONCEPCION BAUTISTA — Chairman petitioner Bautista requesting her presence at a meeting of
ABELARDO L. APORTADERA, JR — Member the Commission on Appointments Committee on Justice,
SAMUEL SORIANO — Member Judicial and Bar Council and Human Rights set for 19 January
HESIQUIO R. MALLILLIN — Member 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon
NARCISO C. MONTEIRO — Member Tower I, Roxas Boulevard, Pasay City that would deliberate on
her appointment as Chairman of the Commission on Human
By virtue hereof, they may qualify and enter upon the Rights. 8
performance of the duties of the office furnishing this Office
and the Civil Service Commission with copies of their oath of On 13 January 1989, petitioner Bautista wrote to the
office. Chairman of the Commission on Appointments stating, for the
reasons therein given, why she considered the Commission on
Very truly yours, Appointments as having no jurisdiction to review her
appointment as Chairman of the Commission on Human
CORAZON C. AQUINO 5 Rights. The petitioner's letter to the Commission on
Appointments' Chairman reads:
It is to be noted that by virtue of such appointment, petitioner
Bautista was advised by the President that she could qualify January 13, 1 989
and enter upon the performance of the duties of the office of
Chairman of the Commission on Human Rights, requiring her SENATE PRESIDENT JOVITO R. SALONGA
to furnish the office of the President and the Civil Service Chairman
Commission with copies of her oath of office. Commission on Appointments
Senate, Manila
On 22 December 1988, before the Chief Justice of this Court,
Hon. Marcelo B. Fernan, petitioner Bautista took her oath of S i r:
office by virtue of her appointment as Chairman of the
Commission on Human Rights. The full text of the oath of We acknowledge receipt of the communication from the
office is as follows: Commission on Appointments requesting our appearance on
January 19, 1989 for deliberation on our appointments.
OATH OF OFFICE
We respectfully submit that the appointments of the
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Commission commissioners of the Human Rights Commission
Street, Bangkal, Makati, Metro Manila having been appointed are not subject to confirmation by the Commission on
to the position of CHAIRMAN of the Commission on Human Appointments.
Rights, do solemnly swear that I will discharge to the best of
my ability all the duties and responsibilities of the office to The Constitution, in Article VII Section 16 which expressly
which I have been appointed; uphold the Constitution of the vested on the President the appointing power, has expressly
mentioned the government officials whose appointments are
20
Public Corporation

subject to the confirmation of the Commission on 1 February 1989

Appointments of Congress. The Commissioners of the
Commission on Human Rights are not included among those. HON. CATALINO MACARAIG, JR.
Executive Secretary
Where the confirmation of the Commission on Appointments Malacanang, Manila
is required, as in the case of the Constitutional Commissions
such as the Commission on Audit, Civil Service Commission S i r:
and the Commission on Elections, it was expressly provided This refers to the ad interim appointment which Her
that the nominations will be subject to confirmation of Excellency extended to Atty. Mary Concepcion Bautista on 14
Commission on Appointments. The exclusion again of the January 1989 as Chairperson of the Commission on Human
Commission on Human Rights, a constitutional office, from Rights.
this enumeration is a clear denial of authority to the
Commission on Appointments to review our appointments to As we conveyed to you in our letter of 25 January 1989, the
the Commission on Human Rights. Commission on Appointments, assembled in plenary (session)
on the same day, disapproved Atty. Bautista's ad
Furthermore, the Constitution specifically provides that this interim appointment as Chairperson of the Commission on
Commission is an independent office which: Human Rights in view of her refusal to submit to the
a. must investigate all forms of human rights violations jurisdiction of the Commission on Appointments.
involving civil and political rights; This is to inform you that the Commission on Appointments,
b. shall monitor the government's compliance in all our treaty likewise assembled in plenary (session) earlier today, denied
obligations on human rights. We submit that, the monitoring Senator Mamintal A. J. Tamano's motion for reconsideration
of all agencies of government, includes even Congress itself, of the disapproval of Atty. Bautista's ad interim appointment
in the performance of its functions which may affect human as Chairperson of the Commission on Human Rights.
rights; Very truly yours,
c. may call on all agencies of government for the RAOUL V. VICTORINO
implementation of its mandate. Secretary 11
The powers of the Commission on Appointments is in fact a On the same date (1 February 1989), the Commission on
derogation of the Chief Executive's appointing power and Appointments' Secretary informed petitioner Bautista that the
therefore the grant of that authority to review a valid exercise motion for reconsideration of the disapproval of her "ad
of the executive power can never be presumed. It must be interim appointment as Chairman of the Commission on
expressly granted. Human Rights" was denied by the Commission on
The Commission on Appointments has no jurisdiction under Appointments. The letter reads as follows:
the Constitution to review appointments by the President of 1 February 1989
Commissioners of the Commission on Human Rights.
ATTY. MARY CONCEPCION BAUTISTA
In view of the foregoing considerations, as Chairman of an Commission on Human Rights
independent constitutional office. I cannot submit myself to Integrated Bar of the Philippines
the Commission on Appointments for the purpose of Bldg. Pasig, Metro Manila
confirming or rejecting my appointment.
Dear Atty. Bautista:
Very truly yours,
Pursuant to Sec. 6 (a), Chapter II of the Rules of the
MARY CONCEPCION BAUTISTA Commission on Appointments, the denial by the Commission
Chairman9 on Appointments, assembled in plenary (session) earlier
In respondent Commission's comment (in this case), dated 3 today, of Senator Mamintal A.J. Tamano's motion for
February 1989, there is attached as Annex 1 a letter of the reconsideration of the disapproval of your ad
Commission on Appointments' Secretary to the Executive interim appointment as Chairperson of the Commission on
Secretary, Hon. Catalino Macaraig, Jr. making reference to the Human Rights is respectfully conveyed.
"ad interim appointment which Her Excellency extended to Thank you for your attention.
Atty. Mary Concepcion Bautista on 14 January 1989 as
Chairperson of the Commission on Human Rights" 10 and Very truly yours,
informing Secretary Macaraig that, as previously conveyed to
him in a letter of 25 January 1989, the Commission on RAOUL V. VICTORINO
Appointments disapproved petitioner Bautista's "ad Secretary 12
interim appointment' as Chairperson of the Commission on
In Annex 3 of respondent Commission's same comment, dated
Human Rights in view of her refusal to submit to the
3 February 1989, is a news item appearing in the 3 February
jurisdiction of the Commission on Appointments. The letter
1989 issue of the "Manila Standard" reporting that the
reads:
President had designated PCHR Commissioner Hesiquio R.
Mallillin as "Acting Chairman of the Commission" pending the
21
Public Corporation
resolution of Bautista's case which had been elevated to the
Supreme Court. The news item is here quoted in full, thus —
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential
Commission on Human Rights Chairman Mary Concepcion
Bautista whose appointment was rejected anew by the
Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R.
Mallillin as acting chairman of the Commission pending the
resolution of Bautista's case which had been elevated to the
Supreme Court.
The President's action followed after Congressional
Commission on Appointments Chairman, Senate President
Jovito Salonga declared Bautista can no longer hold on to her
position after her appointment was not confirmed for the
second time.
For all practical purposes, Salonga said Bautista can be
accused of usurpation of authority if she insists to stay on her
office.
In effect, the President had asked Bautista to vacate her office
and give way to Mallillin (Mari Villa) 13
On 20 January 1989, or even before the respondent
Commission on Appointments had acted on her "ad
interimappointment as Chairman of the Commission on
Human Rights" petitioner Bautista filed with this Court the
present petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and
unconstitutional and without any legal force and effect any
action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human
Rights, on the lawfully extended appointment of the petitioner
as Chairman of the Commission on Human Rights, on the
ground that they have no lawful and constitutional authority
to confirm and to review her appointment." 14
The prayer for temporary restraining order was "to enjoin the
respondent Commission on Appointments not to proceed
further with their deliberation and/or proceedings on the
appointment of the petitioner ... nor to enforce, implement or
act on any order, resolution, etc. issued in the course of their
deliberations." 15
Respondents were required to file comment within ten (10)
days. 16 On 7 February 1989, petitioner filed an amended
petition, with urgent motion for restraining order, impleading
Commissioner Hesiquio R. Mallillin the designated acting
chairman as party respondent and praying for the nullification
of his appointment. The succeeding day, a supplemental
urgent ex-parte motion was filed by petitioner seeking to
restrain respondent Mallillin from continuing to exercise the
functions of chairman and to refrain from demanding courtesy
resignations from officers or separating or dismissing
employees of the Commission.
Acting on petitioner's amended petition and supplemental
urgent ex-parte motion, the Court resolved to issue a
temporary restraining order directing respondent Mallillin to
cease and desist from effecting the dismissal, courtesy
resignation, i removal and reorganization and other similar
personnel actions. 17 Respondents were likewise required to
comment on said amended petition with allowance for
petitioner to file a reply within two (2) days from receipt of a
copy thereof.
Respondents Senator Salonga, the Commission on
Appointments the Committee on J & BC and Human Rights
filed a comment to the amended petition on 21 February
1989. 18 Petitioner filed her reply. 19 On 24 February 1989,
respondent Mallillin filed a separate comment. 20 The Court
required petitioner to reply to respondent Mallillin's comment
. 21 Petitioner filed her reply. 22
In deference to the Commission on Appointments, an
instrumentality of a co-ordinate and co-equal branch of
government, the Court did not issue a temporary restraining
order directed against it. However, this does not mean that
the issues raised by the petition, as met by the respondents'
comments, will not be resolved in this case. The Court will not
shirk from its duty as the final arbiter of constitutional issues,
in the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it
is clear that petitioner Bautista was extended by Her
Excellency, the President a permanent appointment as
Chairman of the Commission on Human Rights on 17
December 1988. Before this date, she was merely the "Acting
Chairman" of the Commission. Bautista's appointment on 17
December 1988 is an appointment that was for the President
solely to make, i.e., not an appointment to be submitted for
review and confirmation (or rejection) by the Commission on
Appointments. This is in accordance with Sec. 16, Art. VII of
the 1987 Constitution and the doctrine in Mison which is here
reiterated.
The threshold question that has really come to the fore is
whether the President, subsequent to her act of 17 December
1988, and after petitioner Bautista had qualified for the office
to which she had been appointed, by taking the oath of office
and actually assuming and discharging the functions and
duties thereof, could extend another appointment to the
petitioner on 14 January 1989, an "ad interim appointment"
as termed by the respondent Commission on Appointments or
any other kind of appointment to the same office of Chairman
of the Commission on Human Rights that called for
confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and
Legislative Departments of government, and after careful
deliberation, is constrained to hold and rule in the negative.
When Her Excellency, the President converted petitioner
Bautista's designation as Acting Chairman to a permanent
appointment as Chairman of the Commission on Human
Rights on 17 December 1988, significantly she advised
Bautista (in the same appointment letter) that, by virtue of
such appointment, she could qualify and enter upon the
performance of the duties of the office (of Chairman of the
Commission on Human Rights). All that remained for Bautista
to do was to reject or accept the appointment. Obviously, she
accepted the appointment by taking her oath of office before
the Chief Justice of the Supreme Court, Hon. Marcelo B.
Fernan and assuming immediately thereafter the functions
22
Public Corporation
and duties of the Chairman of the Commission on Human
Rights. Bautista's appointment therefore on 17 December
1988 as Chairman of the Commission on Human Rights was a
completed act on the part of the President. To paraphrase the
great jurist, Mr. Chief Justice Marshall, in the celebrated case
of Marbury vs. Madison. 23
xxx xxx xxx
The answer to this question seems an obvious one. The
appointment being the sole act of the President, must be
completely evidenced, when it is shown that he has done
everything to be performed by him.
xxx xxx xxx
Some point of time must be taken when the power of the
executive over an officer, not removable at his will must cease.
That point of time must be when the constitutional power of
appointment has been exercised. And this power has been
exercised when the last act, required from the person
possessing the power, has been performed. ....
xxx xxx xxx
But having once made the appointment, his (the President's)
power over the office is terminated in all cases, where by law
the officer is not removable by him. The right to the office is
then in the person appointed, and he has the absolute,
unconditional power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14
JANUARY 1989
It is respondent Commission's submission that the President,
after the appointment of 17 December 1988 extended to
petitioner Bautista, decided to extend another appointment
(14 January 1989) to petitioner Bautista, this time, submitting
such appointment (more accurately, nomination) to the
Commission on Appointments for confirmation. And yet, it
seems obvious enough, both in logic and in fact, that no new
or further appointment could be made to a position already
filled by a previously completed appointment which had been
accepted by the appointee, through a valid qualification and
assumption of its duties.
Respondent Commission vigorously contends that, granting
that petitioner's appointment as Chairman of the Commission
on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the
President to make, yet, it is within the president's prerogative
to voluntarily submit such appointment to the Commission on
Appointment for confirmation. The mischief in this contention,
as the Court perceives it, lies in the suggestion that the
President (with Congress agreeing) may, from time to
time move power boundaries, in the Constitution differently
from where they are placed by the Constitution.
The Court really finds the above contention difficult of
acceptance. Constitutional Law, to begin with, is concerned
with power not political convenience, wisdom, exigency, or
even necessity. Neither the Executive nor the Legislative
(Commission on Appointments) can create power where the
Constitution confers none. The evident constitutional intent is
to strike a careful and delicate balance, in the matter of
appointments to public office, between the President and
Congress (the latter acting through the Commission on
Appointments). To tilt one side or the other of the scale is to
disrupt or alter such balance of power. In other words, to the
extent that the Constitution has blocked off certain
appointments for the President to make with the participation
of the Commission on Appointments, so also has the
Constitution mandated that the President can confer no power
of participation in the Commission on Appointments over other
appointments exclusively reserved for her by the Constitution.
The exercise of political options that finds no support in the
Constitution cannot be sustained.
Nor can the Commission on Appointments, by the actual
exercise of its constitutionally delimited power to review
presidential appointments, create power to confirm
appointments that the Constitution has reserved to the
President alone. Stated differently, when the appointment is
one that the Constitution mandates is for the President to
make without the participation of the Commission on
Appointments, the executive's voluntary act of submitting
such appointment to the Commission on Appointments and
the latter's act of confirming or rejecting the same, are done
without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE
COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT
UNDER THE CONSTITUTION SOLELY BELONGS TO HER,
STILL, THERE WAS NO VACANCY TO WHICH AN
APPOINTMENT COULD BE MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that
the Executive may voluntarily allow the Commission on
Appointments to exercise the power of review over an
appointment otherwise solely vested by the Constitution in the
President. Yet, as already noted, when the President
appointed petitioner Bautista on 17 December 1988 to the
position of Chairman of the Commission on Human Rights with
the advice to her that by virtue of such appointment (not, until
confirmed by the Commission on Appointments), she could
qualify and enter upon the performance of her duties after
taking her oath of office, the presidential act of appointment
to the subject position which, under the Constitution, is to be
made, in the first place, without the participation of the
Commission on Appointments, was then and there a complete
and finished act, which, upon the acceptance by Bautista, as
shown by her taking of the oath of office and actual
assumption of the duties of said office, installed her,
indubitably and unequivocally, as the lawful Chairman of the
Commission on Human Rights for a term of seven (7) years.
There was thus no vacancy in the subject office on 14 January
1989 to which an appointment could be validly made. In fact,
there is no vacancy in said office to this day.
Nor can respondents impressively contend that the new
appointment or re-appointment on 14 January 1989 was
an ad interim appointment, because, under the Constitutional
design, ad interim appointments do not apply to
appointments solely for the President to make, i.e., without
the participation of the Commission on Appointments. Ad
interim appointments, by their very nature under the 1987
23
Public Corporation
Constitution, extend only to appointments where the review
of the Commission on Appointments is needed. That is why ad
interim appointments are to remain valid until disapproval by
the Commission on Appointments or until the next
adjournment of Congress; but appointments that are for the
President solely to make, that is, without the participation of
the Commission on Appointments, can not be ad
interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING
THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF
THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE
PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without
confirmation by the Commission on Appointments, petitioner
Bautista, as Chairman of the Commission on Human Rights,
can be removed from said office at anytime, at the pleasure
of the President; and that with the disapproval of Bautista's
appointment (nomination) by the Commission on
Appointments, there was greater reason for her removal by
the President and her replacement with respondent Mallillin
Thus, according to respondent Mallillin the petition at bar has
become moot and academic.
We do not agree that the petition has become moot and
academic. To insist on such a posture is akin to deluding
oneself that day is night just because the drapes are drawn
and the lights are on. For, aside from the substantive
questions of constitutional law raised by petitioner, the
records clearly show that petitioner came to this Court in
timely manner and has not shown any indication of
abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order
No. 163-A, 30 June 1987, full text of which is as follows:
WHEREAS, the Constitution does not prescribe the term of
office of the Chairman and Members of the Commission on
Human Rights unlike those of other Constitutional
Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, do hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order
No. 163 is hereby amended to read as follows:
The Chairman and Members of the Commission on Human
Rights shall be appointed by the President. Their tenure in
office shall be at the pleasure of the President.
SEC. 2. This Executive Order shall take effect immediately.
DONE in the City of Manila, this 30th day of June, in the year
of Our Lord, nineteen hundred and eighty-seven.
(Sgd.) CORAZON C. AQUINO
President of the Philippines
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987,
Executive Order No. 163 25 was issued by the President, Sec.
2(c) of which provides:
Sec. 2(c). The Chairman and the Members of the Commission
on Human Rights shall be appointed by the President for a
term of seven years without reappointment. Appointments to
any vacancy shall be only for the unexpired term of the
predecessor.
It is to be noted that, while the earlier executive order (No.
163) speaks of a term of office of the Chairman and Members
of the Commission on Human Rights — which is seven (7)
years without reappointment — the later executive order
(163-A) speaks of the tenure in office of the Chairman and
Members of the Commission on Human Rights, which is "at
the pleasure of the President."
Tenure in office should not be confused with term of office.
As Mr. Justice (later, Chief Justice) Concepcion in his
concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for,
pursuant to the Constitution, "no officer or employee in the
Civil Service may be removed or suspended except for cause,
as provided by law" (Art. XII, section 4), and this fundamental
principle would be defeated if Congress could legally make the
tenure of some officials dependent upon the pleasure of the
President, by clothing the latter with blanket authority to
replace a public officer before the expiration of his term. 27
When Executive Order No. 163 was issued, the evident
purpose was to comply with the constitutional provision that
"the term of office and other qualifications and disabilities of
the Members of the Commission (on Human Rights) shall be
provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution).
As the term of office of the Chairman (and Members) of the
Commission on Human Rights, is seven (7) years, without
reappointment, as provided by Executive Order No. 163, and
consistent with the constitutional design to give the
Commission the needed independence to perform and
accomplish its functions and duties, the tenure in office of said
Chairman (and Members) cannot be later made dependent on
the pleasure of the President.
Nor can respondent Mallillin find support in the majority
opinion in the Alba case, supra, because the power of the
President, sustained therein, to replace a previously appointed
vice-mayor of Roxas City given the express provision in Sec.
8, Rep. Act No. 603 (creating the City of Roxas) stating that
the vice-mayor shall serve at the pleasure of the President,
can find no application to the Chairman of an INDEPENDENT
OFFICE, created not by statute but by the Constitution itself.
Besides, unlike in the Alba case, here the Constitution has
decreed that the Chairman and Members of the Commission
on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize
how an office conceived and created by the Constitution to be
independent as the Commission on Human Rights-and vested
with the delicate and vital functions of investigating violations
of human rights, pinpointing responsibility and recommending
sanctions as well as remedial measures therefor, can truly
24
Public Corporation
function with independence and effectiveness, when
the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order
No. 163-A, being antithetical to the constitutional mandate of
independence for the Commission on Human Rights has to be
declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A
as containing the seeds of its constitutional destruction. The
proceedings in the 1986 Constitutional Commission clearly
point to its being plainly at war with the constitutional intent
of independence for the Commission. Thus —
MR. GARCIA (sponsor). Precisely, one of the reasons why it is
important for this body to be constitutionalized is the fact that
regardless of who is the President or who holds the executive
power, the human rights issue is of such importance that it
should be safeguarded and it should be independent of
political parties or powers that are actually holding the reins
of government. Our experience during the martial law period
made us realize how precious those rights are and, therefore,
these must be safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do
not want the term or the power of the Commission on Human
Rights to be coterminous with the president, because the
President's power is such that if he appoints a certain
commissioner and that commissioner is subject to the
President, therefore, any human rights violations committed
under the person's administration will be subject to
presidential pressure. That is what we would like to avoid —
to make the protection of human rights go beyond the
fortunes of different political parties or administrations in
power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I
conferred with the honorable Chief Justice Concepcion and
retired Justice J.B.L. Reyes and they believe that there should
be an independent Commission on Human Rights free from
executive influence because many of the irregularities on
human rights violations are committed by members of the
armed forces and members of the executive branch of the
government. So as to insulate this body from political
interference, there is a need to constitutionalize it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether there is a need
for this to be constitutionalized, I would refer to a previous
inquiry that there is still a need for making this a constitutional
body free or insulated from interference. I conferred with
former Chief Justice Concepcion and the acting chairman of
the Presidential Committee on Human Rights, retired Justice
J.B.L. Reyes, and they are one in saying that this body should
be constitutionalized so that it will be free from executive
control or interferences, since many of the abuses are
committed by the members of the military or the armed
forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as
I have said, if we leave it to Congress, this commission will be
within the reach of politicians and of public officers and that
to me is dangerous. We should insulate this body from political
control and political interference because of the nature of its
functions to investigate all forms of human rights violations
which are principally committed by members of the military,
by the Armed Forces of the Philippines. 31
xxx xxx xxx
MR. GARCIA. The critical factor here is political control, and
normally, when a body is appointed by Presidents who may
change, the commission must remain above these changes in
political control. Secondly, the other important factor to
consider are the armed forces, the police forces which have
tremendous power at their command and, therefore, we
would need a commission composed of men who also are
beyond the reach of these forces and the changes in political
administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this
proposed special body, in order to function effectively, must
be invested with an independence that is necessary not only
for its credibility but also for the effectiveness of its work.
However, we want to make a distinction in this Constitution.
May be what happened was that it was referred to the wrong
committee. In the opinion of the committee, this need not be
a commission that is similar to the three constitutional
commissions like the COA, the COMELEC, and the Civil
Service. It need not be in that article. 33
xxx xxx xxx
MR. COLAYCO. The Commissioners earlier objection was that
the Office of the President is not involved in the project. How
sure are we that the next President of the Philippines will be
somebody we can trust? Remember, even now there is a
growing concern about some of the bodies, agencies and
commission created by President Aquino. 34
xxx xxx xxx
.... Leaving to Congress the creation of the Commission on
Human Rights is giving less importance to a truly fundamental
need to set up a body that will effectively enforce the rules
designed to uphold human rights. 35
PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT
ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the
lawful incumbent of the office of Chairman of the Commission
on Human Rights by virtue of her appointment, as such, by
the President on 17 December 1988, and her acceptance
thereof, is not to say that she cannot be removed from office
before the expiration of her seven (7) year term. She certainly
can be removed but her removal must be for cause and with
her right to due process properly safeguarded. In the case
of NASECO vs. NLRC, 36 this Court held that before a rank-
and-file employee of the NASECO, a government-owned
corporation, could be dismissed, she was entitled to a hearing
and due process. How much more, in the case of the Chairman
25
Public Corporation

of a constitutionally mandated INDEPENDENT OFFICE, like

the Commission on Human Rights.

If there are charges against Bautista for misfeasance or

malfeasance in office, charges may be filed against her with
the Ombudsman. If he finds a prima facie case against her,
the corresponding information or informations can be filed
with the Sandiganbayan which may in turn order her
suspension from office while the case or cases against her are
pending before said court. 37 This is due process in action.
This is the way of a government of laws and not of men.

A FINAL WORD

It is to the credit of the President that, in deference to the rule

of law, after petitioner Bautista had elevated her case to this
Tribunal, Her Excellency merely designated an Acting
Chairman for the Commission on Human Rights (pending
decision in this case) instead of appointing another permanent
Chairman. The latter course would have added only more legal
difficulties to an already difficult situation.

WHEREFORE, the petition is GRANTED. Petitioner Bautista is

declared to be, as she is, the duly appointed Chairman of the
Commission on Human Rights and the lawful incumbent
thereof, entitled to all the benefits, privileges and emoluments
of said office. The temporary restraining order heretofore
issued by the Court against respondent Mallillin enjoining him
from dismissing or terminating personnel of the Commission
on Human Rights is made permanent.

SO ORDERED.

26
Public Corporation
G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, petitioner,
vs.
BARTOLOME CARALE, in his capacity as Chairman of
the National Labor Relations Commission, EDNA
BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G.
LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA,
VICENTE S.E. VELOSO III, IRENEO B. BERNARDO,
IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B.
PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO,
BERNABE S. BATUHAN and OSCAR N. ABELLA, in their
capacity as Commissioners of the National Labor
Relations Commission, and GUILLERMO CARAGUE, in
his capacity as Secretary of Budget and
Management, respondents.
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987
Constitution which provides:
Sec. 16. The President shall nominate and, with the consent
of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until
the next adjournment of the Congress. 1
The power of the Commission on Appointments (CA for
brevity) to confirm appointments, contained in the
aforequoted paragraph 1 of Sec. 16, Art. VII, was first
construed in Sarmiento III vs. Mison 2 as follows:
. . . 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. As a matter of fact,
as already pointed out, while the 1935 Constitution includes
"heads of bureaus" among those officers whose appointments
need the consent of the Commission on Appointments, the
1987 Constitution, on the other hand, deliberately excluded
the position of "heads of bureaus" from appointments that
need the consent (confirmation) of the Commission on
Appointments.
. . . Consequently, we rule that the President of the Philippines acted
within her constitutional authority and power in appointing
respondent Salvador Mison, Commissioner of the Bureau of Customs,
without submitting his nomination to the Commission on
Appointments for confirmation. . . .
. . . In the 1987 Constitution, however, as already pointed out, the
clear and expressed intent of its framers was to exclude presidential
appointments from confirmation by the Commission on Appointments,
except appointments to offices expressly mentioned in the first
sentence of Sec. 16, Art.VII. Consequently, there was no reason to
use in the third sentence of Sec. 16, Article VII the word "alone" after
the word "President" in providing that Congress may by law vest the
appointment of lower-ranked officers in the President alone, or in the
courts, or in the heads of departments, because the power to appoint
officers whom he (the president) may be authorized by law to appoint
is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same
Sec. 16, Article VII." (emphasis supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time
involving the appointment of the Chairman of the Commission
on Human Rights. Adhering to the doctrine in Mison, the Court
explained:
. . . Since the position of Chairman of the Commission on
Human Rights is not among the positions mentioned in the
first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation
of the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the CHR is
to be made without the review or participation of the
Commission on Appointments. To be more precise, the
appointment of the Chairman and Members of the
Commission on Human Rights is not specifically provided for
in the Constitution itself, unlike the Chairmen and Members of
the Civil Service Commission, the Commission on Elections
and the Commission on Audit, whose appointments are
expressly vested by the Constitution in the president with the
consent of the Commission on Appointments. The president
appoints the Chairman and Members of The Commission on
Human Rights pursuant to the second sentence in Section 16,
Art. VII, that is, without the confirmation of the Commission
on Appointments because they are among the officers of
government "whom he (the President) may be authorized by
law to appoint." And Section 2(c), Executive Order No. 163, 5
May 1987, authorizes the President to appoint the Chairman
and Members of the Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita
Quintos Deles, et al. v. The Commission on Constitutional
Commissions, et al.,4 the power of confirmation of the
Commission on Appointments over appointments by the
President of sectoral representatives in Congress was upheld
because:
. . . Since the seats reserved for sectoral representatives in
paragraph 2, Section 5, Art. VI may be filled by appointment
by the President by express provision of Section 7, Art. XVIII
of the Constitution, it is indubitable that sectoral
representatives to the House of Representatives are among
the "other officers whose appointments are vested in the
President in this Constitution," referred to in the first sentence
of Section 16, Art. VII whose appointments are subject to
confirmation by the Commission on Appointments.
From the three (3) cases above-mentioned, these doctrines
are deducible:
1. Confirmation by the Commission on Appointments is
required only for presidential appointees mentioned in the first
27
Public Corporation
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 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.
Sometime 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.
Appointments to any vacancy shall come from the nominees
of the sector which nominated the predecessor. The Executive
Labor Arbiters and Labor Arbiters shall also be appointed by
the President, upon recommendation of the Secretary of Labor
and Employment, and shall be subject to the Civil Service Law,
rules and regulations. 5
Pursuant to said law (RA 6715), President Aquino appointed
the Chairman and Commissioners of the 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. After said
appointments, then Labor Secretary Franklin Drilon issued
Administrative Order No. 161, series of 1989, designating the
places of assignment of the newly appointed commissioners.
This petition for prohibition questions the constitutionality and
legality of the permanent appointments extended by the
President of the Philippines to the respondents Chairman and
Members of the National Labor Relations Commission (NLRC),
without submitting the same to the Commission on
Appointments for confirmation pursuant to Art. 215 of the
Labor Code as amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715
which has in its favor the presumption of validity. RA 6715 is
not, according to petitioner, 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 transgressesSection 16,
Article VII by expanding the confirmation powers of the
Commission on Appointments without constitutional
basis. Mison and Bautista laid the issue to rest, says the
Solicitor General, with the following exposition:
As interpreted by this Honorable Court in the Mison case,
confirmation by the Commission on Appointments is required
exclusively for the heads of executive departments,
ambassadors, public ministers, consuls, officers of the armed
forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in the President by
the Constitution, such as the members of the various
Constitutional Commissions. With respect to the other officers
whose appointments are not otherwise provided for by the law
and to those whom the President may be authorized by law
to appoint, no confirmation by the Commission on
Appointments is required.
Had it been the intention to allow Congress to expand the list
of officers whose appointments must be confirmed by the
Commission on Appointments, the Constitution would have
said so by adding the phrase "and other officers required by
law" at the end of the first sentence, or the phrase, "with the
consent of the Commission on Appointments" at the end of
the second sentence. Evidently, our Constitution has
significantly omitted to provide for such additions.
The original text of Section 16 of Article VII of the present
Constitution as embodied in Resolution No. 517 of the
Constitutional Commission reads as follows:
"The President shall nominate and, with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, ambassadors, other
public ministers and consuls, or officers of the armed forces
from the rank of captain or commander, and all other officers
of the Government whose appointments are not herein
otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may by law vest
the appointment of inferior officers in the President alone, in
the courts or in the heads of the department."
Three points should be noted regarding sub-section 3 of
Section 10 of Article VII of the 1935 Constitution and in the
original text of Section 16 of Article VII of the present
Constitution as proposed in Resolution No. 517.
First, in both of them, the appointments of heads of bureaus
were required to be confirmed by the Commission on
Appointments.
Second, in both of them, the appointments of other officers,
"whose appointments are not otherwise provided for by law
to appoint" are expressly made subject to confirmation by the
Commission on Appointments. However, in the final version of
Resolution No. 517, as embodied in Section 16 of Article VII
of the present Constitution, the appointment of the above
mentioned officers (heads of bureaus; other officers whose
appointments are not provided for by law; and those whom
28
Public Corporation
he may be authorized by law to appoint) are excluded from
the list of those officers whose appointments are to be
confirmed by the Commission on Appointments. This
amendment, reflected in Section 16 of Article VII of the
Constitution, clearly shows the intent of the framers to exclude
such appointments from the requirement of confirmation by
the Commission on Appointments.
Third, under the 1935 Constitution the word "nominate"
qualifies the entire Subsection 3 of Section 10 of Article VII
thereof.
Respondent reiterates that if confirmation is required, the
three (3) stage process of nomination, confirmation and
appointment operates. This is only true of the first group
enumerated in Section 16, but the word nominate does not
any more appear in the 2nd and 3rd sentences. Therefore, the
president's appointment pursuant to the 2nd and 3rd
sentences needs no confirmation. 6
The only issue to be resolved by the Court in the present case
is whether or not 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.
To resolve the issue, we go back to Mison where the Court
stated:
. . . there are four (4) groups of officers whom the President
shall appoint. These four (4) groups, to which we will
hereafter refer from time to time, 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. 7
Mison also opined:
In the course of the debates on the text of Section 16, there
were two (2) major changes proposed and approved by the
Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement of
confirmation by the Commission on Appointments; and (2) the
exclusion of appointments made under the second sentence
of the section from the same requirement. . . .
The second sentence of Sec. 16, Art. VII refers to all other
officers of the government whose appointments are not
otherwise provided for by law and those whom the President
may be authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within
the second sentence of Section 16, Article VII of the
Constitution, more specifically under 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. To the extent that RA 6715
requires confirmation by the Commission on Appointments of
the appointments of respondents Chairman and Members of
the National Labor Relations Commission, it is unconstitutional
because:
1) 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;
and
2) 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.
Deciding on what laws to pass is a legislative prerogative.
Determining their constitutionality is a judicial function. The
Court respects the laudable intention of the legislature.
Regretfully, however, the constitutional infirmity of Sec. 13 of
RA 6715 amending Art. 215 of the Labor Code, insofar as it
requires confirmation of the Commission on Appointments
over appointments of the Chairman and Member of the
National Labor Relations Commission (NLRC) is, as we see it,
beyond redemption if we are to render fealty to the mandate
of the Constitution in Sec. 16, Art. VII thereof.
Supreme Court decisions applying or interpreting the
Constitution shall form part of the legal system of the
Philippines.8 No doctrine or principle of law laid down by the
Court in a decision rendered en banc or in division may be
modified or reversed except by the Court sitting en banc.9
. . . The interpretation upon a law by this Court constitutes, in
a way, a part of the law as of the date that law was originally
passed, since this Court's construction merely establishes the
contemporaneous legislative intent that the law thus
construed intends to effectuate. The settled rule supported by
numerous authorities is a restatement of the legal maxim
"legis interpretado legis vim obtinent" — the interpretation
placed upon the written law by a competent court has the
force of law. 10
The rulings in Mison, Bautista and Quintos-Deles have
interpreted Art. VII, Sec. 16 consistently in one manner. Can
legislation expand a constitutional provision after the Supreme
Court has interpreted it?
In Endencia and Jugo vs. David, 11 the Court held:
By legislative fiat as enunciated in Section 13, Republic Act
No. 590, Congress says that taxing the salary of a judicial
officer is not a decrease of compensation. This is a clear
example of interpretation or ascertainment of the meaning of
the phrase "which shall not be diminished during their
29
Public Corporation

continuance in office," found in Section 9, Article VIII of the Subsection 3, Section 10, Art. VII of the 1935 Constitution
Constitution, referring to the salaries of judicial officers. provided:

xxx xxx xxx
The rule is recognized elsewhere that the legislature cannot
pass any declaratory act, or act declaratory of what the law
was before its passage, so as to give it any binding weight
with the courts. A legislative definition of a word as used in a
statute is not conclusive of its meaning as used elsewhere;
otherwise, the legislature would be usurping a judicial function
in defining a term. (11 Am. Jur., 914, emphasis supplied).
The legislature cannot, upon passing law which violates a
constitutional provision, validate it so as to prevent an attack
thereon in the courts, by a declaration that it shall be so
construed as not to violate the constitutional inhibition. (11
Am., Jur., 919, emphasis supplied).
We have already said that the Legislature under our form of
government is assigned the task and the power to make and
enact laws, but not to interpret them. This is more true with
regard to the interpretation of the basic law, the Constitution,
which is not within the sphere of the Legislative department. If
the Legislature may declare what a law means, or what a
specific portion of the Constitution means, especially after the
courts have in actual case ascertained its meaning by
interpretation and applied it in a decision, this would surely
cause confusion and instability in judicial processes and court
decisions. Under such a system, a final court determination of
a case based on a judicial interpretation of the law or of the
Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the
Constitution by the Legislative department that would be
neither wise nor desirable, being clearly violative of the
fundamental principles of our constitutional system of
government, particularly those governing the separation of
powers. 14(Emphasis supplied)
3. The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law
to appoint; . . .
The deliberate limitation on the power of confirmation of the
Commission on Appointments over presidential appointments,
embodied in Sec. 16, Art. VII of the 1987 Constitution, has
undoubtedly evoked the displeasure and disapproval of
members of Congress. The solution to the apparent problem,
if indeed a problem, is not judicial or legislative but
constitutional. A future constitutional convention or Congress
sitting as a constituent (constitutional) assembly may then
consider either a return to the 1935 Constitutional provisions
or the adoption of a hybrid system between the 1935 and
1987 constitutional provisions. Until then, it is the duty of the
Court to apply the 1987 Constitution in accordance with what
it says and not in accordance with how the legislature or the
executive would want it interpreted.
WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor
Code as amended by RA 6715 insofar as it requires the
confirmation of the Commission on Appointments of
appointments of the Chairman and Members of the National
Labor Relations Commission (NLRC) is hereby declared
unconstitutional and of no legal force and effect.
SO ORDERED.

Congress, of course, must interpret the Constitution, must

estimate the scope of its constitutional powers when it sets
out to enact legislation and it must take into account the
relevant constitutional prohibitions. 15

. . . The Constitution did not change with public opinion.

It is not only the same words, but the same in meaning . . .

and as long as it it speaks not only in the same words, but
with the same meaning and intent with which it spoke when
it came from the hands of its framers, and was voted and
adopted by the people . . . 16

The function of the Court in passing upon an act of Congress

is to "lay the article of the Constitution which is invoked beside
the statute which is challenged and to decide whether the
latter squares with the former" and to "announce its
considered judgment upon the question." 17

It can not be overlooked that 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.
30
Public Corporation
G.R. No. 111243 May 25, 1994
JESUS ARMANDO A.R. TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON. SALVADOR M.
ENRIQUEZ III, respondents
Marlon B. Llaunder for petitioner.
QUIASON, J.:
This is a petition for prohibition filed by petitioner as a
"taxpayer," questioning the appointment of respondent
Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas
for not having been confirmed by the Commission on
Appointments. The petition seeks to enjoin respondent
Singson from the performance of his functions as such official
until his appointment is confirmed by the Commission on
Appointments and respondent Salvador M. Enriquez,
Secretary of Budget and Management, from disbursing public
funds in payment of the salaries and emoluments of
respondent Singson.
I Respondent Singson was appointed Governor of the Bangko
Sentral by President Fidel V. Ramos on July 2, 1993, effective
on July 6, 1993 (Rollo, p. 10).
Petitioner argues that respondent Singson's appointment is
null and void since it was not submitted for confirmation to
the Commission on Appointments. The petition is anchored on
the provisions of Section 6 of R.A. No. 7653, which established
the Bangko Sentral as the Central Monetary Authority of the
Philippines. Section 6, Article II of R.A. No. 7653 provides:
Sec. 6. Composition of the Monetary Board. The powers and functions
of the Bangko Sentral shall be exercised by the Bangko Sentral
Monetary Board, hereafter referred to as the Monetary Board,
composed of seven (7) members appointed by the President of the
Philippines for a term of six (6) years.
The seven (7) members are:
(a) The Governor of the Bangko Sentral, who shall be the Chairman
of the Monetary Board. The Governor of the Bangko Sentral shall be
head of a department and his appointment shall be subject to
confirmation by the Commission on Appointments. Whenever the
Governor is unable to attend a meeting of the Board, he shall
designate a Deputy Governor to act as his alternate: Provided, That
in such event, the Monetary Board shall designate one of its members
as acting Chairman . . . (Emphasis supplied).
In their comment, respondents claim that Congress exceeded
its legislative powers in requiring the confirmation by the
Commission on Appointments of the appointment of the
Governor of the Bangko Sentral. They contend that an
appointment to the said position is not among the
appointments which have to be confirmed by the Commission
on Appointments, citing Section 16 of Article VII of the
Constitution which provides that:
Sec. 16. The President shall nominate and, with the consent
of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the
heads of department, agencies, commissions, or boards . . .
(Emphasis supplied).
Respondents also aver that the Bangko Sentral has its own
budget and accordingly, its budgetary requirements are not
subject to the provisions of the General Appropriations Act.
We dismiss the petition.
II The instant petition is in the nature of a quo
warranto proceeding as it seeks the ouster of respondent
Singson and alleges that the latter is unlawfully holding or
exercising the powers of Governor of the Bangko Sentral (Cf.
Castro v. Del Rosario, 19 SCRA 196 [1967]). Such a special
civil action can only be commenced by the Solicitor General or
by a "person claiming to be entitled to a public office or
position unlawfully held or exercised by another" (Revised
Rules of Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18
[1905]).
In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held
that the petitioner therein, who did not aver that he was
entitled to the office of the City Engineer of Cabanatuan City,
could not bring the action for quo warranto to oust the
respondent from said office as a mere usurper.
Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910,
it was held that the question of title to an office, which must
be resolved in a quo warranto proceeding, may not be
determined in a suit to restrain the payment of salary to the
person holding such office, brought by someone who does not
claim to be the one entitled to occupy the said office.
It is obvious that the instant action was improvidently brought
by petitioner. To uphold the action would encourage every
disgruntled citizen to resort to the courts, thereby causing
incalculable mischief and hindrance to the efficient operation
of the governmental machinery (See Roosevelt v. Draper, 7
Abb. Pr. 108, 23 N.Y. 218).
Its capstone having been removed, the whole case of petitioner
collapses. Hence, there is no need to resolve the question of whether
the disbursement of public funds to pay the salaries and emoluments
of respondent Singson can be enjoined. Likewise, the Court refrains
from passing upon the constitutionality of Section 6, R.A. No. 7653 in
deference to the principle that bars a judicial inquiry into a
constitutional question unless the resolution thereof is indispensable
for the determination of the case (Fernandez v. Torres, 215 SCRA 489
[1992]).
However for the information of all concerned, we call attention to our
decision in Calderon v. Carale, 208 SCRA 254 (1992), with Justice
Isagani A. Cruz dissenting, where we ruled that Congress cannot by
law expand the confirmation powers of the Commission on
Appointments and require confirmation of appointment of other
government officials not expressly mentioned in the first sentence of
Section 16 of Article VII of the Constitution.
WHEREFORE, the petition is DENIED. No pronouncement as
to costs. SO ORDERED.
31
Public Corporation

32
Public Corporation
[G.R. No. 107369. August 11, 1999]
JESULITO A. MANALO, petitioner, vs. PEDRO G.
SISTOZA, REGINO ARO III, NICASIO MA. CUSTODIO,
GUILLERMO DOMONDON, RAYMUNDO L. LOGAN,
WILFREDO R. REOTUTAR, FELINO C. PACHECO, JR.,
RUBEN J. CRUZ, GERONIMO B. VALDERRAMA,
MERARDO G. ABAYA, EVERLINO B. NARTATEZ,
ENRIQUE T. BULAN, PEDRO J. NAVARRO, DOMINADOR
M. MANGUBAT, RODOLFO M. GARCIA and HONORABLE
SALVADOR M. ENRIQUEZ II In His Capacity as
Secretary of Budget and Management, respondents.
DECISION
PURISIMA, J.:
The case at bar is not of first impression. The issue posed
concerning the limits of the power of the Commission on
Appointments to confirm appointments issued by the Chief
Executive has been put to rest in a number of cases. The court
finds no basis for departing from the ruling laid down in those
cases.
In this special civil action for Prohibition under Rule 65 of the
Revised Rules of Court, petitioners question the
constitutionality and legality of the permanent appointments
issued by former President Corazon C. Aquino to the
respondent senior officers of the Philippine National Police
who were promoted to the ranks of Chief Superintendent and
Director without their appointments submitted to the
Commission on Appointments for confirmation under Section
16, Article VII of the 1987 Constitution and Republic Act 6975
otherwise known as the Local Government Act of
1990. Impleaded in the case is the former Secretary of Budget
and Management Salvador M. Enriquez III, who approved and
effected the disbursements for the salaries and other
emoluments of subject police officers.
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the
Department of Interior and Local Government was signed into
law by former President Corazon C. Aquino. Pertinent
provisions of the said Act read:
Sec. 26. Powers, Functions and Term of Office of the PNP
Chief. - The command and direction of the PNP shall be vested
in the Chief of the PNP who shall have the power to direct and
control tactical as well as strategic movements, deployment,
placement, utilization of the PNP or any of its units and
personal, including its equipment, facilities and other
resources. Such command and direction of the Chief of the
PNP may be delegated to subordinate officials with respect to
the units under their respective commands, in accordance
with the rules and regulations prescribed by the
Commission. The Chief of the PNP shal also have the power
to issue detailed implementing policies and instructions
regarding personnel, funds, properties, records,
correspondence and such other matters as may be necesary
to effectively carry out the functions, powers and duties of the
Bureau. The Chief of the PNP shall be appointed by the
President from among the senior officers down to the rank of
the chief superintendent, subject to confirmation by the
Commission on Appointments: Provided, That the Chief of the
PNP shall serve a term of office not to exceed four (4)
years: Provided, further, That in times of war or other national
emergency declared by Congress, the President may extend
such term of office. [1] (underlining supplied).
Sec.31. Appointment of PNP Officers and Members. - The
appointment of the officers and members of the PNP shall be
effected in the following manner:
(a) Police Officer I to Senior Police Officer IV - Appointed by
the PNP regional director for regional personnel or by the Chief
of the PNP for the national headquarters personnel and
attested by the Civil Service Commission;
(b) Inspector to Superintendent - Appointed by the Chief of
the PNP, as recommended by their immediate superiors, and
attested by the Civil Service Commission;
(c) Senior Superintendent to Deputy Director General -
Appointed by the President upon recommendation of the Chief
of the PNP, with the proper endorsement by the Chairman of
the Civil Service Commission and subject to confirmation by
the Commission on Appointments; and
(d) Director General - Appointed by the President from among
the senior officers down to the rank of chief superintendent in
the service, subject to confirmation by the Commission on
Appointments; Provided, That the Chief of the PNP shall serve
a tour of duty not to exceed four (4) years; Provided, further,
That, in times of war or other national emergency declared by
Congres, the President may extend such tour of duty.
(underlining supplied).
In accordance therewith, on March 10, 1992, the President of
the Philippines, through then Executive Secretary Franklin M.
Drilon, promoted the fifteen (15) respondent police officers
herein, by appointing them to positions in the Philippine
National Police with the rank of Chief Superintendent to
Director[2], namely:
Chief Supt. PEDRO G. SISTOZA - Director
Chief Supt. REGINO ARO III - Director
Chief Supt. NICASIO MA. CUSTODIO - Director
Chief Supt. GUILLERMO DOMONDON - Director
Chief Supt. RAYMUNDO L. LOGAN - Director
Senior Supt. WILFREDO REOTUTAR - Chief Superintendent
Senior Supt. FELINO C. PACHECO, JR. - Chief Superintendent
Senior Supt. RUBEN J. CRUZ - Chief Superintendent
Senior Supt. GERONIMO B. VALDERRAMA - Chief
Superintendent
Senior Supt. MERARDO G. ABAYA - Chief Superintendent
Senior Supt. EVERLINO NARTATEZ - Chief Superintendent
Senior Supt. ENRIQUE T. BULAN - Chief Superintendent
Senior Supt. PEDRO J. NAVARRO - Chief Superintendent
33
Public Corporation
Senior Supt. DOMINADOR MANGUBAT - Chief Superintendent
Senior Supt. RODOLFO M. GARCIA - Chief Superintendent
The appointments of respondent police officers were in a
permanent capacity. Their letters of appointment stated in
part :
By virtue hereof, they may qualify and enter upon the
performance of the duties of the office, furnishing this office
and the Civil Service Commission with copies of their oath of
office.[3]
Without their names submitted to the Commission on
Appointments for confirmation, the said police officers took
their oath of office and assumed their respective
positions. Thereafter, the Department of Budget and
Management, under the then Secretary Salvador M. Enriquez
III, authorized disbursements for their salaries and other
emoluments.
On October 21, 1992, the petitioner brought before this Court
this present original petition for prohibition, as a taxpayer suit,
to assail the legality of subject appointments and
disbursements made therefor.
Petitioner contends that:
I. Respondent officers, in assuming their offices and
discharging the functions attached thereto, despite their
invalid appointments, in view of the failure to secure the
required confirmation of the Commission on Appointments as
required by the Constitution and the law, are acting without
or in excess of their jurisdiction or with grave abuse of
discretion, considering that :
A. Republic Act 6975 is a valid law that duly requires
confirmation of the appointments of officers from the rank of
senior superintendent and higher by the Commission on
Appointments;
B. The Philippine National Police is akin to the Armed Forces
where the Constitution specifically requires confirmation by
the Commission on Appointments.
II. Respondent Secretary in allowing and/or effecting
disbursements in favor of respondent officers despite the
unconstitutionality and illegality of their appointments is
acting without or in excess of his jurisdiction or with grave
abuse of discretion.
The petition must fail. It is not impressed with merit.
Petitioner theorizes that Republic Act 6975 enjoys the
presumption of constitutionality and that every statute passed
by Congress is presumed to have been carefully studied and
considered before its enactment. He maintains that the
respect accorded to each department of the government
requires that the court should avoid, as much as possible,
deciding constitutional questions.
The Court agrees with petitioner. However, it is equally
demanded from the courts, as guardians of the Constitution,
to see to it that every law passed by Congress is not repugnant
to the organic law.Courts have the inherent authority to
determine whether a statute enacted by the legislature
transcends the limit delineated by the fundamental
law.[4] When it does, the courts will not hesitate to strike
down such unconstitutional law.
The power to make appointments is vested in the Chief
Executive by Section 16, Article VII of the Constitution, which
provides:
Section 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.
The aforecited provision of the Constitution has been the
subject of several cases on the issue of the restrictive function
of the Commission on Appointments with respect to the
appointing power of the President. This court touched upon
the historical antecedent of the said provision in the case of
Sarmiento III vs. Mison[5] in which it was ratiocinated upon
that Section 16 of Article VII of the 1987 Constitution requiring
confirmation by the Commission on Appointments of certain
appointments issued by the President contemplates a system
of checks and balances between the executive and legislative
branches of government. Experience showed that when
almost all presidential appointments required the consent of
the Commission on Appointments, as was the case under the
1935 Constitution, the commission became a venue of horse-
trading and similar malpractices.[6] On the other hand,
placing absolute power to make appointments in the President
with hardly any check by the legislature, as what happened
under 1973 Constitution, leads to abuse of such power. Thus
was perceived the need to establish a middle ground between
the 1935 and 1973 Constitutions. The framers of the 1987
Constitution deemed it imperative to subject certain high
positions in the government to the power of confirmation of
the Commission on Appointments and to allow other positions
within the exclusive appointing power of the President.
Conformably, as consistently interpreted and ruled in the
leading case of Sarmiento III vs. Mison[7], and in the
subsequent cases of Bautista vs. Salonga[8], Quintos-Deles
vs. Constitutional Commission[9], and Calderon vs.
Carale[10]; under Section 16, Article VII, of the Constitution,
there are four groups of officers of the government to be
appointed by the President:
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;
34
Public Corporation

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.
It is well-settled that only presidential appointments belonging
to the first group require the confirmation by the Commission
on Appointments. The appointments of respondent officers
who are not within the first category, need not be confirmed
by the Commission on Appointments. As held in the case of
Tarrosa vs. Singson[11], Congress cannot by law expand the
power of confirmation of the Commission on Appointments
and require confirmation of appointments of other
government officials not mentioned in the first sentence of
Section 16 of Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of
Republic Act 6975 which empower the Commission on
Appointments to confirm the appointments of public officials
whose appointments are not required by the Constitution to
be confirmed. But the unconstitutionality of the aforesaid
sections notwithstanding, the rest of Republic Act 6975
stands. It is well-settled that when provisions of law declared
void are severable from the main statute and the removal of
the unconstitutional provisions would not affect the validity
and enforceability of the other provisions, the statute remains
valid without its voided sections.[12]
services to the citizenry through the establishment of a highly
efficient and competent police force that is national in scope
and civilian in character. xxx
The policy force shall be organized, trained and equipped
primarily for the performance of police functions. Its national
scope and civilian character shall be paramount. No element
of the police force shall be military nor shall any position
thereof be occupied by active members of the Armed Forces
of the Philippines.
Thereunder, the police force is different from and independent
of the armed forces and the ranks in the military are not
similar to those in the Philippine National Police. Thus,
directors and chief superintendents of the PNP, such as the
herein respondent police officers, do not fall under the first
category of presidential appointees requiring the confirmation
by the Commission on Appointments.
In view of the foregoing disquisition and conclusion, the
respondent former Secretary Salvador M. Enriquez III of the
Department of Budget and Management, did not act with
grave abuse of discretion in authorizing and effecting
disbursements for the salaries and other emoluments of the
respondent police officers whose appointments are valid.
WHEREFORE, for lack of merit, the petition under
consideration is hereby DISMISSED. No pronouncement as to
costs.
SO ORDERED.

It is petitioners submission that the Philippine National Police

is akin to the Armed Forces of the Philippines and therefore,
the appointments of police officers whose rank is equal to that
of colonel or naval captain require confirmation by the
Commission on Appointments.

This contention is equally untenable. The Philippine National

Police is separate and distinct from the Armed Forces of the
Philippines. The Constitution, no less, sets forth the
distinction. Under Section 4 of Article XVI of the 1987
Constitution,

The Armed Forces of the Philippines shall be composed of a

citizen armed force which shall undergo military training and
service, as may be provided by law. It shall keep a regular
force necessary for the security of the State.

On the other hand, Section 6 of the same Article of the

Constitution ordains that:

The State shall establish and maintain one police force, which
shall be national in scope and civilian in character to be
administered and controlled by a national police
commission. The authority of local executives over the police
units in their jurisdiction shall be provided by law.

To so distinguish the police force from the armed forces,

Congress enacted Republic Act 6975 which states in part:

Section 2. Declaration of policy - It is hereby declared to be

the policy of the State to promote peace and order, ensure
public safety and further strengthen local government
capability aimed towards the effective delivery of the basic
35
Public Corporation

36
Public Corporation
[G.R. No. 149036. April 2, 2002]
MA. J. ANGELINA G. MATIBAG, petitioner, vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., VELMA J. CINCO, and
GIDEON C. DE GUZMAN in his capacity as Officer-In-
Charge, Finance Services Department of the
Commission on Elections, respondents.
DECISION
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for
the issuance of a writ of preliminary injunction and a
temporary restraining order under Rule 65 of the 1997 Rules
of Civil Procedure.Petitioner Ma. J. Angelina G. Matibag
(Petitioner for brevity) questions the constitutionality of the
appointment and the right to hold office of the following: (1)
Alfredo L. Benipayo (Benipayo for brevity) as Chairman of the
Commission on Elections (COMELEC for brevity); and (2)
Resurreccion Z. Borra (Borra for brevity) and Florentino A.
Tuason, Jr. (Tuason for brevity) as COMELEC
Commissioners.Petitioner also questions the legality of the
appointment of Velma J. Cinco[1] (Cinco for brevity) as
Director IV of the COMELECs Education and Information
Department (EID for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed
petitioner as Acting Director IV of the EID. On February 15,
2000, then Chairperson Harriet O. Demetriou renewed the
appointment of petitioner as Director IV of EID in a Temporary
capacity. On February 15, 2001, Commissioner Rufino S.B.
Javier renewed again the appointment of petitioner to the
same position in a Temporary capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo
appointed, ad interim, Benipayo as COMELEC
Chairman,[3] and Borra[4] and Tuason[5] 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. The Office of the
President submitted to the Commission on Appointments on
May 22, 2001 the ad interim appointments of Benipayo, Borra
and Tuason for confirmation.[6] However, the Commission on
Appointments did not act on said appointments.
On June 1, 2001, 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.[7] They took their oaths of office for a
second time. The Office of the President transmitted on June
5, 2001 their appointments to the Commission on
Appointments for confirmation.[8]
Congress adjourned before the Commission on Appointments
could act on their appointments. Thus, on June 8, 2001,
President Macapagal Arroyo renewed again the ad
interim appointments of Benipayo, Borra and Tuason to the
same positions.[9] The Office of the President submitted their
appointments for confirmation to the Commission on
Appointments.[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 2001[11] 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. COMELEC EID Commissioner-in-Charge Mehol K.
Sadain objected to petitioners reassignment in a
Memorandum dated April 14, 2001[12] addressed to the
COMELEC en banc. Specifically, Commissioner Sadain
questioned Benipayos failure to consult the Commissioner-in-
Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider
her relief as Director IV of the EID and her reassignment to
the Law Department.[13] Petitioner cited Civil Service
Commission Memorandum Circular No. 7 dated April 10, 2001,
reminding heads of government offices that transfer and detail
of employees are prohibited during the election period
beginning January 2 until June 13, 2001. Benipayo denied her
request for reconsideration on April 18, 2001,[14] citing
COMELEC Resolution No. 3300 dated November 6, 2000,
which states in part:
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.
Petitioner appealed the denial of her request for
reconsideration to the COMELEC en banc in a Memorandum
dated April 23, 2001.[15] Petitioner also filed an
administrative and criminal complaint[16]with the Law
Department[17] against Benipayo, alleging that 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.
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. Petitioner also 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. Petitioner, moreover, questions the legality of the
37
Public Corporation
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.
In the meantime, on September 6, 2001, 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.[18] They all took their oaths of
office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the
requirements before this Court may exercise its power of
judicial review in constitutional cases;
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;
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;
4. Whether or not Benipayos 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;
5. Whether or not the Officer-in-Charge of the COMELECs
Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and Cinco,
is acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four
requisites before this Court may exercise its power of judicial
review in constitutional cases. Out of respect for the acts of
the Executive department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing the
constitutionality of the ad interim appointments issued by the
President to Benipayo, Borra and Tuason unless all the four
requisites are present. These are: (1) the existence of an
actual and appropriate controversy; (2) a personal and
substantial interest of the party raising the constitutional
issue; (3) the exercise of the judicial review is pleaded at the
earliest opportunity; and (4) the constitutional issue is the lis
mota of the case.[19]
Respondents argue that the second, third and fourth
requisites are absent in this case. Respondents maintain that
petitioner does not have a personal and substantial interest in
the case because she has not sustained a direct injury as a
result of the ad interim appointments of Benipayo, Borra and
Tuason and their assumption of office. Respondents point out
that petitioner does not claim to be lawfully entitled to any of
the positions assumed by Benipayo, Borra or Tuason. Neither
does petitioner claim to be directly injured by the
appointments of these three respondents.
Respondents also contend that petitioner failed to question
the constitutionality of the ad interim appointments at the
earliest opportunity. Petitioner filed the petition only on
August 3, 2001 despite the fact that the ad
interim appointments of Benipayo, Borra and Tuason were
issued as early as March 22, 2001. Moreover, the petition was
filed after the third time that these three respondents were
issued ad interim appointments.
Respondents insist that the real issue in this case is the legality
of petitioners reassignment from the EID to the Law
Department. Consequently, the constitutionality of the ad
interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was
Acting Director, to the Law Department, where she was placed
on detail service.[20] Respondents claim that the
reassignment was pursuant to x x x Benipayos authority as
Chairman of the Commission on Elections, and as the
Commissions Chief Executive Officer.[21] Evidently,
respondents anchor the legality of petitioners reassignment
on Benipayos authority as Chairman of the COMELEC. The real
issue then turns on whether or not Benipayo is the lawful
Chairman of the COMELEC. Even if petitioner is only an Acting
Director of the EID, her reassignment is without legal basis if
Benipayo is not the lawful COMELEC Chairman, an office
created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC
Chairman because he assumed office in accordance with the
Constitution, then petitioners reassignment is legal and she
has no cause to complain provided the reassignment is in
accordance with the Civil Service Law. Clearly, petitioner has
a personal and material stake in the resolution of the
constitutionality of Benipayos assumption of office.Petitioners
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.
Respondents harp on petitioners belated act of questioning
the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason. Petitioner filed the instant
petition only on August 3, 2001, when the first ad
interim appointments were issued as early as March 22, 2001.
However, it is not the date of filing of the petition that
determines whether the constitutional issue was raised at the
earliest opportunity. The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, if it is
not raised in the pleadings, it cannot be considered at the trial,
and, if not considered at the trial, it cannot be considered on
appeal.[22] 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
38
Public Corporation
a constitutional issue may be passed upon.[23] There is no
doubt petitioner raised the constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on
the constitutionality of Benipayos ad interim appointment and
assumption of office. Unless the constitutionality of
Benipayos ad interimappointment and assumption of office is
resolved, the legality of petitioners 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.
In any event, the issue raised by petitioner is of paramount
importance to the public. The legality of the directives and
decisions made by the COMELEC in the conduct of the May
14, 2001 national elections may be put in doubt if the
constitutional issue raised by petitioner is left unresolved. In
keeping with this Courts duty to determine whether other
agencies of government have remained within the limits of the
Constitution and have not abused the discretion given them,
this Court may even brush aside technicalities of procedure
and resolve any constitutional issue raised.[24] Here 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
Petitioner argues that an ad interim appointment to the
COMELEC is a temporary appointment that is prohibited by
Section 1 (2), Article IX-C of the Constitution, which provides
as follows:
The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and
the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for
the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting
capacity. (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can
be withdrawn or revoked by the President at her pleasure, and
can even be disapproved or simply by-passed by the
Commission on Appointments.For this reason, petitioner
claims that an ad interim appointment is temporary in
character and consequently prohibited by the last sentence of
Section 1 (2), Article IX-C of the Constitution.
Based on petitioners theory, there can be no ad
interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service
Commission and the Commission on Audit. The last sentence
of Section 1 (2), Article IX-C of the Constitution is also found
in Article IX-B and Article IX-D providing for the creation of
the Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section
1 (2) of Article IX-C to mean that the ad interim appointee
cannot assume office until his appointment is confirmed by
the Commission on Appointments for only then does his
appointment become permanent and no longer temporary in
character.
The rationale behind petitioners theory is that only an
appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the
COMELEC. A confirmed appointee is beyond the influence of
the President or members of the Commission on Appointments
since his appointment can no longer be recalled or
disapproved. Prior to his confirmation, the appointee is at the
mercy of both the appointing and confirming powers since his
appointment can be terminated at any time for any cause. In
the words of petitioner, a Sword of Damocles hangs over the
head of every appointee whose confirmation is pending with
the Commission on Appointments.
We find petitioners argument without merit.
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. The
second paragraph of Section 16, Article VII of the Constitution
provides as follows:
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. (Emphasis supplied)
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.
More than half a century ago, this Court had already ruled that
an ad interim appointment is permanent in
character. In Summers vs. Ozaeta,[25] decided on October
25, 1948, we held that:
x x x an ad interim appointment is one made in pursuance of
paragraph (4), Section 10, Article VII of the Constitution,
which provides that the President shall have the power to
make appointments during the recess of the Congress, but
such appointments shall be effective only until disapproval by
the Commission on Appointments or until the next
adjournment of the Congress. It is an appointment permanent
in nature, and the circumstance that it is subject to
confirmation by the Commission on Appointments does not
alter its permanent character. An ad interim appointment is
disapproved certainly for a reason other than that its
provisional period has expired. Said appointment is of course
distinguishable from an acting appointment which is merely
temporary, good until another permanent appointment is
issued.(Emphasis supplied)
39
Public Corporation
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. In Pacete vs. Secretary
of the Commission on Appointments,[26] this Court
elaborated on the nature of an ad interim appointment as
follows:
A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in session and
when it 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.
Petitioner cites Blacks Law Dictionary which defines the
term ad interim to mean in the meantime or for the time
being. Hence, petitioner argues that an ad
interim appointment is undoubtedly temporary in character.
This argument is not new and was answered by this Court
in Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court,[27] where we explained that:
x x x From the arguments, it is easy to see why the petitioner
should experience difficulty in understanding the
situation. Private respondent had been extended several ad
interim appointments which petitioner mistakenly
understands as appointments temporary in nature. Perhaps,
it is the literal translation of the word ad interim which creates
such belief. The term is defined by Black to mean in the
meantime or for the time being. Thus, an officer ad interim is
one appointed to fill a vacancy, or to discharge the duties of
the office during the absence or temporary incapacity of its
regular incumbent (Blacks Law Dictionary, Revised Fourth
Edition, 1978). But such is not the meaning nor the use
intended in the context of Philippine law. In referring to Dr.
Estebans appointments, 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. x x x. (Emphasis supplied)
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. The Court had again occasion to
explain the nature of an ad interim appointment in the more
recent case of Marohombsar vs. Court of Appeals,[28] where
the Court stated:
We have already mentioned that an ad interim appointment is
not descriptive of the nature of the appointment, that is, it is
not indicative of whether the appointment is temporary or in
an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment
extended to private respondent by then MSU President Alonto,
Jr. was issued without condition nor limitation as to tenure.
The permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the
Civil Service Commission Regional Office No. 12. Petitioners
submission that private respondents ad interim appointment
is synonymous with a temporary appointment which could be
validly terminated at any time is clearly untenable. Ad interim
appointments are permanent but their terms are only until the
Board disapproves them. (Emphasis supplied)
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.[29] 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.[30] 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.
An ad interim appointment can be terminated for two causes
specified in the Constitution. The first cause is the disapproval
of his ad interim appointment by the Commission on
Appointments. 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. These resolutory conditions constitute,
in effect, a Sword of Damocles over the heads of ad
interim appointees. No one, however, can complain because
it is the Constitution itself that places the Sword of Damocles
over the heads of the ad interim appointees.
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.[31] 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. Thus, in Brillantes vs.
Yorac,[32] this Court struck down
as unconstitutional the designation by then President
Corazon Aquino of Associate Commissioner Haydee Yorac as
Acting Chairperson of the COMELEC. This Court ruled that:
A designation as Acting Chairman is by its very terms
essentially temporary and therefore revocable at will. No
cause need be established to justify its revocation. Assuming
40
Public Corporation
its validity, the designation of the respondent as Acting
Chairman of the Commission on Elections may be withdrawn
by the President of the Philippines at any time and for
whatever reason she sees fit. It is doubtful if the respondent,
having accepted such designation, will not be estopped from
challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the
independence of the Commission on Elections, foremost
among which is the security of tenure of its members. That
guarantee is not available to the respondent as Acting
Chairman of the Commission on Elections by designation of
the President of the Philippines.
Earlier, in Nacionalista Party vs. Bautista,[33] a case decided
under the 1935 Constitution, which did not have a provision
prohibiting temporary or acting appointments to the
COMELEC, this Court nevertheless declared unconstitutional
the designation of the Solicitor General as acting member of
the COMELEC. This Court ruled that the designation of an
acting Commissioner would undermine the independence of
the COMELEC and hence violate the Constitution. We declared
then: It would be more in keeping with the intent, purpose
and aim of the framers of the Constitution to appoint
a permanentCommissioner than to designate one to act
temporarily. (Emphasis supplied)
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. They
were not appointed or designated in a temporary or acting
capacity, unlike Commissioner Haydee Yorac in Brillantes vs.
Yorac[34] and Solicitor General Felix Bautista in Nacionalista
Party vs. Bautista.[35] 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.
While the Constitution mandates that the COMELEC shall be
independent[36], this provision should be harmonized with
the Presidents power to extend ad interim appointments. To
hold that the independence of the COMELEC requires the
Commission on Appointments to first confirm ad
interim appointees before the appointees can assume office
will negate the Presidents power to make ad
interimappointments. This is contrary to the rule on statutory
construction to give meaning and effect to every provision of
the law. It will also run counter to the clear intent of the
framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution
- on the nomination of officers subject to confirmation by the
Commission on Appointments - did not provide for ad
interim appointments.The original intention of the framers of
the Constitution was to do away with ad interim appointments
because the plan was for Congress to remain in session
throughout the year except for a brief 30-day compulsory
recess. However, because of the need to avoid disruptions in
essential government services, the framers of the Constitution
thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. The following
discussion during the deliberations of the Constitutional
Commission elucidates this:
FR. BERNAS: X x x our compulsory recess now is only 30 days.
So under such circumstances, is it necessary to provide for ad
interim appointments? Perhaps there should be a little
discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is
addressed, this might present problems in terms of
anticipating interruption of government business, considering
that we are not certain of the length of involuntary recess or
adjournment of the Congress. We are certain, however, of the
involuntary adjournment of the Congress which is 30 days, but
we cannot leave to conjecture the matter of involuntary
recess.
FR. BERNAS: That is correct, but we are trying to look for a
formula. I wonder if the Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter
raised by Commissioner Aquino and after conferring with the
Committee, Commissioner Aquino and I propose the following
amendment as the last paragraph of Section 16, the wordings
of which are in the 1935 Constitution: THE PRESIDENT SHALL
HAVE THE POWER TO MAKE APPOINTMENTS DURING THE
RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR
COMPULSORY BUT SUCH APPOINTMENTS SHALL BE
EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION
ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF
THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed
amendment of Commissioners Aquino and Bengzon, adding a
paragraph to the last paragraph of Section 16? (Silence) The
Chair hears none; the amendment is
approved.[37] (Emphasis supplied)
Clearly, 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. In his concurring opinion in Guevara vs.
Inocentes,[38] decided under the 1935 Constitution, Justice
Roberto Concepcion, Jr. explained the rationale behind ad
interim appointments in this manner:
Now, why is the lifetime of ad interim appointments so
limited? Because, if they expired before the session of
Congress, the evil sought to be avoided interruption in the
discharge of essential functionsmay take place. Because the
same evil would result if the appointments ceased to be
effective during the session of Congress and before its
adjournment. Upon the other hand, once Congress has
41
Public Corporation
adjourned, the evil aforementioned may easily be conjured by
the issuance of other ad interim appointments or
reappointments. (Emphasis supplied)
Indeed, the timely application of the last sentence of Section
16, Article VII of the Constitution barely avoided the
interruption of essential government services in the May 2001
national elections.Following the decision of this Court
in Gaminde vs. Commission on
Appointments,[39] promulgated on December 13, 2000, 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.[40]
Then COMELEC Chairperson Harriet O. Demetriou was
appointed only on January 11, 2000 to serve, pursuant to her
appointment papers, until February 15, 2002,[41] the original
expiry date of the term of her predecessor, Justice Bernardo
P. Pardo, who was elevated to this Court. The original expiry
date of the term of Commissioner Teresita Dy-Liacco Flores
was also February 15, 2002, while that of Commissioner Julio
F. Desamito was November 3, 2001.[42] The original expiry
dates of the terms of office of Chairperson Demetriou and
Commissioners Flores and Desamito were therefore supposed
to fall after the May 2001 elections. Suddenly and
unexpectedly, because of the Gaminde ruling, there were
three vacancies in the seven-person COMELEC, with national
elections looming less than three and one-half months away.
To their credit, Chairperson Demetriou and Commissioner
Flores vacated their offices on February 2, 2001 and did not
question any more before this Court the applicability of
the Gaminderuling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with
this Court in the Gaminde case, Chairperson Demetriou stated
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. Commissioner Desamito chose to file a
petition for intervention[44] in the Gaminde case but this
Court denied the intervention. Thus, Commissioner Desamito
also vacated his office on February 2, 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.[45] Concededly, there
was no more time for Benipayo, Borra and Tuason, who were
originally extended ad interimappointments only on March 22,
2001, to be confirmed by the Commission on Appointments
before the May 14, 2001 elections.
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. Considering that the Constitution requires that
all x x x election cases shall be heard and decided in
division,[46] 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. 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. 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. 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 issuance by Presidents of ad interim appointments to the
COMELEC is a long-standing practice. Former President
Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg.[47] Former President Fidel V.
Ramos extended ad interim appointments to Commissioners
Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-
Claravall and Manolo F. Gorospe.[48] Former President
Joseph Estrada also extended ad interim appointments to
Commissioners Abdul Gani M. Marohombsar, Luzviminda
Tancangco, Mehol K. Sadain and Ralph C. Lantion.[49]
The Presidents 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 trade-off 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 Presidents appointing power to the checking
power of the legislature.
42
Public Corporation
This situation, however, does not compromise the
independence of the COMELEC as a constitutional body. The
vacancies in the COMELEC are precisely staggered to insure
that the majority of its members hold confirmed
appointments, and not one President will appoint all the
COMELEC members.[50] In the instant case, the Commission
on Appointments had long confirmed four[51] of the
incumbent COMELEC members, comprising a majority, who
could now be removed from office only by impeachment. The
special constitutional safeguards that insure the independence
of the COMELEC remain in place.[52] The COMELEC enjoys
fiscal autonomy, appoints its own officials and employees, and
promulgates its own rules on pleadings and
practice. Moreover, the salaries of COMELEC members cannot
be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by
the President to Benipayo, Borra and Tuason, as COMELEC
Chairman and Commissioners, respectively, do not constitute
temporary or acting appointments prohibited by Section 1 (2),
Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of
Appointments
Petitioner also agues that 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, which provides as follows:
The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and
the last members for three years, without reappointment. X x
x. (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-
passed by the Commission on Appointments, his ad
interim appointment can no longer be renewed because this
will violate Section 1 (2), Article IX-C of the Constitution which
prohibits reappointments. Petitioner asserts that this is
particularly true to permanent appointees who have assumed
office, which is the situation of Benipayo, Borra and Tuason if
their ad interim appointments are deemed permanent in
character.
There is no dispute that an ad interim appointee disapproved
by the Commission on Appointments can no longer be
extended a new appointment. The disapproval is a final
decision of the Commission on Appointments in the exercise
of its checking power on the appointing authority of the
President. The disapproval is a decision on the merits, being
a refusal by the Commission on Appointments to give its
consent after deliberating on the qualifications of the
appointee. Since the Constitution does not provide for any
appeal from such decision, the disapproval is final and binding
on the appointee as well as on the appointing power. In this
instance, the President can no longer renew the appointment
not because of the constitutional prohibition on
reappointment, but because of a final decision by the
Commission on Appointments to withhold its consent to the
appointment.
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. This is
recognized in Section 17 of the Rules of the Commission on
Appointments, which provides as follows:
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. (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments,
a by-passed appointment can be considered again if the
President renews the appointment.
It is well settled in this jurisdiction that the President can
renew the ad interim appointments of by-passed
appointees. Justice Roberto Concepcion, Jr. lucidly explained
in his concurring opinion in Guevara vs. Inocentes[53] why
by-passed ad interim appointees could be extended new
appointments, thus:
In short, 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. (Emphasis
supplied)
Guevara was decided under the 1935 Constitution from where
the second paragraph of Section 16, Article VII of the present
Constitution on ad interim appointments was
lifted verbatim.[54] The jurisprudence under the 1935
Constitution governing ad interim appointments by the
President is doubtless applicable to the present Constitution.
The established practice under the present Constitution is that
43
Public Corporation
the President can renew the appointments of by-passed ad
interim appointees. This is a continuation of the well-
recognized practice under the 1935 Constitution, interrupted
only by the 1973 Constitution which did not provide for a
Commission on Appointments but vested sole appointing
power in the President.
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.
Section 1 (2), Article IX-C of the Constitution provides that
[t]he Chairman and the Commissioners shall be appointed x x
x for a term of seven years without reappointment. (Emphasis
supplied) There are four situations where this provision will
apply. The first situation is where an ad interim appointee to
the COMELEC, after confirmation by the Commission on
Appointments, serves his full seven-year term. Such person
cannot be reappointed to the COMELEC, whether as a member
or as a chairman, because he will then be actually serving
more than seven years. The second situation is where the
appointee, after confirmation, serves a part of his term and
then resigns before his seven-year term of office ends. Such
person cannot be reappointed, whether as a member or as a
chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more
than seven years. The third situation is where the appointee
is confirmed to serve the unexpired term of someone who died
or resigned, and the appointee completes the unexpired
term. Such person cannot be reappointed, whether as a
member or chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also
serving more than seven years.
The fourth situation is where the appointee has previously
served a term of less than seven years, and a vacancy arises
from death or resignation. Even if it will not result in his
serving more than seven years, a reappointment of such
person to serve an unexpired term is also prohibited because
his situation will be similar to those appointed under the
second sentence of Section 1 (2), Article IX-C of the
Constitution. 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.
The framers of the Constitution made it quite clear that any
person who has served any term of office as COMELEC
member whether for a full term of
seven years, a truncated term of five or three years, or even
for an unexpired term of any length of time can no longer be
reappointed to the COMELEC. Commissioner Foz succinctly
explained this intent in this manner:
MR. FOZ. But there is the argument made in the concurring
opinion of Justice Angelo Bautista in the case of Visarra vs.
Miraflor, to the effect that the prohibition on reappointment
applies only when the term or tenure is for seven years. But
in cases where the appointee serves only for less than seven
years, he would be entitled to reappointment. Unless we put
the qualifying words without reappointment in the case of
those appointed, then it is possible that an interpretation could
be made later on their case, they can still be reappointed to
serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear
that even in the case of those first appointed under the
Constitution, no reappointment can be made.[55] (Emphasis
supplied)
In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his
concurring opinion, quoted Nacionalista vs. De Vera[57] that
a [r]eappointment is not prohibited when a Commissioner has
held office only for, say, three or six years, provided his term
will not exceed nine years in all. This was the interpretation
despite the express provision in the 1935 Constitution that a
COMELEC member shall hold office for a term of nine years
and may not be reappointed.
To foreclose this interpretation, the phrase without
reappointment appears twice in Section 1 (2), Article IX-C of
the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a term
of seven years. The second phrase prohibits reappointment of
any person previously appointed for a term of five or three
years pursuant to the first set of appointees under the
Constitution. In either case, it does not matter if the person
previously appointed completes his term of office for the
intention is to prohibit any reappointment of any kind.
However, 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. To hold otherwise would
mean that the President by his unilateral action could start
and complete the running of a term of office in the COMELEC
without the consent of the Commission on Appointments. This
interpretation renders inutile the confirming power of the
Commission on Appointments.
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. To hold
otherwise will lead to absurdities and negate the Presidents
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
44
Public Corporation
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.
The prohibition on reappointment is common to the three
constitutional commissions. The framers of the present
Constitution prohibited reappointments for two reasons. The
first is to prevent a second appointment for those who have
been previously appointed and confirmed even if they served
for less than seven years. The second is to insure that the
members of the three constitutional commissions do not serve
beyond the fixed term of seven years. As reported in
the Journal of the Constitutional Commission, Commissioner
Vicente B. Foz, who sponsored[58]the proposed articles on
the three constitutional commissions, outlined the four
important features of the proposed articles, to wit:
Mr. Foz stated that the Committee had introduced basic
changes in the common provision affecting the three
Constitutional Commissions, and which are: 1) fiscal
autonomy which provides (that) appropriations shall be
automatically and regularly released to the Commission in the
same manner (as) provided for the Judiciary; 2) fixed term of
office without reappointment on a staggered basis to ensure
continuity of functions and to minimize the opportunity of the
President to appoint all the members during his incumbency;
3) prohibition to decrease salaries of the members of the
Commissions during their term of office; and 4) appointments
of members would not require confirmation.[59] (Emphasis
supplied)
There were two important amendments subsequently made
by the Constitutional Commission to these four features. First,
as discussed earlier, the framers of the Constitution decided
to require confirmation by the Commission on Appointments
of all appointments to the constitutional
commissions. Second, the framers decided
to strengthen further the prohibition on serving beyond the
fixed seven-year term, in the light of a former chair of the
Commission on Audit remaining in office for 12 years despite
his fixed term of seven years. The following exchange in the
deliberations of the Constitutional Commission is instructive:
MR. SUAREZ: These are only clarificatory questions, Madam
President. May I call the sponsors attention, first of all, to
Section 2 (2) on the Civil Service Commission wherein it is
stated: In no case shall any Member be appointed in a
temporary or acting capacity. I detect in the Committees
proposed resolutions a constitutional hangover, if I may use
the term, from the past administration. Am I correct in
concluding that the reason the Committee introduced this
particular provision is to avoid an incident similar to the case
of the Honorable Francisco Tantuico who was appointed in an
acting capacity as Chairman of the Commission on Audit for
about 5 years from 1975 until 1980, and then in 1980, was
appointed as Chairman with a tenure of another 7 years. So,
if we follow that appointment to (its) logical conclusion, he
occupied that position for about 12 years in violation of the
Constitution?
MR. FOZ: It is only one of the considerations. Another is really
to make sure that any member who is appointed to any of the
commissions does not serve beyond 7 years.[60] (Emphasis
supplied)
Commissioner Christian Monsod further clarified the
prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole
Article, she will notice that there is no reappointment of any
kind and, therefore as a whole there is no way that somebody
can serve for more than seven years. The purpose of the last
sentence is to make sure that this does not happen by
including in the appointment both temporary and acting
capacities."[61] (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure
that there will be no reappointment of any kind. On the other
hand, the prohibition on temporary or acting appointments is
intended to prevent any circumvention of the prohibition on
reappointment that may result in an appointees total term of
office exceeding seven years. The evils sought to be avoided
by the twin prohibitions are very specific - reappointment of
any kind and exceeding ones term in office beyond the
maximum period of seven years.
Not contented with these ironclad twin prohibitions, the
framers of the Constitution tightened even further the screws
on those who might wish to extend their terms of office. Thus,
the word designated was inserted to plug any loophole that
might be exploited by violators of the Constitution, as shown
in the following discussion in the Constitutional Commission:
MR. DE LOS REYES: On line 32, between the words appointed
and in, I propose to insert the words OR DESIGNATED so that
the whole sentence will read: In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting capacity.
THE PRESIDING OFFICER (Mr. Trenas): What does the
Committee say?
MR. FOZ: But it changes the meaning of this sentence. The
sentence reads: In no case shall any Member be appointed in
a temporary or acting capacity.
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this
amendment is that some lawyers make a distinction between
an appointment and a designation. The Gentleman will recall
that in the case of Commissioner on Audit Tantuico, I think his
term exceeded the constitutional limit but the Minister of
Justice opined that it did not because he was only designated
during the time that he acted as Commissioner on Audit. So,
in order to erase that distinction between appointment and
designation, we should specifically place the word so that
there will be no more ambiguity. In no case shall any Member
be appointed OR DESIGNATED in a temporary or acting
capacity.
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any
objection? (Silence) The Chair hears none; the amendment is
approved.[62]
45
Public Corporation
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.[63] 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 Benipayos Authority to Reassign
Petitioner
Petitioner claims that Benipayo has no authority to remove her
as Director IV of the EID and reassign her to the Law
Department. Petitioner further argues that only the COMELEC,
acting as a collegial body, can authorize such
reassignment. Moreover, petitioner maintains that a
reassignment without her consent amounts to removal from
office without due process and therefore illegal.
Petitioners posturing will hold water if Benipayo does not
possess any color of title to the office of Chairman of the
COMELEC. We have ruled, however, 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:
(4) Make temporary assignments, rotate and transfer
personnel in accordance with the provisions of the Civil
Service Law. (Emphasis supplied)
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.
Petitioners 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.[64] 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.[65] Obviously,
petitioner does not enjoy security of tenure as Director
IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G.
Bacal,[66] this Court held that:
As respondent does not have the rank appropriate for the
position of Chief Public Attorney, her appointment to that
position cannot be considered permanent, and she can claim
no security of tenure in respect of that position. As held
in Achacoso v. Macaraig:
It is settled that a permanent appointment can be issued only
to a person who meets all the requirements for the position to
which he is being appointed, including the appropriate
eligibility prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being
so, it could be withdrawn at will by the appointing authority
and at a moments notice, conformably to established
jurisprudence x x x.
The mere fact that a position belongs to the Career Service
does not automatically confer security of tenure on its
occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of
his appointment, which in turn depends on his eligibility or
lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the
first place, or as an exception to the rule, may be appointed
to it merely in an acting capacity in the absence of appropriate
eligibles. The appointment extended to him cannot be
regarded as permanent even if it may be so designated x x x.
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.
Still, 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:
(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.
Petitioner claims that Benipayo failed to secure the approval
of the COMELEC en banc to effect transfers or reassignments
of COMELEC personnel during the election
period.[67] Moreover, petitioner insists that the COMELEC en
banc must concur to every transfer or reassignment of
COMELEC personnel during the election period.
Contrary to petitioners allegation, the COMELEC did in fact
issue COMELEC Resolution No. 3300 dated November 6,
46
Public Corporation

2000,[68] exempting the COMELEC from Section 261 (h) of The COMELEC Chairman is the official expressly authorized by
the Omnibus Election Code. The resolution states in part: law to transfer or reassign COMELEC personnel. The person
holding that office, in a de jure capacity, is Benipayo. The
WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of COMELEC en banc, in COMELEC Resolution No. 3300,
the Omnibus Election Code provides as follows: approved the transfer or reassignment of COMELEC personnel
Sec. 261. Prohibited Acts. The following shall be guilty of an during the election period. Thus, Benipayos order reassigning
election offense: petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the
(h) Transfer of officers and employees in the civil service Any same reason, Benipayos order designating Cinco Officer-in-
public official who makes or causes any transfer or detail Charge of the EID is legally unassailable.
whatever of any officer or employee in the civil service
including public school teachers, within the election period Fifth Issue: Legality of Disbursements to Respondents
except upon approval of the Commission. Based on the foregoing discussion, respondent Gideon C. De
WHEREAS, the aforequoted provisions are applicable to the Guzman, Officer-in-Charge of the Finance Services
national and local elections on May 14, 2001; Department of the Commission on Elections, did not act in
excess of jurisdiction in paying the salaries and other
WHEREAS, there is an urgent need to appoint, transfer or emoluments of Benipayo, Borra, Tuason and Cinco.
reassign personnel of the Commission on Elections during the
prohibited period in order that it can carry out its constitutional WHEREFORE, the petition is dismissed for lack of merit. Costs
duty to conduct free, orderly, honest, peaceful and credible against petitioner.
elections; SO ORDERED.
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. (Emphasis supplied)

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 fieldpersonnel and not to head office personnel like
the petitioner. Under the Revised Administrative
Code,[69] 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 banccannot arrogate unto itself this
power because that will mean amending the Revised
Administrative Code, an act the COMELEC en banc cannot
legally do.

COMELEC Resolution No. 3300 does not require that every

transfer or reassignment of COMELEC personnel should carry
the concurrence of the COMELEC as a collegial
body. Interpreting Resolution No. 3300 to require such
concurrence will render the resolution meaningless since the
COMELEC en banc will have to approve every personnel
transfer or reassignment, making the resolution utterly
useless.Resolution No. 3300 should be interpreted for what it
is, an approval to effect transfers and reassignments of
personnel, without need of securing a second approval from
the COMELEC en banc to actually implement such transfer or
reassignment.

47
Public Corporation

48
Public Corporation

AQUILINO Q. PIMENTEL, G.R. No. 164978 Antecedent Facts

JR.,
The Senate and the House of Representatives (Congress)
EDGARDO J. ANGARA, commenced their regular session on 26 July 2004. The
Present: Commission on Appointments, composed of Senators and
JUAN PONCE ENRILE, Representatives, was constituted on 25 August 2004.
Davide, Jr., C.J.,
LUISA P. EJERCITO- Meanwhile, President Arroyo issued appointments[2] to
ESTRADA, Puno,
respondents as acting secretaries of their respective
JINGGOY E. ESTRADA, Panganiban, departments.

PANFILO M. LACSON, Quisumbing, Appointee Department Date of

Appointment
ALFREDO S. LIM, Ynares-Santiago,
Arthur C. Yap Agriculture 15 August 2004
JAMBY A.S. MADRIGAL, Sandoval-Gutierrez,
and Alberto G. Foreign Affairs 23 August 2004
Carpio,
Romulo
SERGIO R. OSMEA III, Austria-Martinez,
Raul M. Justice 23 August 2004
Petitioners, Corona, Gonzalez

Carpio Morales, Florencio B. Education 23 August 2004

- versus - Abad

EXEC. SECRETARY Callejo, Sr., Avelino J. National Defense 23 August 2004

EDUARDO Cruz, Jr.

R. ERMITA, FLORENCIO B. Azcuna, Rene C. Villa Agrarian Reform 23 August 2004

ABAD,
Joseph H. Tourism 23 August 2004
AVELINO J. CRUZ, JR., Tinga, Durano

MICHAEL T. DEFENSOR, Chico-Nazario, and Michael T. Environment and 23 August 2004

Defensor Natural Resources
JOSEPH H. DURANO, Garcia, JJ.

RAUL M. GONZALEZ,
The appointment papers are uniformly worded as follows:
ALBERTO G. ROMULO,
Sir: Pursuant to the provisions of existing laws, you are hereby
RENE C. VILLA, and Promulgated:
appointed ACTING SECRETARY, DEPARTMENT OF
ARTHUR C. YAP, (appropriate department) vice (name of person replaced).

Respondents. October 13, 2005
x---------------------------------------
--------------x
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition[1] with a prayer
for the issuance of a writ of preliminary injunction to declare
unconstitutional the appointments issued by President Gloria
Macapagal-Arroyo (President Arroyo) through Executive
Secretary Eduardo R. Ermita (Secretary Ermita) to Florencio
B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H.
Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa,
and Arthur C. Yap (respondents) as acting secretaries of their
respective departments. The petition also seeks to prohibit
respondents from performing the duties of department
secretaries.
By virtue hereof, you may qualify and enter upon the
performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission with
copies of your Oath of Office.
(signed) Gloria Arroyo
Respondents took their oath of office and assumed duties as
acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator
Pimentel), Edgardo J. Angara (Senator Angara), Juan Ponce
Enrile (Senator Enrile), Luisa P. Ejercito-Estrada (Senator
Ejercito-Estrada), Jinggoy E. Estrada (Senator Estrada),
Panfilo M. Lacson (Senator Lacson), Alfredo S. Lim (Senator
Lim), Jamby A.S. Madrigal (Senator Madrigal), and Sergio R.
Osmea, III (Senator Osmea) (petitioners) filed the present
petition as Senators of the Republic of the Philippines.
Congress adjourned on 22 September 2004. On 23 September
2004, President Arroyo issued ad interim appointments[3] to
respondents as secretaries of the departments to which they

49
Public Corporation
were previously appointed in an acting capacity. The
appointment papers are uniformly worded as follows:
Sir: Pursuant to the provisions of existing laws, you are hereby
appointed SECRETARY [AD INTERIM], DEPARTMENT OF
(appropriate department).
By virtue hereof, you may qualify and enter upon the
performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission with
copies of your oath of office.
(signed) Gloria Arroyo
Issue
The petition questions the constitutionality of President
Arroyos appointment of respondents as acting secretaries
without the consent of the Commission on Appointments while
Congress is in session.
The Courts Ruling
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because
President Arroyo had extended to respondents ad
interim appointments on 23 September 2004 immediately
after the recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin acts
already done.[4] However, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it is
capable of repetition yet evading review.[5]
In the present case, the mootness of the petition does not bar
its resolution. The question of the constitutionality of the
Presidents appointment of department secretaries in an acting
capacity while Congress is in session will arise in every such
appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and
the legislature may not interfere with the exercise of this
executive power except in those instances when the
Constitution expressly allows it to interfere.[6] Limitations on
the executive power to appoint are construed strictly against
the legislature.[7] The scope of the legislatures interference
in the executives power to appoint is limited to the power to
prescribe the qualifications to an appointive office. Congress
cannot appoint a person to an office in the guise of prescribing
qualifications to that office. Neither may Congress impose on
the President the duty to appoint any particular person to an
office.[8]
However, even if the Commission on Appointments is
composed of members of Congress, the exercise of its powers
is executive and not legislative. The Commission on
Appointments does not legislate when it exercises its power
to give or withhold consent to presidential appointments.
Thus:
xxx The Commission on Appointments is a creature of the
Constitution. Although its membership is confined to members
of Congress, said Commission is independent of Congress.
The powers of the Commission do not come from Congress,
but emanate directly from the Constitution. Hence, it is not an
agent of Congress. In fact, the functions of the Commissioner
are purely executive in nature. xxx[9]
On Petitioners Standing
The Solicitor General states that the present petition is a quo
warranto proceeding because, with the exception of Secretary
Ermita, petitioners effectively seek to oust respondents for
unlawfully exercising the powers of department secretaries.
The Solicitor General further states that petitioners may not
claim standing as Senators because no power of the
Commission on Appointments has been infringed upon or
violated by the President. xxx If at all, the Commission on
Appointments as a body (rather than individual members of
the Congress) may possess standing in this case.[10]
Petitioners, on the other hand, state that the Court can
exercise its certiorari jurisdiction over unconstitutional acts of
the President.[11] Petitioners further contend that they
possess standing because President Arroyos appointment of
department secretaries in an acting capacity while Congress is
in session impairs the powers of Congress. Petitioners
cite Sanlakas v. Executive Secretary[12] as basis, thus:
To the extent that the powers of Congress are impaired, so is
the power of each member thereof, since his office confers a
right to participate in the exercise of the powers of that
institution.
An act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress. In
such a case, any member of Congress can have a resort to
the courts.
Considering the independence of the Commission on
Appointments from Congress, it is error for petitioners to claim
standing in the present case as members of Congress.
President Arroyos issuance of acting appointments while
Congress is in session impairs no power of Congress. Among
the petitioners, only the following are members of the
Commission on Appointments of the 13th Congress: Senator
Enrile as Minority Floor Leader, Senator Lacson as Assistant
Minority Floor Leader, and Senator Angara, Senator Ejercito-
Estrada, and Senator Osmea as members.
Thus, on the impairment of the prerogatives of members of
the Commission on Appointments, only Senators Enrile,
Lacson, Angara, Ejercito-Estrada, and Osmea have standing
in the present petition. This is in contrast to Senators
Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in
protecting their perceived prerogatives as members of
Congress, possess no standing in the present petition.
The Constitutionality of President Arroyos Issuance
of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not have
appointed respondents as acting secretaries because in case
50
Public Corporation
of a vacancy in the Office of a Secretary, it is only an
Undersecretary who can be designated as Acting
Secretary.[13] Petitioners base their argument on Section 10,
Chapter 2, Book IV of Executive Order No. 292 (EO
292),[14]which enumerates the powers and duties of the
undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The
Undersecretary shall:
(5) Temporarily discharge the duties of the Secretary in the
latters absence or inability to discharge his duties for any
cause or in case of vacancy of the said office, unless otherwise
provided by law. Where there are more than one
Undersecretary, the Secretary shall allocate the foregoing
powers and duties among them. The President shall likewise
make the temporary designation of Acting Secretary from
among them; and
Petitioners further assert that while Congress is in session,
there can be no appointments, whether regular or acting, to
a vacant position of an office needing confirmation by the
Commission on Appointments, without first having obtained
its consent.[15]
In sharp contrast, respondents maintain that the President
can issue appointments in an acting capacity to department
secretaries without the consent of the Commission on
Appointments even while Congress is in session. Respondents
point to Section 16, Article VII of the 1987 Constitution.
Section 16 reads:
SEC. 16. The President shall nominate and, with the consent
of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.
Respondents also rely on EO 292, which devotes a chapter to
the Presidents power of appointment. Sections 16 and 17,
Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. The President shall exercise
the power to appoint such officials as provided for in the
Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. (1) The
President may temporarily designate an officer already in the
government service or any other competent person to perform
the functions of an office in the executive branch, appointment
to which is vested in him by law, when: (a) the officer regularly
appointed to the office is unable to perform his duties by
reason of illness, absence or any other cause; or (b) there
exists a vacancy[.]
(2) The person designated shall receive the compensation
attached to the position, unless he is already in the
government service in which case he shall receive only such
additional compensation as, with his existing salary, shall not
exceed the salary authorized by law for the position filled. The
compensation hereby authorized shall be paid out of the funds
appropriated for the office or agency concerned.
(3) In no case shall a temporary designation exceed one (1)
year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically
opposed lines of thought. Petitioners assert that the President
cannot issue appointments in an acting capacity to
department secretaries while Congress is in session because
the law does not give the President such power. In contrast,
respondents insist that the President can issue such
appointments because no law prohibits such appointments.
The essence of an appointment in an acting capacity is its
temporary nature. It is a stop-gap measure intended to fill an
office for a limited time until the appointment of a permanent
occupant to the office.[16] In case of vacancy in an office
occupied by an alter ego of the President, such as the office
of a department secretary, the President must necessarily
appoint an alter ego of her choice as acting secretary before
the permanent appointee of her choice could assume office.
Congress, through a law, cannot impose on the President the
obligation to appoint automatically the undersecretary as her
temporary alter ego. An alter ego, whether temporary or
permanent, holds a position of great trust and confidence.
Congress, in the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego should be.
The office of a department secretary may become vacant
while Congress is in session. Since a department secretary is
the alter ego of the President, the acting appointee to the
office must necessarily have the Presidents confidence. Thus,
by the very nature of the office of a department secretary, the
President must appoint in an acting capacity a person of her
choice even while Congress is in session. That person may or
may not be the permanent appointee, but practical reasons
may make it expedient that the acting appointee will also be
the permanent appointee.
The law expressly allows the President to make such acting
appointment. Section 17, Chapter 5, Title I, Book III of EO
292 states that [t]he President may temporarily designate an
officer already in the government service or any other
competent person to perform the functions of an office in the
executive branch. Thus, the President may even appoint in an
acting capacity a person not yet in the government service, as
long as the President deems that person competent.
Petitioners assert that Section 17 does not apply to
appointments vested in the President by the Constitution,
because it only applies to appointments vested in the
President by law. Petitioners forget that Congress is not the
only source of law. Law refers to the Constitution, statutes or
51
Public Corporation

acts of Congress, municipal ordinances, implementing rules

issued pursuant to law, and judicial decisions.[17]

Finally, petitioners claim that the issuance of appointments in

an acting capacity is susceptible to abuse. Petitioners fail to
consider that acting appointments cannot exceed one year as
expressly provided in Section 17(3), Chapter 5, Title I, Book
III of EO 292. The law has incorporated this safeguard to
prevent abuses, like the use of acting appointments as a way
to circumvent confirmation by the Commission on
Appointments.

In distinguishing ad interim appointments from appointments

in an acting capacity, a noted textbook writer on constitutional
law has observed:

Ad-interim appointments must be distinguished from

appointments in an acting capacity. Both of them are effective
upon acceptance. But ad-interim appointments are extended
only during a recess of Congress, whereas acting
appointments may be extended any time there is a vacancy.
Moreover ad-interim appointments are submitted to the
Commission on Appointments for confirmation or rejection;
acting appointments are not submitted to the Commission on
Appointments. Acting appointments are a way of temporarily
filling important offices but, if abused, they can also be a way
of circumventing the need for confirmation by the Commission
on Appointments.[18]

However, we find no abuse in the present case. The absence

of abuse is readily apparent from President Arroyos issuance
of ad interim appointments to respondents immediatelyupon
the recess of Congress, way before the lapse of one year.

WHEREFORE, we DISMISS the present petition

for certiorari and prohibition.

SO ORDERED.

52
Public Corporation

LIZA M. QUIROG and G.R. No. 163443 A copy of the Monthly Report on Personnel Actions (ROPA)
RENE L. RELAMPAGOS, covering the months of May and June 2001 of the provincial
G.R. No. 163568 government was submitted to the Civil Service Commission
Petitioners, - versus - Regional Office No. VII (CSCROVII), Cebu City.
Present:
GOVERNOR ERICO B. In the Order dated June 28, 2001[7], the Director of
AUMENTADO, PUNO, C.J.
CSCROVII invalidated Quirogs appointment as PGDH-OPA
Respondent. QUISUMBING, upon finding that the same was part of the bulk appointments
issued by then Governor Relampagos after the May 14,
CIVIL SERVICE YNARES-SANTIAGO*, 2001 elections allegedly in violation of Item No. 3(d)[8] of
COMMISSION, CSC Resolution No. 010988 dated June 4, 2001. The Order
CARPIO,
pointed out that the prohibition against the issuance
Petitioner, AUSTRIA-MARTINEZ, of midnight appointments was already laid down as early
as February 29, 2000 in CSC Resolution No. 000550.[9]
-versus - CORONA,
Both Relampagos and Quirog moved for reconsideration of the
COURT OF APPEALS and CARPIO MORALES, CSCROVII Order, alleging that when the latter took her oath
GOV. ERICO B.
of office on June 1, 2001, CSC Resolution No. 010988 was not
AUMENTADO, AZCUNA,
yet effective as it took effect only on June 4, 2001. They
Respondents. TINGA, argued that the subject appointment cannot be considered
a midnight appointment because it was made days before the
CHICO-NAZARIO, expiration of Relampagos term, and that Quirog was already
the acting Provincial Agriculturist a year prior to said
VELASCO JR.,
appointment or since June 19, 2000.[10]Besides, so they
NACHURA, asserted, since Quirog had already taken her oath of office,
assumed her duties and collected her salary for the month of
REYES, June, 2001, she had already acquired a legal, not merely
equitable, right to the position in question, which cannot be
LEONARDO-DE CASTRO,
taken away from her either by revocation of the appointment
BRION, JJ. or by removal except for cause and with previous notice and
hearing.
Promulgated:
In a decision[11] dated July 23, 2001, the CSCROVII denied
November 11, 2008 Quirogs and Relampagos motion for reconsideration for lack
of legal personality to file such pleading, citing Section 2, Rule
LEONARDO-DE CASTRO, J.:
VI of CSC Memorandum Circular (MC) No. 40, series of 1998.
Before this Court are two consolidated petitions for review The CSCROVII explained that only the appointing officer may
under Rule 45 of the Rules of Court both assailing and seeking request reconsideration of the disapproval of an appointment
to set aside the Court of Appeals (CA) Decision[1] dated by the Civil Service Commission. Even if Relampagos was the
March 31, 2003 and the Resolution[2] dated April 12, one who appointed Quirog, he could not file a motion for
2004 in CA-G.R. SP No. 70255. The Decision set aside reconsideration because his term as governor had already
Resolution Nos. 011812 and 020271 dated November 20, expired.
2001 and February 22, 2002, respectively, of the Civil Service
Aggrieved, the petitioners in G.R. No. 163443 appealed to the
Commission in Administrative NDC No. 01-88 and reinstated
Civil Service Commission (CSC) where their joint appeal was
the (a) June 28, 2001 Order and (b) July 23, 2001 Decision of
docketed as Adm. NDC No. 01-88.
the Civil Service Commission Regional Office No. VII.
On November 20, 2001, the CSC issued Resolution No.
The facts as culled from the records are as follows:
011812,[12] which granted the said joint appeal and set aside
On May 28, 2001, Bohol Provincial Governor Rene L. the order and decision of the CSCROVII. More specifically, the
Relampagos permanently appointed[3] Liza M. Quirog as Resolution states:
Provincial Government Department Head[4] of the Office of
WHEREFORE, the joint appeal of former Governor Rene L.
the Bohol Provincial Agriculture (PGDH-OPA). The
Relampagos and Liza M. Quirog is hereby
appointment was confirmed by the Sangguniang Panlalawigan
GRANTED. Accordingly, the decision dated July 23, 2001 of
in Resolution No. 2001-199[5] on June 1, 2001. On even date,
the Civil Service Commission-Regional Office No. VII and
Quirog took her oath of office.
CSCRO No. VII Order dated June 28, 2001 are hereby set
Before the issuance of the permanent appointment, the aside. Said Regional Office is enjoined to approve the
Personnel Selection Board (PSB) of the Human Resource appointment of Quirog to the position of Provincial
Management and Development Office of Bohol issued a Government Head, Office of the Provincial
certification[6] that Quirog was one of two candidates Agriculturist, Province of Bohol.
qualified for the position of PGDH-OPA.
According to the CSC, since Relampagos had ceased to be the
appointing authority upon the expiration of his term as
53
Public Corporation
governor and incumbent Governor Erico B. Aumentado was
not the official who made the subject appointment, equity
dictates that the appointee Quirog be allowed to question the
decision to obviate possible damage or injury to the delivery
of public service. The CSC also declared that the appointment
of Quirog was not a midnight appointment as it was not
hurriedly issued nor did it subvert the policies of the incoming
administration. The CSC relaxed the application of Item
3(a)[13] in CSC Resolution 01-0988 requiring that
appointments should have gone through the regular screening
by the PSB before the election ban or the prohibited period
from March 30, 2001 to May 14, 2001. After noting that the
selection board only deliberated upon Quirogs qualifications
on May 24, 2001, or after the election ban, the CSC
ratiocinated that the spirit, rather than the letter of the said
rule should prevail as long as the case did not involve a
midnight appointment proscribed by Aytona v. Castillo, et
al.[14] Lastly, the CSC justified Quirogs appointment even
though such was included among 46 post-election
appointments because of the need to immediately fill up in a
permanent capacity the vacant position of Provincial
Agriculturist and the fact that Governor Aumentado expressly
declared his trust and confidence in Quirog in his
Memorandum No. 1[15] dated July 2, 2001.
On December 10, 2001, incumbent Bohol Governor Erico B.
Aumentado filed an amended Motion for
Reconsideration[16] of the CSC Resolution No. 011812. He
insisted that Quirog and Relampagos had no legal personality
to file a motion for reconsideration of the disapproved
appointment or to appeal the same. He insisted that Quirogs
appointment was a midnight appointment. Aumentado added
that the selection board which screened Quirogs qualifications
was not validly constituted and that the subject appointment
was made more than six months from the time it was
published on July 23, 2000 in violation of CSC Resolution No.
010114[17] dated January 10, 2001. Aumentado insisted that
Relampagos made 97, not 46, mass appointments on the eve
of his term, 95 of which were invalidated by the CSC Bohol
Field Office and two, including that of Quirog, by the
CSCROVII.
In Resolution No. 020271[18] dated February 22, 2002, the
CSC denied Aumentados motion for
reconsideration. Aumentado then filed a petition for
review[19] under Rule 43 of the Rules of Court with the CA
where it was docketed as CA-G.R. SP No. 70255.
On March 31, 2003, the CA rendered the herein challenged
Decision,[20] granting Aumentados petition. The CA reversed
and set aside CSC Resolution No. 011812 and ruled that
Quirogs appeal should have been dismissed outright for lack
of legal personality:
WHEREFORE, based on the foregoing premises, the instant
petition is hereby GRANTED, the assailed CSC Resolution Nos.
011812 and 020271, dated November 20, 2001 and February
22, 2002 respectively, are REVERSED and SET ASIDE. The
CSCROVIIs June 28, 2001 Order and its July 23, 2001 Decision
are hereby REINSTATED.
SO ORDERED.
On April 12, 2004, the CA rendered the second assailed
Resolution,[21] denying Quirog and Relampagos motion for
reconsideration.
From the adverse decision of the CA, the CSC as well as
Relampagos and Quirog interposed separate petitions for
review on certiorari. Relampagos and Quirogs
petition[22] filed on June 25, 2004, was docketed as G.R. No.
163443, while the CSCs petition[23] filed on July 8, 2004, was
docketed as G.R. No. 163568.
In the Resolution[24] dated July 13, 2004, the Court ordered
the consolidation of the two petitions.
The consolidated petitions present the following issues for the
Courts resolution: (1) whether or not petitioners Relampagos
and Quirog have the legal standing to file a motion for
reconsideration of, or appeal from, the disapproval of the
latters appointment by the Civil Service Commission, (2)
whether or not Quirogs appointment violated Item 3 of CSC
Resolution No. 010988 dated June 4, 2001, and 3) whether or
not the subject appointment was a midnight appointment.
In the herein challenged decision, the CA held that only the
appointing authority could challenge the CSCs disapproval of
an appointment. In arriving at such a conclusion, the CA relied
solely on Section 2 of Rule VI of CSC Memorandum Circular
(MC) No. 40, series of 1998[25] which provides:
Sec. 2. Requests for reconsideration of, or appeal from, the
disapproval of an appointment may be made by the
appointing authority and submitted to the Commission within
fifteen (15) days from receipt of the disapproved appointment.
The petitioners share the view that the word may in the afore-
quoted provision simply means that a request for
reconsideration or appeal from a disapproved appointment is
not vested exclusively in the appointing authority and that
Quirogs appeal should have been given due course because
she was the real party-in-interest, being the one aggrieved by
the disapproval of the appointment.
Petitioners Quirog and Relampagos contend that their appeal
before the CA should not have been dismissed on a mere
technicality such as lack of legal personality. They argued that
litigants must be afforded full opportunity for the adjudication
of their case on the merits.
The CSC for its part, pointed out that in previously decided
cases, the CSC allowed the appointees to take relief from the
disapproval of their appointments as an exception to the rule
on legal standing.
Upon the other hand, respondent Aumentado maintains that
the controlling rule on the matter of legal standing is the
afore-cited Section 2, Rule VI, CSC MC No. 40, series of
1998. He anchors his argument in Mathay, Jr. v. Civil Service
Commission,[26] where the Court laid down the ruling that
only the appointing authority can request for reconsideration
of a CSC-disapproved appointment.
The Court rules for the petitioners.
In the recent case of Abella, Jr. v. Civil Service
Commission,[27] the Court declared that both the appointing
54
Public Corporation
authority and the appointee are equally real parties in interest
who have the requisite legal standing to bring an action
challenging a CSC disapproval of an appointment. In said
case, we held that:
The CSCs disapproval of an appointment is a challenge to the
exercise of the appointing authoritys discretion. The
appointing authority must have the right to contest the
disapproval.Thus, Section 2 of Rule VI of CSC Memorandum
Circular 40, s. 1998 is justified insofar as it allows the
appointing authority to request reconsideration or appeal.
Although the earlier discussion demonstrates that the
appointing authority is adversely affected by the CSCs Order
and is a real party in interest, the appointee is rightly a real
party in interest too. He is also injured by the CSC disapproval,
because he is prevented from assuming the office in a
permanent capacity. Moreover, he would necessarily benefit if
a favorable judgment is obtained, as an approved
appointment would confer on him all the rights and privileges
of a permanent appointee.
Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998
should not be interpreted to restrict solely to the appointing
authority the right to move for a reconsideration of, or to
appeal, the disapproval of an appointment. PD 807 and EO
292, from which the CSC derives the authority to promulgate
its rules and regulations, are silent on whether appointees
have a similar right to file motions for reconsideration of, or
appeals from, unfavorable decisions involving
appointments. Indeed, there is no legislative intent to bar
appointees from challenging the CSCs disapproval.
The view that only the appointing authority may request
reconsideration or appeal is too narrow. The appointee should
have the same right. Parenthetically, CSC Resolution 99-1936
recognizes the right of the adversely affected party to appeal
to the CSC Regional Offices prior to elevating a matter to the
CSC Central Office. The adversely affected party necessarily
includes the appointee.[28]
Also, in Abella, Jr, we held that the right of the appointee to
seek reconsideration or appeal was not the main issue
in Mathay:
This judicial pronouncement does not override Mathay v. Civil
Service Commission xxx. The Court merely noted in passing -
- by way of obiter -- that based on a similar provision, only
the appointing officer could request reconsideration of actions
taken by the CSC on appointments.
In that case, Quezon City Mayor Ismael A. Mathay Jr. sought
the nullification of CSC Resolutions that recalled his
appointment of a city government officer. He filed a
Petition assailing the CA Decision, which had previously
denied his Petition for Certiorari for being the wrong remedy
and for being filed out of time. We observed then that the CSC
Resolutions were already final and could no longer be elevated
to the CA. Furthermore, Mathays Petition for Certiorari filed
with the CA was improper, because there was an available
remedy of appeal. And the CSC could not have acted without
jurisdiction, considering that it was empowered to recall an
appointment initially approved.
The right of the appointee to seek reconsideration or appeal
was not the main issue in Mathay. At any rate, the present
case is being decided en banc, and the ruling may reverse
previous doctrines laid down by this Court. [29]
Clearly, pursuant to Abella, Jr., Quirog had the right to ask for
reconsideration of, or to appeal the adverse ruling of
CSCROVII. In contrast, Relampagos, by reason of the
expiration of his term as governor, had lost the legal
personality to contest the disapproval of the appointment.
As to the validity of Quirogs appointment, the CSCROVII
disapproved Quirogs appointment for non-compliance with
Item No. 3 of CSC Resolution No. 010988 dated June 4,
2001. Item No. 3 refers to the disapproval of appointments
unless certain requisites are complied with. Item No. 3 reads:
3. All appointments, whether original, transfer,
reemployment, reappointment, promotion or demotion, x x x
which are issued AFTER the elections, regardless of their dates
of effectivity and/or date of receipt by the Commission, x x x
shall be disapproved unless the following requisites concur
relative to their issuance:
a) The appointment has gone through the regular screening
by the Personnel Selection Board (PSB) before the prohibited
period on the issuance of appointments as shown by
the PSBreport or minutes of its meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order
not to prejudice public service and/or endanger public safety;
d) That the appointment is not one of those mass
appointments issued after the elections.
The CSC ruled that the promotional appointment extended to
Quirog by Governor Relampagos was not violative of the
aforesaid CSC Resolution. This interpretation by the CSC of its
own rules should be given great weight and consideration for
after all, it is the agency tasked with interpreting or applying
the same.
Records disclose that on May 28, 2001, the PSB of the Human
Resource Management and Development Office of Bohol,
issued a certification[30] that Quirog was one of two
candidates qualified for the position of PGDH-OPA. On the
same day, Quirog was appointed by then Governor
Relampagos and on June 1, 2001, she took her oath of office.
CSC Resolution No. 010988 was issued three days later, or
on June 4, 2001. Evidently, the CSCROVII should not have
subjected Quirogs appointment to the requirements under
said resolution, as its application is against the prospective
application of laws. Having no provision regarding its
retroactive application to appointments made prior to its
effectivity, CSC Resolution No. 010988 must be taken to be of
prospective application. As we have held time and again:
Since the retroactive application of a law usually divests rights
that have already become vested, the rule in statutory
construction is that all statutes are to be construed as having
only a prospective operation unless the purpose and intention
of the legislature to give them a retrospective effect is
55
Public Corporation

expressly declared or is necessarily implied from the language since June 2000 all the more highlights the public need for
used.[31] said position to be permanently filled up.

Prescinding therefrom, it cannot be said that Quirogs
appointment violated CSC Resolution No. 010988, the said
Resolution having taken effect after the questioned
appointment was extended.
It cannot also be said that Quirogs appointment was
a midnight appointment. The constitutional prohibition on so-
called midnight appointments, specifically, those made within
two (2) months immediately prior to the next presidential
elections, applies only to the President or Acting
President.[32]
As the Court ruled in De Rama v. CA[33]:
The records reveal that when the petitioner brought the
matter of recalling the appointments of the fourteen (14)
private respondents before the CSC, the only reason he cited
to justify his action was that these
were midnight appointments that are forbidden under Article
VII, Section 15 of the Constitution. However, the CSC ruled,
and correctly so, that the said prohibition applies only to
presidential appointments. In truth and in fact, there is no law
that prohibits local elective officials from making appointments
during the last days of his or her tenure.
We, however, hasten to add that the aforementioned ruling
does not mean that the raison d etre behind the prohibition
against midnight appointments may not be applied to those
made by chief executives of local government units, as
here. Indeed, the prohibition is precisely designed to
discourage, nay, even preclude, losing candidates from issuing
appointments merely for partisan purposes thereby depriving
the incoming administration of the opportunity to make the
corresponding appointments in line with its new policies.As we
held in Aytona v. Castillo:
Besides, as correctly held by the CSC:
A careful evaluation of the circumstances obtaining in the
issuance of the appointment of Quirog shows the absence of
the element of hurriedness on the part of former Governor
Relampagos which characterizes
a midnight appointment. There is also wanting in the records
of the case the subversion by the former governor of the
policies of the incumbent Governor Erico Aumentado as a
logical consequence of the issuance of Quirogs appointment
by the latter. Both elements are the primordial considerations
by the Supreme Court when it laid down its ruling in
prohibiting midnight appointments in the landmark case
of Aytona vs Castillo, et. al.[35]
In any event, respondent Governor Aumentado, in a
Memorandum[36] dated March 4, 2003, has reinstated
Quirog to the permanent position of PGDH-OPA. Such act of
respondent bespeaks of his acceptance of the validity of
Quirogs appointment and recognition that indeed, the latter is
qualified for the subject position.
WHEREFORE, the assailed Decision dated March 31, 2003
and the Resolution dated April 12, 2004 of the Court of
Appeals are REVERSED AND SET ASIDE and CSCResolution
Nos. 011812 and 020271 dated November 20, 2001 and
February 22, 2002, respectively, are AFFIRMED.
SO ORDERED.

The filling up of vacancies in important positions, if few, and

so spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment and
the appointee's qualifications may undoubtedly be
permitted. But the issuance of 350 appointments in one night
and the planned induction of almost all of them in a few hours
before the inauguration of the new President may, with some
reason, be regarded by the latter as an abuse of Presidential
prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness
and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding
appointments.[34](Emphasis ours)

The appointment of Quirog cannot be categorized as

a midnight appointment. For it is beyond dispute that Quirog
had been discharging and performing the duties concomitant
with the subject position for a year prior to her permanent
appointment thereto. Surely, the fact that she was only
permanently appointed to the position of PGDH-OPA after a
year of being the Acting Provincial Agriculturist more than
adequately shows that the filling up of the position resulted
from deliberate action and a careful consideration of the need
for the appointment and the appointee's qualifications. The
fact that Quirog had been the Acting Provincial Agriculturist
56
Public Corporation
[G.R. No. 131136. February 28, 2001]
CONRADO L. DE RAMA, petitioner, vs. THE COURT OF
APPEALS (NINTH DIVISION, THE CIVIL SERVICE
COMMISSION), ELADIO MARTINEZ, DIVINO DE
JESUS, MORELL AYALA, ARISTEO CATALLA, DAISY
PORTA, FLORDELIZA ORIASEL, GRACIELA GLORY,
FELECIDAD ORINDAY, MA. PETRA MUFFET LUCE, ELSA
MARINO, BERNARDITA MENDOZA, JANE
MACATANGAY, ADELFO GLODOVIZA and FLORINO
RAMOS, respondents.
DECISION
YNARES-SANTIAGO, J.:
Upon his assumption to the position of Mayor of Pagbilao,
Quezon, petitioner Conrado L. de Rama wrote a letter dated
July 13, 1995 to the Civil Service Commission (or CSC),
seeking the recall of the appointments of fourteen (14)
municipal employees, namely:
NAME POSITION DATE OF
APPOINTMENT
Eladio Martinez Registration Officer I June 1, 1995
Divino de Jesus Bookbinder III June 1, 1995
Morell Ayala Accounting Clerk III June 16, 1995
Daisy Porta Clerk IV June 27, 1995
Aristeo Catalla Gen. Services Officer June 19, 1995
Elsa Marino Mun. Agriculturist June 19, 1995
Gracella Glory Bookkeeper II June 27, 1995
Ma. Petra Muffet Lucce Accounting Clerk III June 27, 1995
Felicidad Orindag Accounting Clerk II June 27, 1995
Bernardita Mendoza Agricultural Technologist June 27, 1995
Flordeliza Oriazel Clerk I June 27, 1995
Jane Macatangay Day Care Worker I June 27, 1995
Adolfo Glodoviza Utility Worker II June 27, 1995
Florencio Ramos Utility Foreman June 27, 1995[1]
Petitioner de Rama justified his recall request on the allegation
that the appointments of the said employees were midnight
appointments of the former mayor, Ma. Evelyn S. Abeja, done
in violation of Article VII, Section 15 of the 1987 Constitution,
which provides:
Section 15. Two months immediately before the next
presidential elections and up to the end of his term,
a President or Acting President shall not make appointments,
except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or
endanger public safety. (Underscoring supplied)
While the matter was pending before the CSC, three of the
above-named employees, namely: Elsa Marino, Morell Ayala,
and Flordeliza Oriazel, filed with the CSC a claim for payment
of their salaries, alleging that although their appointments
were declared permanent by Conrado Gulim, Director II of the
CSC Field Office based in Quezon, petitioner de Rama withheld
the payment of their salaries and benefits pursuant to Office
Order No. 95-01, which was issued on June 30, 1995, wherein
the appointments of the said fourteen (14) employees were
recalled.
Based on the documents submitted by Marino, Ayala and
Oriazel, the Legal and Quasi-Judicial Division of the CSC issued
an Order[2] finding that since the claimants-employees had
assumed their respective positions and performed their duties
pursuant to their appointments, they are therefore entitled to
receive the salaries and benefits appurtenant to their
positions. Citing Rule V, Section 10 of the Omnibus
Rules[3] which provides, in part, that if the appointee has
assumed the duties of the position, he shall be entitled to
receive his salary at once without awaiting the approval of his
appointment by the Commission, the CSC Legal and Quasi-
Judicial Division ruled that the said employees cannot be
deprived of their salaries and benefits by the unilateral act of
the newly-assumed mayor.
On April 30, 1996, the CSC denied petitioners request for the
recall of the appointments of the fourteen employees, for lack
of merit. The CSC also cited Rule V, Sections 9 and 10 of the
Omnibus Rules, and declared that the appointments of the
said employees were issued in accordance with pertinent
laws. Thus, the same were effective immediately, and cannot
be withdrawn or revoked by the appointing authority until
disapproved by the CSC. The CSC also dismissed petitioners
allegation that these were midnight appointments, pointing
out that the Constitutional provision relied upon by petitioner
prohibits only those appointments made by an outgoing
President and cannot be made to apply to local elective
officials. Thus, the CSC opined, the appointing authority can
validly issue appointments until his term has expired, as long
as the appointee meets the qualification standards for the
position.[4]
The CSC upheld the validity of the appointments on the
ground that they had already been approved by the Head of
the CSC Field Office in Lucena City, and for petitioners failure
to present evidence that would warrant the revocation or
recall of the said appointments.
Petitioner moved for the reconsideration of the CSCs
Resolution, as well as the Order of the CSC Legal and Quasi-
Judicial Division, averring that the CSC was without
jurisdiction: (1) to refuse to revoke the subject appointments;
and (2) to uphold the validity of said appointments, even
assuming that there was failure to present evidence that
would prove that these appointments contravened existing
laws or rules. He also posited that the CSC erred in finding the
appointments valid despite the existence of circumstances
showing that the same were fraudulently issued and
processed.
On November 21, 1996, the CSC denied petitioners motion for
reconsideration. The CSC reiterated its ruling that:
In the absence of any showing that these alleged midnight
appointments were defective in form and in substance, nor is
there evidence presented to show that subject appointments
were issued in contravention of law or rules, these
appointments are deemed valid and in effect.
xxxxxxxxx
Mayor de Rama failed to present evidence that subject
appointments should be revoked or recalled because of any of
the abovementioned grounds enumerated. As a matter of
57
Public Corporation
fact, said appointments were even approved by the Head, Civil
Service Field Office, Lucena City when submitted for
attestation. In the absence of a clear showing that these
appointments were issued in violation of any of these grounds,
the Commission has no other recourse but to uphold their
validity. (Underscoring supplied)
The CSC also cited the Supreme Court ruling in the case
of Aquino v. Civil Service Commission[5] wherein this Court
held that:
It is well-settled that once an appointment is issued and the
moment the appointee assumes a position in the civil service
under a completed appointment, he acquires a legal, not
merely equitable right (to the position), which is protected not
only by statute, but also by the Constitution, and cannot be
taken away from him either by revocation of the appointment,
or by removal, except for cause, and with previous notice and
hearing. (Emphasis supplied)
Consequently, petitioner filed a petition for review before the
Court of Appeals, arguing that the CSC arrived at the
erroneous conclusion after it ignored his supplement to the
consolidated appeal and motion for reconsideration wherein
he laid out evidence showing that the subject appointments
were obtained through fraud.
After reviewing the facts and issues raised by petitioner, the
Court of Appeals issued a Resolution[6] dated May 16, 1997
which held that there was no abuse of the power of
appointment on the part of the outgoing mayor.
The Court of Appeals further held that the fact that the
appointments of Marino, Ayala, Ramos, Mendoza and Glory
were made more than four (4) months after the publication of
the vacancies to which they were appointed is of no
moment. Setting aside petitioners suppositions, the Court of
Appeals ruled that Republic Act No. 7041 does not provide
that every appointment to the local government service must
be made within four (4) months from publication of the
vacancies. It cited Section 80 of said Act, to wit:
Section 80. Public Notice of Vacancy: Personnel Selection
Board. (a) Whenever a local chief executive decides to fill a
vacant career position, there shall be posted notices of the
vacancy in at least three (3) conspicuous public places in the
local government unit concerned for a period of not less than
fifteen (15) days.
(b) There shall be established in every province, city or
municipality a personnel selection board to assist the local
chief executive in the judicious and objective selection of
personnel for employment as well as for promotion, and in the
formulation of such policies as would contribute to employee
welfare.
(c) The personnel selection board shall be headed by the local
sanggunian concerned. A representative of the Civil Service
Commission, if any, and the personnel officer of the local
government unit concerned shall be ex officio members of the
board.[7]
Likewise, neither did the CSCs own Circular Order No. 27,
Section 7, Series of 1991, require that vacant positions
published in a government quarterly must be filled up before
the advent of the succeeding quarter.
On the basis of all the foregoing findings, the Court of Appeals
denied for lack of merit the petition for review.
Petitioner filed a motion for reconsideration arguing that the
appellate court erred in upholding the CSCs resolutions
despite the following defects:
I. No screening process and no criteria were adopted by the
Personnel Selection Board in nominating the respondents;
II. No posting in three (3) conspicuous public places of notice
of vacancy as required by the rules and the law;
III. Merit and fitness requirements were not observed by the
selection board and by the appointing authority as required by
the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of
respondents.[8]
In a Resolution dated October 20, 1997, the Court of Appeals
denied the motion for reconsideration.
Hence, the instant petition for review on certiorari on the
following assigned errors:
I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY
AND SERIOUSLY ERRED IN FINDING THAT THE CIVIL
SERVICE COMMISSION WAS CORRECT IN NOT UPHOLDING
THE PETITIONERS RECALL OF THE APPOINTMENTS OF
PRIVATE RESPONDENTS IN THE FACE OF FRAUD AND
VIOLATION OF RULES AND LAWS ON ISSUANCE OF
APPOINTMENTS.
II. THE PUBLIC RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN FINDING THAT THE PARTICULAR
GROUNDS NAMELY:
I. No screening process and no criteria were adopted by the
Personnel Selection Board in nominating the respondents;
II. No posting in three (3) conspicuous public places of notice
of vacancy as required by the rules and the law;
III. Merit and fitness requirements were not observed by the
selection board and by the appointing authority as required by
the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of
respondents.
ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF
THE APPOINTMENTS BY THE PETITIONER WERE PRECISELY
THE VIOLATION OF LAWS AND REGULATIONS ON ISSUANCE
OF APPOINTMENTS AS RAISED BEFORE THE RESPONDENT
CIVIL SERVICE COMMISSION.
Petitioner assails the findings of both the CSC and the Court
of Appeals for being contrary to law and not being supported
by the evidence on record.
This argument is too specious to be given credence. The
records reveal that when the petitioner brought the matter of
recalling the appointments of the fourteen (14) private
58
Public Corporation
respondents before the CSC, the only reason he cited to justify
his action was that these were midnight appointments that are
forbidden under Article VII, Section 15 of the
Constitution. However, the CSC ruled, and correctly so, that
the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that
prohibits local elective officials from making appointments
during the last days of his or her tenure. Petitioner certainly
did not raise the issue of fraud on the part of the outgoing
mayor who made the appointments. Neither did he allege that
the said appointments were tainted by irregularities or
anomalies that breached laws and regulations governing
appointments. His solitary reason for recalling these
appointments was that they were, to his personal belief,
midnight appointments which the outgoing mayor had no
authority to make.
Even in petitioners consolidated appeal and motion for
reconsideration, he did not make any assertion that these
appointments were violative of civil service rules and
procedures. Indeed, he harped on the CSCs alleged lack of
jurisdiction to refuse to recall the subject appointments. After
first invoking the authority of the CSC to approve or affirm his
act, he then contradicted himself by arguing that the CSC had
no jurisdiction to do so, but only after the CSC had ruled that
the recall was without legal basis. He emphasized that he
alone has sole discretion to appoint and recall the
appointment of municipal employees, an authority which, he
stressed, the CSC cannot usurp. Yet, nowhere in said pleading
did he cite any other ground, much less present proof that
would warrant the recall of said appointments.
Perhaps realizing the weakness of his arguments, albeit
belatedly, petitioner filed a supplement to the appeal and
motion for reconsideration where, for the very first time, he
alleged that the appointments were fraught with irregularities
for failing to comply with CSC rules and
regulations. Nevertheless, the CSC overruled petitioners
assertions, holding that no new evidence had been presented
to warrant a reversal of its earlier resolution.
Thus, in a petition for review before the Court of Appeals,
petitioner questioned the CSCs conclusion because it had
ignored the allegations and documents he presented in the
supplement to his earlier consolidated appeal and motion for
reconsideration. He argued that these form part of the records
of the case and that the CSC erred in failing to consider the
assertions he raised therein. The appellate court, however,
agreed with the CSC when it ruled that the documents
presented by petitioner in the supplemental pleading did not
constitute new evidence that would convince the CSC to
reverse its earlier ruling.In fine, the Court of Appeals, as did
the CSC, simply dismissed petitioners allegations and
documents attached to the supplemental pleading for they did
not constitute new evidence that a court, board or tribunal
may entertain.
Herein lies the inconsistency of petitioners arguments. He
faults the Court of Appeals and the CSC for ignoring his
supplemental pleading, while at the same time arguing that
the grounds for recall such as violations of laws and
regulations on issuance of appointments are not new issues
because he had timely raised them before the CSC.
There is no question that parties may file supplemental
pleadings to supply deficiencies in aid of an original pleading,
but which should not entirely substitute the latter.[9] The
propriety and substance of supplemental pleadings are
prescribed under Rule 10, Section 6 of the 1997 Rules of Civil
Procedure, which provides:
Sec. 6. Supplemental Pleadings. - Upon motion of a party the
court may, upon reasonable notice and upon such terms as
are just, permit him to serve a supplemental pleading setting
forth transactions, occurrences or events which have
happened since the date of the pleading sought to be
supplemented. The adverse party may plead thereto within
ten (10) days from notice of the order admitting the
supplemental pleading.
Supplemental pleadings must be with reasonable notice, and
it is discretionary upon the court or tribunal to allow the same
or not. Thus, the CSC was under no obligation to admit the
supplemental pleading, or even to consider the averments
therein.
Secondly, a supplemental pleading must state transactions,
occurrences or events which took place since the time the
pleading sought to be supplemented was filed. In the instant
case, petitioner alleged fraud and irregularities that
supposedly occurred contemporaneous to the execution of the
appointments. They should have been raised at the very first
opportunity. They are not new events which petitioner could
not have originally included as grounds for the recall of the
appointments.
Accordingly, the CSC, as well as the Court of Appeals, found
that the allegations in his supplemental pleading did not
constitute new evidence that can be the proper subject of a
supplemental pleading.These were old facts and issues which
he failed to raise earlier. Consequently, the CSC and the Court
of Appeals did not err in refusing to give credence to the
supplemental pleading.
Be that as it may, these alleged irregularities were considered
by the CSC and the Court of Appeals as new issues which were
raised for the first time on appeal. It is rather too late for
petitioner to raise these issues for the first time on appeal. It
is well-settled that issues or questions of fact cannot be raised
for the first time on appeal.[10] We have consistently held
that matters, theories or arguments not brought out in the
original proceedings cannot be considered on review or appeal
where they are raised for the first time.[11] To consider the
alleged facts and arguments raised belatedly in the
supplemental pleading to the appeal at this very late stage in
the proceedings would amount to trampling on the basic
principles of fair play, justice and due process.[12]
The grounds for the recall of the appointments that petitioner
raised in his supplemental pleading to the consolidated appeal
and motion for reconsideration are that: (1) the rules on
screening of applicants based on adopted criteria were not
followed; (2) there was no proper posting of notice of
vacancy; and (3) the merit and fitness requirements set by
the civil service rules were not observed. These are grounds
that he could have stated in his order of recall, but which he
did not. Neither did he raise said grounds in his original
appeal, but only by way of a supplemental pleading. Failure of
59
Public Corporation
the petitioner to raise said grounds and to present supporting
documents constitute a waiver thereof, and the same
arguments and evidence can no longer be entertained on
appeal before the CSC, nor in the Court of Appeals, and much
less in a petition for review before the Supreme Court.[13] In
fine, the raising of these factual issues for the first time in a
pleading which is supplemental only to an appeal is barred by
estoppel.[14]
Petitioner asks this Court to appreciate and consider these
factual issues. It must be recalled that the jurisdiction of the
Supreme Court in a petition for review on certiorari under Rule
45 of the Revised Rules of Court is limited to reviewing only
errors of law, not of fact.[15] That is, of course, unless the
factual findings assailed by petitioner are devoid of support by
the evidence on record or the impugned judgment is based on
a misapprehension of facts.[16]
A thorough perusal of the records reveal that the CSCs ruling
is supported by the evidence and the law. The fourteen (14)
employees were duly appointed following two meetings of the
Personnel Selection Board held on May 31 and June 26,
1995. There is no showing that any of the private respondents
were not qualified for the positions they were appointed
to. Moreover, their appointments were duly attested to by the
Head of the CSC field office at Lucena City. By virtue thereof,
they had already assumed their appointive positions even
before petitioner himself assumed his elected position as town
mayor. Consequently, their appointments took effect
immediately and cannot be unilaterally revoked or recalled by
petitioner.
It has been held that upon the issuance of an appointment
and the appointees assumption of the position in the civil
service, he acquires a legal right which cannot be taken away
either by revocation of the appointment or by removal except
for cause and with previous notice and hearing.[17] Moreover,
it is well-settled that the person assuming a position in the
civil service under a completed appointment acquires a legal,
not just an equitable, right to the position. This right is
protected not only by statute, but by the Constitution as well,
which right cannot be taken away by either revocation of the
appointment, or by removal, unless there is valid cause to do
so, provided that there is previous notice and hearing.[18]
Petitioner admits that his very first official act upon assuming
the position of town mayor was to issue Office Order No. 95-
01 which recalled the appointments of the private
respondents. There was no previous notice, much less a
hearing accorded to the latter. Clearly, it was petitioner who
acted in undue haste to remove the private respondents
without regard for the simple requirements of due process of
law. In doing so, he overstepped the bounds of his
authority. While he argues that the appointing power has the
sole authority to revoke said appointments, there is no debate
that he does not have blanket authority to do so. Neither can
he question the CSCs jurisdiction to affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing Regulations
of the Revised Administrative Code specifically provides that
an appointment accepted by the appointee cannot be
withdrawn or revoked by the appointing authority and shall
remain in force and in effect until disapproved by the
Commission. Thus, it is the CSC that is authorized to recall an
appointment initially approved, but only when such
appointment and approval are proven to be in disregard of
applicable provisions of the civil service law and
regulations.[19]
Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with pertinent
laws and rules shall take effect immediately upon its issuance
by the appointing authority, and if the appointee has assumed
the duties of the position, he shall be entitled to receive his
salary at once without awaiting the approval of his
appointment by the Commission. The appointment shall
remain effective until disapproved by the Commission.In no
case shall an appointment take effect earlier than he date of
its issuance.
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an
appointment, the same may be recalled on any of the
following grounds:
(a) Non-compliance with the procedures/criteria provided in
the agencys Merit Promotion Plan;
(b) Failure to pass through the agencys Selection/Promotion
Board;
(c) Violation of the existing collective agreement between
management and employees relative to promotion; or
(d) Violation of other existing civil service law, rules and
regulations.
Accordingly, the appointments of the private respondents may
only be recalled on the above-cited grounds. And yet, the only
reason advanced by the petitioner to justify the recall was that
these were midnight appointments. The CSC correctly ruled,
however, that the constitutional prohibition on so-called
midnight appointments, specifically those made within two (2)
months immediately prior to the next presidential elections,
applies only to the President or Acting President.
If ever there were other procedural or legal requirements that
were violated in implementing the appointments of the private
respondents, the same were not seasonably brought before
the Civil Service Commission. These cannot be raised for the
first time on appeal.
WHEREFORE, in view of all the foregoing, the instant petition
for review is DENIED and the Resolution of the Court of
Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions
Nos. 96-2828 and 96-7527 is hereby AFFIRMED in toto.
No pronouncement as to costs.
SO ORDERED.
60
Public Corporation
G.R. No. 181559 October 2, 2009
LEAH M. NAZARENO, Petitioners,
vs. CITY OF DUMAGUETE, Respondents.
DECISION
DEL CASTILLO, J.:
The integrity and reliability of our civil service is, perhaps,
never more sorely tested than in the impassioned
demagoguery of elections. Amidst the struggle of
personalities, ideologies, and platforms, the vigor and
resilience of a professional civil service can only be preserved
where our laws ensure that partisanship plays no part in the
appointing process. Consequently, we affirm the validity of a
regulation issued by the Civil Service Commission (CSC or the
Commission) intended to ensure that appointments and
promotions in the civil service are made solely on the basis of
qualifications, instead of political loyalties or patronage.
This Petition for Review on Certiorari filed under Rule 45 of
the Rules of Court seeks to reverse the Decision1 of the Court
of Appeals dated August 28, 2007 and its Resolution2 dated
January 11, 2008 in CA-G.R. CEB-SP No. 00665. The case
stemmed from CSC Field Office’s invalidation of petitioners’
appointments as employees of the City of Dumaguete, which
was affirmed by the CSC Regional Office, by the Commission
en banc and by the Court of Appeals.
Legal and Factual Backgrounds
Accreditation of Dumaguete City by the Civil Service
Commission
On October 25, 1999, pursuant to the Commission’s
Accreditation Program, the CSC issued Resolution No.
992411,3 which granted the City Government of Dumaguete
the authority to take final action on all its appointments,
subject to, inter alia, the following conditions:
1. That the exercise of said authority shall be subject to Civil
Service Law, rules and regulations and within the limits and
restrictions of the implementing guidelines of the CSC
Accreditation Program as amended (MC No. 27, s. 1994);
5. That appointments issued under this authority shall be
subject to monthly monitoring by the [Civil Service Field
Office] CSFO concerned;
9. That appointments found in the course of monthly
monitoring to have been issued and acted upon in violation of
pertinent rules, standards, and regulations shall immediately
be invalidated by the Civil Service Regional Office (CSRO),
upon recommendation by the CSFO.
Appointments made by outgoing Mayor Remollo
Then Dumaguete City Mayor Felipe Antonio B. Remollo sought
re-election in the May 14, 2001 elections, but lost to
respondent Mayor Agustin R. Perdices. Thereafter, on June 5,
7, and 11, 2001, outgoing Mayor Remollo promoted 15 city
hall employees, and regularized another 74 city hall
employees, including the herein 52 petitioners.
On July 2, 2001, Mayor Perdices publicly announced at the
flag raising ceremony at the Dumaguete City Hall grounds that
he would not honor the appointments made by former Mayor
Remollo. On the same day, he instructed the City
Administrator, respondent Dominador Dumalag, Jr., to direct
respondent City Assistant Treasurer Erlinda C. Tumongha
(now deceased), to refrain from making any cash
disbursements for payments of petitioners' salary differentials
based on their new positions.
The Petition for Mandamus before the Regional Trial Court of
Dumaguete City
Thus, on August 1, 2001, petitioners filed a Petition for
Mandamus with Injunction and Damages with Prayer for a
Temporary Restraining Order against the City of Dumaguete,
represented by respondent city mayor Perdices and city
officers Dumalag, Tumongha, Josephine Mae Flores, and
Araceli Campos. The petition was docketed as Civil Case No.
13013, and raffled to Branch 41 of the Regional Trial Court of
Dumaguete City. Petitioners sought the issuance of a writ of
preliminary injunction to enjoin respondents from taking any
action or issuing any orders nullifying their appointments.
In a Decision4 dated March 27, 2007, the Regional Trial Court
dismissed the petition; petitioners’ Motion for Reconsideration
was also denied in an Order5 dated April 26, 2007. The issues
involved in Civil Case No. 13013 have twice been elevated to
and eventually resolved by the Court in G.R. Nos.
1777956 and 168484.7
Revocation of Appointments by the Civil Service Commission
Field Office
Relative to this main case, on August 1, 2001, the CSC Field
Office in Dumaguete City, through Director II Fabio R.
Abucejo, revoked and invalidated the appointments of the
petitioners (the August 1, 2001 Order) based of the following
findings:
1. There were a total of 15 promotional appointments and 74
original appointments issued as reflected in the submitted
[Report of Personnel Actions] ROPA for the month of June
2001.
2. There was only one (1) en banc meeting of the City
Personnel Selection Board (PSB) held on 5 June 2001 to
consider the number of appointments thus issued and there
was no other call for a PSB meeting certified to by the City
[Human Resource Management Officer] HRMO.
3. There were no minutes available to show the deliberations
of the PSB of the 89 appointments listed in the ROPA as
certified by the City HRMO.
4. There were no PSB statements certifying that there was
actual screening and evaluation done on all candidates for
each position.
5. The appointing officer of the 89 appointments was an
outgoing local official who lost during the 14 May 2001
elections for City Mayor of Dumaguete City.
6. The 89 appointments were all issued after the elections and
when the new city mayor was about to assume office.8
61
Public Corporation
Director Abucejo invalidated the appointments as the same
were done in violation of CSC Resolution No. 010988 dated
June 4, 2001, the pertinent portions of which provide:
WHEREAS, the May 14, 2001 national and local elections have
just concluded and the Commission anticipates controversies
that would arise involving appointments issued by outgoing
local chief executives immediately before or after the
elections;
WHEREAS, the Commission observed the tendency of some
outgoing local chief executives to issue appointments even
after the elections, especially when their successors have
already been proclaimed.
WHEREAS, the practice of some outgoing local chief
executives causes animosities between the outgoing and
incoming officials and the people who are immediately
affected and are made to suffer the consequences thereof are
the ordinary civil servants, and eventually, to a large extent,
their constituents themselves;
WHEREAS, one of the reasons behind the prohibition in issuing
appointments or hiring new employees during the prohibited
period as provided for in CSC Memorandum Circular No. 7,
series of 2001, is to prevent the occurrence of the foregoing,
among others;9
WHEREAS, local elective officials whose terms of office are
about to expire, are deemed as "caretaker" administrators
who are duty bound to prepare for the smooth and orderly
transfer of power and authority to the incoming local chief
executives;
WHEREAS, under Section 15, Article VII of the Constitution,
the President or Acting President is prohibited from making
appointments two (2) months immediately before the next
presidential elections and up to the end of his term, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public service or
endanger public safety;
WHEREAS, while there is no equivalent provision in the Local
Government Code of 1991 (Republic Act 7160) or in the Civil
Service Law (Book V of Executive Order No. 292) of the
abovestated prohibition, the rationale against the prohibition
on the issuance of "midnight appointments" by the President
is applicable to appointments extended by outgoing local chief
executives immediately before and/or after the elections;
xxxx
NOW THEREFORE, the Commission, pursuant to its
constitutional mandate as the control personnel agency of the
government, hereby issues and adopts the following
guidelines:
xxxx
3. All appointments, whether original, transfer,
reemployment, reappointment, promotion or demotion,
except in cases of renewal and reinstatement, regardless of
status, which are issued AFTER the elections, regardless of
their dates of effectivity and/or date of receipt by the
Commission, including its Regional or Field Offices, of said
appointments or the Report of Personnel Actions (ROPA) as
the case may be, shall be disapproved unless the following
requisites concur relative to their issuance:
a) The appointment has gone through the regular screening
by the Personnel Selection Board (PSB) before the prohibited
period on the issuance of appointments as shown by the PSB
report or minutes of its meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order
not to prejudice public service and/or endanger public safety;
d) That the appointment is not one of those mass
appointments issued after the elections.
4. The term "mass appointments" refers to those issued in
bulk or in large number after the elections by an outgoing local
chief executive and there is no apparent need for their
immediate issuance.
On September 4, 2001, petitioners filed a Motion for
Reconsideration of the August 1, 2001 Order before the CSC
Region VII Office in Cebu. The motion was, however, denied
on the ground that it should have been filed before the office
of Director Abucejo in Dumaguete City. Thereafter, on
October 31, 2001, petitioners asked the CSC Region VII Office
in Cebu to treat their previous Motion for Reconsideration as
their appeal.1avvphi1
On February 14, 2002, the CSC Region VII Office affirmed the
August 1, 2001 Order. Subsequently, an Appeal to the
Commission en banc was filed through registered mail by 52
of the original 89 appointees, the petitioners herein, namely:
Name Former Position
1. Leah M. Nazareno Legal Researcher
2. Carlo M. Cual Legislative Staff Off
I
3. Rogelio B. Clamonte Public Services
4. Florecita Llosa Supply Officer I
5. Rogelio S. Villarubia Agriculturist II
6. Rossel Marie G. Gutierrez Casual/Plantilla
7. Nicanor F. Villarosa, Jr. Casual/Plantilla
8. Marie Sue Cual Casual/Plantilla
9. Miramichi Majella B. Mariot Casual/Plantilla
62
Public Corporation

10. Alma F. Ramirez Casual/Plantilla Clerk35.

IVRoger J. Aromin 7-Jun-01 Job Order

11. Antolin D. Zamar, Jr. Casual/Plantilla Metro

36.Aide
Cheryl
II Nocete 11-Jun-01 Job Order

12. Mario S. Aliling Casual/Plantilla Driver

37.IIMarivic Sanchez 5-Jun-01 Job Order

13. Teodulo Salvoro, Jr. Casual/Plantilla Metro

38.Aide
Crispin
II Duran 5-Jun-01 Job Order

14. Philip Janson Altamarino Casual/Plantilla Clerk39.

I Rebeco Lingcong 5-Jun-01 Job Order

15. Antonieta Padura Casual/Plantilla Metro

40.Aide
AnnaII Lee Estrabela11-Jun-01 Job Order

16. Adolfo Cornelia Casual/Plantilla Metro

41.Aide
Melchor
II Maquiling 11-Jun-01 Job Order

17. Ian Ryan Patula Casual/Plantilla Metro

42.Aide
RaulIIMolas 7-Jun-01 Job Order

18. William Tanoy Casual/Plantilla Metro Aide II 5-Jun-01

43. Oscar Kinikito Job Order
19. Victor Arbas Casual/Plantilla Public Services Foreman 7-Jun-01
44. Darwin Conejos Job Order
20. Jeanith Cual Casual/Plantilla Utility Worker II 5-Jun-01
45. Romel Cual Job Order
21. Braulio Sayson Casual/Plantilla Mechanical Plant 7-Jun-01
Supervisor
46. Roqueta Amor Job Order

22. Dawn Villarosa Casual/Plantilla Clerk47.

I Diosdado Lajato 7-Jun-01 Job Order

23. Agustin Rendoque Casual/Plantilla Utility

48.Worker
Paul Pino
I 7-Jun-01 Job Order

24. Enriqueta Tumongha Casual/Plantilla Utility

49.Worker
Lito Piñero
II 5-Jun-01 Job Order

25. Lionel Banogon Casual/Plantilla Clerk50.

II Rodulfo Zosa, Jr. 5-Jun-01 Job Order

26. Rosalito Vergantinos Casual/Plantilla Pest51.

Control
JorgeWorker
Arbolado
II 5-Jun-01 Job Order

27. Mario Cual, Jr. Casual/Plantilla Utility

52.Foreman
Ricardo M. Gonzales,
7-Jun-01
Jr. OIC-General Serv
Officer
28. Elaine Tumongha Casual/Plantilla Registration Officer I 11-Jun-01
Ruling of the CSC en banc and the Court of Appeals

29. Norman Villarosa Casual/Plantilla Utility23,

30. Ricardo C. Patula
On August Worker
2004,I the CSC en5-Jun-01
banc issued Resolution No.
040932 denying petitioners' appeal, and affirming the
Casual/Plantilla invalidation
Revenue of their appointments
Collection on the ground that these
Clerk 5-Jun-01
were mass
I appointments made by an outgoing local chief
executive.10 The Commission explained:

31. Rachel Banagua Casual/Plantilla Utility Worker

32. Rodolfo Calugcugan
33. Pergentino Cual
34. Bernard Ozoa
The rationale behindIthe prohibition
5-Jun-01
in CSC Resolution No. 01-
0988 is not hard to comprehend. The prohibition is designed
Job Order to discourage
Driver I losing candidates from extending appointments
7-Jun-01
to their protégés or from giving their constituents "promised"
positions (CSC Resolution No. 97-0317 dated January 17,
Job Order Metro Aide II 11-Jun-01
1997, Re: Roldan B. Casinillo). Moreover, the same is intended
to prevent the outgoing local chief executive from hurriedly
Job Order issuingUtility Worker I which would
appointments 7-Jun-01
subvert the policies of the
incoming leadership. Thus, any means that would directly or
indirectly circumvent the purposes for which said Resolution
was promulgated should not be allowed, particularly when the
63
Public Corporation
appointments were issued by the appointing authority who
lost in said election.
Petitioners filed a Motion for Reconsideration which was
denied by the Commission on April 11, 2005, through CSC
Resolution No. 050473.
Petitioners then filed a petition for review before the Court of
Appeals, which was docketed as CA-G.R. CEB-SP No. 00665.
On August 28, 2007, the Court of Appeals denied the appeal
and affirmed CSC Resolution No. 040932 dated August 23,
2004 and CSC Resolution No. 050473 dated April 11, 2005,
ratiocinating that:
The spirit behind CSC Resolution No. 010988 is evident from
its preamble. It was issued to thwart the nefarious practice by
outgoing local chief executives in making appointments
before, during, and/or after the regular local elections for
ulterior partisan motives. Said practice being analogous to
"midnight appointments" by the President or Acting President,
the CSC then promulgated Resolution No. 010988, to suppress
the mischief and evils attributed to "mass appointments"
made by local chief executives.
Petitioners’ Motion for Reconsideration was denied by the
Court of Appeals in a Resolution dated January 11, 2008.
The Parties’ Arguments
Before us, petitioners maintain that CSC Resolution No.
010988 is invalid because the Commission is without authority
to issue regulations prohibiting mass appointments at the local
government level. Petitioners cite De Rama v. Court of
Appeals11 which held that Section 15, Article VII of the
Constitution is only applicable to the President or Acting
President. They claim that outgoing or defeated local
appointing authorities are authorized to make appointments
of qualified individuals until their last day in office, and that
not all mass appointments are invalid. Finally, petitioners claim
that because Dumaguete City had been granted authority to
take "final action" on all appointments, the Commission did
not have any authority to disapprove the appointments made
by outgoing mayor Remollo.
In their Comment dated May 15, 2008,12 respondents argue
that petitioners’ appointments violated civil service rules and
regulations other than CSC Resolution No. 010988.
Respondents also assert that the Commission is authorized to
invalidate the petitioners’ appointments, because the CSC
accreditation program carried with it the caveat that "said
exercise of authority shall be subject to Civil Service law, rules
and regulations." Finally, respondents claim that petitioners
were guilty of forum shopping because the issues in this case
and in G.R. No. 177795 are the same.
Our Ruling
We find that the Civil Service Commission has the authority to
issue CSC Resolution No. 010988 and that the invalidation of
petitioners’ appointments was warranted. Consequently, we
affirm the Decision of the Court of Appeals dated August 28,
2007 and its Resolution dated January 11, 2008 in CA-G.R.
CEB-SP No. 00665.
The CSC has the authority to establish rules to promote
efficiency in the civil service
The Commission, as the central personnel agency of the
government,13 has statutory authority to establish rules and
regulations to promote efficiency and professionalism in the
civil service. Presidential Decree No. 807,14 or the Civil
Service Decree of the Philippines, provides for the powers of
the Commission, including the power to issue rules and
regulations and to review appointments:
Section 9: Powers and functions of the Commission – The
Commission shall administer the Civil Service and shall have
the following powers and functions:
xxxx
(b) Prescribe, amend, and enforce suitable rules and
regulations for carrying into effect the provisions of this
Decree x x x
(c) Promulgate policies, standards, and guidelines for the Civil
Service and adopt plans and programs to promote economical,
efficient, and effective personnel administration in the
government;
xxxx
(h) Approve all appointments, whether original or
promotional, to positions in the civil service, except those of
presidential appointees, members of the armed forces of the
Philippines, police forces, firemen, and jailguards, and
disapprove those where the appointees do not possess the
appropriate eligibility or required qualifications; (Emphasis
supplied)
Executive Order No. 292, or the Administrative Code of 1987,
also provides:
Section 12: Powers and Functions – The Commission shall
have the following powers and functions:
xxxx
(2) prescribe, amend, and enforce rules and regulations for
carrying into effect the provisions of the Civil Service Law and
other pertinent laws;
(3) promulgate policies, standards, and guidelines for the Civil
Service and adopt plans and programs to promote
economical, efficient, and effective personnel administration
in the government;
(4) take appropriate action on all appointments and other
personnel matters in the Civil Service including extension of
Service beyond retirement age;
(5) inspect and audit the personnel actions and programs of
the departments, agencies, bureaus, offices, local government
units, and other instrumentalities of the government, including
government owned and controlled corporations. (emphasis
supplied)
Clearly, the above-cited statutory provisions authorize the
Commission to "prescribe, amend, and enforce" rules to cover
the civil service. The legislative standards to be observed and
64
Public Corporation
respected in the exercise of such delegated authority are set
out in the statutes, to wit: to promote "economical, efficient,
and effective personnel administration."
The Reasons behind CSC Resolution No. 010988
We also find that there was substantial reason behind the
issuance of CSC Resolution No. 010988. It is true that there is
no constitutional prohibition against the issuance of "mass
appointments" by defeated local government officials prior to
the expiration of their terms. Clearly, this is not the same as a
"midnight appointment," proscribed by the Constitution, which
refers to those appointments made within two months
immediately prior to the next presidential election.15 As we
ruled in De Rama v. Court of Appeals:16
The records reveal that when the petitioner brought the
matter of recalling the appointments of the fourteen (14)
private respondents before the CSC, the only reason he cited
to justify his action was that these were midnight
appointments that are forbidden under Article VII, Section 15
of the Constitution. However, the CSC ruled, and correctly so,
that the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that
prohibits local elective officials from making appointments
during the last days of his or her tenure.
However, even while affirming De Rama, we explained in
Quirog v. Aumentado,17 that:
We, however, hasten to add that the aforementioned ruling
does not mean that the raison d' etre behind the prohibition
against midnight appointments may not be applied to those
made by chief executives of local government units, as
here. Indeed, the prohibition is precisely designed to
discourage, nay, even preclude, losing candidates from issuing
appointments merely for partisan purposes thereby depriving
the incoming administration of the opportunity to make the
corresponding appointments in line with its new
policies. (Emphasis supplied)
Quirog also involved the disapproval of an appointment for
non-compliance with CSC Resolution No. 010988. However,
we found that Quirog’s appointment was made on June 1,
2001, or three days prior to the issuance of CSC Resolution
No. 010988. As such, we ruled that the retroactive application
of the law was not warranted.
In Sales v. Carreon, Jr.,18 we had occasion to discuss the
reasons behind the prohibition by the Commission of mass
appointments after the elections. Sales involved the issuance
of 83 appointments made by then Dapitan City Mayor Joseph
Cedrick O. Ruiz in his last month of office (on June 1, 18, and
27, 2001), which the newly elected Mayor, Rodolfo H.
Carreon, subsequently revoked, on the ground that these
violated CSC Resolution No. 010988 in relation to CSC
Memorandum Circular No. 7, Series of 2001, imposing a ban
on issuing appointments in the civil service during the election
period. In Sales, we declared:
This case is a typical example of the practice of outgoing local
chief executives to issue "midnight" appointments, especially
after their successors have been proclaimed. It does not only
cause animosities between the outgoing and the incoming
officials, but also affects efficiency in local governance. Those
appointed tend to devote their time and energy in defending
their appointments instead of attending to their functions.19
It is not difficult to see the reasons behind the prohibition on
appointments before and after the elections. Appointments
are banned prior to the elections to ensure that partisan
loyalties will not be a factor in the appointment process, and
to prevent incumbents from gaining any undue advantage
during the elections. To this end, appointments within a
certain period of time are proscribed by the Omnibus Election
Code and related issuances.20 After the elections,
appointments by defeated candidates are prohibited, except
under the circumstances mentioned in CSC Resolution No.
010988, to avoid animosities between outgoing and incoming
officials, to allow the incoming administration a free hand in
implementing its policies, and to ensure that appointments
and promotions are not used as a tool for political patronage
or as a reward for services rendered to the outgoing local
officials.
Not all Mass Appointments are Prohibited
Indeed, not all appointments issued after the elections by
defeated officials are invalid. CSC Resolution No. 010988 does
not purport to nullify all "mass appointments." However, it
must be shown that the appointments have undergone the
regular screening process, that the appointee is qualified, that
there is a need to fill up the vacancy immediately, and that
the appointments are not in bulk. In Nazareno v.
Dumaguete,21 we explained:
CSC Resolution No. 010988 does not totally proscribe the local
chief executive from making any appointments immediately
before and after elections. The same Resolution provides that
the validity of an appointment issued immediately before and
after elections by an outgoing local chief executive is to
be determined on the basis of the nature, character, and merit
of the individual appointment and the particular circumstances
surrounding the same.
Corollarily, we held in Sales,22 that:
x x x [e]ach appointment must be judged on the basis of the
nature, character, and merits of the individual appointment
and the circumstances surrounding the same. It is only when
the appointments were made en masse by the outgoing
administration and shown to have been made through hurried
maneuvers and under circumstances departing from good
faith, morality, and propriety that this Court has struck down
"midnight" appointments.
In the instant case, Mayor Remollo issued the 89 original and
promotional appointments on three separate dates, but within
a ten-day period, in the same month that he left
office.23 Further, the Commission’s audit found violations of
CSC rules and regulations that justified the disapproval of the
appointments. In this regard, CSC Memorandum Circular No.
40, otherwise known as the Revised Rules on Appointments
and Other Personnel Actions, provides:
Section 1 – Appointments submitted to the CSC office
concerned should meet the requirements listed hereunder.
65
Public Corporation

Non-compliance with such requirements shall be grounds for
disapproval of said appointments:
xxxx
(h) Personnel Selection Board (PSB) Evaluation/Screening.
Appointees should be screened and evaluated by the PSB, if
applicable. As proof thereof, a certification signed by the
Chairman of the Board at the back of the appointment or
alternatively, a copy of the proceedings/ minutes of the
Board’s deliberation shall be submitted together with the
appointment. The issuance of the appointment shall not be
earlier than the date of the final screening/deliberation of the
PSB.
Here, there was only one en banc meeting of the city PSB to
consider the appointments, without any evidence that there
were any deliberations on the qualifications of the petitioners,
or any indication that there was an urgent need for the
immediate issuance of such appointments. The absence of
evidence showing careful consideration of the merits of each
appointment, and the timing and the number of
appointments, militate against petitioners’ cause. On the
contrary, the prevailing circumstances in this case indicate
that the appointments were hurriedly issued by the outgoing
administration.
The Accreditation of Dumaguete City did not remove the CSC’s
authority to review appointments
We find that the authority granted by CSC Resolution No.
992411 to the City Government of Dumaguete to "take final
action" on all its appointments did not deprive the Commission
of its authority and duty to review appointments. Indeed,
Resolution No. 992411 states that such exercise of authority
shall be "subject to civil service law, rules and regulations" and
that appointments in violation of pertinent rules "shall
immediately be invalidated."
petition for Mandamus with Injunction and Damages,
docketed as Civil Case No. 13013, and raised before this Court
as G.R. No. 177795, challenged respondents’ refusal to
recognize petitioners’ appointments and to pay petitioners’
salaries, salary adjustments, and other emoluments. The
petition only entailed the applications for the issuance of a writ
of mandamus and for the award of damages. The present
case docketed as G.R. No. 181559, on the other hand,
involves the merits of petitioners’ appeal from the invalidation
and revocation of their appointments by the CSC-Field Office,
which was affirmed by the CSC-Regional Office, CSC en banc,
and the Court of Appeals.
In any event, this issue had already been settled in our
Decision of June 19, 2009 in G.R. No. 177795, which found
petitioners not guilty of forum shopping, to wit:
True, that the [Petition in G.R. No. 177795] and the one in
G.R. No. 181559 are interrelated, but they are not necessarily
the same for this Court to adjudge that the filing of both by
petitioners constitutes forum shopping. In G.R. No. 181559,
the Court will resolve whether or not the petitioners’
appointments are valid. [In G.R. No. 177795], petitioners are
claiming a right to the salaries, salary adjustments and other
emoluments during the pendency of the administrative cases,
regardless of how the CSC decided the validity of their
appointments.
WHEREFORE, the petition is DENIED for lack of merit. The
Court of Appeals’ Decision in CA-G.R. CEB-SP No. 00665 dated
August 28, 2007 affirming CSC Resolution No. 040932 dated
August 23, 2004 and CSC Resolution No. 050473 dated April
11, 2005, and its Resolution dated January 11, 2008 denying
the Motion for Reconsideration are AFFIRMED.
SO ORDERED.

Moreover, Section 20, Rule VI of the Omnibus Rules

Implementing Book V of Executive Order No. 292 provides
that notwithstanding the initial approval of an appointment,
the same may be recalled for "[v]iolation of other existing Civil
Service laws, rules and regulations." The CSC is empowered
to take appropriate action on all appointments and other
personnel actions and that such power "includes the authority
to recall an appointment initially approved in disregard of
applicable provisions of Civil Service law and regulations."24

Petitioners have not engaged in forum shopping

The essence of forum-shopping is the filing of multiple suits

involving the same parties for the same cause of action, either
simultaneously or successively, for the purpose of obtaining a
favorable judgment.25 Forum-shopping has been defined as
the act of a party against whom an adverse judgment has
been rendered in one forum, seeking and possibly getting a
favorable opinion in another forum, other than by appeal or
the special civil action of certiorari, or the institution of two or
more actions or proceedings grounded on the same cause on
the supposition that one or the other court would make a
favorable disposition.26

Although the factual antecedents of the cases brought before

this Court are the same, they involve different issues. The
66
Public Corporation
G.R. No. 202331, April 22, 2015
THE PROVINCIAL GOVERNMENT OF
AURORA, Petitioner, v. HILARIO M.
MARCO, Respondents.
DECISION
LEONEN, J.:
The prohibition on midnight appointments only applies to
presidential appointments. It does not apply to appointments
made by local chief executives.
Nevertheless, the Civil Service Commission has the power to
promulgate rules and regulations to professionalize the civil
service. It may issue rules and regulations prohibiting local
chief executives from making appointments during the last
days of their tenure. Appointments of local chief executives
must conform to these civil service rules and regulations in
order to be valid.
This is a Petition for Review on Certiorari1 of the Court of
Appeals Decision2 that denied the appeal of the Provincial
Government of Aurora (the Province). The Province appealed
the Resolution3 of the Civil Service Commission granting the
Motion for Execution filed by Hilario M. Marco (Marco). The
Civil Service Commission had earlier reversed and set aside
the disapproval of Marco's permanent appointment as
Cooperative Development Specialist II.4
Governor Ramoncita P. Ong (Governor Ong) permanently
appointed5 Marco as Cooperative Development Specialist II
on June 25, 2004, five (5) days before the end of her term as
Governor of the Province.6 On June 28, 2004, Marco's
appointment, together with 25 other appointments, was
submitted to the Civil Service Commission Field Office-Aurora
(the Field Office). Annexed to Marco's appointment papers
was a certification from Provincial Budget Officer Norma R.
Clemente (Provincial Budget Officer Clemente) and Provincial
Accountant Wilfredo C. Saturno (Provincial Accountant
Saturno) stating that funds from the Province's 2004 Annual
Budget were available to cover the position.7
On June 30, 2004, newly elected Governor Bellaflor Angara-
Castillo assumed office. The next day, she called to an
executive meeting all the department heads of the Province.8
During the executive meeting, Provincial Budget Officer
Clemente allegedly manifested that the Province had no funds
available to pay for the salaries of Governor Ong's 26
appointees.9 She subsequently issued a Letter recalling the
previously issued certification of the availability of
funds:chanroblesvirtuallawlibrary
In view of the result of the dialogue of the concerned offices
regarding the financial status of the Provincial Government of
Aurora, we hereby recall/retrieve our previously issued
certification of availability of funds relative to the
appointments issued by Governor Ramoncita P.
Ong.10cralawlawlibrary
Provincial Budget Officer Clemente's Letter was submitted to
the Province's Human Resource Management-Office. It was
then forwarded to the Field Office.11
Due to the recall of the certification, the Field Office
disapproved Marco's appointment in the Letter12dated July 5,
2004.13
The Province, through Human Resource Management Officer
Liwayway G. Victorio, served Marco a copy of the Letter dated
July 5, 2004. Marco was, thus, advised to refrain from
reporting for work beginning July 8, 2004, the day he received
notice of the disapproval of his appointment.14
Marco wrote the Civil Service Commission Regional Office No.
IV (Regional Office), moving for the reconsideration of the
disapproval of his appointment.15 The Regional Office,
however, denied reconsideration in its Decision16 dated April
6, 2005 and affirmed the disapproval of Marco's appointment.
It said that "[t]he lack of funds for the [26 appointments
Governor Ong issued] was established during the meeting of
the different department heads of Aurora Province and their
new governor."17
Through the Letter dated May 17, 2005, Marco appealed
before the Civil Service Commission.18 The Province, through
its Human Resource Management Office, received a copy of
Marco's Letter on May 23, 2005.19 However, it failed to
comment on the appeal within 10 days from receipt as
required by Section 73 of the Uniform Rules on Administrative
Cases in the Civil Service.20
In the Resolution21 dated April 14, 2008, the Civil Service
Commission granted Marco's appeal and set aside the
Regional Office's Decision dated April 6, 2005. It ruled that
Marco's appointment was valid since it was accompanied by a
certification of availability of funds.22 As to the Letter
withdrawing the certification, the Civil Service Commission
ruled that it did not affect the validity of Marco's appointment
because the Province "failed to submit documentary evidence
to support its claim [that it had no funds to pay for the services
of Governor Ong's appointees]."23
The Civil Service Commission added that the Province's
withdrawal of the certification was "unfair to
Marco":24ChanRoblesVirtualawlibrary
It is unfair to Marco who applied for the said position believing
in good faith that funds were available, passed the screening
conducted by the Personnel Selection Board (PSB) on
February 12 & 13, 2004, was appointed on June 25, 2004 and
was later told to stop reporting for work as his appointment
was disapproved by [the Civil Service Commission Field Office-
Aurora] simply because the provincial government under the
new governor realized that it has no funds to pay for his
services.25cralawlawlibrary
Thus, the Civil Service Commission ordered the Regional
Office to investigate whether Provincial Budget Officer
Clemente and Provincial Accountant Saturno were
administratively liable for certifying that funds were available
to cover the positions filled by Governor Ong's appointees but
subsequently withdrawing this certification.26 It ordered the.
Field Office to reflect the Resolution in Marco's appointment
67
Public Corporation
papers and in his Service Record.27
The Province received a copy of the April 14, 2008 Resolution
on May 21, 2008.28
On July 22, 2008, Provincial Administrator Alex N. Ocampo
(Provincial Administrator Ocampo), on behalf of the Province,
filed before the Civil Service Commission a Petition for
Relief29 on the ground of extrinsic fraud. According to him,
the Civil Service Commission deprived the Province of an
opportunity to be heard when it failed to implead the Province
as an indispensable party.30 He reiterated that Marco's
appointment was void since the Province had no funds to pay
for Marco's salaries.31
The Civil Service Commission denied outright the Petition for
Relief in the Resolution32 dated November 4, 2008. It ruled
that Provincial Administrator Ocampo had no legal personality
to file the Petition for Relief absent an authorization from the
Provincial Governor. Moreover, a petition for relief was not
allowed under the Uniform Rules on Administrative Cases in
the Civil Service. Thus, Provincial Administrator Ocampo erred
in filing a Petition for Relief.33
Provincial Administrator Ocampo filed a Motion for
Reconsideration,34 this time with a written authority35to file
from Governor Bellafior Angara-Castillo annexed to the
Motion.36
The Civil Service Commission denied the Motion for
Reconsideration in the Resolution37 dated September 8,
2009. It ruled that its April 14, 2008 Resolution had become
final and executory considering that the Province did not file
a motion for reconsideration of this Resolution within the
reglementary period.38
Consequently, Marco requested the Civil Service Commission
to implement the April 14, 2008 Resolution.39 Through the
Resolution40 dated July 6, 2010, the Commission granted
Marco's request.
Provincial Administrator Ocampo filed a Motion for
Reconsideration with Motion to Quash "Execution,"41arguing
that the April 14, 2008 Resolution had already been
implemented. As the Civil Service Commission had ordered,
the Province reflected the April 14, 2008 Resolution.in Marco's
appointment papers and in his Service Record.42
In the Resolution43 dated January 24, 2011, the Civil Service
Commission denied the Motion for Reconsideration with
Motion to Quash "Execution." It noted that the Province still
refused to reinstate Marco despite the April 14, 2008
Resolution and thus clarified that this Resolution necessarily
resulted in the approval of Marco's appointment and his
reinstatement as Cooperative Development Specialist
II.44The January 24, 2011 Resolution
states:chanroblesvirtuallawlibrary
Ocampo, et al. nonchalantly tries to sweep away what is
obvious in the ruling of the Commission in [the April 14, 2008
Resolution], i.e., the reversal of the disapproval by [the
Regional Office] and [the Field Office] of Marco's appointment.
The reversal of the two (2) decisions mean[s] that Marco's
appointment as Cooperative Development Specialist II is in
order and should be approved. Consequently, the approval of
Marco's appointment is legal proof that he is entitled to
perform the duties and functions of the said position and
receive the salaries and benefits attached to the
position.cralawred
WHEREFORE, the Motion for Reconsideration with Motion to
Quash of Alex N. Ocampo, Provincial Administrator, and
Manuel Joseph R. Bretana III, Legal Counsel, Provincial
Government of Aurora, is DENIED. Accordingly, [the July 6,
2010 Resolution] which grants the Motion for the
Implementation of [the April 14, 2008 Resolution] filed by
Hilario M. Marco, STANDS.
The Provincial Governor of Aurora is directed to reinstate
Marco to his Cooperative Development Specialist II position
and pay his back salaries and other benefits from the time that
Marco was actually prohibited from reporting for work up to
his actual reinstatement.45cralawlawlibrary
A Petition for Review46 under Rule 43 with prayer for issuance
of a temporary restraining order47 was filed before the Court
of Appeals. For the first time, the Province argued that Marco
was a midnight appointee since Governor Ong appointed him
during the last five (5) days of her tenure. Therefore, Marco's
appointment was void.48
In the Decision dated March 2, 2012, the Court of Appeals
denied the Petition for Review and affirmed the
implementation of the Civil Service Commission's April 14,
2008 Resolution.49
The Court of Appeals ruled that the April 14, 2008 Resolution
already became final and executory since there was no motion
for reconsideration filed within the reglementary period.
Although the Province filed a Petition for Relief before the Civil
Service Commission, the Court of Appeals held that the
remedy of a petition for relief is not allowed under the Uniform
Rules on Administrative Cases in the Civil Service. Moreover,
the Province failed to prove the extrinsic fraud that allegedly
prevented it from filing a motion for reconsideration. Thus, the
Civil Service Commission correctly denied the Petition for
Relief.50
On the merits, the Court of Appeals affirmed Marco's
appointment. The Province had earlier certified that it had
funds to pay for his salary as Cooperative Development
Specialist II.51 It found that the Sangguniang Panlalawigan
even passed a "Supplemental Budget for 2004 appropriating
P54,014,127.01 in provincial funds."52 Therefore, the
issuance of the Letter recalling the certification "[did] not
change the fact that there [were] funds available for [Marco's]
appointment."53
On the claim that Marco was a midnight appointee, the Court
of Appeals said that Marco's case fell within the exception
provided under Civil Service Commission Resolution No.
030918.54 He was fully qualified for the position and
underwent a screening process on February 12 and 13, 2004,
long before the election ban.55 Therefore, he was validly
68
Public Corporation
appointed.
The Province filed a Motion for Reconsideration,56 which the
Court of Appeals denied in the Resolution57dated June 13,
2012.
The Province filed a Petition for Review on Certiorari before
this court. Marco filed his Comment,58 after which the
Province filed its Reply.59
In the Resolution60 dated January 30, 2013, this court
ordered the parties to file their respective memoranda. The
Province filed its Memorandum61 on April 25, 2013, while
Marco filed his Memorandum62 on May 2, 2013.
The Province maintains that Marco's appointment was void on
the ground that he was a midnight appointee. Marco was
appointed by Governor Ong five (5) days before the end of
her term, in violation of Civil Service Commission Resolution
No. 030918,63 paragraph 2.1 of which
provides:chanroblesvirtuallawlibrary
2.1.All appointments issued by elective appointing officials
after elections up to June 30 shall be disapproved, except
if the appointee is fully qualified for the position and had
undergone regular screening processes before the
Election Ban as shown in the Promotion and Selection
Board (PSB) report or minutes of meeting.
On Marco's claim that he underwent a regular screening
process, which exempted his appointment from the
prohibition on midnight appointments, the Province counters
that Marco failed to present convincing evidence to prove this
claim. The Minutes of the Meeting of the Promotion Selection
Board showed that Marco was among the 201 applicants
allegedly screened by the Board within two (2j days. According
to the Province, two days is a period too short for the
Personnel Selection Board to have carefully considered all the
applications.64
As to the claim that the April 14, 2008 Resolution is final and
executory and may no longer be reversed, the Province argues
that nothing prevents this court from setting aside this
Resolution. It argues that the promulgation of Nazareno, et al.
v. City of Dumaguete65 was a supervening event warranting
the reversal of the final and executory decision.66
In Nazareno, this court voided 89 appointments made by a
city mayor within the month that he left office, ruling that they
were mass appointments prohibited under Civil Service
Commission Resolution No. 010988.67 The Province argues
that Governor Ong's appointments were analogous to
the Nazarenoappointments; hence, Governor Ong's
appointments should likewise be voided.68
Finally, the Province insists that Marco's appointment was void
due to lack of funds to pay for the position.69 In ordering the
Province to uphold Marco's appointment despite the lack of
funds, the Civil Service Commission allegedly "interfered with
[the Province's] prerogative to draw up its own budget and to
spend its ... revenues as it deems fit."70
For his part, Marco maintains that the Civil Service
Commission's Resolution dated April 14, 2008 has long
become final and executory. Therefore, the Resolution may
no longer be disturbed.71
On the claim that he was a midnight appointee, Marco pointed
out that the Province belatedly raised this claim. The Province
never raised it before the Civil Service Commission but only
did so before the Court of Appeals.72 By belatedly raising this
claim, the Province should be deemed to have "implicitly
recognized"73 that he was not a midnight appointee.
In any case, Marco asserts that he was qualified for the
position and that he underwent a selection process as required
by Resolution No. 030918. Thus, his appointment was an
exception to the prohibition on midnight appointments.74
On the alleged interference of the Civil Service Commission
with the Province's discretionary power to appoint, Marco
argues that it "merely upheld the validity of an existing
appointment[.]"75 The Civil Service Commission did not
"[substitute] its own appointee for the one chosen by the
appointing authority."76 Therefore, it correctly upheld his
appointment.
Lastly, Marco argues that Nazareno does not apply in this
case. This court in Nazareno voided the 89 appointments of
the appointing authority based on the criteria set in Resolution
No. 010988.77 However, Nazareno had been promulgated
even before he was appointed in office. Moreover, Resolution
No. 010988 did not set any new criteria for appointments
made during the last days of the appointing authority in office.
Therefore, the promulgation of Nazareno is not a supervening
event that can set aside the final and executory April 14, 2008
Resolution.78
The issues for this court's resolution are:
First, whether the Resolution dated July 6, 2010, which
ordered the implementation of the April 14, 2008 Resolution,
was void for varying the terms of the April 14, 2008
Resolution;
Second, whether the withdrawal of the certification of
sufficiency of funds voided Marco's appointment; and
Lastly, whether Marco's appointment was void on the ground
that he was a midnight appointee.
This Petition must be denied.cralawlawlibrary
I We note that the Province filed an appeal before the Court
of Appeals against the Civil Service Commission's Resolution
that ordered the execution of the April 14, 2008 Resolution.79
The Province erred in filing an appeal before the Court of
Appeals, as no appeal may be taken from an order of
execution.80 Instead, it should have filed a petition for
certiorari — the appropriate special civil action under Rule 65
of the Rules of Court.81
The Court of Appeals, therefore, should have dismissed the
69
Public Corporation
Province's appeal outright. Rule 50, Section 1(i) of the Rules
of Court allows the Court of Appeals to dismiss an appeal
where the order appealed from is not appealable.82
The rule prohibiting appeals from orders of execution is based
on the doctrine of immutability of final judgments. Under this
doctrine, a final and executory judgment "is removed from the
power and jurisdiction of the court which rendered it to further
alter or amend it, much less revoke it."83 The judgment
remains immutable even if it is later on discovered to be
erroneous.84 The doctrine "is grounded on fundamental
considerations of public policy and sound practice that at the
risk of occasional error, the judgments of the courts must
become final at some definite date fixed by law. To allow
courts to amend final [and executory] judgments will result in
endless litigation."85
The doctrine of immutability of final judgments applies to
decisions rendered by the Civil Service Commission. A decision
of the Civil Service Commission becomes final and executory
if no motion for reconsideration is filed within the 15-day
reglementary period under Rule VI, Section 80 of the Uniform
Rules on Administrative Cases in the Civil
Service:chanroblesvirtuallawlibrary
Section 80. Execution of Decision. - The decisions of the
Commission Proper or its Regional Offices shall be
immediately executory after fifteen (15) days from receipt
thereof, unless a motion for reconsideration is seasonably
filed, in which case the execution of the decision shall be held
in abeyance.
In Mendiola v. Civil Service Commission,86 Teodorico
Mendiola (Mendiola) occupied the position of Budget Examiner
III when the Economic Intelligence and Investigation Bureau
terminated his employment.87 On Mendiola's appeal, the Civil
Service Commission ordered his reinstatetment in the
resolution dated September 21, 1988.88
The Economic Intelligence and Investigation Bureau failed to
file a motion for reconsideration within the 15-day
reglementary period. Consequently, Mendiola filed a motion
for execution of the September 21, 1988 resolution.89
Unknown to Mendiola, the Economic Intelligence and
Investigation Bureau belatedly filed a motion for
reconsideration, which the Civil Service Commission granted
despite having been filed out of time.90
This court reversed the Civil Service Commission's grant of the
motion for reconsideration and ordered Mendiola's
reinstatement as the Commission previously ordered in the
September 21, 1998 resolution. This court held that the
September 21, 1998 resolution had become final and
executory when the Economic Intelligence and Investigation
Bureau failed to file a motion for reconsideration within the
reglementary period. Thus, the Civil Service Commission may
no longer reverse the resolution.91
In Obiasca v. Basallote,92 Jeane O. Basallote (Basallote) was
appointed Administrative Officer II by the Department of
Education and was assigned to work in Tabaco National High
School in Albay. Basallote had assumed the duties of her office
as Administrative Officer II when she learned that Arlin B.
Obiasca (Obiasca) was subsequently appointed to the same
position. Obiasca's appointment was attested to by the Civil
Service Commission, while Basallote's appointment papers
were not even forwarded to the Civil Service Commission.93
Basallote protested Obiasca's appointment before the Civil
Service Commission Regional Office V. The Regional Office
dismissed the protest. On appeal, the Civil Service Commission
reversed the Regional Office's Decision, thus approving
Basallote's appointment and recalling that of Obiasca.94
Without filing a motion for reconsideration before the Civil
Service Commission, Obiasca directly filed an appeal before
the Court of Appeals. The Court of Appeals affirmed the Civil
Service Commission's Decision.95
Obiasca's Petition for Review on certiorari was likewise denied
by this court.96 This court held that Obiasca's failure to file a
motion for reconsideration rendered the Civil Service
Commission's Decision approving Basallote's appointment
final and executory. Thus, the Civil Service Commission's
Decision may no longer be
disturbed:97ChanRoblesVirtualawlibrary
[Obiasca] did not file a petition for reconsideration of the [Civil
Service Commission's resolution] before filing a petition for
review in the [Court of Appeals]. Such fatal procedural lapse
on [Obiasca]'s part allowed the [Civil Service Commission's
resolution] to become final and executory. Hence, for all
intents and purposes, the [Civil Service Commission's
resolution] has become immutable and can no longer be
amended or modified. A final and definitive judgment can no
longer be changed, revised, amended or reversed. Thus, in
praying for the reversal of the assailed Court of Appeals
decision which affirmed the final and executory [Civil Service
Commission resolution], [Obiasca] would want the Court to
reverse a final and executory judgment and disregard the
doctrine of immutability of final judgments.98 (Emphasis in
the original, citations omitted)
In this case, the Province, through its Human Resource
Management Office, received a copy of the Civil Service
Commission's April 14, 2008 Resolution on May 21,
2008.99 Thus, the Province had until June 5, 2008 to file a
motion for reconsideration.
However, the Province failed to file a motion for
reconsideration of the April 14, 2008 Resolution within the 15-
day reglementary period. With no motion for reconsideration
seasonably filed, the April 14, 2008 Resolution-became final
and executory on June 6, 2008.
In addition, the remedy of a petition for relief from judgment
is not among those provided under the Uniform Rules on
Administrative Cases in the Civil Service. This means that the
remedy is not allowed under civil service rules.100 Even
assuming that a petition for relief may be filed before the Civil
Service Commission, the party must show that the assailed
judgment became final through fraud, accident, mistake, or
excusable negligence.101
70
Public Corporation
Here, the Province failed to refute that it received a copy of
the Civil Service Commission's April 14, 2008 Resolution. It
was given an opportunity to be heard, which is the essence of
administrative due process.103 It did not even justify why it
failed to file a motion for reconsideration despite its receipt of
the Civil Service Commission's Resolution. Contrary to the
Province's claim, there was no extrinsic fraud since the
Province was not prevented "from fully and fairly presenting
[its] defense[.]"104 The Civil Service Commission correctly
denied the Province's Petition for Relief.
Since the April 14, 2008 Resolution already became final and
executory, it may no longer be reversed. The Civil Service
Commission correctly granted Marco's request for the
Resolution's implementation.cralawlawlibrary
II
In implementing the April 14, 2008 Resolution, the Civil
Service Commission ordered the Province to reinstate Marco
and to pay him back salaries and other
benefits:chanroblesvirtuallawlibrary
WHEREFORE, the request of Hilario M. Marco, Cooperative
Development Specialist II, Provincial Government of Aurora,
for the implementation of CSC Resolution No. 08-0656 dated
April 14, 2008 is GRANTED. Accordingly, the Provincial
Government of Aurora is directed to reinstate Marco to his
former position and the payment of his back salaries and other
benefits starting from the date he was advised to stop
reporting for work on July 8, 2004 up to his actual
reinstatement.105cralawlawlibrary
According to the Province, the Civil Service Commission went
beyond the order sought to be implemented and "varie[d] the
term of the judgment."106 The Province claims that nothing
in the April 14, 2008 Resolution ordered the reinstatement of
Marco. The dispositive portion of the resolution
stated:107ChanRoblesVirtualawlibrary
WHEREFORE, the appeal of Hilario M. Marco is GRANTED.
Accordingly, the Decision No. 05-0212 dated April 6, 2005 of
the Civil Service Commission Regional Office IV, Quezon City,
affirming the disapproval of the appointment of Marco for lack
of certification of availability of funds is REVERSED and SET
ASIDE.
The Civil Service Commission Field Office-Aurora is directed to
reflect this decision in the appointment of Marco and in his
Service Record.108cralawlawlibrary
Therefore, the Province claims that the order implementing
the April 14, 2008 Resolution must be set aside.
We rule that the Civil Service Commission did not vary the
terms of the April 14, 2008 Resolution.
Under Rule IV, Section 1 of Civil Service Commission
Memorandum Circular No. 40-98, an appointment takes effect
immediately upon issuance by the appointing authority. Once
the appointee has assumed the duties of the position, he or
she is entitled to receive the salaries corresponding with the
position though the Civil Service Commission has not yet
approved the appointment.
Should the appointment be initially disapproved, it
nevertheless remains effective if a motion for reconsideration
or an appeal of the disapproval is seasonably filed with the
proper office.109 Therefore, during the pendency of the
motion for reconsideration, the appointee remains entitled to
his or her salaries until the appointment is finally disapproved
by the Civil Service Commission.110
Marco's appointment immediately took effect on June 25,
2004 when Governor Ong appointed him as Cooperative
Development Specialist II. Although his appointment was
initially disapproved by the Field Office, Marco seasonably filed
a Motion for Reconsideration before the Civil Service
Commission. Thus, Marco's appointment remained effective
during the pendency of the Motion for Reconsideration.
Because the Civil Service Commission granted his Motion for
Reconsideration and set aside the disapproval of his
appointment, Marco remained entitled to his position. The
necessary consequence of granting reconsideration is his
reinstatement as Cooperative Development Specialist II.
The Civil Service Commission correctly implemented the April
14, 2008 Resolution by ordering Marco's reinstatement and
the payment of his back salaries and other
benefits.cralawlawlibrary
III
The Province contends that the Civil Service Commission erred
in approving Marco's appointment as Cooperative
Development Specialist II. It allegedly had no funds to cover
the position. Therefore, the appointment was void, having
been issued in violation of Rule V, Section 1(e)(ii) of the Civil
Service Commission Memorandum Circular No. 40-98. The
rule states:chanroblesvirtuallawlibrary
SECTION 1. In addition to the common requirements and
procedures, the following requirements and guidelines shall
also be observed and the necessary documents submitted,
when applicable.
....
e. LGU Appointment. Appointment in local government units
for submission to the Commission shall be accompanied, in
addition to the common requirements, by the following
....
ii. Certification by the Municipal/City/Provincial
Accountant/Budget Officer that funds are available.
The certification ensures that the appointee shall occupy a
position adequately covered by appropriations as required by
71
Public Corporation
Section 325(e) of the Local Government
Code:chanroblesvirtuallawlibrary
SECTION 325. General Limitations. - The use of the provincial,
city, and municipal funds shall be subject to the following
limitations:
. . . .
(e) Positions in the official plantilla for career positions which
are occupied by incumbents holding permanent appointments
shall be covered by adequate appropriations[.]
As required by Rule V, Section 1 (e)(ii) of the Civil Service
Commission Memorandum Circular No. 40-98, Marco's
appointment was accompanied by a certification from the
Province, through the Provincial Budget Officer and the
Provincial Accountant, that funds were available under the
2004 Annual Budget of the Province for the 26 positions issued
by Governor Ong. Therefore, there was no violation of Rule V,
Section 1(e)(ii) of the Civil Service Commission Memorandum
Circular No. 40-98. There was no violation of existing Civil
Service Law, rules and regulations. Marco's appointment
remains effective.
That the Province suddenly had no funds to pay for Marco's
salaries despite its earlier certification that funds were
available under its 2004 Annual Budget does not affect his
appointment.
None of the grounds for disapproval, of an appointment under
Rule V, Section 7111 of the Omnibus Rules Implementing the
Civil Service Law exists in this case. The appointment remains
effective, and the local government unit remains liable for the
salaries of the appointee.112
Moreover, the earlier certification, if proven false, constitutes
intentional misrepresentation of a material fact concerning a
civil service matter. This is an offense punishable by fine, or
imprisonment, or both as provided under Section 67 of the
Civil Service Law:chanroblesvirtuallawlibrary
SEC. 67. Penal Provision. — Whoever makes any appointment
or employs any person in violation of any provision of this Title
or the rules made thereunder or whoever commits fraud,
deceit or intentional misrepresentation of material facts
concerning other civil service matters, or whoever violates,
refuses or neglects to comply with any of such provisions or
rules, shall upon conviction be punished by a fine not
exceeding one thousand pesos or by imprisonment not
exceeding six (6) months, or both such fine and imprisonment
in the discretion of the court.
We, therefore, agree with the Civil Service Commission in
ordering the Regional Office to commence appropriate
administrative proceedings against Provincial Budget Officer
Norma R. Clemente and Provincial Accountant Wilfredo C.
Saturno for issuing the certification of availability of
funds:chanroblesvirtuallawlibrary
The Commission disapproves of the conduct of the officials of
the Provincial Government of Aurora in issuing a certification
dated June 25, 2004 that funds are available in the 2004
Annual Budget to support the appointments issued by
outgoing Governor Ong and then later [withdrawing] the
same when a new governor assumes office. As such, the
CSCRO No. IV is directed to conduct the appropriate
administrative proceedings to determine whether Norma R.
Clemente (Provincial Budget Officer) and Wilfredo C. Saturno
(Provincial Accountant) violated Civil Service Law, rules and
regulations.113cralawlawlibrary
IV
The Province claims that Marco was a midnight appointee.
Moreover, he was among those appointed "en masse"114 by
Governor Ong before the end of her term. Thus, the Civil
Service Commission should have disapproved Marco's
appointment.
A midnight appointment "refers to those appointments made
within two months immediately prior to the next presidential
election."115 Midnight appointments are prohibited under
Article VII, Section 15 of the
Constitution:chanroblesvirtuallawlibrary
SECTION 15. Two months immediately before the next
presidential elections and up to the end of his term, a
President or Acting President shall not make appointments,
except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or
endanger public safety.
Midnight appointments are prohibited because an outgoing
President is "duty bound to prepare for the orderly transfer of
authority to the incoming President, and he [or she] should
not do acts which he [or she] ought to know, would embarrass
or obstruct the policies of his [or her] successor."116 An
outgoing President should not "deprive the new administration
of an opportunity to make the corresponding
appointments."117
However, the constitutiona prohibition on midnight
appointments only applies to presidential appointments. It
does not apply to appointments made by local chief
executives.
In De Rama v. Court of Appeals,118 Mayor Conrado L. de
Rama (Mayor de Rama) of Pagbilao, Quezon sought to recall
14 appointments made by former Mayor Ma. Evelyn S. Abeja
on the sole ground that they were midnight
appointments.119 The Civil Service Commission denied Mayor
de Rama's request, ruling that the prohibition on midnight
appointments only applies to outgoing Presidents.120 On
appeal, the Court of Appeals affirmed the Civil Service
Commission's decision.121
This court agreed with the Civil Service Commission and the
Court of Appeals. In denying Mayor de Rama's petition for
review on certiorari, this court said that the prohibition on
midnight appointments "applies only to presidential
appointments."122 This court noted that "there is no law that
prohibits local elective officials from making appointments
during the last days of his or her tenure."123
72
Public Corporation
Nonetheless, the Civil Service Commission, as the central
personnel agency of the Government,124 may "establish rules
and regulations to promote efficiency and professionalism in
the civil service."125Although it conceded that no law
prohibits local elective officials from making appointments
during the last days of their tenure, this court
in Nazareno upheld Civil Service Commission Resolution No.
010988, which prohibited local elective officials from making
appointments immediately before and after elections.126 In
addition, Resolution No. 010988 prohibited "mass
appointments," or those "issued in bulk or in large number
after the elections by an outgoing local chief executive and
there is no apparent need for their immediate issuance."
Resolution No. 010988 states:chanroblesvirtuallawlibrary
WHEREAS, the May 14, 2001 national and local elections have
just concluded and the Commission anticipates controversies
that would arise involving appointments issued by outgoing
local chief executives immediately before and after elections;
WHEREAS, the Commission observed the tendency of some
outgoing local chief executives to issue appointments even
after the elections, especially when their successors have
already been proclaimed;
WHEREAS, this practice of some outgoing local chief
executives causes animosities between the outgoing and
incoming officials and the people who are immediately
affected and made to suffer the consequences thereof are the
ordinary civil servants and eventually, to a larger extent, their
constituents themselves;
WHEREAS, one of the reasons behind the prohibition in
issuing appointments or hiring of new employees during the
prohibited period as provided for in CSC Memorandum Circular
No. 7, series of 2001 is to prevent the occurrence of the
foregoing, among others;
WHEREAS, local elective officials, whose terms of office are
about to expire, are deemed as "caretaker" administrators
who are duty bound to prepare for the smooth and orderly
transfer of power and authority to the incoming local chief
executives;
WHEREAS, under Section 15, Article VII of the Constitution,
the President or Acting President is prohibited from making
appointments two (2) months immediately before the next
presidential elections and up to the end of his term, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public service or
endanger public safety;
WHEREAS, while there is no equivalent provision in the Local
Government Code of 1991 (Republic Act No. 7160) or in the
Civil Service Law (Book V of Executive Order No. 292) of the
above-stated prohibition, the rationale against the prohibition
on the issuance of "midnight appointments" by the President
is applicable to appointments extended by outgoing local chief
executives immediately before and/or after the elections; and
WHEREAS, the Commission also deems it fit to issue
guidelines that would assist processors in their actions on
appointments issued by theses outgoing local chief executives
immediately before and/or after the elections;
NOW THEREFORE, the Commission, pursuant to its
constitutional mandate as the central personnel agency of the
government, hereby issues and adopts the following
guidelines:
The validity of an appointment issued immediately before or
after the elections by outgoing local chief executives is to be
determined on the basis of the nature, character and merit of
the individual appointment and the particular circumstances
surrounding the same.
All appointments, whether original, transfer, reemployment,
reappointment, promotion or demotion, except in cases of
renewal and reinstatement, regardless of status, which are
issued AFTER the elections, regardless of their dates of
effectivity and/or date of receipt by the Commission, including
its Regional or Field Offices, of said appointments or the
Report of Personnel Actions (ROPA), as the case may be, shall
be disapproved unless the following requisites concur relative
to their issuance:
a) The appointment has gone through the regular screening
by the Personnel Selection Board (PSB) before the
prohibited period on the issuance of appointments as
shown by the PSB report or minutes of its meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order
not to prejudice public service and/or endanger public
safety;
d) That the appointment is not one of those mass
appointments issued after the elections.
The term "mass appointments" refers to those issued in bulk
or in large number after the elections by an outgoing local
chief executive and there is no apparent need for their
immediate issuance.
This court said that the rationale behind Resolution No.
010988 "is not difficult to see":127ChanRoblesVirtualawlibrary
Appointments are banned prior to the elections to ensure that
partisan loyalties will not be a factor in the appointment
process, and to prevent incumbents from gaining any undue
advantage during the elections. To this end, appointments
within a certain period of time are proscribed by the Omnibus
Election Code and related issuances. After the elections,
appointments by defeated candidates are prohibited, except
under the circumstances mentioned in CSC Resolution No.
010988, to avoid animosities between outgoing and incoming
officials, to allow the incoming administration a free hand in
implementing its policies, and to ensure that appointments
and promotions are not used as a tool for political patronage
or as a reward for services rendered to the outgoing local
officials.128(Citation omitted)
In Nazareno, this court affirmed the disapproval of 89
appointments Mayor Felipe Antonio B. Remollo (Mayor
Remollo) of Dumaguete City made within the month that he
left office. This court found that the appointments were issued
73
Public Corporation
in violation of Resolution No. 010988. Particularly, it found no
evidence that the Personnel Selection Board carefully
deliberated on the qualifications of Mayor Remollo's
appointees.129 Moreover, the timing and the large number of
appointments "indicate that the appointments were hurriedly
issued by the outgoing administration."130
The Province argues that the 26 appointments Governor Ong
issued during the last days of her tenure were similar to those
Mayor Remollo issued in Nazareno. Governor Ong allegedly
issued mass appointments, the immediate issuance of which
the Province had no apparent need.
We note, however, that Resolution No. 010988 — the
Resolution effective when Mayor Remollo issued the
appointments in Nazareno — was superseded by Resolution
No. 030918 dated August 28, 2003.131Resolution No. 030918
on "midnight appointments" by local chief executives was
effective at the time Governor Ong issued the disputed
appointments. Resolution No. 030918 states, in
part:chanroblesvirtuallawlibrary
WHEREAS, under Section 3, Article IX-B of the 1987
Constitution, the Commission, as the central personnel agency
of the Government, is mandated to establish a career service
and adopt measures to promote efficiency, integrity,
responsiveness, progressiveness and courtesy in the civil
service, among others;
WHEREAS, the Constitution further mandates the Commission
to issue its own rules and regulations for effective and efficient
personnel administration in the Civil Service;
WHEREAS, Section 12(1) and (2), Book V of the Executive
Order No. 292 (Administrative Code of 1987) mandates the
Commission to administer and enforce the constitutional and
statutory provisions on the merit system for all ranks and
levels in the Civil Service and to prescribe, amend and enforce
rules and regulations for carrying into effect the provision of
the Civil Service Law and other pertinent laws;
WHEREAS, problems and controversies inevitably arise
involving appointments issued by outgoing elective and
appointive officials just before and after election periods;
WHEREAS, personnel morale, office operations, and delivery
of public services are inevitably disrupted by such problem's
and controversies;
WHEREAS, there is a need to forestall such problems by
defining and making more stringent the restrictions on
personnel appointments to be observed by outgoing
appointing officials, elective or appointive, before they leave
office;
NOW, THEREFORE, the Commission, pursuant to its
constitutional and statutory mandates as the central personnel
agency of the government, hereby issues and adopts the
following guidelines:
2. Action on Appointments issued by Elective and Appointive
Officials After the Elections Up to June 30
2.1. All appointments issued by elective appointing officials after
elections up to June 30 shall be disapproved, except if the
appointee is fully qualified for the position and had
undergone regular screening processes before the Election
Ban as shown in the Promotion and Selection Board (PSB)
report or minutes of meeting.
This Resolution supersedes CSC Resolution No. 010988 dated
4 June 2001 and shall take effect fifteen (15) days after its
publication in a newspaper of general circulation.
Quezon City, August 28, 2003.
Since Resolution No. 030918 was effective at the time
Governor Ong issued the 26 appointments, we must decide
this case based on Resolution No. 030918. Nazareno is not
applicable, as it was decided based on Resolution No.
0109888.
We agree with the Civil Service Commission and the Court of
Appeals that Governor Ong issued Marco's appointment in
accordance with Resolution No. 030918. Although his
appointment was made five (5) days before the end of
Governor Ong's term, Marco was fully qualified for the position
and had undergone regular screening processes before the
election ban. As the Civil Service Commission found, Marco
"applied for the [position of Cooperative Development
Specialist II] [and] passed the screening conducted by the
Personnel Selection Board (PSB) on February 12 & 13,
2004[.]"132 The Court of Appeals reiterated this finding in its
Decision dated March 2, 2012.133 Absent a showing of grave
abuse of discretion, this court will not disturb the findings of
fact of the Civil Service Commission,134 especially since it has
acquired "specialized knowledge and expertise"135 in the field
of civil service law.
Assuming without conceding that Governor Ong's 26
appointments were issued in bulk, this per se does not
invalidate the appointments. Unlike Resolution No. 010988,
Resolution No. 030918 does not prohibit appointments that
are large in number. Moreover, 26 appointments can hardly
be classified as "mass appointments," compared with the 89
appointments this court invalidated in Nazareno.
Marco's appointment was valid. The Civil Service Commission
correctly approved his appointment.
Considering that Marco had already accepted his appointment
by the time the Province prevented him from assuming his
office, his appointment remains effective up to the
present.136 Consequently, the Civil Service Commission
correctly ordered the Province to reinstate Marco as
Cooperative Development Specialist II and to pay him his back
salaries from July 8, 2004 when the Province prevented him
from reporting for work up to his actual
reinstatement.cralawred
WHEREFORE, the Petition for Review on Certiorari is DENIED.
The Court of Appeals Decision dated March 2, 2012 is
affirmed. SO ORDERED.
74
Public Corporation
ARTURO M. DE CASTRO, Petitioner, - versus -
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT
GLORIA MACAPAGAL ARROYO, Respondents.
G. R. No. 191002
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno
by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010. Even before the event
actually happens, it is giving rise to many legal dilemmas. May
the incumbent President appoint his successor, considering
that Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from
making appointments within two months immediately before
the next presidential elections and up to the end of his
term, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service
or endanger public safety? What is the relevance of Section 4
(1), Article VIII (Judicial Department) of the Constitution,
which provides that any vacancy in the Supreme Court shall
be filled within 90 days from the occurrence thereof, to the
matter of the appointment of his successor? May the Judicial
and Bar Council (JBC) resume the process of screening the
candidates nominated or being considered to succeed Chief
Justice Puno, and submit the list of nominees to the incumbent
President even during the period of the prohibition under
Section 15, Article VII? Does mandamus lie to compel the
submission of the shortlist of nominees by the JBC?
Precs of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta
respectively commenced G.R. No. 191002[1] and G.R. No.
191149[2] as special civil actions
for certiorari and mandamus, praying that the JBC be
compelled to submit to the incumbent President the list of at
least three nominees for the position of the next Chief Justice.
In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for
prohibition, proposes to prevent the JBC from conducting its
search, selection and nomination proceedings for the position
of Chief Justice.
In G.R. No. 191057, a special civil action
for mandamus,[4] the Philippine Constitution Association
(PHILCONSA) wants the JBC to submit its list of nominees for
the position of Chief Justice to be vacated by Chief Justice
Puno upon his retirement on May 17, 2010, because the
incumbent President is not covered by the prohibition that
applies only to appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito
M. Mendoza, a former Solicitor General, seeks a ruling from
the Court for the guidance of the JBC on whether Section 15,
Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March
9, 2010 with the petitions earlier filed, petitioners Amador Z.
Tolentino, Jr. and Roland B. Inting, Integrated Bar of the
Philippines (IBP) Governors for Southern Luzon and Eastern
Visayas, respectively, want to enjoin and restrain the JBC from
submitting a list of nominees for the position of Chief Justice
to the President for appointment during the period provided
for in Section 15, Article VII.
All the petitions now before the Court pose as the principal
legal question whether the incumbent President can appoint
the successor of Chief Justice Puno upon his retirement. That
question is undoubtedly impressed with transcendental
importance to the Nation, because the appointment of the
Chief Justice is any Presidents most important appointment.
A precedent frequently cited is In Re Appointments Dated
March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido
B. Vallarta as Judges of the Regional Trial Court of Branch 62,
Bago City and of Branch 24, Cabanatuan City,
respectively (Valenzuela),[7] by which the Court held that
Section 15, Article VII prohibited the exercise by the President
of the power to appoint to judicial positions during the period
therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting
opinions on the issue expressed by legal luminaries one side
holds that the incumbent President is prohibited from making
appointments within two months immediately before the
coming presidential elections and until the end of her term of
office as President on June 30, 2010, while the other insists
that the prohibition applies only to appointments to executive
positions that may influence the election and, anyway,
paramount national interest justifies the appointment of a
Chief Justice during the election ban has impelled the JBC to
defer the decision to whom to send its list of at least three
nominees, whether to the incumbent President or to her
successor.[8] He opines that the JBC is thereby arrogating
unto itself the judicial function that is not conferred upon it by
the Constitution, which has limited it to the task of
recommending appointees to the Judiciary, but has not
empowered it to finally resolve constitutional questions, which
is the power vested only in the Supreme Court under the
Constitution. As such, he contends that the JBC acted with
grave abuse of discretion in deferring the submission of the
list of nominees to the President; and that a final and definitive
resolution of the constitutional questions raised above would
diffuse (sic) the tension in the legal community that would go
a long way to keep and maintain stability in the judiciary and
the political system.[9]
In G.R. No. 191032, Soriano offers the view that the JBC
committed a grave abuse of discretion amounting to lack or
excess of its jurisdiction when it resolved unanimously on
January 18, 2010 to open the search, nomination, and
selection process for the position of Chief Justice to succeed
Chief Justice Puno, because the appointing authority for the
position of Chief Justice is the Supreme Court itself, the
Presidents authority being limited to the appointment of the
Members of the Supreme Court. Hence, the JBC should not
intervene in the process, unless a nominee is not yet a
Member of the Supreme Court.[10]
For its part, PHILCONSA observes in its petition in G.R. No.
191057 that unorthodox and exceptional circumstances
spawned by the discordant interpretations, due perhaps to a
perfunctory understanding, of Sec. 15, Art. VII in relation to
Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have bred
75
Public Corporation
a frenzied inflammatory legal debate on the constitutional
provisions mentioned that has divided the bench and the bar
and the general public as well, because of its dimensional
impact to the nation and the people, thereby fashioning
transcendental questions or issues affecting the JBCs proper
exercise of its principal function of recommending appointees
to the Judiciary by submitting only to the President (not to the
next President) a list of at least three nominees prepared by
the Judicial and Bar Council for every vacancy from which the
members of the Supreme Court and judges of the lower courts
may be appointed.[11] PHILCONSA further believes and
submits that now is the time to revisit and
review Valenzuela, the strange and exotic Decision of the
Court en banc.[12]
Peralta states in his petition in G.R. No. 191149
that mandamus can compel the JBC to immediately transmit
to the President, within a reasonable time, its nomination list
for the position of chief justice upon the mandatory retirement
of Chief Justice Reynato S. Puno, in compliance with its
mandated duty under the Constitution in the event that the
Court resolves that the President can appoint a Chief Justice
even during the election ban under Section 15, Article VII of
the Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is an actual
controversy, considering that the JBC has initiated the process
of receiving applications for the position of Chief Justice and
has in fact begun the evaluation process for the applications
to the position, and is perilously near completing the
nomination process and coming up with a list of nominees for
submission to the President, entering into the period of the
ban on midnight appointments on March 10, 2010, which only
highlights the pressing and compelling need for a writ of
prohibition to enjoin such alleged ministerial function of
submitting the list, especially if it will be cone within the period
of the ban on midnight appointments.[14]
Antecedents
These cases trace their genesis to the controversy that has
arisen from the forthcoming compulsory retirement of Chief
Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to Section
9, Article VIII, that vacancy shall be filled within ninety days
from the occurrence thereof from a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy.
On December 22, 2009, Congressman Matias V. Defensor,
an ex officio member of the JBC, addressed a letter to the JBC,
requesting that the process for nominations to the office of
the Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC
passed a resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010,
unanimously agreed to start the process of filling up the
position of Chief Justice to be vacated on May 17, 2010 upon
the retirement of the incumbent Chief Justice Honorable
Reynato S. Puno.
It will publish the opening of the position for applications or
recommendations; deliberate on the list of candidates; publish
the names of candidates; accept comments on or opposition
to the applications; conduct public interviews of candidates;
and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing
authority, in the light of the Constitution, existing laws and
jurisprudence, the JBC welcomes and will consider all views
on the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for
application or recommendation, and published for that
purpose its announcement dated January 20, 2010,[16] viz:
The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF
JUSTICE OF THE SUPREME COURT, which will be vacated
on 17 May 2010 upon the retirement of the incumbent Chief
Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the
JBC Secretariat xxx:
The announcement was published on January 20, 2010 in
the Philippine Daily Inquirer and The Philippine Star.[17]
Conformably with its existing practice, the JBC automatically
considered for the position of Chief Justice the five most senior
of the Associate Justices of the Court, namely: Associate
Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice
Presbitero J. Velasco, Jr.; and Associate Justice Antonio
Eduardo B. Nachura. However, the last two declined their
nomination through letters dated January 18,
2010 and January 25, 2010, respectively.[18]
Others either applied or were nominated. Victor Fernandez,
the retired Deputy Ombudsman for Luzon, applied, but later
formally withdrew his name from consideration through his
letter dated February 8, 2010. Candidates who accepted their
nominations without conditions were Associate Justice Renato
C. Corona; Associate Justice Teresita J. Leonardo-De Castro;
Associate Justice Arturo D. Brion; and Associate Justice
Edilberto G. Sandoval (Sandiganbayan). Candidates who
accepted their nominations with conditions were Associate
Justice Antonio T. Carpio and Associate Justice Conchita
Carpio Morales.[19] Declining their nominations were Atty.
Henry Villarica (via telephone conversation with the Executive
Officer of the JBC on February 5, 2010) and Atty. Gregorio M.
Batiller, Jr. (via telephone conversation with the Executive
Officer of the JBC on February 8, 2010).[20]
76
Public Corporation
The JBC excluded from consideration former RTC Judge
Florentino Floro (for failure to meet the standards set by the
JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the
Office of the Ombudsman (due to cases pending in the Office
of the Ombudsman).[21]
In its meeting of February 8, 2010, the JBC resolved to
proceed to the next step of announcing the names of the
following candidates to invite the public to file their sworn
complaint, written report, or opposition, if any, not later than
February 22, 2010, to wit: Associate Justice Carpio, Associate
Justice Corona, Associate Justice Carpio Morales, Associate
Justice Leonardo-De Castro, Associate Justice Brion, and
Associate Justice Sandoval. The announcement came out in
the Philippine Daily Inquirer and The Philippine Star issues
of February 13, 2010.[22]
Issues
Although it has already begun the process for the filling of the
position of Chief Justice Puno in accordance with its rules, the
JBC is not yet decided on when to submit to the President its
list of nominees for the position due to the controversy now
before us being yet unresolved. In the meanwhile, time is
marching in quick step towards May 17, 2010 when the
vacancy occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not
only among legal luminaries, but also among non-legal
quarters, and brought out highly disparate opinions on
whether the incumbent President can appoint the next Chief
Justice or not. Petitioner Mendoza notes that
in Valenzuela, which involved the appointments of two judges
of the Regional Trial Court, the Court addressed this issue now
before us as an administrative matter to avoid any possible
polemics concerning the matter, but he opines that the
polemics leading to Valenzuela would be miniscule [sic]
compared to the polemics that have now erupted in regard to
the current controversy, and that unless put to a halt, and this
may only be achieved by a ruling from the Court, the integrity
of the process and the credibility of whoever is appointed to
the position of Chief Justice, may irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each
petitioner in the order of the chronological filing of their
petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve the
constitutional question of whether the incumbent President
can appoint a Chief Justice during the election ban period?
b. Does the incumbent President have the power and
authority to appoint during the election ban the successor of
Chief Justice Puno when he vacates the position of Chief
Justice on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the
Supreme Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under
Section 15, Article VII of the Constitution applicable only to
positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII
of the Constitution also applies to members of the Judiciary,
may such appointments be excepted because they are
impressed with public interest or are demanded by the
exigencies of public service, thereby justifying these
appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not
to include and submit the names of nominees who manifested
interest to be nominated for the position of Chief Justice on
the understanding that his/her nomination will be submitted
to the next President in view of the prohibition against
presidential appointments from March 11, 2010 until June 30,
2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to
appointments to positions in the Judiciary under Section 9,
Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments
to the Judiciary after March 10, 2010, including that for the
position of Chief Justice after Chief Justice Puno retires on May
17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the
submission of the short list to President Gloria Macapagal-
Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of
nominees to the incumbent President without committing a
grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from
making midnight appointments two months immediately
preceding the next presidential elections until the end of her
term?
b. Is any act performed by the JBC, including the vetting of
the candidates for the position of Chief Justice, constitutionally
invalid in view of the JBCs illegal composition allowing each
member from the Senate and the House of Representatives to
have one vote each?
On February 16, 2010, the Court directed the JBC and the
Office of the Solicitor General (OSG) to comment on the
consolidated petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment,
reporting therein that the next stage of the process for the
selection of the nominees for the position of Chief Justice
would be the public interview of the candidates and the
preparation of the short list of candidates, including the
interview of the constitutional experts, as may be
needed.[24] It stated:[25]
Likewise, the JBC has yet to take a position on when to submit
the shortlist to the proper appointing authority, in light of
77
Public Corporation
Section 4 (1), Article VIII of the Constitution, which provides
that vacancy in the Supreme Court shall be filled within ninety
(90) days from the occurrence thereof, Section 15, Article VII
of the Constitution concerning the ban on Presidential
appointments two (2) months immediately before the next
presidential elections and up to the end of his term and
Section 261 (g), Article XXII of the Omnibus Election Code of
the Philippines.
12. Since the Honorable Supreme Court is the final interpreter
of the Constitution, the JBC will be guided by its decision in
these consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment,
essentially stating that the incumbent President can appoint
the successor of Chief Justice Puno upon his retirement
by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to
prevent the JBC from performing its principal function under
the Constitution to recommend appointees in the Judiciary;
(b) the JBCs function to recommend is a continuing process,
which does not begin with each vacancy or end with each
nomination, because the goal is to submit the list of nominees
to Malacaang on the very day the vacancy arises;[26] the JBC
was thus acting within its jurisdiction when it commenced and
set in motion the process of selecting the nominees to be
submitted to the President for the position of Chief Justice to
be vacated by Chief Justice Puno;[27] (c) petitioner Sorianos
theory that it is the Supreme Court, not the President, who
has the power to appoint the Chief Justice, is incorrect, and
proceeds from his misinterpretation of the phrase members of
the Supreme Court found in Section 9, Article VIII of the
Constitution as referring only to the Associate Justices, to the
exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list
of nominees to the President, considering that its duty to
prepare the list of at least three nominees is unqualified, and
the submission of the list is a ministerial act that the JBC is
mandated to perform under the Constitution; as such, the
JBC, the nature of whose principal function is executive, is not
vested with the power to resolve who has the authority to
appoint the next Chief Justice and, therefore, has no discretion
to withhold the list from the President; [29] and (e) a writ
of mandamus cannot issue to compel the JBC to include or
exclude particular candidates as nominees, considering that
there is no imperative duty on its part to include in or exclude
from the list particular individuals, but, on the contrary, the
JBCs determination of who it nominates to the President is an
exercise of a discretionary duty.[30]
The OSG contends that the incumbent President may appoint
the next Chief Justice, because the prohibition under Section
15, Article VII of the Constitution does not apply to
appointments in the Supreme Court. It argues that any
vacancy in the Supreme Court must be filled within 90 days
from its occurrence, pursuant to Section 4(1), Article VIII of
the Constitution; [31] that in their deliberations on the
mandatory period for the appointment of Supreme Court
Justices, the framers neither mentioned nor referred to the
ban against midnight appointments, or its effects on such
period, or vice versa;[32] that had the framers intended the
prohibition to apply to Supreme Court appointments, they
could have easily expressly stated so in the Constitution,
which explains why the prohibition found in Article VII
(Executive Department) was not written in Article VIII
(Judicial Department); and that the framers also incorporated
in Article VIII ample restrictions or limitations on the
Presidents power to appoint members of the Supreme Court
to ensure its independence from political vicissitudes and its
insulation from political pressures,[33] such as stringent
qualifications for the positions, the establishment of the JBC,
the specified period within which the President shall appoint a
Supreme Court Justice.
The OSG posits that although Valenzuela involved the
appointment of RTC Judges, the situation now refers to the
appointment of the next Chief Justice to which the prohibition
does not apply; that, at any rate, Valenzuela even recognized
that there might be the imperative need for an appointment
during the period of the ban, like when the membership of the
Supreme Court should be so reduced that it will have no
quorum, or should the voting on a particular important
question requiring expeditious resolution be divided;[34] and
that Valenzuela also recognized that the filling of vacancies in
the Judiciary is undoubtedly in the public interest, most
especially if there is any compelling reason to justify the
making of the appointments during the period of the
prohibition.[35]
Lastly, the OSG urges that there are now undeniably
compelling reasons for the incumbent President to appoint the
next Chief Justice, to wit: (a) a deluge of cases involving
sensitive political issues is quite expected;[36] (b) the Court
acts as the Presidential Electoral Tribunal (PET), which,
sitting en banc, is the sole judge of all contests relating to the
election, returns, and qualifications of the President and Vice
President and, as such, has the power to correct manifest
errors on the statement of votes (SOV) and certificates of
canvass (COC);[37] (c) if history has shown that
during ordinary times the Chief Justice was appointed
immediately upon the occurrence of the vacancy, from the
time of the effectivity of the Constitution, there is now even
more reason to appoint the next Chief Justice immediately
upon the retirement of Chief Justice Puno;[38] and (d) should
the next Chief Justice come from among the incumbent
Associate Justices of the Supreme Court, thereby causing a
vacancy, it also becomes incumbent upon the JBC to start the
selection process for the filling up of the vacancy in
accordance with the constitutional mandate.[39]
On March 9, 2010, the Court admitted the following
comments/oppositions-in-intervention, to wit:
(a) The opposition-in-intervention dated February 22, 2010 of
Atty. Peter Irving Corvera (Corvera);[40]
(b) The opposition-in-intervention dated February 22, 2010 of
Atty. Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of
Atty. Alfonso V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March 1,
2010 of the National Union of Peoples Lawyers (NUPL);
78
Public Corporation
(e) The opposition-in-intervention dated February 25, 2010 of
Atty. Marlou B. Ubano (Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of
Integrated Bar of the Philippines-Davao del Sur Chapter and
its Immediate Past President, Atty. Israelito P. Torreon (IBP-
Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of
Atty. Mitchell John L. Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention
dated February 26, 2010 of BAYAN Chairman Dr. Carolina P.
Araullo; BAYAN Secretary General Renato M. Reyes, Jr.;
Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE) Chairman Ferdinand
Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY)
Secretary General Gloria Arellano; Alyansa ng Nagkakaisang
Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN)
Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor
Alvin Peters; League of Filipino Students (LFS) Chairman
James Mark Terry Lacuanan Ridon; National Union of Students
of the Philippines (NUSP) Chairman Einstein Recedes, College
Editors Guild of the Philippines (CEGP) Chairman Vijae
Alquisola; and Student Christian Movement of the Philippines
(SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et
al.);
(i) The opposition-in-intervention dated March 3, 2010 of
Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention
dated March 4, 2010 of the Women Trial Lawyers Organization
of the Philippines (WTLOP), represented by Atty. Yolanda
Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty.
Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-
Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus;
and Atty. Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao
del Sur, and NUPL take the position that De Castros petition
was bereft of any basis, because under Section 15, Article VII,
the outgoing President is constitutionally banned from making
any appointments from March 10, 2010 until June 30, 2010,
including the appointment of the successor of Chief Justice
Puno. Hence, mandamus does not lie to compel the JBC to
submit the list of nominees to the outgoing President if the
constitutional prohibition is already in effect. Tan adds that
the prohibition against midnight appointments was applied by
the Court to the appointments to the Judiciary made by then
President Ramos, with the Court holding that the duty of the
President to fill the vacancies within 90 days from occurrence
of the vacancies (for the Supreme Court) or from the
submission of the list (for all other courts) was not an excuse
to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al.,
and Bello et al. oppose the insistence
that Valenzuela recognizes the possibility that the President
may appoint the next Chief Justice if exigent circumstances
warrant the appointment, because that recognition is obiter
dictum; and aver that the absence of a Chief Justice or even
an Associate Justice does not cause epic damage or absolute
disruption or paralysis in the operations of the Judiciary. They
insist that even without the successor of Chief Justice Puno
being appointed by the incumbent President, the Court is
allowed to sit and adjudge en banc or in divisions of three,
five or seven members at its discretion; that a full membership
of the Court is not necessary; that petitioner De Castros fears
are unfounded and baseless, being based on a mere
possibility, the occurrence of which is entirely unsure; that it
is not in the national interest to have a Chief Justice whose
appointment is unconstitutional and, therefore, void; and that
such a situation will create a crisis in the judicial system and
will worsen an already vulnerable political situation.
ice is imperative for the stability of the judicial system and the
political situation in the country when the election-related
questions reach the Court as false, because there is an
existing law on filling the void brought about by a vacancy in
the office of Chief Justice; that the law is Section 12 of the
Judiciary Act of 1948, which has not been repealed by Batas
Pambansa Blg. 129 or any other law; that a temporaryor
an acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief Justice
is not only provided for by law, but is also dictated by practical
necessity; that the practice was intended to be enshrined in
the 1987 Constitution, but the Commissioners decided not to
write it in the Constitution on account of the settled practice;
that the practice was followed under the 1987 Constitution,
when, in 1992, at the end of the term of Chief Justice Marcelo
B. Fernan, Associate Justice Andres Narvasa assumed the
position as Acting Chief Justice prior to his official appointment
as Chief Justice; that said filling up of a vacancy in the office
of the Chief Justice was acknowledged and even used by
analogy in the case of the vacancy of the Chairman of the
Commission on Elections, per Brillantes v. Yorac, 192 SCRA
358; and that the history of the Supreme Court has shown
that this rule of succession has been repeatedly observed and
has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain
that the Omnibus Election Code penalizes as an election
offense the act of any government official who appoints,
promotes, or gives any increase in salary or remuneration or
privilege to any government official or employee during the
period of 45 days before a regular election; that the provision
covers all appointing heads, officials, and officers of a
government office, agency or instrumentality, including the
President; that for the incumbent President to appoint the
next Chief Justice upon the retirement of Chief Justice Puno,
or during the period of the ban under the Omnibus Election
Code, constitutes an election offense; that even an
appointment of the next Chief Justice prior to the election ban
is fundamentally invalid and without effect because there can
be no appointment until a vacancy occurs; and that the
vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castros prayer to compel the
submission of nominees by the JBC to the incumbent
President is off-tangent because the position of Chief Justice
is still not vacant; that to speak of a list, much more a
submission of such list, before a vacancy occurs is glaringly
premature; that the proposed advance appointment by the
incumbent President of the next Chief Justice will be
unconstitutional; and that no list of nominees can be
submitted by the JBC if there is no vacancy.
79
Public Corporation
All the intervenors-oppositors submit that Section 15, Article
VII makes no distinction between the kinds of appointments
made by the President; and that the Court, in Valenzuela,
ruled that the appointments by the President of the two
judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the
1987 Constitution does not apply only to the appointments in
the Executive Department, but also to judicial appointments,
contrary to the submission of PHILCONSA; that Section 15
does not distinguish; and that Valenzuela already interpreted
the prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Sorianos
contention that the power to appoint the Chief Justice is
vested, not in the President, but in the Supreme Court, is
utterly baseless, because the Chief Justice is also a Member
of the Supreme Court as contemplated under Section 9, Article
VIII; and that, at any rate, the term members was interpreted
in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to
refer to the Chief Justice and the Associate Justices of the
Supreme Court; that PHILCONSAs prayer that the Court pass
a resolution declaring that persons who manifest their interest
as nominees, but with conditions, shall not be considered
nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring
inconsistency between the allegations in the body and the
relief prayed for highlights the lack of merit of PHILCONSAs
petition; that the role of the JBC cannot be separated from the
constitutional prohibition on the President; and that the Court
must direct the JBC to follow the rule of law, that is, to submit
the list of nominees only to the next duly elected President
after the period of the constitutional ban against midnight
appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC because it is
neither a judicial nor a quasi-judicial body has no duty under
the Constitution to resolve the question of whether the
incumbent President can appoint a Chief Justice during the
period of prohibition; that even if the JBC has already come
up with a short list, it still has to bow to the strict limitations
under Section 15, Article VII; that should the JBC defer
submission of the list, it is not arrogating unto itself a judicial
function, but simply respecting the clear mandate of the
Constitution; and that the application of the general rule
in Section 15, Article VII to the Judiciary does not violate the
principle of separation of powers, because said provision is an
exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that
the JBCs act of nominating appointees to the Supreme Court
is purely ministerial and does not involve the exercise of
judgment; that there can be no default on the part of the JBC
in submitting the list of nominees to the President, considering
that the call for applications only begins from the occurrence
of the vacancy in the Supreme Court; and that the
commencement of the process of screening of applicants to
fill the vacancy in the office of the Chief Justice only begins
from the retirement on May 17, 2010, for, prior to this date,
there is no definite legal basis for any party to claim that the
submission or non-submission of the list of nominees to the
President by the JBC is a matter of right under law.
The main question presented in all the filings herein because
it involves two seemingly conflicting provisions of the
Constitution imperatively demands the attention and
resolution of this Court, the only authority that can resolve the
question definitively and finally. The imperative demand rests
on the ever-present need, first, to safeguard the
independence, reputation, and integrity of the entire Judiciary,
particularly this Court, an institution that has been
unnecessarily dragged into the harsh polemics brought on by
the controversy; second, to settle once and for all the doubt
about an outgoing Presidents power to appoint to the
Judiciary within the long period starting two months before
the presidential elections until the end of the presidential
term; and third, to set a definite guideline for the JBC to follow
in the discharge of its primary office of screening and
nominating qualified persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the
petitioners have locus standi.
Black defines locus standi as a right of appearance in a court
of justice on a given question.[41] In public or constitutional
litigations, the Court is often burdened with the determination
of the locus standi of the petitioners due to the ever-present
need to regulate the invocation of the intervention of the
Court to correct any official action or policy in order to avoid
obstructing the efficient functioning of public officials and
offices involved in public service. It is required, therefore, that
the petitioner must have a personal stake in the outcome of
the controversy, for, as indicated in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.:[42]
The question on legal standing is whether such parties have
alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions.[43] Accordingly, it has been held that the interest
of a person assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that
the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that
the person complaining has been or is about to be denied
some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[44]
It is true that as early as in 1937, in People v. Vera,[45] the
Court adopted the direct injury test for determining whether
a petitioner in a public action had locus standi. There, the
Court held that the person who would assail the validity of a
statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury
as a result. Vera was followed in Custodio v. President of the
Senate,[46] Manila Race Horse Trainers Association v. De la
80
Public Corporation
Fuente,[47] Anti-Chinese League of the Philippines v.
Felix,[48] and Pascual v. Secretary of Public Works.[49]
Yet, the Court has also held that the requirement of locus
standi, being a mere procedural technicality, can be waived
by the Court in the exercise of its discretion. For instance, in
1949, in Araneta v. Dinglasan,[50] the Court liberalized the
approach when the cases had transcendental
importance. Some notable controversies whose petitioners
did not pass the direct injury test were allowed to be treated
in the same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on
Elections,[52] this Court decided to resolve the issues raised
by the petition due to their far-reaching implications, even if
the petitioner had no personality to file the suit. The liberal
approach of Aquino v. Commission on Elections has been
adopted in
several notable cases, permitting ordinary citizens, legislators
, and civic organizations to bring their suits involving the
constitutionality or validity of laws, regulations, and
rulings.[53]
However, the assertion of a public right as a predicate for
challenging a supposedly illegal or unconstitutional executive
or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may
not be as adversely affected by the action complained against
as are others, it is enough that he sufficiently demonstrates in
his petition that he is entitled to protection or relief from the
Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as
a citizen or taxpayer to gain locus standi. That is not
surprising, for even if the issue may appear to concern only
the public in general, such capacities nonetheless equip the
petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo,[54] the Court aptly explains why:
Case law in most jurisdictions now allows both citizen and
taxpayer standing in public actions. The distinction was first
laid down in Beauchamp v. Silk,[55] where it was held that
the plaintiff in a taxpayers suit is in a different category from
the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter,
he is but the mere instrument of the public concern. As held
by the New York Supreme Court in People ex rel Case v.
Collins:[56] In matter of mere public right, howeverthe people
are the real partiesIt is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance
be remedied. With respect to taxpayers suits, Terr v.
Jordan[57] held that the right of a citizen and a taxpayer to
maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied.[58]
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No.
191032) and Peralta (G.R. No. 191149) all assert their right as
citizens filing their petitions on behalf of the public who are
directly affected by the issue of the appointment of the next
Chief Justice. De Castro and Soriano further claim standing as
taxpayers, with Soriano averring that he is affected by the
continuing proceedings in the JBC, which involve unnecessary,
if not, illegal disbursement of public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit
organization existing under the law for the purpose of
defending, protecting, and preserving the Constitution and
promoting its growth and flowering. It also alleges that the
Court has recognized its legal standing to file cases on
constitutional issues in several cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of
the Philippines, a member of the Philippine Bar engaged in the
active practice of law, and a former Solicitor General, former
Minister of Justice, former Member of the Interim Batasang
Pambansa and the Regular Batasang Pambansa, and former
member of the Faculty of the College of Law of the University
of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the
Integrated Bar of the Philippines (IBP) for Southern
Luzon and Eastern Visayas. They allege that they have the
legal standing to enjoin the submission of the list of nominees
by the JBC to the President, for [a]n adjudication of the proper
interpretation and application of the constitutional ban on
midnight appointments with regard to respondent JBCs
function in submitting the list of nominees is well within the
concern of petitioners, who are duty bound to ensure that
obedience and respect for the Constitution is upheld, most
especially by government offices, such as respondent JBC,
who are specifically tasked to perform crucial functions in the
whole scheme of our democratic institution. They further
allege that, reposed in them as members of the Bar, is a clear
legal interest in the process of selecting the members of the
Supreme Court, and in the selection of the Chief Justice,
considering that the person appointed becomes a member of
the body that has constitutional supervision and authority over
them and other members of the legal profession.[61]
The Court rules that the petitioners have each demonstrated
adequate interest in the outcome of the controversy as to vest
them with the requisite locus standi. The issues before us are
of transcendental importance to the people as a whole, and
to the petitioners in particular. Indeed, the issues affect
everyone (including the petitioners), regardless of ones
personal interest in life, because they concern that great
doubt about the authority of the incumbent President to
appoint not only the successor of the retiring incumbent Chief
Justice, but also others who may serve in the Judiciary, which
already suffers from a far too great number of vacancies in
the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive
the requirement of legal standing in favor of any petitioner
when the matter involved has transcendental importance, or
otherwise requires a liberalization of the requirement.[62]
Yet, if any doubt still lingers about the locus standi of any
petitioner, we dispel the doubt now in order to remove any
obstacle or obstruction to the resolution of the essential issue
squarely presented herein. We are not to shirk from
discharging our solemn duty by reason alone of an obstacle
more technical than otherwise. In Agan, Jr. v.Philippine
International Air Terminals Co., Inc.,[63] we pointed out:
Standing is a peculiar concept in constitutional law because in
some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other
81
Public Corporation
government act but by concerned citizens, taxpayers or voters
who actually sue in the public interest. But even if, strictly
speaking, the petitioners are not covered by the definition, it
is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing
and resolving the serious constitutional questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or
controversy that is appropriate or ripe for adjudication,
considering that although the selection process commenced
by the JBC is going on, there is yet no final list of nominees;
hence, there is no imminent controversy as to whether such
list must be submitted to the incumbent President, or reserved
for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable
controversy that is ripe for judicial determination, pointing out
that petitioner De Castro has not even shown that the JBC has
already completed its selection process and is now ready to
submit the list to the incumbent President; and that petitioner
De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of
judicial review.
Intervenors Corvera and Lim separately opine that De Castros
petition rests on an overbroad and vague allegation of political
tension, which is insufficient basis for the Court to exercise its
power of judicial review.
Intervenor BAYAN et al. contend that the petitioners are
seeking a mere advisory opinion on what the JBC and the
President should do, and are not invoking any issues that are
justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of
legal rights and no assertion of opposite legal claims in any of
the petitions; that PHILCONSA does not allege any action
taken by the JBC, but simply avers that the conditional
manifestations of two Members of the Court, accented by the
divided opinions and interpretations of legal experts, or
associations of lawyers and law students on the issues
published in the daily newspapers are matters of paramount
and transcendental importance to the bench, bar and general
public; that PHILCONSA fails not only to cite any legal duty or
allege any failure to perform the duty, but also to indicate
what specific action should be done by the JBC; that Mendoza
does not even attempt to portray the matter as a controversy
or conflict of rights, but, instead, prays that the Court should
rule for the guidance of the JBC; that the fact that the Court
supervises the JBC does not automatically imply that the Court
can rule on the issues presented in the Mendoza petition,
because supervision involves oversight, which means that the
subordinate officer or body must first act, and if such action is
not in accordance with prescribed rules, then, and only then,
may the person exercising oversight order the action to be
redone to conform to the prescribed rules; that the Mendoza
petition does not allege that the JBC has performed a specific
act susceptible to correction for being illegal or
unconstitutional; and that the Mendoza petition asks the Court
to issue an advisory ruling, not to exercise its power of
supervision to correct a wrong act by the JBC, but to declare
the state of the law in the absence of an actual case or
controversy.
We hold that the petitions set forth an actual case or
controversy that is ripe for judicial determination. The reality
is that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them
will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC
began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the
list of nominees to the incumbent outgoing President or to the
next President, makes the situation ripe for judicial
determination, because the next steps are the public interview
of the candidates, the preparation of the short list of
candidates, and the interview of constitutional experts, as may
be needed.
A part of the question to be reviewed by the Court is whether
the JBC properly initiated the process, there being an
insistence from some of the oppositors-intervenors that the
JBC could only do so once the vacancy has occurred (that is,
after May 17, 2010). Another part is, of course, whether the
JBC may resume its process until the short list is prepared, in
view of the provision of Section 4(1), Article VIII, which
unqualifiedly requires the President to appoint one from the
short list to fill the vacancy in the Supreme Court (be it the
Chief Justice or an Associate Justice) within 90 days from the
occurrence of the vacancy.
The ripeness of the controversy for judicial determination may
not be doubted. The challenges to the authority of the JBC to
open the process of nomination and to continue the process
until the submission of the list of nominees; the insistence of
some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent
President; the counter-insistence of the intervenors to prohibit
the JBC from submitting the short list to the incumbent
President on the ground that said list should be submitted
instead to the next President; the strong position that the
incumbent President is already prohibited under Section 15,
Article VII from making any appointments, including those to
the Judiciary, starting on May 10, 2010 until June 30, 2010;
and the contrary position that the incumbent President is not
so prohibited are only some of the real issues for
determination. All such issues establish the ripeness of the
controversy, considering that for some the short list must be
submitted before the vacancy actually occurs by May 17,
2010. The outcome will not be an abstraction, or a merely
hypothetical exercise. The resolution of the controversy will
surely settle with finality the nagging questions that are
preventing the JBC from moving on with the process that it
already began, or that are reasons persuading the JBC to
desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17,
2010 in order for the principal issue to ripe for judicial
determination by the Court. It is enough that one alleges
conduct arguably affected with a constitutional interest, but
seemingly proscribed by the Constitution. A reasonable
certainty of the occurrence of the perceived threat to a
constitutional interest is sufficient to afford a basis for bringing
82
Public Corporation
a challenge, provided the Court has sufficient facts before it
to enable it to intelligently adjudicate the issues.[65]Herein,
the facts are not in doubt, for only legal issues remain.
Substantive Merits
I Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department),
provides:
Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a
President or Acting President shall not make
appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice
public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department),
states:
Section 4. (1). The Supreme Court shall be composed of a
Chief Justice and fourteen Associate Justices. It may sit en
banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from
the occurrence thereof.
In the consolidated petitions, the petitioners, with the
exception of Soriano, Tolentino and Inting, submit that the
incumbent President can appoint the successor of Chief
Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments
under Section 15, Article VII does not extend to appointments
in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional
Commission reveal that the framers devoted time to
meticulously drafting, styling, and arranging the Constitution.
Such meticulousness indicates that the organization and
arrangement of the provisions of the Constitution were not
arbitrarily or whimsically done by the framers, but purposely
made to reflect their intention and manifest their vision of
what the Constitution should contain.
The Constitution consists of 18 Articles, three of which
embody the allocation of the awesome powers of government
among the three great departments, the Legislative (Article
VI), the Executive (Article VII), and the Judicial Departments
(Article VIII). The arrangement was a true recognition of the
principle of separation of powers that underlies the political
structure, as Constitutional Commissioner Adolfo S. Azcuna
(later a worthy member of the Court) explained in his
sponsorship speech:
We have in the political part of this Constitution opted for the
separation of powers in government because we believe that
the only way to protect freedom and liberty is to separate and
divide the awesome powers of government. Hence, we return
to the separation of powers doctrine and the legislative,
executive and judicial departments.[66]
As can be seen, Article VII is devoted to the Executive
Department, and, among others, it lists the powers vested by
the Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the
Article.
Article VIII is dedicated to the Judicial Department and defines
the duties and qualifications of Members of the Supreme
Court, among others. Section 4(1) and Section 9 of this Article
are the provisions specifically providing for the appointment
of Supreme Court Justices. In particular, Section 9 states that
the appointment of Supreme Court Justices can only be made
by the President upon the submission of a list of at least three
nominees by the JBC; Section 4(1) of the Article mandates the
President to fill the vacancy within 90 days from the
occurrence of the vacancy.
Had the framers intended to extend the prohibition contained
in Section 15, Article VII to the appointment of Members of
the Supreme Court, they could have explicitly done so. They
could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4
(1), Article VIII. That such specification was not done only
reveals that the prohibition against the President or Acting
President making appointments within two months before the
next presidential elections and up to the end of the Presidents
or Acting Presidents term does not refer to the Members of
the Supreme Court.
Although Valenzuela[67] came to hold that the prohibition
covered even judicial appointments, it cannot be disputed that
the Valenzuela dictum did not firmly rest on the deliberations
of the Constitutional Commission. Thereby, the confirmation
made to the JBC by then Senior Associate Justice Florenz D.
Regalado of this Court, a former member of the Constitutional
Commission, about the prohibition not being intended to apply
to the appointments to the Judiciary, which
confirmation Valenzuela even expressly mentioned, should
prevail.
Relevantly, Valenzuela adverted to the intent of the framers
in the genesis of Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have
an eleven-member Supreme Court. Commissioner Eulogio
Lerum wanted to increase the number of Justices to fifteen.
He also wished to ensure that that number would not be
reduced for any appreciable length of time (even only
temporarily), and to this end proposed that any vacancy must
be filled within two months from the date that the vacancy
occurs. His proposal to have a 15-member Court was not
initially adopted. Persisting however in his desire to make
certain that the size of the Court would not be decreased for
any substantial period as a result of vacancies, Lerum
proposed the insertion in the provision (anent the Courts
83
Public Corporation
membership) of the same mandate that IN CASE OF ANY
VACANCY, THE SAME SHALL BE FILLED WITHIN TWO
MONTHS FROM OCCURRENCE THEREOF. He later agreed to
suggestions to make the period three, instead of two,
months. As thus amended, the proposal was approved. As it
turned out, however, the Commission ultimately agreed on a
fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a
command to fill up any vacancy therein within 90 days from
its occurrence.
In this connection, it may be pointed out that that instruction
that any vacancy shall be filled within ninety days (in the last
sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition in Section 15, Article VII, which is couched in
stronger negative language - that a President or Acting
President shall not make appointments
The commission later approved a proposal of Commissioner
Hilario G. Davide, Jr. (now a Member of this Court) to add to
what is now Section 9 of Article VIII, the following paragraph:
WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL
ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE
SUBMISSION OF THE LIST (of nominees by the Judicial and
Bar Council to the President). Davide stated that his purpose
was to provide a uniform rule for lower courts. According to
him, the 90-day period should be counted from submission of
the list of nominees to the President in view of the possibility
that the President might reject the list submitted to him and
the JBC thus need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect
deprives the President of his appointing power two months
immediately before the next presidential elections up to the
end ofhis term - was approved without discussion.[68]
However, the reference to the records of the Constitutional
Commission did not advance or support the result
in Valenzuela. Far to the contrary, the records disclosed the
express intent of the framers to enshrine in the Constitution,
upon the initiative of Commissioner Eulogio Lerum, a
command [to the President] to fill up any vacancy therein
within 90 days from its occurrence, which
even Valenzuela conceded.[69] The exchanges
during deliberations of the Constitutional Commission
on October 8, 1986 further show that the filling of a vacancy
in the Supreme Court within the 90-day period was
a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the
Supreme Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection
reads: Any vacancy shall be filled within ninety days from the
occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to
fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact
that in the past 30 years, seldom has the Court had a complete
complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the
word shall an imperative, operating to impose a duty that may
be enforced[71] should not be disregarded. Thereby, Sections
4(1) imposes on the President the imperative duty to make an
appointment of a Member of the Supreme Court within 90
days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the
Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the
President to fill the vacancy in the Supreme Court was
undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and
cannot be defeated by mere judicial interpretation
in Valenzuela to the effect that Section 15, Article VII
prevailed because it was couched in stronger negative
language. Such interpretation even turned out to be
conjectural, in light of the records of the Constitutional
Commissions deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is
hardly warranted. According to an authority on statutory
construction:
xxx the court should seek to avoid any conflict in the
provisions of the statute by endeavoring to harmonize and
reconcile every part so that each shall be effective. It is not
easy to draft a statute, or any other writing for that matter,
which may not in some manner contain conflicting provisions.
But what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was
inserted for a definite reason. Often by considering the
enactment in its entirety, what appears to be on its face a
conflict may be cleared up and the provisions reconciled.
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or
provision meaningless because of inconsistency. But a word
should not be given effect, if to do so gives the statute a
meaning contrary to the intent of the legislature. On the other
hand, if full effect cannot be given to the words of a statute,
they must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized
at a sacrifice of the legislative intention. It may be that two
provisions are irreconcilable; if so, the one which expresses
the intent of the law-makers should control. And the arbitrary
rule has been frequently announced that where there is an
irreconcilable conflict between the different provisions of a
statute, the provision last in order of position will prevail, since
it is the latest expression of the legislative will. Obviously, the
rule is subject to deserved criticism. It is seldom applied, and
probably then only where an irreconcilable conflict exists
between different sections of the same act, and after all other
means of ascertaining the meaning of the legislature have
been exhausted. Where the conflict is between two statutes,
more may be said in favor of the rules application, largely
because of the principle of implied repeal.
In this connection, PHILCONSAs urging of a revisit and a
review of Valenzuela is timely and
84
Public Corporation
appropriate. Valenzuela arbitrarily ignored the express intent
of the Constitutional Commission to have Section 4 (1), Article
VIII stand independently of any other provision, least of all
one found in Article VII. It further ignored that the two
provisions had no irreconcilable conflict, regardless of Section
15, Article VII being couched in the negative. As judges, we
are not to unduly interpret, and should not accept an
interpretation that defeats the intent of the framers.[73]
Consequently, prohibiting the incumbent President from
appointing a Chief Justice on the premise that Section 15,
Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be
allowed to last after its false premises have been
exposed.[74] It will not do to merely
distinguish Valenzuela from these cases, for the result to be
reached herein is entirely incompatible with
what Valenzuela decreed. Consequently,
Valenzuela now deserves to be quickly sent to the dustbin of
the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to
all other appointments in the Judiciary.
There is no question that one of the reasons underlying the
adoption of Section 15 as part of Article VII was to
eliminate midnight appointments from being made by
an outgoing Chief Executive in the mold of the appointments
dealt with in the leading case of Aytona v. Castillo.[75] In fact,
in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against
two types of appointments: (1) those made for buying votes
and (2) those made for partisan considerations. The first
refers to those appointments made within the two months
preceding a Presidential election and are similar to those
which are declared election offenses in the Omnibus Election
Code, viz.:
The second type of appointments prohibited by Section 15,
Article VII consists of the so-called midnight appointments.
In Aytona v. Castillo, it was held that after the proclamation
of Diosdado Macapagal as duly elected President, President
Carlos P. Garcia, who was defeated in his bid for reelection,
became no more than a caretaker administrator whose duty
was to prepare for the orderly transfer of authority to the
incoming President. Said the Court:
The filling up of vacancies in important positions, if few, and
so spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment and
appointee's qualifications may undoubtedly be permitted. But
the issuance of 350 appointments in one night and the
planned induction of almost all of them in a few hours before
the inauguration of the new President may, with some reason,
be regarded by the latter as an abuse of Presidential
prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness
and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding
appointments.
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made
even after the proclamation of the new President. Such
appointments, so long as they are few and so spaced as to
afford some assurance of deliberate action and careful
consideration of the need for the appointment and the
appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by
President Garcia, which were shown to have been well
considered, were upheld.
Section 15, Article VII has a broader scope than
the Aytona ruling. It may not unreasonably be deemed to
contemplate not only midnight appointments those made
obviously for partisan reasons as shown by their number and
the time of their making but also appointments presumed
made for the purpose of influencing the outcome of the
Presidential election.
On the other hand, the exception in the same Section 15 of
Article VII allowing appointments to be made during the
period of the ban therein provided is much narrower than that
recognized in Aytona. The exception allows only the making
of temporary appointments to executive positions when
continued vacancies will prejudice public service or endanger
public safety. Obviously, the article greatly restricts the
appointing power of the President during the period of the
ban.
Considering the respective reasons for the time frames for
filling vacancies in the courts and the restriction on the
President's power of appointment, it is this Courts view that,
as a general proposition, in case of conflict, the former should
yield to the latter. Surely, the prevention of vote-buying and
similar evils outweighs the need for avoiding delays in filling
up of court vacancies or the disposition of some
cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist
only once in every six years.Moreover, those occurring in the
lower courts can be filled temporarily by designation. But
prohibited appointments are long-lasting and permanent in
their effects. They may, as earlier pointed out, in fact
influence the results of elections and, for that reason, their
making is considered an election offense.[76]
Given the background and rationale for the prohibition in
Section 15, Article VII, we have no doubt that the
Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The framers
did not need to extend the prohibition to appointments in the
Judiciary, because their establishment of the JBC and their
subjecting the nomination and screening of candidates for
judicial positions to the unhurried and deliberate prior process
of the JBC ensured that there would no longer
be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and
with irregularities, or made by an outgoing Chief Executive in
the last days of his administration out of a desire to subvert
the policies of the incoming President or for
partisanship,[77] the appointments to the Judiciary made
after the establishment of the JBC would not be suffering from
such defects because of the JBCs prior processing of
candidates. Indeed, it is axiomatic in statutory construction
85
Public Corporation
that the ascertainment of the purpose of the enactment is a
step in the process of ascertaining the intent or meaning of
the enactment, because the reason for the enactment must
necessarily shed considerable light on the law of the
statute, i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose,
and the court should seek to carry out this purpose rather than
to defeat it.[78]
Also, the intervention of the JBC eliminates the danger that
appointments to the Judiciary can be made for the purpose of
buying votes in a coming presidential election, or of satisfying
partisan considerations. The experience from the time of the
establishment of the JBC shows that even candidates for
judicial positions at any level backed by people influential with
the President could not always be assured of being
recommended for the consideration of the President, because
they first had to undergo the vetting of the JBC and pass
muster there. Indeed, the creation of the JBC
was precisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on
Appointments. This insulating process was absent from
the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15,
Article VII to appointments in the Judiciary was confirmed by
then Senior Associate Justice Regalado to the JBC itself when
it met on March 9, 1998 to discuss the question raised by
some sectors about the constitutionality of xxx appointments
to the Court of Appeals in light of the forthcoming presidential
elections. He assured that on the basis of the (Constitutional)
Commissions records, the election ban had no application to
appointments to the Court of Appeals.[79] This confirmation
was accepted by the JBC, which then submitted to the
President for consideration the nominations for the eight
vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and
due consideration to the confirmation of Justice
Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather
than on the deliberations of the Constitutional Commission.
Much of the unfounded doubt about the Presidents power to
appoint during the period of prohibition in Section 15, Article
VII could have been dispelled since its promulgation on
November 9, 1998, had Valenzuela properly acknowledged
and relied on the confirmation of a distinguished member of
the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section
14, Section15, and Section 16) concern the appointing powers
of the President.
Section 14 speaks of the power of the succeeding President to
revoke appointments made by an Acting President,[81] and
evidently refers only to appointments in the Executive
Department. It has no application to appointments in the
Judiciary, because temporary or acting appointments can
only undermine the independence of the Judiciary due to their
being revocable at will.[82] The letter and spirit of the
Constitution safeguard that independence. Also, there is no
law in the books that authorizes the revocation of
appointments in the Judiciary. Prior to their mandatory
retirement or resignation, judges of the first and second level
courts and the Justices of the third level courts may only be
removed for cause, but the Members of the Supreme Court
may be removed only by impeachment.
Section 16 covers only the presidential appointments that
require confirmation by the Commission on Appointments.
Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on
Appointments after the requirement was removed from the
1973 Constitution. Yet, because of Section 9 of Article VIII,
the restored requirement did not include appointments to the
Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously of the
same character, in that they affect the power of the President
to appoint. The fact that Section 14 and Section 16 refer only
to appointments within the Executive Department renders
conclusive that Section 15 also applies only to the Executive
Department. This conclusion is consistent with the rule that
every part of the statute must be interpreted with reference
to the context, i.e. that every part must be considered
together with the other parts, and kept subservient to the
general intent of the whole enactment.[84] It is absurd to
assume that the framers deliberately situated Section
15 between Section 14 and Section 16, if they intended
Section 15 to cover all kinds of presidential appointments. If
that was their intention in respect of appointments to the
Judiciary, the framers, if only to be clear, would have easily
and surely inserted a similar prohibition in Article VIII, most
likely within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15
extends to appointments to the Judiciary further undermines
the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative
Departments. Such a holding will tie the Judiciary and the
Supreme Court to the fortunes or misfortunes of political
leaders vying for the Presidency in a presidential election.
Consequently, the wisdom of having the new President,
instead of the current incumbent President, appoint the next
Chief Justice is itself suspect, and cannot ensure judicial
independence, because the appointee can also become
beholden to the appointing authority. In contrast, the
appointment by the incumbent President does not run the
same risk of compromising judicial independence, precisely
because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there
will be no need for the incumbent President to appoint during
the prohibition period the successor of Chief Justice Puno
within the context of Section 4 (1), Article VIII, because
anyway there will still be about 45 days of the 90 days
mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the
coming vacancy occurring from Chief Justice Punos retirement
by May 17, 2010. It ignores the need to apply Section 4(1)
to every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that
there will still be time remaining in the 90-day period under
Section 4(1), Article VIII. The fallacy is easily demonstrable,
as the OSG has shown in its comment.
86
Public Corporation
Section 4 (3), Article VII requires the regular elections to be
held on the second Monday of May, letting the elections fall
on May 8, at the earliest, or May 14, at the latest. If the regular
presidential elections are held on May 8, the period of the
prohibition is 115 days. If such elections are held on May 14,
the period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period to
fill the vacancy in the Supreme Court. The result is that there
are at least 19 occasions (i.e., the
difference between the shortest possible period of the ban of
109 days and the 90-day mandatory period for appointments)
in which the outgoing President would be in no position to
comply with the constitutional duty to fill up a vacancy in the
Supreme Court. It is safe to assume that the framers of the
Constitution could not have intended such an absurdity. In
fact, in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1),
Article VIII, the framers neither discussed, nor mentioned, nor
referred to the ban against midnight appointments under
Section 15, Article VII, or its effects on the 90-day period,
or vice versa. They did not need to, because they never
intended Section 15, Article VII to apply to a vacancy in the
Supreme Court, or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even
raise a doubt on whether a JBC list is necessary at all for the
President any President to appoint a Chief Justice if the
appointee is to come from the ranks of the sitting justices of
the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be
appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for any
vacancy. Such appointments need no confirmation.
The provision clearly refers to an appointee coming into the
Supreme Court from the outside, that is, a non-member of the
Court aspiring to become one. It speaks of candidates for the
Supreme Court, not of those who are already members or
sitting justices of the Court, all of whom have previously been
vetted by the JBC.
Can the President, therefore, appoint any of the incumbent
Justices of the Court as Chief Justice?
The question is not squarely before us at the moment, but it
should lend itself to a deeper analysis if and when
circumstances permit. It should be a good issue for the
proposed Constitutional Convention to consider in the light of
Senate President Juan Ponce Enriles statement that the
President can appoint the Chief Justice from among the sitting
justices of the Court even without a JBC list.
II The Judiciary Act of 1948
The posture has been taken that no urgency exists for the
President to appoint the successor of Chief Justice Puno,
considering that the Judiciary Act of 1948 can still address the
situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. In case of a
vacancy in the office of Chief Justice of the Supreme Court or
of his inability to perform the duties and powers of his office,
they shall devolve upon the Associate Justice who is first in
precedence, until such disability is removed, or another Chief
Justice is appointed and duly qualified. This provision shall
apply to every Associate Justice who succeeds to the office of
Chief Justice.
The provision calls for an Acting Chief Justice in the event of
a vacancy in the office of the Chief Justice, or in the event that
the Chief Justice is unable to perform his duties and powers.
In either of such circumstances, the duties and powers of the
office of the Chief Justice shall devolve upon the Associate
Justice who is first in precedence until a new Chief Justice is
appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on this
peripheral matter after the Court has hereby resolved the
question of consequence, we do not find it amiss to confront
the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the
Supreme Court is composed of a Chief Justice and 14
Associate Justices, who all shall be appointed by the President
from a list of at least three nominees prepared by the JBC for
every vacancy, which appointments require no confirmation
by the Commission on Appointments. With reference to the
Chief Justice, he or she is appointed by the President as Chief
Justice, and the appointment is never in an acting capacity.
The express reference to a Chief Justice abhors the idea that
the framers contemplated an Acting Chief Justice to head the
membership of the Supreme Court. Otherwise, they would
have simply written so in the Constitution. Consequently, to
rely on Section 12 of the Judiciary Act of 1948 in order to
forestall the imperative need to appoint the next Chief Justice
soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to
be permanent, not one to be occupied in an acting
or temporary capacity. In relation to the scheme of things
under the present Constitution, Section 12 of the Judiciary Act
of 1948 only responds to a rare situation in which the new
Chief Justice is not yet appointed, or in which the incumbent
Chief Justice is unable to perform the duties and powers of
the office. It ought to be remembered, however, that it was
enacted because the Chief Justice appointed under the 1935
Constitution was subject to the confirmation of the
Commission on Appointments, and the confirmation process
might take longer than expected.
The appointment of the next Chief Justice by the incumbent
President is preferable to having the Associate Justice who is
first in precedence take over. Under the Constitution, the
heads of the Legislative and Executive Departments are
popularly elected, and whoever are elected and proclaimed at
once become the leaders of their respective Departments.
However, the lack of any appointed occupant of the office of
Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary.
The Chief Justice performs functions absolutely significant to
the life of the nation. With the entire Supreme Court being the
87
Public Corporation
Presidential Electoral Tribunal, the Chief Justice is the
Chairman of the Tribunal. There being no obstacle to the
appointment of the next Chief Justice, aside from its being
mandatory for the incumbent President to make within the 90-
day period from May 17, 2010, there is no justification to insist
that the successor of Chief Justice Puno be appointed by the
next President.
Historically, under the present Constitution, there has been no
wide gap between the retirement and the resignation of an
incumbent Chief Justice, on one hand, and the appointment
to and assumption of office of his successor, on the other
hand. As summarized in the comment of the OSG, the
chronology of succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April
18, 1988, Chief Justice Pedro Yap was appointed on the same
day;
2. When Chief Justice Yap retired on July 1, 1988, Chief
Justice Marcelo Fernan was appointed on the same day;
3. When Chief Justice Fernan resigned on December 7,
1991, Chief Justice Andres Narvasa was appointed the
following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29,
1998, Chief Justice Hilario Davide, Jr. was sworn into office
the following early morning of November 30, 1998;
5. When Chief Justice Davide retired on December 19,
2005, Chief Justice Artemio Panganiban was appointed the
next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December 6,
2006, Chief Justice Reynato S. Puno took his oath as Chief
Justice at midnight of December 6, 2006.[85]
III Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to
the President?
Mandamus shall issue when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an
act that the law specifically enjoins as a duty resulting from
an office, trust, or station.[86] It is proper when the act
against which it is directed is one addressed to the discretion
of the tribunal or officer. Mandamus is not available to direct
the exercise of a judgment or discretion in a particular way.
For mandamus to lie, the following requisites must be
complied with: (a) the plaintiff has a clear legal right to the
act demanded; (b) it must be the duty of the defendant to
perform the act, because it is mandated by law; (c)
the defendant unlawfully neglects the performance of the
duty enjoined by law; (d) the act to be performed is
ministerial, not discretionary; and (e) there is no appeal or any
other plain, speedy and adequate remedy in the ordinary
course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to
submit a list of at least three nominees to the President for
every vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of
lower courts shall be appointed by the President from a list of
at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no
confirmation.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of the
list.
However, Section 4(1) and Section 9, Article VIII, mandate
the President to fill the vacancy in the Supreme Court within
90 days from the occurrence of the vacancy, and within 90
days from the submission of the list, in the case of the lower
courts. The 90-day period is directed at the President, not at
the JBC. Thus, the JBC should start the process of selecting
the candidates to fill the vacancy in the Supreme
Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit
to the President the list of nominees to fill a vacancy in the
Supreme Court in order to enable the President to appoint one
of them within the 90-day period from the occurrence of the
vacancy. The JBC has no discretion to submit the list to the
President after the vacancy occurs, because that shortens the
90-day period allowed by the Constitution for the President to
make the appointment. For the JBC to do so will be
unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the
ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC
before making the appointment.
The duty of the JBC to submit a list of nominees before the
start of the Presidents mandatory 90-day period to appoint is
ministerial, but its selection of the candidates whose names
will be in the list to be submitted to the President lies within
the discretion of the JBC. The object of the petitions
for mandamus herein should only refer to the duty to submit
to the President the list of nominees for every vacancy in the
Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that
duty.[88] For mandamus to lie against the JBC, therefore,
there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in
submitting the list to the President.
The distinction between a ministerial act and a discretionary
one has been delineated in the following manner:
The distinction between a ministerial and discretionary act is
well delineated. A purely ministerial act or duty is one which
an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act done. If
the law imposes a duty upon a public officer and gives him
the right to decide how or when the duty shall be performed,
such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires
neither the exercise of official discretion or judgment.[89]
88
Public Corporation

Accordingly, we find no sufficient grounds to grant the

petitions for mandamus and to issue a writ
of mandamus against the JBC. The actions for that purpose
are premature, because it is clear that the JBC still has
until May 17, 2010, at the latest, within which to submit the
list of nominees to the President to fill the vacancy created by
the compulsory retirement of Chief Justice Puno.

IV Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is

ineluctable that only the President can appoint the Chief
Justice. Hence, Sorianos petition for prohibition in G.R. No.
191032, which proposes to prevent the JBC from intervening
in the process of nominating the successor of Chief Justice
Puno, lacks merit.

On the other hand, the petition for prohibition in G.R.

No. 191342 is similarly devoid of merit. The challenge
mounted against the composition of the JBC based on the
allegedly unconstitutional allocation of a vote each to the ex
officio members from the Senate and the House of
Representatives, thereby prejudicing the chances of some
candidates for nomination by raising the minimum number of
votes required in accordance with the rules of the JBC, is not
based on the petitioners actual interest, because they have
not alleged in their petition that they were nominated to the
JBC to fill some vacancies in the Judiciary. Thus, the
petitioners lack locus standi on that issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in

G.R. No. 191002 and G.R. No. 191149, and the petition
for mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No.

191032 and G.R. No. 191342 for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and,

accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of

candidates to fill the vacancy to be created by the compulsory
retirement of Chief Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of

Chief Justice;

(c) To submit to the incumbent President the short list of

nominees for the position of Chief Justice on or before May
17, 2010; and

(d) To continue its proceedings for the nomination of

candidates to fill other vacancies in the Judiciary and submit
to the President the short list of nominees corresponding
thereto in accordance with this decision.

SO ORDERED.

89