Republic of the Philippines Corazon Batara, the other respondent in this case, as
SUPREME COURT Officer-in-Charge of the OVCAA.
Manila
EN BANC
 
G.R. No. 93711 February 25, 1991
DR. EMILY M. MAROHOMBSAR, petitioner,
vs.
AHMAD E. ALONTO, JR., in his capacity as President of
the Mindanao State University, and CORAZON BATARA,
respondents.
Pedro Q. Quadra for petitioner.
Adnan V. Alonto for respondent Ahmad E. Alonto, Jr.
 
GUTIERREZ, JR., J.:p
The issue in this case is whether or not petitioner Dr. Emily
M. Marohombsar, who was appointed Acting Vice-
Chancellor for Academic Affairs of the Mindanao State
University (MSU) Marawi Campus by the respondent
President may be removed from office even without cause.
On March 22, 1988, the petitioner was designated as
officer-in-charge of the Office of the Vice-Chancellor for
Academic Affairs (OVCAA) of MSU in a concurrent capacity
with her position then as Vice-President for External
Studies.
On January 2, 1989, the Office of the Vice-President for
External Studies was merged with the OVCAA and, as such,
the functions of the former were to be exercised by the
latter. The petitioner was appointed acting Vice-Chancellor
for Academic Affairs on the same day. The Board of Regents
of the MSU, on May 16, 1989, approved her appointment as
acting Vice-Chancellor for Academic Affairs.
On May 14, 1990, respondent Ahmad E. Alonto, MSU
President, wrote the petitioner informing her that he has
decided to tap the petitioner's talent for the MSU system as
Vice-President for Academic Affairs which position is under
the administrative staff of the respondent MSU President.
The petitioner, on the same date, answered that she cannot
accept the position since she has already started several
projects in the OVCAA which she wants to see through.
The respondent President, on May 16, 1990, designated
Professor Macacuna Moslem as Vice-Chancellor for
Academic Affairs but the latter did not accept the
designation. On May 28, 1990, the respondent President
issued Special Order No. 158-P designating Professor
The petitioner now comes to this Court assailing her
removal as Vice-Chancellor by the respondent President.
On June 21, 1990, the Court issued a temporary restraining
order directing the respondents to cease and desist from
enforcing and/or implementing Special Order No. 159-P
and from interfering and/or preventing the petitioner from
performing her duties as Vice-Chancellor for Academic
Affairs of the MSU, Marawi Campus.
On November 19, 1990, the petitioner filed a motion to cite
respondent Alonto for contempt, alleging that said
respondent, in violation of the temporary restraining order
issued by this Court submitted Special Order No. 158-P to
the MSU Board of Regents for approval.
The petitioner asserts that her appointment being
permanent, she can be removed only after hearing and for
cause.
Resolution No. 59, S. 1989, passed by the MSU Board of
Regents on May 16, 1989, reads as follows:
RESOLVED, that upon recommendation of the President of
the University of the Executive Committee of the Board of
Regents the following Special Orders as
amended/corrected are hereby confirmed:
A. DESIGNATIONS
A.1 Major designations
xxx xxx xxx
9) Special Order No. 10-P, S. 1989, designating Prof. Emily M.
Marohombsar as Acting Vice Chancellor for Academic
Affairs, MSU Marawi Campus, with an honorarium in
accordance with the approved policies of the University,
subject to accounting and auditing rules and regulations,
effective January 2, 1989 and shall remain in force until
revoked or amended by competent authority. (Rollo, pp.
5354; Emphasis supplied)
It may be noted that the special order confirmed by the
Board of Regents specifically designated the petitioner as
Acting Vice-Chancellor for Academic Affairs. A bona fide
appointment in an acting capacity is essentially temporary
and revocable in character and the holder of such
appointment may be removed anytime even without
hearing or cause. (Austria v. Amante, 79 Phil. 780 [1948];
Castro v. Solidum, 97 Phil. 278 [1955]; Mendez v. Ganzon,
101 Phil. 48 [1957]; Valer v. Briones, 9 SCRA 596 [1963];
Abana v. Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13
SCRA 293 [1965]. A person who accepts an appointment in
an acting capacity extended and received without any
protest or reservation and who acts thereunder for a
considerable time cannot later be heard to say that the
appointment was, in reality, permanent and therefore there
can be no removal except for cause. (See Cabiling v.
Pabualan, 14 SCRA 274 [1965])
There are circumstances, however, which rule against the
routine or blind application of the principle which governs
acting appointments to this case.
The essence of an acting appointment is its temporary
nature. It is a stop gap measure intended to fill an office for
a limited time until a permanent appointment is extended
or a new appointee is chosen. (Austria v. Amante, supra;
Castro v. Solidum, supra; and Valer v. Briones, supra)
The nature of an acting appointment limits not only the
claims of the appointee to a lengthy tenure but also defines
the authority of the appointing power. A public officer
appointed in an acting capacity cannot claim that the
appointment shall in time ripen into a permanent one.
However, neither can the appointing power use the
principle of temporary appointments to evade or avoid the
security of tenure principle in the Constitution and the Civil
Service Law. This is similar to the rule that the head of an
office cannot arbitrarily convert permanent positions to
primarily confidential items so that he can more freely fire
and hire or rehire subordinates at his personal discretion.
It is the nature of the functions attached to a position, not
the nomenclature or title given by the appointing authority
which determines its primarily confidential nature. (Piñ ero
v. Hechanova, 18 SCRA 417 [1966]) For the same reason,
the Court may inquire into the true nature of an "acting"
appointment to determine whether or not it is used as a
device to circumvent the security of tenure principle.
In this case, the intent to make the petitioner serve at the
pleasure of the respondent MSU President is obvious. The
petitioner is a career official of MSU for over 27 years. She
was Vice-President for External Studies since 1982. On
March 22, 1988, she was given an additional assignment as
Officer-in-Charge of the Office of the Vice-Chancellor for
Academic Affairs concurrently with the permanent position
as Vice-President for External Studies.
About nine months later, the Vice-Presidency for External
Studies was "merged" with the Vice-Chancellorship for
Academic Affairs. At the same time, the petitioner was
appointed acting Vice-Chancellor for Academic Affairs.
The effect, therefore, was to abolish the petitioner's
permanent office and give her a temporary appointment in
the supposedly new office which replaced or absorbed the
former office. Another result was the loss by the petitioner
of her permanent status.
There are reasons which indicate that these maneuverings
by the respondent President cannot be characterized as
bona fide.
Section 40.5 (paragraph 22) Article 4 of the Code of
Governance of the MSU provides:
Personnel Matters. In accordance with the policies and rules
prescribed by the Board, the specific powers of the
President include the following (delegated powers)
xxx xxx xxx
22. Designation of any Dean, Director, or Department
Chairman in acting capacity or any Officer-in-Charge for
any of these positions, for a period of less than one year,
such designation being made without additional
compensation for the position designated except the
honorarium attached to said position; PROVIDED, That the
President shall report the designation in the next regular
meeting after winch the designation shall be null and void
unless otherwise renewed.
The power to designate is vested in the MSU President. The
designation must be less than one year. It must be reported
to the Board of Regents at the next regular meeting. After
the meeting, another designation must be issued if no
permanent appointment was made. The earlier designation
becomes void as the Board is expected to fill the item
permanently, not merely leaving it temporarily occupied.
On the other hand, the power to appoint is vested in the
Board of Regents as follows:
Sec. 6. The Board of Regents shall have the following
powers and duties, in addition to its general powers of
administration and the exercise of the power of the
corporation;
xxx xxx xxx
(e) To appoint, on the recommendation of the President of
the University, professor, instructors, lecturers and other
employees of the University. . . . — MSU Charter, RA 1387
If the President merely designates, the Board of Regents
does not confirm the designation. Since it is only for the
information of the Board, the President's action should be
merely "noted."
When the Board of Regents confirmed the appointment of
the petitioner on May 16, 1989, it was acting on an ad
interim appointment effected by the President. No other
interpretation can be validly made. If it was a mere
designation, it needs no confirmation. The fact that
confirmation was needed shows that it is an ad interim one.
An ad interim appointment is one made during the time
when the appointing or confirming body is not in session
and there is an existing clear and present urgency caused
by an impending obstruction or paralyzation of the
functions assigned to the office if no immediate
appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284
[1963]) When the Vice-Presidency for External Studies was
abolished and its functions were merged with the Vice-
Chancellorship for Academic Affairs, both the security of
tenure of the occupant and the needs of the new office
called for the ad interim appointment.
The respondent cannot use the device of an ambiguous
designation to go around the security of tenure principle.
Under the MSU Code, a designation requires a fixed period
of not less than one year. The appointment given to the
petitioner was indefinite. She would serve at the pleasure
of the MSU President who is not even the head of the
institution because the head is the Board of Regents.
The intent to convert permanent items into temporary
ones is apparent. The petitioner states that the purpose "is
to hold the sword of Damocles hanging over the head of all
MSU employees and officers." (Rollo, p. 75) The Board of
Regents cooperated in the plan. Practically, all top officers
below the President were converted into positions where
the occupants serve at the pleasure of the President and
presumably, the Board of Regents. Thus, at the May 16,
1989 Board of Regents' meeting at the Army and Navy Club
alongside the Luneta in Manila, the following acting
appointments were submitted for approval or
confirmation:
1. Special Order No. 03-P, S. 1989, designating Atty. Tocod
D. Macaraya, Sr. as Acting Executive Vice-President . . . ;
2. Special Order No. 04-P, S. 1989, designating Dr.
Macaurog B. Derogongan as Acting Vice President for
Academic Affairs . . . ;
3. Special Order No. 05-P, S. 1989, designating D. Corazon
Batara as Acting Assistant Vice-President for Academic
Affairs . . . ;
4. Special Order No. 113-P, S. 1989, designating D. Milandre
S. Rusgal as Acting Vice President for Planning and
Development . . . ;
5. Special Order No. 109-P, S. 1989, designating Prof.
Guimba Poingan as Acting Assistant Vice President for
Planning and Development . . . ;
6. Special Order No. 60-P, S. 1989, designating Atty.
Concordio Baguio as Officer-in-Charge of the Office of the
Vice-President for Administration and Finance . . . ;
7. Special Order No. 07-P, S. 1989, designating Prof. Talib R.
Muti as Acting Assistant Vice President for Administration
and Finance . . . ;
8. Special Order No. 134-P, S. 1989, designating Prof. Emily
M. Marohombsar as Acting Vice-Chancellor for Academic
Affairs, MSU Marawi Campus . . . ;
10. Special Order No. 01-P, S. 1989, designating Atty. Abdul
S. Aguam as Acting Vice Chancellor for Administration and
Finance . . . ;
11. Special Order No. 11-P, S. 1989, designating Dr. Cosain
Derico as Acting Vice Chancellor for Research and
Extension . . . (Rollo, pp. 117-118)
The respondents argue that the permanent item of the
petitioner is Professor VI. They state:
xxx xxx xxx
Finally, petitioner has not refuted the fact that the position
she actually occupies is that of Professor VI. This is
precisely the reason why petitioner's designation as Acting
VCAA can not be deemed a regular or permanent
appointment because, if it were so, the anomalous situation
of one permanently appointed to two public positions
simultaneously would arise. (Rollo, p. 130)
This argument has no merit.
As early as 1963, this Court ruled in Tapales v. President
and Board of Regents of the University of the Philippines (7
SCRA 553 [1963]) that UP Deans and Directors enjoy
security of tenure and any attempt to remove them by
limiting their terms of office from permanent to a five (5)
year term is unconstitutional. Deans and Directors are
selected from faculty members. An appointment as
Professor is also needed for salary rating purposes but
does not detract from the permanent nature of the
administrative position (id., at pp. 554 and 556). The fact
that Professor Tapales was given another appointment as
Director of the U.P. Conservatory of Music does not mean
that the second appointment is only temporary in nature.
In the present case, the fact that Professor Marohombsar
has a permanent appointment as Professor does not
detract from the permanent nature of her present
appointment as Vice-Chancellor, especially since the same
was duly confirmed by the MSU Board of Regents. The only
difference is that her position as Vice-Chancellor has a fixed
term while that of Professor Tapales was until he retired or
resigned.
The attempt of the respondent to solve the problem by
placing the petitioner in his own administrative staff as
Vice-President for Academic Affairs cannot be
countenanced. The petitioner served in this capacity from
1975 to 1978 after which she became Vice-President for
External Studies in 1982. The proffered position is not only
less desirable to the petitioner but she expressly rejected it,
preferring to stay in her present position. She thanked the
respondent but stated she would not be effective in the
new position while in the OVCAA she could complete a
number of projects and programs. (Rollo, p. 21) The
correctness of the petitioner's stand is explained by this
Court in Sta. Maria v. Lopez (31 SCRA 673 [1970]). There
are transfers which appear to be promotions or lateral
movements but are in truth demotions. There is no
showing that the interest of the service would be served if
the proffered appointment would be forced on her.
No less than the Secretary of Education, Culture and Sports,
Secretary Isidro D. Cariñ o opined, and the Court agrees
with him, that the petitioner may not be removed from the
disputed office by the MSU President without the authority
of the Board. And, as correctly stated by the Secretary,
Special Order No. 158-P issued by the respondent
president designating respondent Batara as officer in-
charge of the same office was unapproved by the Board,
hence, the special order cannot revoke, or could not have
revoked the designation of the petitioner as acting Vice-
Chancellor. (Annex A, Petitioner's Memorandum, Rollo, pp.
119-120)
The respondent MSU President, perhaps realizing the
vulnerability of his action, submitted Special Order No.
158-P to the Board of Regents for approval. But such
submission was made after the Court already issued its
temporary restraining order and consequently, his action
constituted contempt of Court. Considering, however, that
the respondent appears to have acted in the honest albeit
mistaken belief that MSU would progress faster if the
executive officers serve at his pleasure and discretion, the
Court rules that declaring him in contempt would be too
harsh a remedy. The respondent President is, nevertheless,
admonished for his action. When this Court issues a
restraining order, it must be obeyed.
WHEREFORE, the petition is GRANTED. The petitioner
shall remain as the lawful occupant in a permanent
capacity of the position of Vice-Chancellor for Academic
Affairs of MSU Marawi until the end of her three-year term
or her tenure is otherwise lawfully terminated. The motion
to cite respondent Alonto for contempt is DENIED but the
respondent is admonished to faithfully heed court orders in
the future. The Temporary Restraining Order issued by this
Court on June 21, 1990 is made PERMANENT.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
 
G.R. No. 101250 November 20, 1992
CAÑOS MEDICAL CENTER, INC. and AVELYN B.
ANTONIO, petitioners,
vs.
HON. CRESENCIO B. TRAJANO (Undersecretary of
Labor) and EMMA TRAZO, HELEN ALLOREZ (ALBORES),
NIMFA SANTOS, JOY CASAMAYOR, ARACELI ZAMORA,
CORAZON IYOG, MARIA FE TIMSON, JOAN GELBOLINGO,
ERLINDA REYES, SUSAN MALACAD, VIRGINIA BUERA,
GLORIA RUIZ, LELA MAE TABANAO, JULIETO TRAZO,
VERGENIO FLORENTINO, ALBERT DABALOS, NAILA LU,
GEORGINA JUSTIMBASTE, CATHERINE PARAS,
EVANGELISTA AQUINO, NIMFA RODRIGUEZ, FELIPE
DATULAYTA, CORAZON DINO, DOMINGA CHATTO,
MARIA FE UY, ABUNDIO CHATTO, LUZVIMINDA
CHATTO, ELEN BARINGUE, ANTONIO ESTENZO and
PRINCE PARAISO, respondents.
 
GRIÑO-AQUINO, J.:
This petition for certiorari seeks to annul the order dated
January 14, 1991 of Labor Undersecretary Cresencio B.
Trajano affirming the order of the Director of Regional
Office No. XI which directed the Cañ os Medical Center
(hereinafter refered to as "CMC") and Avelyn B. Atonio to
pay thirty (30) hospital employees the total sum of
P877,804.02 as wage differential, cost of living allowance,
holiday pay, incentive pay and 13th month pay for the
period of July 1, 1987 up to July 1990 (3 years), and the
order of April 1, 1991 of the same Labor Undersecretary
denting the Hospital's motion for reconsideration of his
earlier order dated January 14, 1991.
The thirty (30) private respondents herein were rank and
file employees of the CMC which employed some fifty (50)
workers with Avelyn B. Antonio as administrator. On July
18, 1990, private respondents filed in Regional Office No. XI
of the Department of Labor and Employment (DOLE) in
Davao City, a complainant against CMC and Avelyn B.
Antonio (Case No. R1100-9007-CI-073) for noncompliance
with Republic Act No. 6727 (Wage Rational Act).
A routinary inspection was conducted on April 19, 1990 at
the CMC premises by an officer of the Labor Standards
Enforcement Division of the DOLE. The inspection revealed
violations of labor standards laws, particularly
underpayment of wages and thirteenth month pay and
non-integration of emergency cost of living allowance into
the basic wage pursuant to Executive Order No. 178.
Summary hearings were conducted by the DOLE Regional
Office on those findings, but during the pendency of the
hearings, the private respondents were retrenched and laid
off.
The CMC, through its administrator, admitted
noncompliance and nonimplementation of the salary
increase mandated by Republic Act No. 6727. On July 27,
1990, based on the records of CMC, the DOLE inspector
came out with a computation of the employees' claims in
the total sum of P877,804.02, as follows:
Complainants Total amount of claims
1. Emma Trazo P23,189.34 On August 26, 1991, petitioners filed this new petition for
2. Helen Albores 19,475.17 certiorari.
3. Nimfa Santos 32,025.45
4. Joy Casamayor 27,343.86 On September 4, 1991, the Court dismissed the petition for
5. Araceli Zamora 19,596.39 late filing.
6. Corazon Iyog 27,956.83
7. Ma Fe Timzon 25,769.70 On September 11, 1991, petitioners filed a supplemental
8. Joan Gelbolingo 10,707.45 petition assailing the DOLE's order for lack of jurisdiction,
9. Erlinda Reyes 39,204.66 because labor arbiter, nor regional directors, have
10. Susan Malacad 46,770.70 exclusive jurisdiction to hear and decide employees' money
11. Virginia Buera 36,417.56 claims exceeding P5,000.00 per employee.
12. Gloria Ruiz 31,024.59
13. Lela Mae Tabanao 35,917.95
On September 16, 1991, the Court reinstated the petition
14. Julieto Trazo 28,978.30
on the ground that the questioned orders of
15. Virgilio Florentino 37,330.46
Undersecretary Trajano and of the Regional Director "may
16. Albert Dabalos 29,015.75
be void for want of jurisdiction of the subject matter" in the
17. Naida Lu 13,531.87
light of the ruling in Servando's Inc. vs. Secretary of Labor
18. Georgina Justimbaste 32,163.19
(184 SCRA 664). We required the respondents to comment
19. Catherine Paras 25,667.43
on the petition and issued a temporary restraining order
20. Evangelista Aquino 37,981.43
enjoining the public respondents and the DOLE Sheriff
21. Nimfa Rodriguez 37,722.93
from enforcing the writ of execution. The petitioner posted
22. Feliza Datulayta 28,953.95
a P500,000.00 surety bond to answer for any damages
23. Corazon Dino 33,434.96
which the private respondents may suffer by reason of the
24. Domingo Baguio 27,423.05
restraining order should the petition eventually fail.
25. Ma. Fe Catalina Uy 29,210.82
26. Abundio Chatto 25,072.45
27. Luzviminda Chatto 25,176.47 Petitioners also filed a motion to lift/quash the writ of
28. Elena Tuloy Baringue 32,338.28 garnishment on its bank deposits. Finding merit in the
29. Antonio Estenzo 35.128.47 motion, the Court granted it.
30. Prince Paraiso 23,283.95
P877,804.02 The central issue in this petition is whether the DOLE
Regional Director and the Undersecretary of Labor had had
(p. 28, Rollo.) jurisdiction over the complaint for violation of labor
standards laws where the monetary claims of each of the
private respondents exceed P5,000.00.
On September 4, 1990, Regional Director Bartolome C.
Amoguis issue an order directing CMC and/or Mrs. Avelyn
B. Antonio to pay the private respondents the above Private respondent' reliance on the ruling in the Maternity
amounts opposite their names, within ten (10) days from Children Hospital case regarding the jurisdiction of the
notice. Regional Director in cases involving violation of labor
standards laws is misplaced. In the Maternity case, the
Court upheld proceeding before the Regional Director
CMC and Mrs. Antonio filed a motion for reconsideration
involving money claims of workers because Executive
assailing the jurisdiction of the Regional Director to
Order No. 111 empowered the Regional Directors to
adjudicate the monetary claims of the private respondents.
resolve uncontested money claims in cases where
employer-employee relationship exists. It conferred on the
Treating the motion for reconsideration as an appeal, the Secretary of Labor Arbiter concurrent jurisdiction over
DOLE, through Undersecretary Cresencio B. Trajano, employees' wages and money claims under Art. 217 of the
dismissed it on January 14, 1991 for lack of merit. The Labor Code.
Regional Director defended his jurisdiction, citing Art.
128(b) of the Labor Code and the decision of this Court in
However, Republic Act No. 6715 which took effect on
Maternity Children's Hospital vs. Secretary of Labor, 174
March 21, 1989 (after publication in two [2] newspapers of
SCRA 632.
general circulation), amended Articles 129 and 217 of the
Labor Code as follows:
The motion for reconsideration of the order of January 14,
1991 was denied by Undersecretary Trajano on April 1,
Sec. 2 Article 129 of the Labor Code of the Philippines, as
1991. On April 18, CMC and Mrs. Antonio filed a "petition
amended, is hereby amended to read as follow:
for review on certiorari" in this Court. Docketed as G.R. No.
98174, the petition was dismissed on May 13, 1991 for
failure to comply with Circular 188, paragraph 1 and 3. Art. 129. Recovery of wages, simple money claims and other
benefits. — Upon [application] complaint of any interested
party, [any] the [r] Regional Director [office] of the
Department of Labor and Employment or any of the duly
authorized hearing officers of the department [may certify
to the National Labor Commission established under this
code] is empowered, through summary proceeding and after
due notice, to hear and decide any matter involving the
recovery of the wages and other monetary claims and
benefits, including legal interest, owing to an employee or
person employed in domestic or household service or
househelper under this Code, arising from employer-
employee relations: Provided, that such complaint does not
include a claim for reinstatement; Provided further, that the
aggregate money claims of each employee or househelper
does not exceed Five Thousand Pesos (5,000.00) [with legal
interest].
Sec. 9. Article 217 of the same Code, as amended, is hereby
further amended to read as follows:
Art. 217. Jurisdiction of Labor Arbiters and the Commission.
— (a) Except as otherwise provided under this Code, [T]he
Labor Arbiters shall have [the] original and exclusive
jurisdiction to hear and decide within thirty (30) calendar
[working] days after the submission of the case by the
parties for decision without extension, even in the absence
of stenographic notes, the following cases involving all
workers, whether agricultural or non-agricultural:
xxx xxx xxx
(6) Except claims for employees' compensation, social
security, medicare and maternity benefits, all other claims
arising from employer-employee relations, including those of
persons in domestic or household services, involving an
amount exceeding five thousand pesos (5,000.00), whether
or not accompanied with a claim for reinstatement.
(Emphasis supplied)
The Court applied the above provision of the Republic Act.
6715 retroactive in Briad Agro Development Corporation vs.
Dela Serna, 174 SCRA 524. Pending suits were deemed
affected by the divestment of Regional Directors of their
power to hear money claims in excess of P5,000.00 (Briad
Agro Development Corporation vs. Dela Serna, Resolution
of Motion for reconsideration, 179 SCRA 272).
In Brokeshire Memorial Hospital, Inc. vs. Minister of Labor
and Employment, 182 SCRA 5, we ruled that the Regional
Directors shall exercise jurisdiction when the following
requisites concur: (a) the claim is presented by an
employed in domestic or household service, or househelper
under the Code; (b) the claimant, no longer being
employed, does not seek reinstatement; and (c) the
aggregate money claim of the employee or househelper
does not exceed P5,000.00.
It was under these legal and jurisprudential milieu that
Servando's Incorporated vs. Secretary of Labor and
Employment (184 SCRA 664) was decided. The Court
upheld therein the adjudicative powers of Regional
Directors over money claims arising from employer-
employee relationship when the conditions enumerated in
the Brokeshire case are present.
Hence, the petitioners correctly aver that this case falls
squarely within the ambit of the Servando ruling which the
Court reiterated in Jose Baritua vs. Secretary of Labor and
Employment, 204 SCRA 332, because: (1) the workers'
claims arose after Republic Act No. 6715 had become
effective; (2) each of the claims exceeds P5,000; (3) the
claimant do not seek reinstatement; and (4) their claims
are contested by their employer. Clearly, to the labor
arbiter, rather than the regional director, pertains the
jurisdiction to hear and decide the claims.
Private respondents' contention that the dismissal with
finality of G.R. No. 98174 constituted res judicata and
foreclosed the filing of the present petition, is without
merit. The petition in G.R. No. 98174 was dismissed for
failure to comply with Circular 1-88. Being a petition for
certiorari under Rule 65 of the Rules of Court, it could be
refiled within a reasonable period by complying with the
rules.
WHEREFORE , the assailed orders January 14, 1991 and
April 1, 1991 of the Department of Labor and Employment,
through Undersecretary Cresencio B. Trajano, are hereby
ANNULLED and SET ASIDE. The public respondents are
directed to refer the workers' money claims to the National
Labor Relations Commission for proper determination by
the appropriate Labor Arbiter. Costs against the private
respondents.
SO ORDERED.
Cruz, Padilla and Bellosillo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 104639 July 14, 1995
PROVINCE OF CAMARINES SUR through its GOVERNOR,
SANGGUNIANG PANLALAWIGAN and PROVINCIAL
TREASURER, petitioner,
vs.
COURT OF APPEALS and TITO B. DATO, respondent.
 
KAPUNAN, J.:
Petitioner Province of Camarines Sur assails the decision of
the Court of Appeals which affirmed with modification the
Regional Trial Court of Camarines Sur's decision ordering it
to pay private respondent Tito Dato backwages and
attorney's fees.
The relevant antecedents are as follows:
On January 1, 1960, private respondent Tito Dato was
appointed as Private Agent by the then governor of
Camarines Sur, Apolonio Maleniza.
On October 12, 1972, he was promoted and was appointed
Assistant Provincial warden by then Governor Felix Alfelor,
Sr. Because he had no civil service eligibility for the
position he was appointed to, private respondent Tito Dato
could not be legally extended a permanent appointment.
Hence, what was extended to him was only a temporary
appointment. Thereafter, the temporary appointment was
renewed annually.
On January 1, 1974, Governor Alfelor approved the change
in Dato's employment status from temporary to permanent
upon the latter's representation that he passed the civil
service examination for supervising security guards. Said
change of status however, was not favorably acted upon by
the Civil Service Commission (CSC) reasoning that Tito
Dato did not possess the necessary civil service eligibility
for the office he was appointed to. His appointment
therefore remained temporary.
Thereafter, no other appointment was extended to him.
On March 16, 1976, private respondent Tito Dato was
indefinitely suspended by Governor Alfelor after criminal
charges were filed against him and a prison guard for
allegedly conniving and/or consenting to evasion of
sentence of some detention prisoners who escaped from
confinement.
On March 19, 1976, or two years after the request for
change of status was made, Mr. Lope B. Rama, head of the
Camarines Sur Unit of the Civil Service Commission, wrote
the Governor of Camarines Sur a letter informing him that
the status of private respondent Tito Dato has been
changed from temporary to permanent, the latter having
passed the examination for Supervising Security Guard.
The change of status was to be made retroactive to June 11,
1974, the date of release of said examination.
In the meantime, the Sangguniang Panlalawigan,
suppressed the appropriation for the position of Assistant
Provincial Warden and deleted private respondent's name
from the petitioner's plantilla.
Private respondent Tito Dato was subsequently acquitted
of the charges against him. Consequently, he requested the
Governor for reinstatement and backwages.
When his request for reinstatement and backwages was
not heeded, private respondent Tito Dato filed an action for
mandamus before the Regional Trial Court of Pili,
Camarines Sur, Branch 31.
On May 31, 1991, the trial court 1 rendered judgment, the
decretal portion of which reads:
WHEREFORE, judgment is hereby rendered, ordering the
respondents:
1) to appropriate and pay the back salaries of the petitioner
Tito B. Dato equivalent to five (5) years without
qualification or deduction, at the rate of P14,532.00 per
annum, with all the rights and privileges that he is entitled
to as a regular government employee reaching the age of
65 in the government service, as provided by law;
2) to pay the petitioner the sum of P5,000.00 as attorney's
fees; and
3) to pay the costs.
SO ORDERED. 2
In due course, petitioner Province of Camarines Sur
appealed the said decision to the Court of Appeals.
On February 20, 1992, respondent Court of Appeals
rendered its decision which dispositively reads as follows:
WHEREFORE, in view of all the foregoing, judgment
appealed from is hereby AFFIRMED with the following
modifications: (1) respondents are ordered to pay the
backwages of petitioner Tito B. Dato during the entire
period of his suspension, with all the rights and privileges
that he is entitled to as a regular government employee
reaching the age of 65 in the government service, as
provided by law; and (2) the award of the sum of P5,000 to
petitioner as attorney's fees and respondents to pay the
costs of suit is deleted.
IT IS SO ORDERED. 3
Aggrieved by the foregoing ruling, petitioner Province of
Camarines Sur interposed the present petition submitting
that the respondent court erred in (a) affirming the trial
court's finding that private respondent Tito Dato was its
permanent employee at the time he was suspended on
March 16, 1976; and (b) modifying the said decision so as
to allow private respondent to claim backwages for the
entire period of his suspension.
The primary question to be resolved in the instant case is
whether or not private respondent Tito Dato was a
permanent employee of petitioner Province of Camarines
Sur at the time he was suspended on March 16, 1976.
Petitioner contends that when Governor Alfelor
recommended to CSC the change in the employment status
of private respondent from temporary to permanent, which
the CSC approved as only temporary pending validation of
the results of private respondent's examination for
supervising security guard, private respondent's
appointment in effect remained temporary. Hence, his
subsequent qualification for civil service eligibility did not
ipso facto convert his temporary status to that of
permanent.
Private respondent, on his part, vigorously asseverates that
the respondent court committed no error in confirming his
appointment as permanent.
We agree with the petitioner.
Private respondent does not dispute the fact that at the
time he was appointed Assistant Provincial Warden on
January 1, 1974, he had not yet qualified in an appropriate
examination for the aforementioned position. Such lack of a
civil service eligibility made his appointment temporary 4
and without a fixed and definite term and is dependent
entirely upon the pleasure of the appointing power. 5 The
fact that private respondent obtained civil service
eligibility later on is of no moment as his having passed the
supervising security guard examination, did not ipso facto
convert his temporary appointment into a permanent one. 6
In cases such as the one at bench, what is required is a new
appointment since a permanent appointment is not a
continuation of the temporary appointment — these are
two distinct acts of the appointing
authority. 7
It is worthy to note that private respondent rests his case
entirely on the letter dated March 19, 1976 communicated
by Mr. Lope Rama to the Governor of Camarines Sur. The
letter, which is self-explanatory, is reproduced in full
below:
XXXXXXXXXXXX
CAMARINES SUR UNIT
Naga City
Re: DATO, Tito
— Appointment of
March 19, 1976
The Honorable
The Provincial Governor of Camarines Sur
Naga City.
Sir:
This refers to the latest approved appointment of Mr. TITO
DATO as Asst. Provincial Warden, this province, at P3600,
effective January 1, 1974 which was approved by this Office
as temporary pending validation of his Supervising
Security Guard eligibility.
It appears, however, that the aforementioned eligibility of
Mr. Dato was released on June 11, 1974. In this connection,
attention is being invited to Sec. 19, Rule III of the Rules on
Personnel Action and Policies which provides that
"Eligibility resulting from civil service examination . . . shall
be effective on the date on the release of the results of the
examination. . . ." (Emphasis supplied.) Mr. Dato's
Supervising Security Guard eligibility, therefore, takes
effect June 11, 1974, the date the results thereof was
released.
In view thereof, the aforementioned appointment of Mr.
Dato is hereby approved anew as follows: "APPROVED as
temporary under Sec. 24 (c), R.A. 2260, as amended,
effective January 1, 1974 up to June 10, 1974 and as
permanent under Sec. 24 (b), R.A. 2260, as amended,
subject to the report on his physical and medical
examination as to insurability, effective June 11, 1974. The
Supervising Security Guard eligibility of Mr. Dato has been
validated by the Civil Service Commission, Quezon City.
The records of Mr. Dato in this Office have been amended
accordingly.
Very truly yours,
By authority of the Commission.
(Initialed)
LOPE B. RAMA
Unit Head 8
The foregoing is a clear arrogation of power properly
belonging to the appointing authority. Time and again, the
Court has defined the parameters within which the power
of approval of appointments shall be exercised by the Civil
Service Commission. In Luego v. Civil Service Commission, 9
the Court ruled that CSC has the power to approve or
disapprove an appointment set before it. It does not have
the power to make the appointment itself or to direct the
appointing authority to change the employment status of
an employee. The CSC can only inquire into the eligibility of
the person chosen to fill a position and if it finds the person
qualified it must so attest. If not, the appointment must be
disapproved. The duty of the CSC is to attest appointments
10
and after that function is discharged, its participation in
the appointment process ceases. 11 In the case at bench, CSC
should have ended its participation in the appointment of
private respondent on January 1, 1974 when it confirmed
the temporary status of the latter who lacked the proper
civil service eligibility. When it issued the foregoing
communication on March 19, 1976, it stepped on the toes
of the appointing authority, thereby encroaching on the
discretion vested solely upon the latter.
Moreover, the Court is not prepared to accord said letter 12
any probative value, the same being merely a purported
photocopy of the alleged letter, initialed and not even
signed by the proper officer of the CSC.
Based on the foregoing, private respondent Tito Dato, being
merely a temporary employee, is not entitled to the relief
he seeks, including his claim for backwages for the entire
period of his suspension.
WHEREFORE, premises considered, the appealed decision
is hereby REVERSED and the petition for mandamus
instituted by herein private respondent Tito Dato is hereby
DISMISSED.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Mendoza and
Francisco, JJ., concur.
 
Footnotes
1 Presided by Judge Ceferino Barcinas.
2 Decision, p. 9; Original Records, p. 150.
3 Decision, p. 10; Rollo, p. 35.
4 Maturan v. Maglana, 113 SCRA 268 [1982]; Ramos v.
Romualdez, 32 SCRA 590 [1990] citing Hojilia v. Marino, 13
SCRA 293 [1965]; Philippine Land-Air-Sea Labor Union v.
Court of Industrial Relations, 11 SCRA 723 [1964]; Flores v.
Cordova, 3 SCRA 105 [1961]; Taboada v. Municipality of
Badian, 2 SCRA 412 [1961]; Montero v. Castellanes, 108
Phil. 744 [1960]; Quiatchon v. Villanueva, 101 Phil. 989
[1957]; Cayabyab v. Cayabyab, 101 Phil. 631 [1957]; Amora
v. Bibera, 99 Phil. 1 [1956]; Inocente v. Ribo, 94 Phil. 562
[1955]; Orais v. Ribo, 93 Phil. 985 [1953].
5 Delector v. Ogayan, 123 SCRA 774 [1983]; Abrot v. Court
of Appeals, 116 SCRA 468 [1982]; Mendiola v. Tancinco, 52
SCRA 66 [1973]; Ata v. Namocatcat, 47 SCRA 314 [1972];
Cunada v. Gamus, 8 SCRA 77 [1963].
6 Tolentino v. De Jesus, 56 SCRA 167 [1974]; Jimenez v.
Francisco, 100 Phil. 1025 [1957].
7 Torio v. Civil Service Commission, 209 SCRA 677 [1992].
8 Original Records, p. 31; Exhibit "A".
9 143 SCRA 327 [1986], later reiterated in Patagoc v. Civil
Service Commission, 185 SCRA 411 [1990]; Orbos v. Civil
Service Commission, 189 SCRA 459 [1990], Lopez v. Civil
Service Commission, 228 SCRA 622 [1993].
10 Villanueva v. Balallo, 9 SCRA 407 [1963].
11 Villegas v. Subido, 30 SCRA 498 [1969].
12 Exhibit "A", see note 8.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 116183 October 6, 1995
SEC. RICARDO T. GLORIA, in his capacity as Secretary of
Education, Culture & Sports and Chairman of the Board
of Trustees of the Philippine State College of
Aeronautics (PSCA); JULIAN J. LOLENG, JR., in his
capacity as Officer-in-Charge of PSCA; and BOARD OF
TRUSTEES of PSCA, petitioners,
vs.
HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of
Branch 113, Regional Trial Court of Pasay, Metro
Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN,
ROSARIO V. CERILLO, ANDREA A. PESTANO, ARTHUR V.
RODRIGUEZA, LENI V. DIMAYUGA, JAIME ABON,
RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO,
SERVANDO SACUEZA, JAIME C. PONEGAL, EDGARDO
MERCADO, CRISTINA BULADO, BENIGNO T. AQUINO,
RODEL PESTANO, JUN JAY PARMA, NILO B. ELLO, and
NELSON SACUEZA, respondents.
 
HERMOSISIMA, JR., J.:
Intransigence of private respondents in maintaining a
patently indefensible position sparked this long drawn out
controversy. Knowing fully well that, as temporary
employees whose terms of office, whether by contract or by
the tenor of their appointments, had expired one year after
their respective temporary appointments, that is, on
December 31, 1992, they insist on a perceived, albeit
mistaken, right to reinstatement.
Before this Court is a Petition for Certiorari, filed by Hon.
Ricardo T. Gloria, in his capacity as Secretary of Education,
Culture and Sports (DECS) and as Chairman of the Board of
Trustees of the Philippine State College of Aeronautics
(PSCA); Col. Julian J. Loleng, Jr., in his capacity as Officer-in-
Charge of the PSCA; and the Board of Trustees of the PSCA
1
, under Rule 65 of the Revised Rules of Court, with the end
in view of nullifying the Decision 2 and Order 3 of
respondent Judge Salvador P. de Guzman, Jr., Presiding
Judge of Branch 113, Regional Trial Court of Pasay City,
dated January 31, 1994 and June 29, 1994, respectively.
Questioned in effect by the petitioners is only the portion of
the judgment ordering the reinstatement of private
respondent Rosario V. Cerillo to the position of
"Coordinator for Extension Services".
Actually, the act of effecting the termination of the
appointment of Rosario V. Cerillo was perpetrated by Col.
Julian J. Loleng, Jr. while it was the Hon. Isidro Cariñ o who
was the DECS Secretary. The case for reinstatement which
was filed before respondent Judge Salvador P. de Guzman,
Jr. of the Pasay City Regional Trial Court was instituted
during the incumbency of the succeeding DECS Secretary,
the Hon. Armand Fabella. The judgment of the lower court,
as a matter of fact, involved the Hon. Armand Fabella as
defendant. In view of the resignation of Secretary Fabella,
the duty and obligation to question the decision aforesaid
of Judge Salvador P. de Guzman, Jr. devolved on the
incumbent Secretary, the Hon. Ricardo T. Gloria.
Consequently, the dramatis personae in this case include:
DECS Secretary Ricardo T. Gloria; PSCA Board of Trustees
Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of
Trustees created under Republic Act
No. 7605, as petitioners; and RTC Executive Judge Salvador
P. de Guzman, Jr., as public respondent, and the named
private respondents who were the petitioners in the court
below.
The facts of the case are not in dispute. The question at
issue is one of law: Is private respondent Rosario V. Cerillo
entitled to reinstatement to the position of "Coordinator for
Extension Services"?
Private respondents were employees of the Philippine Air
Force College of Aeronautics (PAFCA) which was created
by virtue of Presidential Decree No. 1078 on January 26,
1977. Under the said decree, the Board of Trustees is
vested with authority, among others, to appoint, as it did
appoint, officials and employees of the college, except the
members of the Board of Trustees themselves and the
President of the college. In line with this authority, the
PAFCA Board of Trustees issued Resolution No. 91-026 on
April 1, 1991, which declared that "All
faculty/administrative employees are also subject to the
required civil service eligibilities", in accordance with
pertinent civil service law, rules and regulations. Thus,
herein private respondents were issued only temporary
appointments because at the time of their appointment,
they lacked appropriate civil service eligibilities or
otherwise failed to meet the necessary qualification
standards for their respective positions.
Private respondent Rosario V. Cerillo, specifically, was
issued a one-year temporary appointment to the position
of Board Secretary II of PAFCA (now PSCA), that is, from
January 1, 1992 to December 31, 1992. This appointment
went along the line enunciated by the Civil Service
Commission in a letter, dated March 25, 1992. 4 The letter
emphasized that temporary appointments were good and
renewable only up to 1992.
On March 24, 1992, private respondent Rosario V. Cerillo
was
relieved as Board Secretary of the PAFCA in accordance
with Board Resolution No. 92-017 by reason of loss of
confidence. Subsequently, however, she was designated as
"Coordinator for Extension Services".
On June 3, 1992, Republic Act No. 7605 was enacted into
law. It converted PAFCA into a state college to be known as
the Philippine State College of Aeronautics (PSCA). The
Board of Trustees likewise was the governing body of the
PSCA. The power to make appointments was retained by
the Board. Petitioner Col. Julian J. Loleng, Jr. remained as
Officer-in-Charge by virtue of a designation made anew by
then DECS Secretary Isidro Cariñ o on June 8, 1992.
Only on December 7, 1992 did Col. Loleng inform private
respondents that they shall be deemed separated from the
service upon the expiration of their temporary
appointments. Had private respondent Rosario V. Cerillo
not been summarily dismissed as Board Secretary on
March 24, 1992, her temporary appointment as such was
supposed to have lasted until December 31, 1992.
On June 25, 1993, barely five months after the lapse of the
terms of their temporary appointments as determined by
the PSCA administration, the herein private respondents
filed before the Regional Trial Court of Pasay City, presided
over by respondent Judge Salvador P. de Guzman, Jr., a
"Petition for Mandamus and Reinstatement, with Back
Wages and Damages", docketed as Civil Case No. 10049.
The complaint in effect prayed that then DECS Secretary
Armand Fabella complete the filling up of positions for
Board of Trustees and order the Board of Trustees to
reinstate the respondents in the case at bench to their
respective positions.
In their Answer, 5 the herein petitioners opposed the
petition upon the ground that mandamus will not lie to
compel reinstatement because the reappointment prayed
for is discretionary on the part of the appointing power.
Besides, it was the claim of Secretary Fabella that a writ of
mandamus should be unavailing to private respondents
because of their failure to exhaust administrative remedies.
We find the petition to be impressed with merit.
I
The judgment of respondent Judge Salvador P. de Guzman,
Jr. which orders the reinstatement of Ms. Rosario V. Cerillo
to the position of "Coordinator for Extension Services" is
patently improper because it finds no support as to facts
and the law. Respondent Cerillo, although temporarily
extended an appointment as Board Secretary II, was
dismissed therefrom because of loss of confidence. This
dismissal was neither contested nor appealed from by Ms.
Cerillo. There is no question, therefore, that her dismissal
as Board Secretary II could not have been the subject of the
petition for mandamus and reinstatement filed before
respondent Judge. The fact is that private respondent's
assignment as "Coordinator for Extension Services" was a
mere designation. Not being a permanent appointment, the
designation to the position cannot be the subject of a case
for reinstatement.
Furthermore, even granting that Ms. Cerillo could be validly
reinstated as "Coordinator for Extension Services", her
reinstatement thereto would not be possible because the
position is not provided for in the PSCA plantilla. The PSCA
could not have made any valid appointment for this
inexistent position. This could very well be the reason why
she was merely designated as Coordinator. As a mere
designee, she could not have acquired any right to the
position even if the position existed.
At any rate, a mere "designation" does not confer upon the
designee security of tenure in the position or office which
he occupies in an acting capacity only 6.
II
Should the object of private respondent Cerillo in
prosecuting the case in the court below be her
reinstatement to the position of Board Secretary II, the
reinstatement prayed for appears to be impermissible. In
the first place,
Ms. Cerillo had already been dismissed from this position
for loss of confidence. She did not contest this dismissal
possibly because the position of Board Secretary II is
primarily confidential and the Board of Trustees, when
finding her, the incumbent to the position, to be wanting in
faithfulness and integrity dismissed her for that reason
alone. She accepted the dismissal without any ripple and
when designated as Coordinator for Extension Services, she
indicated acceptance by performing the acts called for by
the designation.
The quarrel between the private respondents, on the one
hand, and the PSCA administration, on the other, came
about in this manner:
The Civil Service Commission, mandating a policy, wrote
petitioner
Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary
appointments of officers/employees of the PSCA were to
last only up to December 31, 1992. For a better perspective,
We quote a pertinent portion of the letter:
xxx xxx xxx
Please note that temporary appointments last only for a
maximum of one (1) year and all personnel appointed in a
temporary capacity can be replaced any time by a civil
service eligible. Since you have just been recently covered
by the Civil Service Law and rules, this Field Office
approved all your temporary appointments subject to
yearly renewal up to 1992 only. Subsequent appointments
should strictly conform with civil service policies. You may,
therefore, advise all your temporary personnel to take civil
service examinations in order to be eligible for
appointment.
This letter was implemented by Col. Julian J. Loleng, Jr.
Objecting thereto, private respondents pointed out to the
PSCA administration that, in Resolution No. 91-026, dated
April 1, 1991, the Board of Trustees declared that all
faculty/administrative employees of the college, while
required to acquire civil service eligibilities under
pertinent civil service law, rules and regulations, must
exert effort to acquire civil service eligibilities within a
period of three years from their temporary appointments.
This, the private respondents believe should be taken to
mean that, should they acquire civil service eligibilities
within that period of three years, they cannot be
terminated from the service.
The fact that private respondent Cerillo passed the
requisite Civil Service Examination after the termination of
her temporary appointment is no reason to compel
petitioners to reappoint her. Acquisition of civil service
eligibility is not the sole factor for reappointment. Still to be
considered by the appointing authority are: performance,
degree of education, work experience, training, seniority,
and, more importantly, as in this case, whether or not the
applicant enjoys the confidence and trust of the appointing
power. As We said earlier, the position of Board Secretary
II, by its nature, is primarily confidential, requiring as it
does "not only confidence in the aptitude of the appointee
for the duties of the office but primarily close intimacy
which ensures freedom from misgivings of betrayals of
personal trust or confidential matters of state." 8 In other
words, the choice of an appointee from among those who
possessed the required qualifications is a political and
administrative decision calling for considerations of
wisdom, convenience, utility and the interests of the
service which can best be made by the Head of the office
concerned. 9
It cannot be overemphasized that the PSCA Board
Resolution No. 91-026 must yield to the Civil Service
Commission policies on the issuance of temporary
appointments. When the Civil Service Commission directed
that temporary appointments were to be effective only up
to 1992, it did so in pursuance of the general purpose of the
civil service law, as stated under Section 2 of Republic Act
No. 2260, as amended, which is "to ensure and promote the
constitutional mandate regarding appointments only
according to merit and fitness and to provide within the
public service a progressive system of personal
administration to ensure the maintenance of an honest and
efficient progressive and courteous civil service in the
Philippines. 10 For that matter, it is vested with the function,
among others, to 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. 11
We hold that reappointment to the position of Board
Secretary II is an act which is discretionary on the part of
the appointing power. Consequently, it cannot be the
subject of an application for a writ of mandamus.
Reinstatement is technically issuance of a new
appointment which is essentially discretionary, to be
performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee
should possess the qualifications required by law. 12 Such
exercise of the discretionary power of appointment cannot
be controlled, not even by the Court as long as it is
exercised properly by the appointing authority. 13
It is Our holding that the questioned order of reinstatement
amounts to an undue interference by the Court in the
exercise of the discretionary power of appointment vested
in the PSCA Board of Trustees.
Surprisingly, the Court a quo, while upholding the right of
private respondent Cerillo to a reappointment, adhered to
this pontification by stating that:
The appointment of the petitioners to their former
positions is not a matter of right; rather, it is a matter of
discretion on the part of the respondents. Mandamus
cannot be availed of to compel anyone to exercise his
discretion absent any showing of grave abuse of discretion.
III
The termination of the services of private respondents was
proper and legal, it being the consequence of the Board of
Trustees' power to appoint. The view of respondent Judge,
however, is that there was no termination ordered. Either
the employees' contracts lapsed or their temporary
appointments were abrogated by circulars from the Civil
Service Commission. This, as a necessary consequence of
the transition from the Philippine Air Force College of
Aeronautics (PAFCA) to the Philippine State College of
Aeronautics (PSCA).
We agree with respondent Judge's disquisition on this
point:
To the question was the termination of the services of the
petitioners legal or not?, the only answer is there was not
termination to speak of. Termination presupposes an overt
act committed by a superior officer. There was none
whatsoever in the case at bar. At most, Col. Julian (Loleng)
gave notice to the petitioners of the expiration of their
respective contracts, Petitioners appointment or
employment simply expired either by its very own terms,
or because it may not exceed one year, but most
importantly because the PAFCA was dissolved and replaced
by the PSCA. The notice given by Col. Loleng to the
petitioners seem to have been misunderstood by them as
an act of dismissal which as they correctly state, belongs to
the Board of Trustees alone.
IV
Considering Our finding that there is merit to the petition,
the issue as to whether attorney's fees and costs of
litigation should be awarded to private respondent Rosario
V. Cerillo as adjudged in the questioned decision of
respondent Judge has become moot and academic. At any
rate, the Court holds that the said award could not have
been imposed because, while it was directly ordered in the
dispositive portion of the decision, it was neither discussed
nor justified in the body of the questioned decision. Clear
on this point is Our decision in Policarpio vs. Court of
Appeals, 194 SCRA 129, 742, [1991]: "The Court had
occasion to state that the reason for the award of attorney's
fees must be stated in the text of the decision, otherwise, if
it is stated only in the dispositive portion of the decision,
the same shall be disallowed." This ruling We reiterated in
the case of Koa vs. Court of Appeals, 219 SCRA 541, 549,
[1991], citing Central Azucarcra de Bais vs. Court of Appeals,
188 SCRA 328, 340, where it was stated that "The award of
attorney's fees must be disallowed for want of factual and
legal premise in the text of the decision rendered by the
court of origin and the appellate court as well."
WHEREFORE, the petition is GRANTED. The challenged
decision, dated January 31, 1994, insofar as it ordered the
reinstatement of
Ms. Rosario V. Cerillo and the payment to the latter of back
wages and attorney's fees, and the Order, dated June 29,
1994, of respondent
Judge Salvador P. de Guzman, Jr. are hereby declared null
and void and ordered set aside. The temporary restraining
order/preliminary injunction heretofore issued is hereby
made permanent.
SO ORDERED.
Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Narvasa, C.J. and Melo, JJ., are on leave.
Footnotes
1 Specific names of Members not mentioned.
2 Rollo, page 91.
3 Rollo, page 105.
4 Annex "C".
5 Annex "F".
6 Sevilla vs. C.A., 209 SCRA 637, 642 (1992).
7 Letter dated March 25, 1992.
8 Delos Santos vs. Mallari, 87 Phils. 289, 298 (1950).
9 Avila vs. Civil Service Commission, 198 SCRA 102, 106
(1991).
10 Samson vs. Court of Appeals, 145 SCRA 654, 658-659
(1986).
11 Sec. 12(3), Chapter 3, sub-title A, Book V, Executive
Order No. 292.
12 Apurillo vs. Civil Service Commission, 227 SCRA 230;
Tomali vs. Civil Service Commission, 238 SCRA 572;
Lusterio vs. IAC, 199 SCRA 125.
13 Alim vs. Civil Service Commission, 204 SCRA 510; Sevilla
vs. Court of Appeals, 209 SCRA 637.
EN BANC
[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.  On April 16, 2001, petitioner requested Benipayo to
Petitioner also questions the legality of the appointment of
Velma J. Cinco (“Cinco” for brevity) as Director IV of the
COMELEC’s 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.
On March 22, 2001, President Gloria Macapagal Arroyo
appointed, ad interim, Benipayo as COMELEC Chairman,
and Borra and Tuason 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. 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. 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.
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. The Office of the President
submitted their appointments for confirmation to the
Commission on Appointments. They took their oaths of
office anew.
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 2001 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
petitioner’s reassignment in a Memorandum dated April
14, 2001 addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayo’s failure to
consult the Commissioner-in-Charge of the EID in the
reassignment of petitioner.
reconsider her relief as Director IV of the EID and her
reassignment to the Law Department. 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, 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. Petitioner also filed an
administrative and criminal complaint with the Law
Department 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.    judicial review is pleaded at the earliest opportunity; and
Simultaneously, petitioner challenges the designation of
Cinco as Officer-in-Charge of the EID.   Petitioner,
moreover, questions the legality of the disbursements
made by COMELEC Finance Services Department Officer-
in-Charge Gideon C. De Guzman to Benipayo, Borra and
Tuason by way of salaries and other emoluments.
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. 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;  reassignment was “pursuant to x x x Benipayo’s authority
4. Whether or not Benipayo’s removal of petitioner from
her position as Director IV of the EID and her reassignment
to the Law Department is illegal and without authority,
having been done without the approval of the COMELEC as
a collegial body;
5. Whether or not the Officer-in-Charge of the COMELEC’s
Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and
Cinco, is acting in excess of jurisdiction.
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
(4) the constitutional issue is the lis mota of the case.
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 petitioner’s 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. Respondents claim that the
as Chairman of the Commission on Elections, and as the
Commission’s Chief Executive Officer.” Evidently,
respondents anchor the legality of petitioner’s
reassignment on Benipayo’s 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 petitioner’s 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 Benipayo’s
assumption of office.  Petitioner’s personal and substantial
injury, if Benipayo is not the lawful COMELEC Chairman,
clothes her with the requisite locus standi to raise the
constitutional issue in this petition.
Respondents harp on petitioner’s 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.” Petitioner questioned
the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition
before this Court, which is the earliest opportunity for
pleading the constitutional issue before a competent body. 
Furthermore, this Court may determine, in the exercise of
sound discretion, the time when a constitutional issue may
be passed upon. There is no doubt petitioner raised the
constitutional issue on time.
Moreover, the legality of petitioner’s reassignment hinges
on the constitutionality of Benipayo’s ad interim
appointment and assumption of office.  Unless the
constitutionality of Benipayo’s ad interim appointment and
assumption of office is resolved, the legality of petitioner’s
reassignment from the EID to the Law Department cannot
be determined.  Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.
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.  confirming powers since his appointment can be
In keeping with this Court’s 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. 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 petitioner’s 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 petitioner’s 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
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 petitioner’s 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.  absence or temporary incapacity of its regular incumbent
In Summers vs. Ozaeta, 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.  Thus, the term “ad interim appointment”, as used in letters
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)
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, 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 Black’s 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, 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
(Black’s 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. Esteban’s
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)
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, 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.  cause need be established to justify its revocation.
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 respondent’s appointment as
Executive Assistant II was recognized and attested to by
the Civil Service Commission Regional Office No. 12.  estopped from challenging its withdrawal.
Petitioner’s submission that private respondent’s 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.” Thus, an ad interim appointment  provision prohibiting temporary or acting appointments to
becomes  complete  and irrevocable once the appointee has
qualified into office.  The withdrawal or revocation of an ad
interim appointment is possible only if it is communicated
to the appointee before the moment he qualifies, and any
withdrawal or revocation thereafter is tantamount to
removal from office. Once an appointee has qualified, he
acquires a legal right to the office which is protected not
only by statute but also by the Constitution.  He can only be
removed for cause, after notice and hearing, consistent
with the requirements of due process.
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. 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, this Court struck down as  of the law.  It will also run counter to the clear intent of the
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
 
Assuming 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
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, a case decided
under the 1935 Constitution, which did not have a
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 permanent Commissioner
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 and Solicitor General Felix
Bautista in Nacionalista Party vs. Bautista. 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”, this provision should be harmonized with
the President’s 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 President’s power to make ad interim
appointments.  This is contrary to the rule on statutory
construction to give meaning and effect to every provision
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.”
(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, 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 functions – may 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 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,
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.
Then COMELEC Chairperson Harriet O. Demetriou was
appointed only on January 11, 2000 to serve, pursuant to
her appointment papers, until February 15, 2002, 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.
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 Gaminde
ruling to their own situation.
In a Manifestation 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 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.
Concededly, there was no more time for Benipayo, Borra
and Tuason, who were originally extended ad interim
appointments only on March 22, 2001, to be confirmed by
the Commission on Appointments before the May 14, 2001
elections.
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”, 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. 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. Former President Joseph Estrada also extended
ad interim appointments to Commissioners Abdul Gani M.
Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and
Ralph C. Lantion.
The President’s power to extend ad interim appointments
may indeed briefly put the appointee at the mercy of both
the appointing and confirming powers.   This situation,
however, is only for a short period - from the time of
issuance of the ad interim appointment until the
Commission on Appointments gives or withholds its
consent.   The Constitution itself sanctions this situation, as
a 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 President’s appointing power to the checking power of
the legislature.
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. In the instant case, the Commission on
Appointments had long confirmed four 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. 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 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. 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
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.   interpretation despite the express provision in the 1935
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  confirmation by the Commission on Appointments of the
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.”
(Emphasis supplied)
In Visarra vs. Miraflor, Justice Angelo Bautista, in his
concurring opinion, quoted Nacionalista vs. De Vera 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
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
previous appointment before the prohibition on
reappointment can apply.   To hold otherwise will lead to
absurdities and negate the President’s power to make ad
interim appointments.
In the great majority of cases, the Commission on
Appointments usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees.   If such ad
interim appointments can no longer be renewed, the
President will certainly hesitate to make ad interim
appointments because most of her appointees will
effectively be disapproved by mere inaction of the
Commission on Appointments.  This will nullify the
constitutional power of the President to make ad interim
appointments, a power intended to avoid disruptions in
vital government services.  This Court cannot subscribe to a
proposition that will wreak havoc on vital government
services.
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 sponsoredthe 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.” (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 sponsor’s 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 Committee’s 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.  because he was only designated during the time that he
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.” (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." (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
appointee’s 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 one’s
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
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.”
The ad interim appointments and subsequent renewals of
appointments of Benipayo, Borra and Tuason do not violate
the prohibition on reappointments because there were no
previous appointments that were confirmed by the
Commission on Appointments.  A reappointment
presupposes a previous confirmed appointment.  The same
ad interim appointments and renewals of appointments
will also not breach the seven-year term limit because all
the appointments and renewals of appointments of
Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008. Any delay in their
confirmation will not extend the expiry date of their terms
of office. Consequently, there is no danger whatsoever that
the renewal of the ad interim appointments of these three
respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The
continuing renewal of the ad interim appointment of these
three respondents, for so long as their terms of office
expire on February 2, 2008, does not violate the
prohibition on reappointments in Section 1 (2), Article IX-C
of the Constitution.
Fourth Issue:  Respondent Benipayo’s Authority to Reassign
Petitioner
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.
Petitioner’s 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:
xxx
(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.
Petitioner’s appointment papers dated February 2, 1999,
February 15, 2000 and February 15, 2001, attached as
Annexes “X“, “Y” and “Z” to her Petition, indisputably show
that she held her Director IV position in the EID only in an
acting or temporary capacity. Petitioner is not a Career
Executive Service (CES) officer, and neither does she hold
Career Executive Service Eligibility, which are necessary
qualifications for holding the position of Director IV as
prescribed in the Qualifications Standards (Revised 1987)
issued by the Civil Service Commission. Obviously,
petitioner does not enjoy security of tenure as Director IV.  
In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G.
Bacal, 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 moment’s 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:
xxx
(h) Transfer of officers and employees in the civil service -
Any public official who makes or causes any transfer or
detail whatever of any officer or employee in the civil
service including public school teachers, within the election
period except upon prior approval of the Commission.”
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. Moreover, petitioner insists that the COMELEC en
banc must concur to every transfer or reassignment of
COMELEC personnel during the election period.  legally do.
Contrary to petitioner’s allegation, the COMELEC did in fact
issue COMELEC Resolution No. 3300 dated November 6,
2000, exempting the COMELEC from Section 261 (h) of the
Omnibus Election Code.  The resolution states in part:
“WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of
the Omnibus Election Code provides as follows:  transfer or reassignment, making the resolution utterly
xxx
Sec. 261. Prohibited Acts.  The following shall be guilty of an
election offense:
xxx
(h) Transfer of officers and employees in the civil service –
Any public official who makes or causes any transfer or
detail whatever of any officer or employee in the civil
service including public school teachers, within the election
period except upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the
national and local elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or
reassign personnel of the Commission on Elections during
the prohibited period in order that it can carry out its
constitutional duty to conduct free, orderly, honest,
peaceful and credible elections;
“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 field personnel and not to head office
personnel like the petitioner. Under the Revised
Administrative Code, the COMELEC Chairman is the sole
officer specifically vested with the power to transfer or
reassign COMELEC personnel.  The COMELEC Chairman
will logically exercise the authority to transfer or reassign
COMELEC personnel pursuant to COMELEC Resolution No.
3300.  The COMELEC en banc cannot arrogate unto itself
this power because that will mean amending the Revised
Administrative Code, an act the COMELEC en banc cannot
 
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
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.
The COMELEC Chairman is the official expressly authorized
by law to transfer or reassign COMELEC personnel.  The
person holding that office, in a de jure capacity, is
Benipayo.  The COMELEC en banc, in COMELEC Resolution
No. 3300, approved the transfer or reassignment of
COMELEC personnel during the election period.  Thus,
Benipayo’s order reassigning petitioner from the EID to the
Law Department does not violate Section 261 (h) of the
Omnibus Election Code.  For the same reason, Benipayo’s
order designating Cinco Officer-in-Charge of the EID is
legally unassailable.
Fifth Issue:  Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C.
De Guzman, Officer-in-Charge of the Finance Services
Department of the Commission on Elections, did not act in
excess of jurisdiction in paying the salaries and other
emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit.  fiscal or with the Ministry of Justice for proper
Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza,
Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., and
Sandoval-Gutierrez, JJ., concur.
Puno, and Vitug, JJ., on official leave.
Respondent Cinco, 62 years old, died on November 20,
2001 of multiple gunshot wounds when she was ambushed
at the corner of Eden and Pedro Gil Streets, Sta. Ana, Manila
while riding a car driven by her son.
Rollo, Annexes “X”, “Y” and “Z”, pp. 62-64, Petition dated
August 1, 2001.
Ibid., Annex “A”, p. 39.
Ibid., Annex “B”, p. 40.
Ibid., Annex “C”, p. 41.
Ibid., Annex “D”, p. 42; Annex “E”, p. 43; Annex “F”, p. 44.
Ibid., Annex “J”, p. 48; Annex “K”, p. 49; Annex “L”, p. 50.
Ibid., Annex ”M”, p. 51; Annex “N”, p. 52; Annex “O”, p. 53.
Ibid., Annex “P”, p. 54; Annex “Q”, p. 55; Annex  “R”, p. 56.
Ibid., Annex ‘S”, p. 57; Annex “T”, p. 58; Annex “U”, p. 59.
Ibid., Annex “V”, p. 60.
Ibid., Annex “W”, p. 61.
Ibid., Annex “19”, pp. 125-126.
Ibid., Annex “20”, pp. 127-128.
Ibid., Annex “23”, pp. 131-138.
Ibid., Annex “25”, pp. 142-145.
Section 265 of the Omnibus Election Code provides as
follows: “The Commission shall, through its duly authorized
legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same. 
The Commission may avail of the assistance of other
prosecuting arms of the government: Provided, however,
that in the event that the Commission fails to act on any
complaint within four months from his filing, the
complainant may file his complaint with the office of the
investigation and prosecution, if warranted.
Ibid., Annex “26”, p. 146; Annex “27”, p. 147; Annex “28”, p.
148.
Integrated Bar of the Philippines vs. Hon. Ronaldo B.
Zamora, 338 SCRA 81 (2000); Philippine Constitutional
Association vs. Enriquez, 235 SCRA 506 (1994); Luz Farms
vs. Secretary of the Department of Agrarian Reform, 192
SCRA 51 (1990).
Rollo, Annex “V”, p. 60, Petition dated August 1, 2001.
Rollo, p. 99, Respondents’ Comment dated October 29,
2001.
Joaquin G. Bernas, The 1987 Constitution of the Republic of
the Philippines: A Commentary, p. 858 (1996), citing
People vs. Vera, 65 Phil. 56 (1937).
Ibid., citing Sotto vs. Commission on Elections, 76 Phil. 516
(1946).
Ople vs. Torres, 293 SCRA 141 (1998); Telecommunications
and Broadcast Attorneys of the Philippines, Inc. vs.
Commission on Elections, 289 SCRA 337 (1998); Osmeñ a
vs. Commission on Elections, 199 SCRA 750 (1991).
81 Phil. 754 (1948).
40 SCRA 58 (1971).
140 SCRA 22 (1985).
326 SCRA 62 (2000).
Section 2 (3), Article IX-B of the Constitution.
See concurring opinion of Justice Cesar Bengzon in Erana
vs. Vergel de Dios, 85 Phil. 17 (1949).
Binamira vs. Garrucho, 188 SCRA 154 (1990); Santiago vs.
Commission on Audit, 199 SCRA 125 (1991); Sevilla vs.
Court of Appeals, 209 SCRA 637 (1992).
192 SCRA 358 (1990).
85 Phil. 101 (1949).
Supra., note 30.
Supra., note 31.
Section 1, Article IX-A of the Constitution.
Record of the Constitutional Commission, pp. 521-524,
Volume II (1986).
16 SCRA 379 (1966).
347 SCRA 655 (2000).
See Section 1(2), Article IX-C of the Constitution.
Rollo, p.189, G.R. No. 140335, Intervenor’s Motion for
Reconsideration dated December 27, 2000 in Gaminde vs.
Commission on Audit, decided on December 13, 2000, 347
SCRA 655.
Ibid.
Rollo, p. 202 ,  G.R. No. 140335, Manifestation dated
December 28, 2000 in Gaminde vs. Commission on Audit,
decided on December 13, 2000, 347 SCRA 655.
Supra., note 37.
Concurrent Resolution No. 23 of the Eleventh Congress,
providing for the Legislative Calendar for the Third Regular
Session, adopted by the House of Representatives on July
25, 2000 and by the Senate on August 7, 2000.
Section 3, Article IX-C of the Constitution provides as
follows: “The Commission on Elections may sit en banc or
in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election
cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division,
provided that motions for reconsideration of decisions
shall be decided by the Commission en banc.
Annex “1-Memorandum”, Memorandum of Respondents
dated March 15, 2002.
Annexes “2-Memorandum, 3-Memorandum, 4-
Memorandum, and 5-Memorandum”, Memorandum of
Respondents dated March 15, 2002.
Annexes “6-Memorandum, 7-Memorandum, 7-A-
Memorandum, 7-B-Memorandum, 7-C-Memorandum, 7-D-
Memorandum, 7-E-Memorandum, 7-F-Memorandum, 8-
Memorandum, 8-A-Memorandum, 8-B-Memorandum, 8-C-
Memorandum, and 9-Memorandum”, Memorandum of
Respondents dated March 15, 2002.
An exception arises if because of succession, a President
serves for more than six years, in which case such a
President may be able to appoint all the seven COMELEC
members.
Commissioners Rufino S.B. Javier, Luzviminda Tancangco,
Mehol K. Sadain, and Ralph C. Lantion.
See Sections 3, 4, 5 and 6, Article IX-A of the Constitution.
Supra., note 34.
See Section 10 (4), Article VII of the 1935 Constitution.
Record of the Constitutional Commission, p. 591, Volume I
(1986).
8 SCRA 1 (1963).
85 Phil. 126 (1949).
On behalf of the Committee on Constitutional Commissions
and Agencies.
Journal of the Constitutional Commission, p. 244, Volume I
(1986).
Ibid., p. 546.
Ibid., p. 586.
Record of the Constitutional Commission, pp. 586-587,
Volume I (1986).
Rollo, pp. 39-44, Petition dated August 1, 2001; pp. 107-109
and pp. 146-148, Respondents’ Comment dated October 29,
2001.
Rollo, pp. 62-64, Petition dated August 1, 2001.
Rollo, p. 102, Respondents’ Comment dated October 29,
2001.
347 SCRA 338 (2000).
Under COMELEC Resolution No. 3322 dated March 15,
2001, the election period for the May 14, 2001 elections
was fixed from January 2, 2001 to June 13, 2001.  This
amended COMELEC Resolution No. 3258 dated September
28, 2000.
COMELEC Resolution No. 3300 was issued during the time
petitioner was Acting Director of EID  - the department
tasked with educating and informing the public on the
various directives and resolutions of the COMELEC en banc.
See Section 7 (4), Chapter 2, Subtitle C, Book V of the
Revised Administrative Code.
FIRST DIVISION
[G.R. No. 139251.  August 29, 2002]
MA. ERLY P. ERASMO, petitioner, vs. HOME INSURANCE &
GUARANTY CORPORATION, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule
45 of the Rules of Court contesting the Decision of the
Court of Appeals dated June 30, 1999 in CA-G.R. SP No.
47037 which affirmed the decision of the Civil Service
Commission dismissing the appeal of petitioner Ma. Erly P.
Erasmo and denying her request for reinstatement,
payment of back wages and other benefits.
Petitioner started working with respondent Home
Insurance & Guaranty Corporation (HIGC) in 1982 as a
consultant on the Project Evaluation Department, and held
various positions therein, including Manager of Project
Evaluation Department (April 1, 1982 to December 31,
1985), Manager of Accounts Management (January 1, 1986
to April 1987), Assistant Vice-President of Accounts
Management (May 1987 to July 1988), Manager II of
Guaranty and Credit Insurance Department (August 1988
to March 15, 1992), and Officer-in-Charge of Technical
Service/Guaranty and Credit Insurance Group (TS/GCIG)
(March 16 to June 14, 1992), until finally, she was
promoted to Vice-President of TS/GCIG on June 15, 1992.
The nature of her appointment was “promotion” and her
employment status was "temporary," since the position is a
Career Executive Service Office (CESO) and petitioner lacks
the required CES eligibility.
On February 24, 1993 petitioner was administratively
charged with: (1) neglect of duty, (2) incompetence in the
performance of official duties, (3) conduct prejudicial to the
best interest of the service, and (4) directly or indirectly
having financial and material interest in any transaction
requiring the approval of her office.
In the meantime, petitioner appealed the status of her
temporary appointment to the Civil Service Commission
(CSC), which on March 12, 1993, issued Resolution No. 93-
990, holding that a CES eligibility is required to a CES
position, and even if one possesses such eligibility, still the
appointment cannot be considered permanent unless an
appointment to the rank has been granted by the President
of the Philippines.
On June 10, 1993, respondent, through its President,
Fernando M. Miranda, Jr., wrote petitioner, informing her
that  “by operation of law, your appointment shall be
deemed terminated and shall automatically cease to have
further force and effect at the close of office hours on the
expiration of your appointment.”  She was also advised that
the pendency of the administrative case against her
precludes any renewal of her appointment.
Petitioner, through counsel, then sought the opinion of the
Executive Director of the Career Executive Service Board
who, on August 31, 1993, replied that a temporary
appointment to a CES position can be revoked at any time
by the appointing authority, without waiting for a specific
period to lapse; that the filing of an administrative case
does not automatically revoke the appointment nor does it
affect the validity of the temporary appointment; and that
for the termination to be effective, there must be a
categorical and/or positive act of termination of service.
Encouraged by said opinion, petitioner wrote respondent
seeking reinstatement to her previous position with back
wages, but her request was denied.  She was also informed
that the position that she vacated has already been filled up
and approved by the CSC on a permanent basis.
When the investigating committee of the HIGC
recommended the dismissal of the charges against
petitioner on June 29, 1995, the latter again wrote
respondent asking that she be allowed to continue to
discharge her duties and responsibilities as VP for TS/GCIG,
alleging that respondent furnished her with a copy of the
report of the investigation committee only eight (8) months
thereafter.  Again, respondent denied her demands.
One (1) year after, petitioner wrote the Chairperson of the
CSC, appealing her case. The CSC dismissed her appeal on
February 3, 1998 per Resolution No. 980182.  According to
the CSC: (1) petitioner is not protected by the security of
tenure clause under the Constitution because she was
holding her position of Vice-President under a temporary
status; (2) her appeal was filed beyond the 15-day
reglementary period; and (3) the appointing authority
cannot generally be compelled to issue an appointment.
On petition for review, the Court of Appeals affirmed the
CSC’s resolution and dismissed the petition for lack of
merit.
Petitioner now comes before this Court alleging the
following errors committed by the appellate court:
“I
“THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT A PERMANENT CIVIL SERVICE EMPLOYEE, LIKE
THE PETITIONER WHO WORKED WITH RESPONDENT
HIGC CONTINUOUSLY FOR TWELVE (12) YEARS HOLDING
VARIOUS MANAGERIAL POSITIONS AND WHO ACCEPTED
A PROMOTIONAL APPOINTMENT AS HIGC’S VICE
PRESIDENT OF TS/GCIG SUBJECT TO HER COMPLIANCE
OF CIVIL SERVICE ELIGIBILITY WHICH PETITIONER DULY
COMPLIED WITH, IS STILL TERMINABLE AT THE
PLEASURE AND DISCRETION OF THE APPOINTING
POWER.
“II
“THE HONORABLE COURT OF APPEALS ERRED IN
FINDING THAT THE APPROVAL OF THE PERMANENT
APPOINTMENT OF PETITIONER’S SUCCESSOR TO THE
POSITION OF VICE PRESIDENT OF RESPONDENT’S
TS/GCIG AS PER BOARD RESOLUTION NO.55-1993
RATIFIED PETITIONER’S SEPARATION FROM THE HIGC.
“III
“THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT THE DOCTRINE ENUNCIATED IN THE CASE OF
‘ACHACOSO VS. MACARAIG,’ 195 SCRA 235 (MARCH 13,
1991) APPLIES TO PETITIONER.
“IV
“THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT PETITIONER IS NOT ENTITLED TO BE REVERTED
TO THE POSITION SHE WAS OCCUPYING PRIOR TO HER
APPOINTMENT AS VICE PRESIDENT FOR TS/GCIG ON THE
GROUND THAT HIGC HAS EXERCISED ITS PREROGATIVE
IN RESPECT OF PETITIONER’S TENURE BY NOT
RENEWING HER TEMPORARY APPOINTMENT, AND HER
CONTINUANCE IN HIGC SERVICE, BY NOT REAPPOINTING
HER TO HER FORMER POSITION.
“V
“THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT PETITIONER’S APPEAL IN THE CIVIL
SERVICE COMMISSION WAS FILED BEYOND THE
REGLEMENTARY PERIOD.”
The principal issue to be resolved in this case is whether or
not petitioner is entitled to be reinstated to the position of
Vice-President of TS/GCIG of respondent HIGC.
We answer in the negative.
The facts of this case indubitably show that petitioner’s
promotional appointment as Vice-President of TS/GCIG is
merely temporary in nature.  Her appointment papers
dated June 11, 1992 clearly indicate it. This is because
petitioner does not possess a career executive service
eligibility which is necessary for the position of Vice-
President of TS/GCIG, it being a career service executive
office. Her new appointment, being temporary in character,
was terminable at the pleasure of the appointing power
with or without a cause, and petitioner does not enjoy
security of tenure.
In the recent case of Matibag v. Benipayo, we reiterated the
long standing ruling that a person who is issued a
temporary appointment does not enjoy security of tenure,
thus:
“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 moment’s notice,”
conformably to established jurisprudence …’
‘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 …’”
Petitioner maintains that we apply the ruling in Palmera v.
Civil Service Commission, 235 SCRA 87 [1994], instead of
Achacoso v. Macaraig, 195 SCRA 235 [1991]. This, however,
is not possible.
The Achacoso case, penned by Justice Isagani Cruz in 1991,
laid down the jurisprudential basis in cases involving
security of tenure in career executive service positions.
Simply put, it was ruled therein that a CES eligibility is
required for a CES position, such that an appointment of
one who does not possess such eligibility shall be
temporary and may be withdrawn at will by the appointing
authority and “at a moment’s notice. Thus, it was concluded
that Achacoso, not being CES eligible, was merely holding a
temporary appointment, and may be validly removed.  His
separation is termed as expiration of term.
On the other hand, in the Palmera case, likewise penned by
Justice Isagani Cruz, this time in 1994, it was inferred from
the circumstances of the case that Palmera, who accepted a
contractual appointment, had no intention of abandoning
his permanent position and security of tenure. Having
worked in the government for 34 years, it was held that by
signing the contract, Palmera couldn’t be reasonably
supposed to have knowingly relinquished his permanent
post and all its concomitant rights and benefits. Also, the
petitioner was already getting on in years and could not
afford to face an uncertain future without a regular and
steady income.  More importantly, Palmera was led to
believe that the contract he signed was merely a subterfuge
to provide legal basis for the payment of his salary for the
period of January 1 to December 31, 1987, and he was not
informed of the real objective of the contract.  It was also
ruled that the contract was void and cannot be the basis for
the claim that Palmera abandoned his post.
The foregoing circumstances are not present in petitioner’s
case. For one, it cannot be deduced that she did not
understand the implications of her promotional, albeit Rollo, pp. 45-51.
temporary, appointment.  In the first place, she was under
no obligation to accept such promotion, for there is no law Id., p. 5.
that compels an employee to accept a promotion, as a
promotion is in the nature of a gift or reward, which a Ibid.
person has a right to refuse. And although she was formerly
holding a permanent appointment, she accepted such
Ibid.
temporary appointment.  Having done so, petitioner had
abandoned or given up her former position.  When she
accepted the temporary appointment, in effect, she Ibid.
abandoned her right to security of tenure as we have ruled
in Romualdez v. Civil Service Commission, to wit: Ibid.

“x x x This is not a case of removal from office.  Indeed, Ibid.

when he accepted this temporary appointment he was
thereby effectively divested of security of tenure.  A Ibid.
temporary appointment does not give the appointee any
definite tenure of office but makes it dependent upon the Id., pp. 52-53.
pleasure of the appointing power.  Thus, the matter of
converting such a temporary appointment to a permanent
Id., p. 6.
one is addressed to the sound discretion of the appointing
authority.  Respondent CSC cannot direct the appointing
authority to make such an appointment if it is not so Id., p. 179.
disposed.”
Id., p. 57.
For another, the crucial fact remains --- petitioner does not
possess the required CES eligibility to qualify her for the Id., p. 65.
position.  While the law allows in exceptional cases the
appointment of a non-CES eligible provided that the Id., pp. 71-72.
appointee subsequently passes the CES Examinations,
petitioner is yet to completely pass and attain her CES Id., pp. 73-86.
eligibility.  Clearly therefore, the Palmera case is not
applicable, and respondent cannot be compelled to
Id., pp. 89-91.
reinstate petitioner.
Id., pp. 92-93.
On the matter of whether or not petitioner may be reverted
to her position previous to her appointment as VP for
TS/GCIG, again, we must answer in the negative.  Suffice it Id., pp. 96-99.
to say that the power of appointment is essentially
discretionary and cannot be controlled, not even by the Supra., Note No. 1.
Court, as long as it is exercised properly by the appointing
authority. Rollo, pp. 11-12.

Finally, petitioner insists that she timely brought her case Supra., Note No. 9.
to the Civil Service Commission.  According to her, her
letter to the CSC was not an “appeal” but a petition seeking Ibid.
to implement the decision of the investigating committee.
But whether her letter to the CSC was an appeal or a
        G.R. No. 149036, April 2, 2002, citing Cuevas v. Bacal, 347
petition, the CSC nevertheless entertained and decided on
SCRA 338 (2000).
her petition or appeal which decision we find to be without
any reversible error.
Rollo, p. 17.
WHEREFORE, the petition for review on certiorari is
hereby DENIED for lack of merit. Dimayuga v. Benedicto, G.R. No. 144153. January 16, 2002.

SO ORDERED. Achacoso v. Macaraig, 195 SCRA 235, 239-240 [1991].

Davide, Jr., C.J., (Chairman), Vitug, and Ynares-Santiago, JJ., Palmera v. Civil Service Commission, 235 SCRA 87, 92-93
concur. [1994].
         Pabu-aya v. Court of Appeals, G.R. No. 128082.  April 18,
2001, citing Dosch v. National Labor Relations Commission,
123 SCRA 296, 312 (1983).
197 SCRA 168, 171 [1991].
Cuevas v. Bacal, supra.
Salvador v. De Guzman, Jr., 249 SCRA 126, 135 [1995].
EN BANC
[G.R. No. 149451.  May 8, 2003]
REMEDIOS S. PADILLA, petitioner, vs. THE HONORABLE
CIVIL SERVICE COMMISSION and DEPARTMENT OF LABOR
and EMPLOYMENT, respondents.
DECISION
CORONA, J.:
Before this Court is a petition for review of the decision
dated January 22, 2001 of the Court of Appeals affirming
(1) Resolution No. 980256 dated February 5, 1998 of the
Civil Service Commission (CSC) dismissing petitioner
Remedios Padilla’s appeal and (2) Resolution No. 981425
dated June 10, 1998 of CSC denying her motion for
reconsideration.
The antecedent facts, as found by respondent CSC and
affirmed by the Court of Appeals, follow.
On January 18, 1982, petitioner Remedios Padilla assumed
the permanent position of Clerk II in the then Ministry of
Labor and Employment. On May 11, 1983, petitioner was
promoted to the position of Labor Development Assistant.
Without waiting for the CSC’s approval of her appointment,
she assumed her new position.
On March 4, 1985, CSC-NCR Regional Director Aurora de
Leon sent a 1st Indorsement to the Minister of Labor and
Employment disapproving petitioner’s appointment as
Labor Development Assistant on the ground that she failed
to meet the eligibility requirement for the position. Maria
Esther Manigque, Officer-In-Charge of the Institute of Labor
and Manpower Studies, sought reconsideration of
respondent CSC’s ruling by pointing out petitioner’s
satisfactory performance. It was denied.  In May 1985,
petitioner resigned from the service citing “personal
reasons.”
On July 28, 1985, petitioner took the Career Service
Examination (Professional Level). After passing the same in
August, 1985, she re-applied at the respondent Department
of Labor and Employment (DOLE). She was appointed as
Casual Research Assistant on October 17, 1988, effective
until November 30, 1988. Upon expiration of her
appointment, the same was extended to December 31,
1988. From January 1989 until December 1989, petitioner
occupied the position of Casual Technical.
Due to the implementation of RA 6758, otherwise known as
the Salary Standardization Act of 1989, casual items such as
Casual Research Assistant and Casual Technical were
abolished. Petitioner was offered the position of Clerk II
(the only available permanent position then) for which the
Selection Board deemed her qualified. However, she
declined the offer.
On January 2, 1990, petitioner was appointed Casual Clerk
III, effective till the end of June 1990. After the expiration of
her appointment as a casual employee, petitioner was no
longer given any position. She then requested the monetary
conversion of her unused sick and vacation leaves which
respondent DOLE granted.
Nevertheless, petitioner appealed her alleged termination
as casual employee to the CSC but this was dismissed for
having been filed out of time.
Thereafter, petitioner filed a letter-complaint addressed to
then Secretary of Justice Teofisto Guingona. The letter-
complaint was forwarded to respondent DOLE and later to
the CSC for appropriate action. Acting on the complaint, the
CSC treated the same as a petition to seek relief. In its
Resolution No. 980256 dated February 5, 1998, the CSC
dismissed the petition and denied petitioner’s claim. Her
motion for reconsideration was likewise denied in CSC
Resolution No. 981425 dated June 10, 1998.
Petitioner appealed the CSC resolutions to the Court of
Appeals. On January 22, 2001, the appellate court rendered
a decision, the dispositive portion of which read:
WHEREFORE, in view of the foregoing, the petition is
DENIED and accordingly DISMISSED for lack of merit.
Accordingly, the assailed  Resolution No. 98-0256 dated
February 5, 1998 issued by the Civil Service Commission
dismissing the petitioner’s appeal, as well as its Resolution
No. 981425 dated June 10, 1998, is (sic) AFFIRMED.
SO ORDERED.
The Court of Appeals held that the CSC had the power to
revoke the appointment of a public officer whose
qualification did not meet the minimum requirements of
the law. To refute petitioner’s contention that respondent
DOLE was obliged to give her a permanent position upon
becoming eligible, the appellate court ruled that, although
the petitioner was a civil service eligible, her acceptance of
a temporary appointment as a casual vested her no right to
security of tenure. Her appointment depended exclusively
on the pleasure of the appointing authority.
On July 4, 2001, the appellate court issued a resolution
denying petitioner’s motion for reconsideration.
Hence, this appeal based on the following assignments of
error:
I removed from the service. The OSG presented as evidence
WHETHER OR NOT THE TERMINATION OF PETITIONER IS
LEGAL.
II
WHETHER OR NOT THE DISMISSAL OF HER COMPLAINT
BY PUBLIC RESPONDENT CIVIL SERVICE COMMISSION
WAS PROPER UNDER THE CIRCUMSTANCES.
Petitioner does not question anymore the disapproval of
her appointment as Labor Development Assistant due to
her failure to meet the eligibility requirements.  However,
she invokes her alleged right to be reinstated to a
permanent position considering that she has since attained
the required civil service eligibility and that she used to
hold a permanent position. Petitioner bewails the fact that
she ended up as a casual employee despite her civil service
eligibility and without any derogatory record during her
stint in the government. To support her claim, she cites
Section 24 (d) of PD 807, otherwise known as the Civil
Service Law of 1975, which states that “(a)ny person who
has been permanently appointed to a position in the career
service and who has, through no delinquency or
misconduct, been separated therefrom, may be reinstated
to a position in the same level for which he is qualified.”
She also contends that she was not accorded due process
when she was removed from her permanent position
without prior notice. Neither was she given an opportunity
to explain why she should not be removed from office.
Did respondent DOLE violate petitioner’s purported right
to security of tenure?  We do not think so.
The jurisdiction of this Court over cases brought to it from
the Court of Appeals via Rule 45 of the Rules of Court is
limited to reviewing errors of law. The factual findings of
the Court of Appeals are generally conclusive and may not
be reviewed on appeal. We have good reason to apply this
well-entrenched principle in the instant case because the
factual findings of the Court of Appeals affirm the findings
of fact of the CSC.
One of the exceptions to the rule is when the appellate
court’s factual disquisitions are not supported by evidence.
In the case at bar, petitioner seeks reinstatement on the
ground that she was unjustly removed from the service,
which was contrary to the appellate court’s finding that she
voluntarily resigned. Considering that petitioner’s
submission was premised on an alleged misapprehension
of facts, she had the burden of showing that the CSC and the
appellate court’s findings of fact were not supported by
evidence. However, she fell short of that responsibility and
ended up with hollow claims.
On the other hand, the Office of the Solicitor General (OSG),
representing respondents CSC and DOLE, adequately
proved that petitioner voluntarily resigned and was never
petitioner’s own letter in 1990 addressed to Sec. Flerida
Ruth Romero, then Special Assistant to the President and
Presidential Legislative Liaison Officer, which read:
In 1985, The Civil Service Commission (CSC) disapproved
my appointment because the qualification standard for the
position of Labor Development Assistant was raised from
sub-professional to professional level. Despite my best
effort to appeal before the Civil Service Commission, I
never got a favorable response. I was hurt so much that I
decided to resign in April 1985. (underlining supplied)
Petitioner used to occupy the permanent position of Clerk
II before the disapproval of her appointment for Labor
Development Assistant, a higher permanent position.
Thereafter, she voluntarily resigned and later came back to
occupy casual positions only despite passing the eligibility
requirement for a permanent position. Like removal for
just cause, voluntary resignation results in the abdication
of all present and future rights accorded to an employee
and in the severance of all work-related ties between the
employer and the employee. When she returned to work
for respondent DOLE, the same was not a continuation of
her previous service but the start of a new work slate.
Petitioner could not therefore demand from respondent
DOLE her reinstatement to a permanent position under
Section 24 (d) of PD 807 inasmuch as she was never
unjustly removed.
We agree with the observation of the OSG that when
petitioner re-applied for and was offered the position of
Casual Research Assistant and later Casual Technical, she
readily and unqualifiedly accepted the said offer. Having
accepted the position of a casual employee, petitioner
should have known that she had no security of tenure and
could thus be separated from the service anytime.
We also take note of the fact that in December 1989, after
finishing her contract as a Casual Technical, respondent
DOLE offered to petitioner the permanent position of Clerk
II (the only available permanent position then) for which
the Selection Board deemed her qualified. However, she
declined the offer and instead opted to accept another
casual position as Casual Clerk III. Respondent DOLE
therefore gave her the opportunity to re-assume a
permanent position but petitioner was apparently bent on
acquiring a position equal to a Labor Development
Assistant, a position she could not obtain by right due to
her earlier resignation. On the ground of estoppel,
petitioner is barred from asserting her right to a
permanent position.
Not having been unjustly removed from the service, it
follows that petitioner’s right to due process was not
violated.  In fact, there was no need to furnish her a notice
of termination since, as a casual employee, petitioner was
aware of the date of expiration of her temporary
appointment.
WHEREFORE, the petition is hereby DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna,
JJ., concur.
Penned by Associate Justice B.A. Adefuin-de la Cruz and
concurred in by Associate Justices Andres Reyes, Jr. and
Rebecca de Guia-Salvador; Rollo, pp. 27-34.
Rollo, pp. 51-53.
Id., at 55-57.
Resolution No. 96-0846 dated February 8, 1996.
Rollo, p. 34.
Id., at 29-34.
Id., at 35-36.
Id., at  18.
Malugcot-Aw v. Malugcot, 329 SCRA 78 (2000).
Republic v. Sodsod, 330 SCRA 400 (2000).
Bañas v. Court of Appeals, 325 SCRA 259 (2000).
Section 1, Rule 131, Rules of Court.
Former Associate Justice of the Supreme Court.
Rollo, p. 58.
EN BANC
[G.R. No. 158737.  August 31, 2004]
CIVIL SERVICE COMMISSION, petitioner, vs. SATURNINO DE
LA CRUZ, respondent.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 45 of the
Revised Rules of Court, seeking to review and set aside the
May 14, 2003 decision and June 17, 2003 resolution of the
Court of Appeals in CA-G.R. SP No. 54088, entitled
Saturnino de la Cruz vs. Civil Service Commission. In that
decision, the appellate court set aside CSC Resolution Nos.
98-2970 and 99-1451, consequently approving Saturnino
de la Cruz’ appointment as Chief of the Aviation Safety
Regulation Office.
The pertinent facts, as narrated by the Office of the Solicitor
General, follow.
Respondent Saturnino de la Cruz is an employee of the Air
Transportation Office, DOTC, presently holding the position
of Chief Aviation Safety Regulation Officer of the Aviation
Safety Division.
Respondent was promotionally appointed to the said
position on November 28, 1994, duly attested by the Civil
Service Commission (CSC).  But prior thereto, he was a
Check Pilot II in the Air Transportation Office (ATO).
In a letter dated February 9, 1995, Annabella A. Calamba of
the Aviation Security Division of the ATO formally filed
with the Department of Transportation and
Communication (DOTC) her protest against the
promotional appointment of respondent as Chief Aviation
Safety Regulation Officer, claiming among others that
respondent did not meet the four-year supervisory
requirement for said position.
On July 20, 1995, then DOTC Secretary Jesus B. Garcia
rendered a decision finding the protest without merit.
Apparently dissatisfied, Calamba appealed the decision of
the DOTC Secretary to the CSC-NCR.
Under date of October 17, 1995, Director Nelson Acebedo
of CSC-NCR requested ATO Executive Director Manuel Gilo
to comment on the appeal and to submit to the CSC-NCR
the documents pertinent thereto.
Since the CSC-NCR received no action on said request for
comment, the CSC-NCR again wrote Director Gilo regarding
the matter on May 5, 1997.  But to no avail.
On October 14, 1997, for the last time, the CSC-NCR
reiterated to Director Gilo its request for comment.
On November 18, 1997, the CSC-NCR rendered its decision
upholding the protest of Calamba and recalling the
approval of respondent’s appointment as Chief Aviation
Safety Regulation Officer.  Said the CSC-NCR:
“After an initial evaluation of the protest, we find that the
only issue to be resolved is whether or not the protestee
meets the minimum experience requirements as of the date
of the protestee’s appointment to the contested position. 
The contested position requires four years of work
experience in position/s involving management per
Qualification Standards Manual prescribed by MC No. 46, s.
1993 and/or four years of experience in planning,
organizing, directing, coordinating and supervising the
enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen
and mechanics and regulation of the activities of flying
schools per ATO Qualification Standards xxx.
xxx         xxx       xxx
Taking into account his previous positions, Mr. dela Cruz
could not have exercised managerial or supervisory
functions for the required number of years. x x x. 
Moreover, vis-à -vis the experience requirements of the
approved ATO Qualification Standards, Mr. dela Cruz’ work
experience prior to his appointment to the contested
position did not concur therewith.
We are of the view therefore, that experience-wise, Mr. dela
Cruz did not meet the requirements of the contested
position as of the date of his appointment thereto.
xxx    xxx       xxx.”
Under date of December 11, 1997, ATO Director Gilo wrote
the CSC-NCR asking for the suspension of the order
recalling respondent’s appointment, citing several reasons
in support thereof.
Subsequently, a Manifestation with Motion to Admit
Addendum dated December 22, 1997 was filed by Director
Gilo with the CSC-NCR.  Director Gilo argued that Calamba
had no legal personality to file a protest because she is not
a qualified next-in-rank and that the protest was filed out
of time.  He likewise asserted that respondent had fully met
the qualifications required of the position.
On January 5, 1998, CSC-NCR Director Acebedo ruled that
there is no cogent reason to disturb earlier rulings on the
matter.  He also denied ATO Director Gilo’s request, for lack
of merit.
Strangely, in a letter dated January 13, 1998, CSC-NCR
Director Acebedo granted Director Gilo’s request and
affirmed the approval of respondent’s appointment as Chief
Aviation Safety Regulation Officer.  He said:
“xxx        xxx      xxx.
We reviewed again the documents including the Office
Orders designating protestant dela Cruz to supervisory
position which were obviously issued during the latter part
of 1993.  A liberal consideration thereof would come up
with a little over one year of supervisory and managerial
experience.  Certainly, he was short of the required number
of years of work experience for the contested position as of
the date of the issue of his appointment. Nevertheless,
considering that Mr. dela Cruz has already in his favor at
least four years of continuous supervisory/managerial
experience from his designation as Acting Chief of the
Aviation Safety Regulation Division, supervened by his
permanent appointment thereto as Chief thereof in
November 28, 1994, up to present, he has substantially
satisfied the four years experience required for
appointment to the contested position.
xxx    xxx       xxx.”
In a letter dated January 26, 1998, Calamba requested the
CSC to implement the January 5, 1998 ruling of the CSC-
NCR.
When asked by the CSC to clarify the conflicting rulings,
CSC-NCR Director Acebedo explained that the January 5,
1998 ruling is unofficial and inexistent.
The CSC treated Calamba’s request as an appeal. On
November 13, 1998, the CSC rendered its Resolution No.
98-2970, the decretal portion of which reads:
“WHEREFORE, the appeal of Annabella A. Calamba is
hereby granted. The appointment of Saturnino De la Cruz
as Chief Aviation Regulation Officer is disapproved. De la
Cruz is hereby reverted to his former position.
xxx    xxx       xxx.”
Acting on the request for reconsideration filed by
respondent, the CSC rendered its Resolution No. 99-1451
on July 6, 1999, the dispositive portion of which reads:
“WHEREFORE, the instant motion for reconsideration of
Saturnino dela Cruz is hereby denied.  Accordingly, CSC
Resolution No. 98-2970 dated November 13, 1998 stands.”
On August 11, 1999, respondent filed a petition for review
with the Court of Appeals, docketed as CA-G.R. SP No.
54088, seeking to nullify CSC Resolution Nos. 98-2970 and
99-1451.
In a decision dated March 14, 2003, the Court of Appeals
granted the petition by setting aside CSC Resolution Nos.
98-2970 and 99-1451 and approving respondent’s
appointment as Chief of the Aviation Safety Regulation
Office.
Petitioner’s motion for reconsideration was subsequently
denied in a resolution issued on June 17, 2003.
Hence, the instant petition for review.
Petitioner contends that the appellate court erred in
approving respondent’s appointment as Chief Aviation
Safety Regulation Officer despite his failure to meet the
minimum four-year managerial and supervisory
qualification for the position. It further contends that
respondent’s completion of the required experience during
the pendency of the present case cannot be counted in his
favor because compliance with the prescribed mandatory
requirements should be as of the date of issuance of the
appointment and not the date of approval by the CSC or the
resolution of the protest against the appointment.
The petition lacks merit.
Contrary to petitioner’s contention, respondent has
sufficiently complied with the required experience
standards.
First, upon the issuance of respondent’s appointment on
November 28, 1994, the qualification standards of the
DOTC for the position of Chief Aviation Safety Regulation
Officer were as follows:
EDUCATION: Bachelor’s Degree related to
Aviation
EXPERIENCE: 4 years of experience in planning,
  organizing, directing, coordinating,
and supervising the enforcement
of air safety laws, rules, and
regulations pertaining to licensing,
rating and checking of all airmen
and mechanics and the regulation
of the activities of flying schools.
License required: Airline
Transport Rating / Flight
Operations Officer / Aircraft
Maintenance Engineer (A&P)
License / Flight Engineer License
TRAINING: In-service training in management;
specialized course in aircraft
maintenance / air carrier
operations/ flight dispatching/
aircraft accident investigation/
equipment qualification course /
flight training (local & abroad)
ELIGIBILITY: Relevant RA 1080 Career Service
  Prof. 1st Grade
Relevant Eligibility for Second
Level Position
As noted by the CSC-NCR, the contested position required
four years of work experience in managerial position(s) per
the Qualification Standards Manual prescribed by MC No.
46, s. 1993 and/or four years of experience in planning,
organizing, directing, coordinating and supervising the
enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen
and mechanics and regulation of the activities of flying
schools per the above-stated ATO-DOTC Qualification
Standards.
Petitioner’s insistence that respondent failed to meet the
four-year managerial and supervisory experience
requirement is misplaced.  It is a well-settled rule in
statutory construction that the use of the term “and/or”
means that the word “and” and the word “or” are to be used
interchangeably. The word “or” is a disjunctive term
signifying dissociation and independence of one thing from
another. Thus, the use of the disjunctive term “or” in this
controversy connotes that either the standard in the first
clause or that in the second clause may be applied in
determining whether a prospective applicant for the
position under question may qualify.
Respondent would indeed lack the required years of work
experience to qualify for the contested position if the
managerial standards in the first clause above were to be
strictly followed. At the time of his permanent appointment
on November 28, 1994 as Chief Aviation Safety Regulation
Officer, respondent had a little over one year of managerial
experience from his designation as Acting Chief of the
Aviation Safety Division during the latter part of 1993. 
However, the work already rendered by respondent in the
ATO at the time of his appointment was well within the
supervisory standard in the second clause. Planning,
organizing, directing, coordinating and supervising the
enforcement of air safety laws, rules and regulations
pertaining to licensing, rating and checking of all airmen
and mechanics and regulation of the activities of flying
schools were part of the work performed by respondent for
more than 13 years prior to his appointment.
Before respondent was appointed to the contested
position, he had held several other positions in the ATO,
namely:
March 6, 1981 to July 15, Supply Checker
1981
Junior Aeronautical
July 16, 1981 to February Engineer
5, 1983
February 6, 1983 to Air Carrier Safety
February 29, 1984 Inspector
March 1, 1984 to Check Pilot I
February 28, 1987
Check Pilot II
March 1, 1987 to
November 27, 1994 Chief Aviation Safety
Regulation Officer
November 28, 1994 to
date
These positions, spanning more than 13 years, in four of
the five sections of the Aviation Safety Division of the ATO
definitely met the minimum supervisory experience
required of respondent for the position.
In Rapisora vs. Civil Service Commission, this Court held that
the rule that appointees must possess the prescribed
mandatory requirements cannot be so strictly interpreted
as to curtail an agency’s discretionary power to appoint, as
long as the appointee possesses other qualifications
required by law.  The appellate court was therefore correct
in setting aside the assailed CSC resolutions and
considering the respondent’s total work experience as
sufficient to meet the supervisory standards under the
second clause, thereby finding respondent qualified for
appointment to the contested position.
Second, respondent’s promotional appointment was issued
in accordance with petitioner’s selection process.
Respondent passed the rigid screening of the ATO
Personnel Selection/Promotion Board as well as the oral
and written examinations of the DOTC Selection Board.
DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:
1.  Capt. dela Cruz has been with the Air Transportation
Office for more than 13 years already and during such
period, he faithfully and efficiently (served in) four of the
five sections of the Aviation Safety Division of which the
position under consideration is the head, thereby gaining
more varied experience and working knowledge of the
most important and sensitive functions of the Division over
other applicants;
2.  The recommendee always performs his assigned tasks
promptly with dedication, integrity, high sense of
responsibility and professionalism which he had
demonstrated when he established and developed the
Airport Crash Rescue Organization (ACRO) procedure to
various national airports of the country, and when he
organized the Air Transportation Office (ATO) Operations
Center which is now on a 24-hour operation and serving as
the nerve center of this Office;
3.  He is a dedicated public servant and is always willing to
respond to call of duty even beyond office hours like when
he is flying the ATO’s aircraft for navigation aide check
during holidays and weekends, aside from conducting
checkride to airmen prior to issuance of the pilot license;
4.  Capt. dela Cruz is an outstanding team worker as well as
a leader and promotes enthusiasm among co-workers. He
handles all areas of job with minimal supervision and
accomplishes objectives efficiently. He accepts stress
situations and performs extremely well.
Because of respondent’s excellent credentials, DOTC
Assistant Secretary for Administrative and Legal Affairs
Wilfredo M. Trinidad, chair of the Personnel Selection
Board, strongly recommended his promotional
appointment to the contested position.
Third, respondent’s multifarious experiences and trainings
in air transportation were taken into account when he was
chosen for the subject position. Respondent not only
showed a continuing interest to improve his expertise in
the field of air transportation, he also acquired an Airline
Transport Pilot’s License in 1998. As a privileged holder of
such license, respondent exercised administrative
supervision and control over pilots, cabin and crew
members to ensure compliance with air safety laws, rules
and regulations.
In addition, respondent’s dedication to the service was
demonstrated by his conceptualization and establishment
of the Airport Crash Rescue Organization (ACRO)
procedure in various national airports in the country to
ensure the security of both airport personnel and
passengers. Respondent also organized the Air
Transportation Office Operations Center which now
provides air service assistance on a 24-hour basis.
Because of respondent’s commendable performance, he
was designated Chief of the Air Transportation Office
Operations Center in 1993 per Office Order No. 178-93, in
addition to his duties as Check Pilot II. He was also
designated Acting Chief, Aviation Safety Division, of the
ATO per Office Order No. 211-93. 
In Teologo vs. Civil Service Commission, the Supreme Court
ruled:
“Promotions in the Civil Service should always be made on
the basis of qualifications, including occupational
competence, moral character, devotion to duty, and, not
least important, loyalty to the service. The last trait should
always be given appropriate weight, to reward the civil
servant who has chosen to make his employment in the
Government a lifetime career in which he can expect
advancement through the years for work well done.
Political patronage should not be necessary. His record
alone should be sufficient assurance that when a higher
position becomes vacant, he shall be seriously considered
for the promotion and, if warranted, preferred to less
devoted aspirants.”
As stated by ATO Executive Director Manuel Gilo in his
letter to CSC-NCR Director Nelson Acebedo, “a proven
excellent performance of a person is better than just
experience by occupying a position but lacks dedication to
duty, strong leadership and technical know-how.”
It is elementary in the law of public officers that the power
to appoint is in essence discretionary on the part of the
proper authority.  In Salles vs. Francisco, et al., we had
occasion to rule that, in the appointment or promotion of
employees, the appointing authority considers not only
their civil service eligibilities but also their performance,
education, work experience, trainings and seminars
attended, agency examinations and seniority.
Consequently, the appointing authority has the right of
choice which he may exercise freely according to his best
judgment, deciding for himself who is best qualified among
those who have the necessary qualifications and
eligibilities. The final choice of the appointing authority
should be respected and left undisturbed. Judges should
not substitute their judgment for that of the appointing
authority.
In the appointment of division chiefs, as in this case, the
power to appoint rests on the head of the department.
Sufficient if not plenary discretion should be granted to
those entrusted with the responsibility of administering
the offices concerned. They are in a position to determine
who can best fulfill the functions of the office vacated. Not
only is the appointing authority the officer primarily
responsible for the administration of the office, he is also in
the best position to determine who among the prospective
appointees can efficiently discharge the functions of the
position.
Respondent was the uncontested choice of the appointing
authority. Then DOTC Secretary Jesus B. Garcia dismissed
the protest against respondent’s appointment. ATO
Executive Director Gilo also noted respondent’s full
compliance with the qualifications for the position. CSC-
NCR Director Acebedo, who previously recalled
respondent’s appointment, later affirmed it after a re-
evaluation of the case and declared his previous ruling
unofficial and inexistent.
Clearly then, there is no reason to disapprove the
appointment of respondent as Chief of the Aviation Safety
Regulation Office considering that he is fully qualified and
evidently the choice of the appointing authority. Between
the Commission and the appointing authority, we sustain
the latter. “Every particular job in an office calls for both
formal and informal qualifications. Formal qualifications
such as age, number of academic units in a certain course,
seminars attended, etc., may be valuable but so are such
intangibles as resourcefulness, team spirit, courtesy,
initiative, loyalty, ambition, prospects for the future and
best interest of the service. Given the demands of a certain
job, who can do it best should be left to the head of the
office concerned provided the legal requirements for the
office are satisfied.”
We, however, agree with petitioner that the reckoning
point in determining the qualifications of an appointee is
the date of issuance of the appointment and not the date of
its approval by the CSC or the date of resolution of the
protest against it. We need not rule on petitioner’s
assertion that respondent’s subsequent compliance with
the experience standards during the pendency of the case
should not be counted in his favor since respondent was
anyway qualified for the position at the time of his
appointment.
But even assuming for the sake of argument that
respondent failed to meet the experience requirement to
qualify for the contested position, we are still inclined to
uphold the appellate court’s approval of respondent’s
appointment. Petitioner itself has, on several occasions,
allowed the appointment of personnel who were initially
lacking in experience but subsequently obtained the same.
In Civil Service Commission Resolution No. 97-0191 dated
January 9, 1997, it ruled thus:
“A careful evaluation of the qualifications of Josue reveals
that he meets the education, training and eligibility
requirements of the position.  Considering that Josue has
already in his favor three (3) years and eight (8) months
experience as Senior Inspector up to the present, he has
substantially satisfied the four (4) years experience
required for the appointment as Chief Inspector.”
Following petitioner’s line of reasoning, respondent is
deemed to have satisfactorily complied with the experience
requirement for the contested position when he was
designated Chief of the ATO Operations Center and Acting
Chief of the ATO Aviation Safety Division. Having held said
positions from 1993 to the present, respondent may be
considered to have acquired the necessary experience for
the position.
WHEREFORE, the instant petition is hereby DENIED.  The
decision of the Court of Appeals setting aside CSC
Resolution No. 98-2970 and CSC Resolution No. 99-1451 is
AFFIRMED.  The appointment of Saturnino de la Cruz as
Chief Aviation Safety Regulation Officer is APPROVED.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Austria-
Martinez, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and
Chico-Nazario, JJ., concur.
Puno, Panganiban, Sandoval-Gutierrez, and Carpio, JJ., on
official leave.
Penned by Associate Justice Bennie A. Adefuin-De La Cruz
and concurred in by Associate Justices Mercedes Gozo-
Dadole and Mariano C. Del Castillo of the Ninth Division.
Rollo, p. 44.
Rollo, pp. 35-38.
Rollo, p. 42.
Rollo, p. 66.
Rollo, p. 48.
Romulo Mabanta Buenaventura Sayoc & De los Angeles vs.
Home Development Mutual Fund, 333 SCRA 777 [2000].
People of the Philippines vs. Martin, 39 SCRA 430 [1971].
Rollo, p. 63.
228 SCRA 622 [1993].
Rollo, pp. 135-136.
Records show that the trainings attended by respondent de
la Cruz both internationally and locally included the
following: (a) Aircraft Accident Investigation per certificate
dated October 4, 1985 from the University of Southern
California, Institute of Safety and Systems Management; (b)
9th OAA Flight Safety Seminar per certificate dated May 13-
14, 1987, Orient Airlines Association; (c) FOKKER 50
course of instruction for pilots from July 4, 1988 to July 13,
1988 per certificate dated July 12, 1988, Fokker B. V.
Holland; (d) C-130A Conversion Course No. 1 per
certificate dated August 15, 1988, Aboitiz Air Transport; (e)
Initial Super King Air 300 Ground and Flight Training as
per certificate dated October 5, 1988 from Elliott Flying
Service, Inc., Quad-City Airport, Moline, IL.; (f) Airspace
Systems Inspection Pilot conducted by the FAA Academy
per certificate dated December 7, 1989 from the U.S.
Department of Transportation, Federal Aviation
Administration; (g) Aviation Accident Investigation per
certificate dated June 15, 1990 from the Institute of
Aviation Safety, Stockholm, Sweden; (h) Aviation Safety
International Conference per certificate dated March 12,
1991 from the Air Safety Foundation Philippines and
Philippine Exhibition Services Organization, Inc.; (i) Kinr
Air 200/B200 Pilot Initial per certificate dated September
29, 1995 from Flight Safety International; (j) A 340
Transition Course per attestation dated June 19, 1996 from
Airbus Industrie Training Centre in Blagnac; and (k) Ascent
to Excellence Program per certificate dated April 26, 1997
from the Asian Institute of Management.
License No. 88A27; Rollo, p. 138.
Rollo, p. 139.
Rollo, p. 140.
191 SCRA 238 [1990].
Rollo, p. 50.
206 SCRA 621 [1992].
Central Bank of the Philippines and Jordan vs. Civil service
Commission, 171 SCRA 744 [1989].
Villegas vs. Subido, 30 SCRA 498 [1969].
Medenilla vs. Civil Service Commission, 194 SCRA 278
[1991].
Torio vs. Civil Service Commission, 209 SCRA 691 [1992].
PHILIPPINE JURISPRUDENCE – FULL
TEXT
The Lawphil Project - Arellano Law
Foundation
G.R. No. 167472             January 31,
2006
CIVIL SERVICE COMMISSION VS. ENGR.
ALI P. DARANGINA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 167472             January 31, 2007
CIVIL SERVICE COMMISSION, Petitioner,
vs.
ENGR. ALI P. DARANGINA, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review
on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to reverse the
Resolutions of the Court of Appeals dated October 7,
20041 and March 18, 20052 in CA-G.R. SP No. 71353.
The undisputed facts are:
Engr. Ali P. Darangina, respondent, was a
development management officer V in the Office of
Muslim Affairs (OMA). On September 25, 2000, he
was extended a temporary promotional appointment
as director III, Plans and Policy Services, in the same
office. On October 11, 2000, the Civil Service
Commission (CSC), petitioner, approved this
temporary appointment effective for one (1) year
from the date of its issuance unless sooner
terminated.
On October 31, 2000, newly appointed OMA
Executive Director Acmad Tomawis terminated the
temporary appointment of respondent on the ground
that he is not a career executive service eligible.
Tomawis then appointed Alongan Sani as director III.
But he is not also a career executive service eligible.
Thus, the CSC disapproved his appointment, stating
that respondent could only be replaced by an
eligible.
On appeal by respondent, the CSC issued Resolution
No. 01-1543 dated September 18, 2001 sustaining
the termination of his temporary appointment but
ordering the payment of his salaries from the time he
was appointed on September 25, 2000 until his
separation on October 31, 2000.
Respondent filed a motion for reconsideration. On
March 20, 2002, the CSC issued Resolution No. 02-
439 granting the same with modification in the sense
that respondent should be paid his backwages from
the time his employment was terminated on October
11, 2000 until September 24, 2001, the expiration
of his one year temporary appointment.
On April 3, 2002, respondent filed a motion for
partial reconsideration, praying for his
reinstatement as director III and payment of
backwages up to the time he shall be reinstated.
On June 5, 2002, the CSC issued Resolution No. 02-
782 denying respondent’s motion for partial
reconsideration being a second motion for
reconsideration which is prohibited.
Respondent then filed a petition for review with the
Court of Appeals, docketed as CA-G.R. SP No. 71353.
But in its Resolution of February 27, 2004, the
petition was dismissed for his failure to implead the
OMA Executive Director and the incumbent of the
disputed position.
Respondent filed a motion for reconsideration.
In a Resolution dated October 7, 2004, the Court of
Appeals reconsidered its Decision of February 27,
2004, thus:
ACCORDINGLY, our Decision of February 27, 2004 is
RECONSIDERED and the assailed CSC resolutions are
hereby MODIFIED in that the petitioner is
reinstated to his post to finish his 12-month term
with backwages from the date of his removal
until reinstatement.
SO ORDERED.
The CSC filed a motion for reconsideration but it was
denied by the Court of Appeals in a Resolution dated
March 28, 2005.
Section 27, Chapter 5, Subtitle A, Title I, Book V of the
Administrative Code of 1987, as amended, classifying
the appointment status of public officers and
employees in the career service, reads:
SEC. 27. Employment Status. – Appointment in the
career service shall be permanent or temporary.
(1) Permanent status. A permanent appointment
shall be issued to a person who meets all the
requirements for the position to which he is being
appointed, including appropriate eligibility
prescribed, in accordance with the provisions of law,
rules and standards promulgated in pursuance
thereof.
(2) Temporary appointment. In the absence of
appropriate eligibles and it becomes necessary in the
public interest to fill a vacancy, a temporary
appointment shall be issued to a person who meets
all the requirements for the position to which he is
being appointed except the appropriate civil service
eligibility: Provided, That such temporary
appointment shall not exceed twelve months, but the
appointee may be replaced sooner if a qualified civil
service eligible becomes available.
It is clear that a permanent appointment can issue
only to a person who possesses all the requirements
for the position to which he is being appointed,
including the appropriate eligibility.3 Differently
stated, as a rule, no person may be appointed to a
public office unless he or she possesses the requisite
qualifications. The exception to the rule is where, in
the absence of appropriate eligibles, he or she may
be appointed to it merely in a temporary capacity.
Such a temporary appointment is not made for the
benefit of the appointee. Rather, an acting or
temporary appointment seeks to prevent a hiatus in
the discharge of official functions by authorizing a
person to discharge the same pending the selection
of a permanent appointee.4 In Cuadra v. Cordova,5
this Court defined a temporary appointment as "one
made in an acting capacity, the essence of which lies
in its temporary character and its terminability at
pleasure by the appointing power." Thus, the
temporary appointee accepts the position with the
condition that he shall surrender the office when
called upon to do so by the appointing authority.
Under Section 27 (2), Chapter 5, Subtitle A, Title I,
Book V of the same Code, the term of a temporary
appointment shall be 12 months, unless sooner
terminated by the appointing authority. Such pre-
termination of a temporary appointment may be
with or without cause as the appointee serves
merely at the pleasure of the appointing power.6
Under the Revised Qualifications Standards
prescribed by the CSC, career executive service
eligibility is a necessary qualification for the position
of director III in Plans and Policy Services, OMA. It is
not disputed that on September 25, 2000, when
respondent was extended an appointment, he was
not eligible to the position, not being a holder of such
eligibility. Hence, his appointment was properly
designated as "temporary." Then on October 31,
2000, newly-appointed OMA Executive Director
Tomawis recalled respondent’s temporary
appointment and replaced him by appointing
Alongan Sani. It turned out, however, that Sani is not
likewise qualified for the post. A game of musical
chairs then followed. Sani was subsequently replaced
by Tapa Umal, who in turn, was succeeded by Camad
Edres, and later, was replaced by Ismael Amod. All
these appointees were also disqualified for lack of
the required eligibility.
The Court of Appeals ruled that such replacements
are not valid as the persons who replaced
respondent are not also eligible. Also, since he was MINITA CHICO- CANCIO C.
replaced without just cause, he is entitled to serve NAZARIO GARCIA
the remaining term of his 12-month term with Associate Justice Asscociate Justice
salaries.

This Court has ruled that where a non-eligible holds

a temporary appointment, his replacement by CONSUELO MA. ALICIA
another non-eligible is not prohibited.7 YNARES- AUSTRIA-
SANTIAGO MARTINEZ
Moreover, in Achacoso8 cited earlier, this Court held Associate Justice Asscociate Justice
that when a temporary appointee is required to
relinquish his office, he is being separated precisely
because his term has expired. Thus, reinstatement
will not lie in favor of respondent. Starkly put, with CONCHITA
ADOLFO S.
the expiration of his term upon his replacement, CARPIO
AZCUNA
there is no longer any remaining term to be MORALES
Asscociate Justice
served. Consequently, he can no longer be Associate Justice
reinstated.

As to whether respondent is entitled to back salaries,

it is not disputed that he was paid his salary during PRESBITERO J.
DANTE O. TINGA
the entire twelve-month period in spite of the fact VELASCO
Associate Justice
that he served only from September 25, 2000 to Asscociate Justice
October 31, 2000, or for only one month and six
days. Clearly, he was overpaid.
CERTIFICATION
WHEREFORE, this Court GRANTS the petition and
REVERSES the assailed Resolutions of the Court of Pursuant to Section 13, Article VIII of the
Appeals. Considering that respondent’s employment Constitution, it is hereby certified that the
was validly terminated on October 31, 2000, he is conclusions in the above Decision were reached in
ordered to refund the salaries he received from that consultation before the case was assigned to the
date up to September 24, 2001. writer of the opinion of the Court.

No costs. REYNATO S. PUNO

Chief Justice
SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice Footnotes

1
WE CONCUR: Rollo, pp. 27-32. Penned by Associate Justice Mario
L. Guariñ a III (retired) and concurred in by Associate
REYNATO S. PUNO Justice Martin S. Villarama, Jr., and Associate Justice
Chief Justice Vicente S.E. Veloso.

2
Id., pp. 33-34.
LEONARDO A. ANTONIO T.
3
QUISUMBING CARPIO Achacoso v. Macaraig, G.R. No. 93023, March 13,
Associate Justice Asscociate Justice 1991, 195 SCRA 235, 239.

4
Id. at p. 240, citing Austria v. Amante, 79 Phil.780
(1948).
RENATO C. ROMEO J.
CORONA CALLEJO, SR. 5
103 Phil. 391 (1958).
Associate Justice Asscociate Justice
6
Austria v. Amante, supra, Summers v. Ozaeta, 81 Phil.
754 (1948), Orais v. Ribo, 95 Phil. 985 (1953), Paño v.

Medina, 94 Phil. 103 (1953), Amora v. Bibera, 99 Phil.
1(1956), Pineda v. Velez, 100 Phil. 1085 (1956),
Cayabyab v. Cayabyab, 101 Phil. 681 (1957),
Villanueva v. Alera, 101 Phil. 1230 (1957), Cuadra v.
Cordova, 103 Phil. 391 (1958), Erauda v. Del Rosario,
103 Phil. 489 (1958), Madrid v. Auditor General, 108
Phil. 578 (1960), Ferrer v. de Leon, 109 Phil. 202
(1960), Hoijilla v. Mariño, G.R. No. 20574, February
26, 1965, 13 SCRA 293, Aguila v. Castro, G.R. No.
23778, December 24, 1965, 15 SCRA 565, Santos v.
Chico, G.R. No. 24153, September 28, 1968, 25 SCRA
343, Mendiola v. Tancinco, G.R. No. 26950, July 13,
1973, 52 SCRA 66, Rodriguez, Jr. v. Rodriguez, Jr., G.R.
Nos. 41381-82, January 30, 1976, 69 SCRA 276,
Abrot v. Court of Appeals, G.R. No. 40641, September
8, 1982, 116 SCRA 468.
7
Orais v. Ribo, 93 Phil. 985 (1953), Peña v. City Mayor
of Ozamis, 94 Phil. 103 (1954), Quiatchon v.
Villanueva and City of Bacolod, 101 Phil. 989 (1957),
Montero v. Castellanos, 108 Phil. 744 (1978), Cuñado
v. Gamus, G.R. Nos. 16782-83, May 30, 1963, 8 SCRA
77.
8
Supra, footnote 3.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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:
You are hereby designated ACTING CHAIRMAN,
COMMISSION ON HUMAN RIGHTS, to succeed the late
Senator Jose W. Diokno and Justice J. B. L. Reyes.
Very truly yours,
CORAZON C. AQUINO
HON. MARY CONCEPCION BAUTISTA 3
Realizing perhaps the need for a permanent chairman and
members of the Commission on Human Rights, befitting an
independent office, as mandated by the Constitution, 4 the
President of the Philippines on 17 December 1988
extended to petitioner Bautista a permanent appointment
as Chairman of the Commission. The appointment letter is
as follows:
17 December 1988
The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila
M a d a m:
Pursuant to the provisions of existing laws, the following
are hereby appointed to the positions indicated opposite
their respective names in the Commission on Human
Rights:
MARY CONCEPCION BAUTISTA — Chairman
ABELARDO L. APORTADERA, JR — Member
SAMUEL SORIANO — Member
HESIQUIO R. MALLILLIN — Member
NARCISO C. MONTEIRO — Member
By virtue hereof, they may qualify and enter upon the
performance of the duties of the office furnishing this Office
and the Civil Service Commission with copies of their oath
of office.
Very truly yours,
CORAZON C. AQUINO 5
It is to be noted that by virtue of such appointment,
petitioner Bautista was advised by the President that she
could qualify and enter upon the performance of the duties
of the office of Chairman of the Commission on Human
Rights, requiring her to furnish the office of the President
and the Civil Service Commission with copies of her oath of
office.
On 22 December 1988, before the Chief Justice of this
Court, Hon. Marcelo B. Fernan, petitioner Bautista took her
oath of office by virtue of her appointment as Chairman of
the Commission on Human Rights. The full text of the oath
of office is as follows:
OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del
Pilar Street, Bangkal, Makati, Metro Manila having been
appointed to the position of CHAIRMAN of the Commission
on Human Rights, do solemnly swear that I will discharge
to the best of my ability all the duties and responsibilities of
the office to which I have been appointed; uphold the
Constitution of the Republic of the Philippines, and obey all
the laws of the land without mental reservation or purpose
of evasion.
SO HELP ME GOD.
MARY CONCEPCION BAUTISTA
SUBSCRIBED AND SWORN TO before me this 22nd day of
December in the year of Our Lord, 1988 in Manila.
MARCELO B. FERNAN
Chief Justice
Supreme Court of the Philippines 6
Immediately, after taking her oath of office as Chairman of
the Commission on Human Rights, petitioner Bautista
discharged the functions and duties of the Office of
Chairman of the Commission on Human Rights which, as
previously stated, she had originally held merely in an
acting capacity beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter
from the Secretary of the Commission on Appointments
requesting her to submit to the Commission certain
information and documents as required by its rules in
connection with the confirmation of her appointment as
Chairman of the Commission on Human Rights. 7 On 10
January 1989, the Commission on Appointments' Secretary
again wrote petitioner Bautista requesting her presence at
a meeting of the Commission on Appointments Committee
on Justice, Judicial and Bar Council and Human Rights set
for 19 January 1989 at 9 A.M. at the Conference Room, 8th
Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that
would deliberate on her appointment as Chairman of the
Commission on Human Rights. 8
On 13 January 1989, petitioner Bautista wrote to the
Chairman of the Commission on Appointments stating, for
the reasons therein given, why she considered the
Commission on Appointments as having no jurisdiction to
review her appointment as Chairman of the Commission on
Human Rights. The petitioner's letter to the Commission on
Appointments' Chairman reads:
January 13, 1 989
SENATE PRESIDENT JOVITO R. SALONGA
Chairman
Commission on Appointments
Senate, Manila
S i r:
We acknowledge receipt of the communication from the
Commission on Appointments requesting our appearance
on January 19, 1989 for deliberation on our appointments.
We respectfully submit that the appointments of the
Commission commissioners of the Human Rights
Commission are not subject to confirmation by the
Commission on Appointments.
The Constitution, in Article VII Section 16 which expressly
vested on the President the appointing power, has
expressly mentioned the government officials whose
appointments are subject to the confirmation of the
Commission on Appointments of Congress. The
Commissioners of the Commission on Human Rights are
not included among those.
Where the confirmation of the Commission on
Appointments is required, as in the case of the
Constitutional Commissions such as the Commission on
Audit, Civil Service Commission and the Commission on
Elections, it was expressly provided that the nominations
will be subject to confirmation of Commission on
Appointments. The exclusion again of the Commission on
Human Rights, a constitutional office, from this
enumeration is a clear denial of authority to the
Commission on Appointments to review our appointments
to the Commission on Human Rights.
Furthermore, the Constitution specifically provides that
this Commission is an independent office which:
a. must investigate all forms of human rights violations
involving civil and political rights;
b. shall monitor the government's compliance in all our
treaty obligations on human rights. We submit that, the
monitoring of all agencies of government, includes even
Congress itself, in the performance of its functions which
may affect human rights;
c. may call on all agencies of government for the
implementation of its mandate.
The powers of the Commission on Appointments is in fact a
derogation of the Chief Executive's appointing power and
therefore the grant of that authority to review a valid
exercise of the executive power can never be presumed. It
must be expressly granted.
The Commission on Appointments has no jurisdiction
under the Constitution to review appointments by the
President of Commissioners of the Commission on Human
Rights.
In view of the foregoing considerations, as Chairman of an
independent constitutional office. I cannot submit myself to
the Commission on Appointments for the purpose of
confirming or rejecting my appointment.
Very truly yours,
MARY CONCEPCION BAUTISTA
Chairman 9
In respondent Commission's comment (in this case), dated
3 February 1989, there is attached as Annex 1 a letter of
the Commission on Appointments' Secretary to the
Executive Secretary, Hon. Catalino Macaraig, Jr. making
reference to the "ad interim appointment which Her
Excellency extended to Atty. Mary Concepcion Bautista on
14 January 1989 as Chairperson of the Commission on
Human Rights" 10 and informing Secretary Macaraig that, as
previously conveyed to him in a letter of 25 January 1989,
the Commission on Appointments disapproved petitioner
Bautista's "ad interim appointment' as Chairperson of the
Commission on Human Rights in view of her refusal to
submit to the jurisdiction of the Commission on
Appointments. The letter reads:
1 February 1989
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
S i r:
This refers to the ad interim appointment which Her
Excellency extended to Atty. Mary Concepcion Bautista on
14 January 1989 as Chairperson of the Commission on
Human Rights.
As we conveyed to you in our letter of 25 January 1989, the
Commission on Appointments, assembled in plenary
(session) on the same day, disapproved Atty. Bautista's ad
interim appointment as Chairperson of the Commission on
Human Rights in view of her refusal to submit to the
jurisdiction of the Commission on Appointments.
This is to inform you that the Commission on
Appointments, likewise assembled in plenary (session)
earlier today, denied Senator Mamintal A. J. Tamano's
motion for reconsideration of the disapproval of Atty.
Bautista's ad interim appointment as Chairperson of the
Commission on Human Rights.
Very truly yours,
RAOUL V. VICTORINO
Secretary 11
On the same date (1 February 1989), the Commission on
Appointments' Secretary informed petitioner Bautista that
the motion for reconsideration of the disapproval of her
"ad interim appointment as Chairman of the Commission
on Human Rights" was denied by the Commission on
Appointments. The letter reads as follows:
1 February 1989
ATTY. MARY CONCEPCION BAUTISTA
Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the
Commission on Appointments, the denial by the
Commission on Appointments, assembled in plenary
(session) earlier today, of Senator Mamintal A.J. Tamano's
motion for reconsideration of the disapproval of your ad
interim appointment as Chairperson of the Commission on
Human Rights is respectfully conveyed.
Thank you for your attention.
Very truly yours,
RAOUL V. VICTORINO
Secretary 12
In Annex 3 of respondent Commission's same comment,
dated 3 February 1989, is a news item appearing in the 3
February 1989 issue of the "Manila Standard" reporting
that the President had designated PCHR Commissioner
Hesiquio R. Mallillin as "Acting Chairman of the
Commission" pending the resolution of Bautista's case
which had been elevated to the Supreme Court. The news
item is here quoted in full, thus —
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential
Commission on Human Rights Chairman Mary Concepcion
Bautista whose appointment was rejected anew by the
Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R.
Mallillin as acting chairman of the Commission pending the
resolution of Bautista's case which had been elevated to the
Supreme Court.
The President's action followed after Congressional
Commission on Appointments Chairman, Senate President
Jovito Salonga declared Bautista can no longer hold on to
her position after her appointment was not confirmed for
the second time.
For all practical purposes, Salonga said Bautista can be
accused of usurpation of authority if she insists to stay on
her office.
In effect, the President had asked Bautista to vacate her
office and give way to Mallillin (Mari Villa) 13
On 20 January 1989, or even before the respondent
Commission on Appointments had acted on her "ad interim
appointment as Chairman of the Commission on Human
Rights" petitioner Bautista filed with this Court the present
petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and
unconstitutional and without any legal force and effect any
action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human
Rights, on the lawfully extended appointment of the
petitioner as Chairman of the Commission on Human
Rights, on the ground that they have no lawful and
constitutional authority to confirm and to review her
appointment." 14
The prayer for temporary restraining order was "to enjoin
the respondent Commission on Appointments not to
proceed further with their deliberation and/or proceedings
on the appointment of the petitioner ... nor to enforce,
implement or act on any order, resolution, etc. issued in the
course of their deliberations." 15
Respondents were required to file comment within ten
(10) days. 16 On 7 February 1989, petitioner filed an
amended petition, with urgent motion for restraining
order, impleading Commissioner Hesiquio R. Mallillin the
designated acting chairman as party respondent and
praying for the nullification of his appointment. The
succeeding day, a supplemental urgent ex-parte motion
was filed by petitioner seeking to restrain respondent
Mallillin from continuing to exercise the functions of
chairman and to refrain from demanding courtesy
resignations from officers or separating or dismissing
employees of the Commission.
Acting on petitioner's amended petition and supplemental
urgent ex-parte motion, the Court resolved to issue a
temporary restraining order directing respondent Mallillin
to cease and desist from effecting the dismissal, courtesy
resignation, i removal and 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 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 Constitution, extend only to
appointments where the review of the Commission on
Appointments is needed. That is why ad interim
appointments are to remain valid until disapproval by the
Commission on Appointments or until the next
adjournment of Congress; but appointments that are for
the President solely to make, that is, without the
participation of the Commission on Appointments, can not
be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING
THAT THE TENURE OF THE CHAIRMAN AND MEMBERS
OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT
THE PLEASURE OF THE PRESIDENT IS
UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without
confirmation by the Commission on Appointments,
petitioner Bautista, as Chairman of the Commission on
Human Rights, can be removed from said office at anytime,
at the pleasure of the President; and that with the
disapproval of Bautista's appointment (nomination) by the
Commission on Appointments, there was greater reason for
her removal by the President and her replacement with
respondent Mallillin Thus, according to respondent
Mallillin the petition at bar has become moot and academic.
We do not agree that the petition has become moot and
academic. To insist on such a posture is akin to deluding
oneself that day is night just because the drapes are drawn
and the lights are on. For, aside from the substantive
questions of constitutional law raised by petitioner, the
records clearly show that petitioner came to this Court in
timely manner and has not shown any indication of
abandoning her petition.
Reliance is placed by respondent Mallillin on Executive
Order No. 163-A, 30 June 1987, full text of which is as
follows:
WHEREAS, the Constitution does not prescribe the term of
office of the Chairman and Members of the Commission on
Human Rights unlike those of other Constitutional
Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of
the Philippines, do hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order
No. 163 is hereby amended to read as follows:
The Chairman and Members of the Commission on Human
Rights shall be appointed by the President. Their tenure in
office shall be at the pleasure of the President.
SEC. 2. This Executive Order shall take effect immediately.
DONE in the City of Manila, this 30th day of June, in the
year of Our Lord, nineteen hundred and eighty-seven.
(Sgd.) CORAZON C. AQUINO
President of the Philippines
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987,
Executive Order No. 163 25 was issued by the President,
Sec. 2(c) of which provides:
Sec. 2(c). The Chairman and the Members of the
Commission on Human Rights shall be appointed by the
President for a term of seven years without reappointment.
Appointments to any vacancy shall be only for the
unexpired term of the predecessor.
It is to be noted that, while the earlier executive order (No.
163) speaks of a term of office of the Chairman and
Members of the Commission on Human Rights — which is
seven (7) years without reappointment — the later
executive order (163-A) speaks of the tenure in office of the
Chairman and Members of the Commission on Human
Rights, which is "at the pleasure of the President."
Tenure in office should not be confused with term of office.
As Mr. Justice (later, Chief Justice) Concepcion in his
concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important,
for, pursuant to the Constitution, "no officer or employee in
the Civil Service may be removed or suspended except for
cause, as provided by law" (Art. XII, section 4), and this
fundamental principle would be defeated if Congress could
legally make the tenure of some officials dependent upon
the pleasure of the President, by clothing the latter with
blanket authority to replace a public officer before the
expiration of his term. 27
When Executive Order No. 163 was issued, the evident
purpose was to comply with the constitutional provision
that "the term of office and other qualifications and
disabilities of the Members of the Commission (on Human
Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987
Constitution).
As the term of office of the Chairman (and Members) of the
Commission on Human Rights, is seven (7) years, without
reappointment, as provided by Executive Order No. 163,
and consistent with the constitutional design to give the
Commission the needed independence to perform and
accomplish its functions and duties, the tenure in office of
said Chairman (and Members) cannot be later made
dependent on the pleasure of the President.
Nor can respondent Mallillin find support in the majority
opinion in the Alba case, supra, because the power of the
President, sustained therein, to replace a previously
appointed vice-mayor of Roxas City given the express
provision in Sec. 8, Rep. Act No. 603 (creating the City of
Roxas) stating that the vice-mayor shall serve at the
pleasure of the President, can find no application to the
Chairman of an INDEPENDENT OFFICE, created not by
statute but by the Constitution itself. Besides, unlike in the
Alba case, here the Constitution has decreed that the
Chairman and Members of the Commission on Human
Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to
conceptualize how an office conceived and created by the
Constitution to be independent as the Commission on
Human Rights-and vested with the delicate and vital
functions of investigating violations of human rights,
pinpointing responsibility and recommending sanctions as
well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office
of its Chairman and Members is made dependent on the
pleasure of the President. Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence
for the Commission on Human Rights has to be declared
unconstitutional.
The Court is not alone in viewing Executive Order No. 163-
A as containing the seeds of its constitutional destruction.
The proceedings in the 1986 Constitutional Commission
clearly point to its being plainly at war with the
constitutional intent of independence for the Commission.
Thus —
MR. GARCIA (sponsor). Precisely, one of the reasons why it
is important for this body to be constitutionalized is the
fact that regardless of who is the President or who holds
the executive power, the human rights issue is of such
importance that it should be safeguarded and it should be
independent of political parties or powers that are actually
holding the reins of government. Our experience during the
martial law period made us realize how precious those
rights are and, therefore, these must be safeguarded at all
times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do
not want the term or the power of the Commission on
Human Rights to be coterminous with the president,
because the President's power is such that if he appoints a
certain commissioner and that commissioner is subject to
the President, therefore, any human rights violations
committed under the person's administration will be
subject to presidential pressure. That is what we would like
to avoid — to make the protection of human rights go
beyond the fortunes of different political parties or
administrations in power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I
conferred with the honorable Chief Justice Concepcion and
retired Justice J.B.L. Reyes and they believe that there
should be an independent Commission on Human Rights
free from executive influence because many of the
irregularities on human rights violations are committed by
members of the armed forces and members of the
executive branch of the government. So as to insulate this
body from political interference, there is a need to
constitutionalize it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether there is a
need for this to be constitutionalized, I would refer to a
previous inquiry that there is still a need for making this a
constitutional body free or insulated from interference. I
conferred with former Chief Justice Concepcion and the
acting chairman of the Presidential Committee on Human
Rights, retired Justice J.B.L. Reyes, and they are one in
saying that this body should be constitutionalized so that it
will be free from executive control or interferences, since
many of the abuses are committed by the members of the
military or the armed forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as
I have said, if we leave it to Congress, this commission will
be within the reach of politicians and of public officers and
that to me is dangerous. We should insulate this body from
political control and political interference because of the
nature of its functions to investigate all forms of human
rights violations which are principally committed by
members of the military, by the Armed Forces of the
Philippines. 31
xxx xxx xxx
MR. GARCIA. The critical factor here is political control, and
normally, when a body is appointed by Presidents who may
change, the commission must remain above these changes
in political control. Secondly, the other important factor to
consider are the armed forces, the police forces which have
tremendous power at their command and, therefore, we
would need a commission composed of men who also are
beyond the reach of these forces and the changes in
political administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this
proposed special body, in order to function effectively,
must be invested with an independence that is necessary
not only for its credibility but also for the effectiveness of
its work. However, we want to make a distinction in this
Constitution. May be what happened was that it was
referred to the wrong committee. In the opinion of the
committee, this need not be a commission that is similar to
the three constitutional commissions like the COA, the
COMELEC, and the Civil Service. It need not be in that
article. 33
xxx xxx xxx
MR. COLAYCO. The Commissioners earlier objection was
that the Office of the President is not involved in the
project. How sure are we that the next President of the
Philippines will be somebody we can trust? Remember,
even now there is a growing concern about some of the
bodies, agencies and commission created by President
Aquino. 34
xxx xxx xxx
.... Leaving to Congress the creation of the Commission on
Human Rights is giving less importance to a truly
fundamental need to set up a body that will effectively
enforce the rules designed to uphold human rights. 35
PETITIONER BAUTISTA MAY OF COURSE BE REMOVED
BUT ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the
lawful incumbent of the office of Chairman of the
Commission on Human Rights by virtue of her
appointment, as such, by the President on 17 December
1988, and her acceptance thereof, is not to say that she
cannot be removed from office before the expiration of her
seven (7) year term. She certainly can be removed but her
removal must be for cause and with her right to due
process properly safeguarded. In the case of NASECO vs.
NLRC, 36 this Court held that before a rank-and-file
employee of the NASECO, a government-owned
corporation, could be dismissed, she was entitled to a
hearing and due process. How much more, in the case of
the Chairman of a constitutionally mandated
INDEPENDENT OFFICE, like the Commission on Human
Rights.
If there are charges against Bautista for misfeasance or
malfeasance in office, charges may be filed against her with
the Ombudsman. If he finds a prima facie case against her,
the corresponding information or informations can be filed
with the Sandiganbayan which may in turn order her
suspension from office while the case or cases against her
are pending before said court. 37 This is due process in
action. This is the way of a government of laws and not of
men.
A FINAL WORD
It is to the credit of the President that, in deference to the
rule of law, after petitioner Bautista had elevated her case
to this Tribunal, Her Excellency merely designated an
Acting Chairman for the Commission on Human Rights
(pending decision in this case) instead of appointing
another permanent Chairman. The latter course would
have added only more legal difficulties to an already
difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista
is declared to be, as she is, the duly appointed Chairman of
the Commission on Human Rights and the lawful
incumbent thereof, entitled to all the benefits, privileges
and emoluments of said office. The temporary restraining
order heretofore issued by the Court against respondent
Mallillin enjoining him from dismissing or terminating
personnel of the Commission on Human Rights is made
permanent.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco,
Bidin, Cortes and Regalado, JJ., concur.
Fernan, C.J., took no part, having administered petitioner's
oath of office.
Sarmiento, J., took no part, respondent Mallillin is my godson.
 
 
Separate Opinions
 
GUTIERREZ, JR., J.: Dissenting Opinion
With all due respect for the contrary view of the majority in
the Court, I maintain that it is asking too much to expect a
constitutional ruling which results in absurd or irrational
consequences to ever become settled.
The President and Congress, the appointees concerned, and
the general public may in time accept the Sarmiento III v.
Mison ruling because this Court has the final word on what
constitutional provisions are supposed to mean but the
incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be
disturbed until the meaning of the consent power of the
Commission on Appointments is straightened out either
through a re-examination of this Court's decision or an
amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only
three sentences. The officers specified in the first sentence
clearly require confirmation by the Commission on
Appointments. The officers mentioned in the third sentence
just as clearly do not require confirmation. The problem
area lies with those in the second sentence.
I submit that we should re-examine the three groups of
presidential appointees under the three sentences of
Section 16.
The first group are the heads of executive departments,
ambassadors, other public ministers and consuls, officers
of the armed forces from colonel or naval captain, and
other officers whose appointments are vested in the
President by the Constitution. The first sentence of Section
16 state they must be confirmed by the Commission on
Appointments.
The third group are officers lower in rank whose
appointments Congress has by law vested in the President
alone. They need no confirmation.
The second group of presidential appointees are "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." To which group do they
belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?
No matter how often and how long I read the second
sentence of Section 16, I simply cannot associate the
officers mentioned therein as forming part of those
referred to in the third sentence.
Why am I constrained to hold this view?
(1) If the officers in the first group are the only appointees
who need confirmation, there would be no need for the
second and third sentences of Section 16. They become
superfluous. Any one not falling under an express listing
would need no confirmation. I think the Court is wrong in
treating two carefully crafted and significant provisions of
the fundamental law as superfluities. Except for the most
compelling reasons, which do not exist here, no
constitutional provision should be considered a useless
surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and in
our earlier dissent, the majority view results in the absurd
consequence where one of several hundred colonels and
naval captains must be confirmed but such important
officers as the Governor of the Central Bank with broad
powers over the nation's economy and future stability or
the Chairman of the Commission on Human Rights whose
office calls for no less than a constitutional mandate do not
have to be scrutinized by the Commission on
Appointments. Why should a minor consul to Timbuktu,
Mali need the thorough scrutiny during the confirmation
process while the Undersecretary of Foreign Affairs who
sends him there and who exercises control over his acts
can be appointed by the President alone? Why should we
interpret Section 16 in such a strange and irrational
manner when no strained construction is needed to give it
a logical and more traditional and understandable
meaning.?
(3) The second sentence of Section 16 starts with, "He shall
also appoint ...." Whenever we see the word "also" in a
sentence, we associate it with preceding sentences, never
with the different sentence that follows. On the other hand,
the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President
"alone." This can only mean that the higher ranking officers
in the second sentence must also be appointed with the
concurrence of the Commission on Appointments. When
the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other
and higher ranking officers as also appointed by her alone.
The strained interpretation by the Court's majority makes
the word "alone" meaningless if the officers to whom
"alone" is not appended are also included in the third
group.
(4) The third sentence of Section 16 requires a positive act
of Congress which vests an appointment in the President
alone before such an appointment is freed from the
scrutiny of the Commission on Appointments. By express
constitutional mandate, it is Congress which determines
who do not need confirmation. Under the majority ruling of
the Court, if Congress creates an important office and
requires the consent of the Commission before a
presidential appointment to that office is perfected, such a
requirement would be unconstitutional. I believe that the
Constitution was never intended to so restrict the
lawmaking power. The Court has no jurisdiction to limit the
plenary lawmaking power of the people's elected
representatives through an implied and, I must again add, a
strained reading of the plain text of Section 16. Any
restriction of legislative power must be categorical,
express, and specific-never implied or forced.
(5) The Constitution specifies clearly the presidential
appointees who do not need confirmation by the
Commission. The reason for non-confirmation is obvious.
The members of the Supreme Court and all lower courts
and the Ombudsman and his deputies are not confirmed
because the Judicial and Bar Council screens nominees
before their names are forwarded to the President. The
Vice-President as a cabinet member needs no confirmation
because the Constitution says so. He or she is chosen by the
nation's entire electorate and is only a breath away from
the Presidency. Those falling under the third sentence of
Section 16, Article VII do not have to be confirmed because
the Constitution gives Congress the authority to free lower
ranking officials whose positions are created by law from
that requirement. I believe that we in the Court have no
power to add by implication to the list of presidential
appointees whom the Constitution in clear and categorical
words declares as not needing confirmation.
(6) As stated in my dissent in Sarmiento III v. Mison, the
Commission on Appointments is an important
constitutional body which helps give fuller expression to
the democratic principles inherent in our presidential form
of government.
There are those who would render innocuous the
Commission's power or perhaps even move for its abolition
as a protest against what they believe is too much
horsetrading or sectarian politics in the exercise of its
functions. Since the President is a genuinely liked and
popular leader, personally untouched by scandal, who
appears to be motivated only by the sincerest of intentions,
these people would want the Commission to routinely
rubberstamp those whom she appoints to high office.
Unfortunately, we cannot have one reading of Section 16
for popular Presidents and another interpretation for more
mediocre disliked, and even abusive or dictatorial ones.
Precisely, Section 16 was intended to check abuse or ill-
considered appointments by a President who belongs to
the latter class.
It is not the judiciary and certainly not the appointed
bureaucracy but Congress which truly represents the
people. We should not expect Congress to act only as the
selfless Idealists, the well-meaning technocrats, the
philosophers, and the coffee-shop pundits would have it
move. The masses of our people are poor and
underprivileged, without the resources or the time to get
publicly involved in the intricate workings of Government,
and often ill-informed or functionally illiterate. These
masses together with the propertied gentry and the elite
class can express their divergent views only through their
Senators and Congressmen. Even the buffoons and
retardates deserve to have their interests considered and
aired by the people's representatives. In the democracy we
have and which we try to improve upon, the Commission
on Appointments cannot be expected to function like a
mindless machine without any debates or even
imperfections. The discussions and wranglings, the delays
and posturing are part of the democratic process. They
should never be used as arguments to restrict legislative
power where the Constitution does not expressly provide
for such a limitation.
The Commission on Human Rights is a very important
office. Our country is beset by widespread insurgency,
marked inequity in the ownership and enjoyment of wealth
and political power, and dangerous conflicts arising from
Ideological, ethnic and religious differences. The tendency
to use force and violent means against those who hold
opposite views appears irresistible to the holders of both
governmental and rebel firepower.
The President is doubly careful in the choice of the
Chairman and Members of the Commission on Human
Rights. Fully aware of the ruling in Sarmiento III v. Mison,
she wants the appointments to be a joint responsibility of
the Presidency and Congress, through the Commission on
Appointments. She wants a more thorough screening
process for these sensitive positions. She wants only the
best to survive the process.
Why should we tell both the President and Congress that
they are wrong.?
Again, I fail to see why the captain of a naval boat ordered
to fire broadsides against rebel concentrations should
receive greater scrutiny in his appointment than the
Chairman of the Human Rights Commission who has
infinitely more power and opportunity to bring the
rebellion to a just and satisfactory end.
But even if I were to agree with the Sarmiento III v. Mison
ruling, I would still include the Chairman of the Human
Rights Commission as one of the "other officers whose
appointments are vested in him in this Constitution" under
the first sentence of Section 16, Article VII. Certainly, the
chairman cannot be appointed by Congress or the Supreme
Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower
ranking officers who by law may be appointed by the head
of an executive department, agency, commission, or board.
The Constitution created the independent office. The
President was intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from the
Sarmiento III v. Mison ruling and join in the call for a re-
examination of its doctrine.
CRUZ, J., dissenting:
This is as good a time as any to re-examine our ruling in
Sarmiento v. Mison, which was adopted by the Court more
than a year ago over two dissents. The President of the
Philippines has taken a second look at it, and so too has the
Commission on Appointments representing both Houses of
the Congress of the Philippines. It appears that they are not
exactly certain now that the decision in that case was
correct after all. I believe it will not be amiss for us too, in a
spirit of humility, to read the Constitution again on the
possibility that we may have misread it before.
The ponencia assumes that we were right the first time and
that the Mison case is settled — there is no need to re-
examine it. It therefore approaches the problem at hand
from another perspective and would sustain the petitioner
on an additional ground.
The theory is that the petitioner's first appointment on 17
December 1988 was valid even if not confirmed,
conformably to Mison, and could not be replaced with the
second appointment on 14 January 1989 because there was
no vacancy to fill. By this reasoning, the opinion would
definitely avoid the question squarely presented to the
Court, viz., whether or not the Chairman of the Commission
on Human Rights is subject to confirmation as required
now by both the President of the Philippines and the
Commission on Appointments. In effect, we are asked to
reconsider the Mison ruling in the light of this supervening
significant albeit decidedly not controlling circumstance.
The majority makes its ratiocination sound so simple, but I
find I am unable to agree. I think we must address the legal
question frontally instead of falling back on a legal sleight-
of hand of now-you-see-it-now-you-don't.
As one who never agreed with the bison ruling in the first
place, I suspect that the seeming diffidence in applying it
categorically to the case at bar is due to a degree of
uneasiness over its correctness. I think this is the reason
another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the
Chairman of the Commission on Human Rights as among
the important officers who would not have to be confirmed
if the majority view were to be followed. By contrast, and
inexplicably, the colonel in the armed forces would need
confirmation although he is not a constitutional officer with
the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the
relatively minor multisectoral representative of the
regional consultative commission, and the Undersecretary
of Foreign Affairs although the consul, who is his
subordinate, would need confirmation. When I pointed to
these incongruous situations, I was told it was not our
place to question the wisdom of the Constitution. What I
was questioning was not the wisdom of the Constitution
but the wisdom of our interpretation which I said would
lead to absurd consequences. But only Justice Gutierrez
agreed with me.
Now the chickens have come home to roost. The petitioner
asks us to unequivocally apply our own ruling in Alison, but
we are equivocating. The ponencia would sustain the
petitioner by a circumlocution, such as it is, as if it does not
think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment
to the Commission on Appointments is a clear indication
that the President of the Philippines no longer agrees with
the Mison, ruling, at least insofar as it applies to the present
case. Signifi cantly the Commission on Appointments,
which was also aware of Mison, has as clearly rejected it by
acting on the appointment. These meaningful
developments must give us pause. We may have committed
an error in Mison, which is bad enough, and may be
persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also
unable to accept it. Consistent with my view in Mison, I
submit that what President Aquino extended to the
petitioner on 17 December 1988 was an ad interim
appointment that although immediately effective upon
acceptance was still subject to confirmation. I cannot agree
that when the President said the petitioner could and enter
into the performance of her duties, "all that remained for
Bautista to do was to reject or accept the appointment." In
fact, on the very day it was extended, the ad interim
appointment was submitted by the President of the
Philippines to the Commission on Appointments "for
confirmation."
The ponencia says that the appointment did not need any
confirmation, being the sole act of the President under the
Mison ruling. That would have settled the question quite
conclusively, but the opinion goes on to argue another
justification that I for one find unnecessary, not to say
untenable. I sense here a palpable effort to bolster Mison
because of the apprehension that it is falling apart.
Of course, there was no vacancy when the nomination was
made on 14 January 1989. There is no question that the
petitioner was still validly holding the office by virtue of
her ad interim appointment thereto on 17 December 1988.
The nomination made later was unnecessary because the
ad interim appointment was still effective. When the
Commission on Appointments sent the petitioner the
letters dated 9 January 1989 and 10 January 1989
requiring her to submit certain data and inviting her to
appear before it, it was acting not on the nomination but on
the ad interim appointment. What was disapproved was the
ad interim appointment, not the nomination. The
nomination of 14 January 1989 is not in issue in this case. It
is entirely immaterial. At best, it is important only as an
affirmation of the President's acknowledgment that the
Chairman of the Commission on Human Rights must be
confirmed under Article VII, Section 16 of the Constitution.
It does not follow, of course, that simply because the
President of the Philippines has changed her mind, and
with the expressed support of the Commission on
Appointments, we should docilely submit and reverse
Mison. That is not how democracy works. The Court is
independent. I do suggest, however, that the majority could
have erred in that case and that the least we can do now is
to take a more careful look at the decision. Let us check our
bearings to make sure we have not gone astray. That is all I
ask
I repeat my view that the Chairman of the Commission on
Human Rights is subject to confirmation by the
Commission on Appointments, for the reasons stated in my
dissent in Mison Accordingly, I vote to DENY the petition.
GRIÑO-AQUINO, J.: dissenting:
I believe that the appointments of the chairman and the
members of the Commission on Human Rights by the
President require review and confirmation by the
Commission on Appointments in view of the following
provision of Section 16, Article VII of the 1987 Constitution:
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....
In my view, the "other officers" whose appointments are
vested in the President in the Constitution are the
constitutional officers, meaning those who hold offices
created under the Constitution, and whose appointments
are not otherwise provided for in the Charter. Those
constitutional officers are the chairmen and members of
the Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art.
IX-C), the Commission on Audit Art. IX-D), and the
Commission on Human Rights (Sec. 17, XIII). These
constitutional commissions are, without excaption,
declared to be "independent," but while in the case of the
Civil Service Commission, the Commission on Elections and
the Commission on Audit, the 1987 Constitution expressly
provides that "the Chairman and the Commissioners shall
be appointed by the President with the consent of the
Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec.
1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is
found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract from,
or diminish, the President's power to appoint the Chairman
and Commissioners of the said Commission. The source of
that power is the first sentence of Section 16, Article VII of
the Constitution for:
(1) the Commission on Human Rights is an office created
by the Constitution, and
(2) the appointment of the Chairman and Commissioners
thereof is vested in the President by the Constitution.
Therefore, the said appointments shall be made by the
President with the consent of the Commission on
Appointments, as provided in Section 16, Article VII of the
Constitution.
It is not quite correct to argue, as the petitioner does, that
the power of the Commission on Appointments to review
and confirm appointments made by the President is a
"derogation of the Chief Executive's appointing power."
That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic
form of government provided for in our Constitution. As
stated by a respected constitutional authority, former U.P.
Law Dean and President Vicente G. Sinco:
The function of confirming appointments is part of the
power of appointment itself. It is, therefore, executive
rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution
merely provides a detail in the scheme of checks and
balances between the executive and legislative organs of
the government. (Phil. Political Law by Sinco, 11th ed., p.
266).
WHEREFORE, I vote to dismiss the petition.
Medialdea, J., dissenting:
 
 
Separate Opinions
GUTIERREZ, JR., J.: Dissenting Opinion
With all due respect for the contrary view of the majority in
the Court, I maintain that it is asking too much to expect a
constitutional ruling which results in absurd or irrational
consequences to ever become settled.
The President and Congress, the appointees concerned, and
the general public may in time accept the Sarmiento III v.
Mison ruling because this Court has the final word on what
constitutional provisions are supposed to mean but the
incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be
disturbed until the meaning of the consent power of the
Commission on Appointments is straightened out either
through a re-examination of this Court's decision or an
amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only
three sentences. The officers specified in the first sentence
clearly require confirmation by the Commission on
Appointments. The officers mentioned in the third sentence
just as clearly do not require confirmation. The problem
area lies with those in the second sentence.
I submit that we should re-examine the three groups of
presidential appointees under the three sentences of
Section 16.
The first group are the heads of executive departments,
ambassadors, other public ministers and consuls, officers
of the armed forces from colonel or naval captain, and
other officers whose appointments are vested in the
President by the Constitution. The first sentence of Section
16 state they must be confirmed by the Commission on
Appointments.
The third group are officers lower in rank whose
appointments Congress has by law vested in the President
alone. They need no confirmation.
The second group of presidential appointees are "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." To which group do they
belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?
No matter how often and how long I read the second
sentence of Section 16, I simply cannot associate the
officers mentioned therein as forming part of those
referred to in the third sentence.
Why am I constrained to hold this view?
(1) If the officers in the first group are the only appointees
who need confirmation, there would be no need for the
second and third sentences of Section 16. They become
superfluous. Any one not falling under an express listing
would need no confirmation. I think the Court is wrong in
treating two carefully crafted and significant provisions of
the fundamental law as superfluities. Except for the most
compelling reasons, which do not exist here, no
constitutional provision should be considered a useless
surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and in
our earlier dissent, the majority view results in the absurd
consequence where one of several hundred colonels and
naval captains must be confirmed but such important
officers as the Governor of the Central Bank with broad
powers over the nation's economy and future stability or
the Chairman of the Commission on Human Rights whose
office calls for no less than a constitutional mandate do not
have to be scrutinized by the Commission on
Appointments. Why should a minor consul to Timbuktu,
Mali need the thorough scrutiny during the confirmation
process while the Undersecretary of Foreign Affairs who
sends him there and who exercises control over his acts
can be appointed by the President alone? Why should we
interpret Section 16 in such a strange and irrational
manner when no strained construction is needed to give it
a logical and more traditional and understandable
meaning.?
(3) The second sentence of Section 16 starts with, "He shall
also appoint ...." Whenever we see the word "also" in a
sentence, we associate it with preceding sentences, never
with the different sentence that follows. On the other hand,
the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President
"alone." This can only mean that the higher ranking officers
in the second sentence must also be appointed with the
concurrence of the Commission on Appointments. When
the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other
and higher ranking officers as also appointed by her alone.
The strained interpretation by the Court's majority makes
the word "alone" meaningless if the officers to whom
"alone" is not appended are also included in the third
group.
(4) The third sentence of Section 16 requires a positive act
of Congress which vests an appointment in the President
alone before such an appointment is freed from the
scrutiny of the Commission on Appointments. By express
constitutional mandate, it is Congress which determines
who do not need confirmation. Under the majority ruling of
the Court, if Congress creates an important office and
requires the consent of the Commission before a
presidential appointment to that office is perfected, such a
requirement would be unconstitutional. I believe that the
Constitution was never intended to so restrict the
lawmaking power. The Court has no jurisdiction to limit the
plenary lawmaking power of the people's elected
representatives through an implied and, I must again add, a
strained reading of the plain text of Section 16. Any
restriction of legislative power must be categorical,
express, and specific-never implied or forced.
(5) The Constitution specifies clearly the presidential
appointees who do not need confirmation by the
Commission. The reason for non-confirmation is obvious.
The members of the Supreme Court and all lower courts
and the Ombudsman and his deputies are not confirmed
because the Judicial and Bar Council screens nominees
before their names are forwarded to the President. The
Vice-President as a cabinet member needs no confirmation
because the Constitution says so. He or she is chosen by the
nation's entire electorate and is only a breath away from
the Presidency. Those falling under the third sentence of
Section 16, Article VII do not have to be confirmed because
the Constitution gives Congress the authority to free lower
ranking officials whose positions are created by law from
that requirement. I believe that we in the Court have no
power to add by implication to the list of presidential
appointees whom the Constitution in clear and categorical
words declares as not needing confirmation.
(6) As stated in my dissent in Sarmiento III v. Mison, the
Commission on Appointments is an important
constitutional body which helps give fuller expression to
the democratic principles inherent in our presidential form
of government.
There are those who would render innocuous the
Commission's power or perhaps even move for its abolition
as a protest against what they believe is too much
horsetrading or sectarian politics in the exercise of its
functions. Since the President is a genuinely liked and
popular leader, personally untouched by scandal, who
appears to be motivated only by the sincerest of intentions,
these people would want the Commission to routinely
rubberstamp those whom she appoints to high office.
Unfortunately, we cannot have one reading of Section 16
for popular Presidents and another interpretation for more
mediocre disliked, and even abusive or dictatorial ones.
Precisely, Section 16 was intended to check abuse or ill-
considered appointments by a President who belongs to
the latter class.
It is not the judiciary and certainly not the appointed
bureaucracy but Congress which truly represents the
people. We should not expect Congress to act only as the
selfless Idealists, the well-meaning technocrats, the
philosophers, and the coffee-shop pundits would have it
move. The masses of our people are poor and
underprivileged, without the resources or the time to get
publicly involved in the intricate workings of Government,
and often ill-informed or functionally illiterate. These
masses together with the propertied gentry and the elite
class can express their divergent views only through their
Senators and Congressmen. Even the buffoons and
retardates deserve to have their interests considered and
aired by the people's representatives. In the democracy we
have and which we try to improve upon, the Commission
on Appointments cannot be expected to function like a
mindless machine without any debates or even
imperfections. The discussions and wranglings, the delays
and posturing are part of the democratic process. They
should never be used as arguments to restrict legislative
power where the Constitution does not expressly provide
for such a limitation.
The Commission on Human Rights is a very important
office. Our country is beset by widespread insurgency,
marked inequity in the ownership and enjoyment of wealth
and political power, and dangerous conflicts arising from
Ideological, ethnic and religious differences. The tendency
to use force and violent means against those who hold
opposite views appears irresistible to the holders of both
governmental and rebel firepower.
The President is doubly careful in the choice of the
Chairman and Members of the Commission on Human
Rights. Fully aware of the ruling in Sarmiento III v. Mison,
she wants the appointments to be a joint responsibility of
the Presidency and Congress, through the Commission on
Appointments. She wants a more thorough screening
process for these sensitive positions. She wants only the
best to survive the process.
Why should we tell both the President and Congress that
they are wrong.?
Again, I fail to see why the captain of a naval boat ordered
to fire broadsides against rebel concentrations should
receive greater scrutiny in his appointment than the
Chairman of the Human Rights Commission who has
infinitely more power and opportunity to bring the
rebellion to a just and satisfactory end.
But even if I were to agree with the Sarmiento III v. Mison
ruling, I would still include the Chairman of the Human
Rights Commission as one of the "other officers whose
appointments are vested in him in this Constitution" under
the first sentence of Section 16, Article VII. Certainly, the
chairman cannot be appointed by Congress or the Supreme
Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower
ranking officers who by law may be appointed by the head
of an executive department, agency, commission, or board.
The Constitution created the independent office. The
President was intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from the
Sarmiento III v. Mison ruling and join in the call for a re-
examination of its doctrine.
CRUZ, J., dissenting:
This is as good a time as any to re-examine our ruling in
Sarmiento v. Mison, which was adopted by the Court more
than a year ago over two dissents. The President of the
Philippines has taken a second look at it, and so too has the
Commission on Appointments representing both Houses of
the Congress of the Philippines. It appears that they are not
exactly certain now that the decision in that case was
correct after all. I believe it will not be amiss for us too, in a
spirit of humility, to read the Constitution again on the
possibility that we may have misread it before.
The ponencia assumes that we were right the first time and
that the Mison case is settled—there is no need to re-
examine it. It therefore approaches the problem at hand
from another perspective and would sustain the petitioner
on an additional ground.
The theory is that the petitioner's first appointment on 17
December 1988 was valid even if not confirmed,
conformably to Mison, and could not be replaced with the
second appointment on 14 January 1989 because there was
no vacancy to fill. By this reasoning, the opinion would
definitely avoid the question squarely presented to the
Court, viz., whether or not the Chairman of the Commission
on Human Rights is subject to confirmation as required
now by both the President of the Philippines and the
Commission on Appointments. In effect, we are asked to
reconsider the Mison ruling in the light of this supervening
significant albeit decidedly not controlling circumstance.
The majority makes its ratiocination sound so simple, but I
find I am unable to agree. I think we must address the legal
question frontally instead of falling back on a legal sleight-
of hand of now-you-see-it-now-you-don't.
As one who never agreed with the bison ruling in the first
place, I suspect that the seeming diffidence in applying it
categorically to the case at bar is due to a degree of
uneasiness over its correctness. I think this is the reason
another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the
Chairman of the Commission on Human Rights as among
the important officers who would not have to be confirmed
if the majority view were to be followed. By contrast, and
inexplicably, the colonel in the armed forces would need
confirmation although he is not a constitutional officer with
the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the
relatively minor multisectoral representative of the
regional consultative commission, and the Undersecretary
of Foreign Affairs although the consul, who is his
subordinate, would need confirmation. When I pointed to
these incongruous situations, I was told it was not our
place to question the wisdom of the Constitution. What I
was questioning was not the wisdom of the Constitution
but the wisdom of our interpretation which I said would
lead to absurd consequences. But only Justice Gutierrez
agreed with me.
Now the chickens have come home to roost. The petitioner
asks us to unequivocally apply our own ruling in Alison, but
we are equivocating. The ponencia would sustain the
petitioner by a circumlocution, such as it is, as if it does not
think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment
to the Commission on Appointments is a clear indication
that the President of the Philippines no longer agrees with
the Mison, ruling, at least insofar as it applies to the present
case. Signifi cantly the Commission on Appointments,
which was also aware of Mison, has as clearly rejected it by
acting on the appointment. These meaningful
developments must give us pause. We may have committed
an error in Mison, which is bad enough, and may be
persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also
unable to accept it. Consistent with my view in Mison, I
submit that what President Aquino extended to the
petitioner on 17 December 1988 was an ad interim
appointment that although immediately effective upon
acceptance was still subject to confirmation. I cannot agree
that when the President said the petitioner could and enter
into the performance of her duties, "all that remained for
Bautista to do was to reject or accept the appointment." In
fact, on the very day it was extended, the ad interim
appointment was submitted by the President of the
Philippines to the Commission on Appointments "for
confirmation."
The ponencia says that the appointment did not need any
confirmation, being the sole act of the President under the
Mison ruling. That would have settled the question quite
conclusively, but the opinion goes on to argue another
justification that I for one find unnecessary, not to say
untenable. I sense here a palpable effort to bolster Mison
because of the apprehension that it is falling apart.
Of course, there was no vacancy when the nomination was
made on 14 January 1989. There is no question that the
petitioner was still validly holding the office by virtue of
her ad interim appointment thereto on 17 December 1988.
The nomination made later was unnecessary because the
ad interim appointment was still effective. When the
Commission on Appointments sent the petitioner the
letters dated 9 January 1989 and 10 January 1989
requiring her to submit certain data and inviting her to
appear before it, it was acting not on the nomination but on
the ad interim appointment. What was disapproved was the
ad interim appointment, not the nomination. The
nomination of 14 January 1989 is not in issue in this case. It
is entirely immaterial. At best, it is important only as an
affirmation of the President's acknowledgment that the
Chairman of the Commission on Human Rights must be
confirmed under Article VII, Section 16 of the Constitution.
It does not follow, of course, that simply because the
President of the Philippines has changed her mind, and
with the expressed support of the Commission on
Appointments, we should docilely submit and reverse
Mison. That is not how democracy works. The Court is
independent. I do suggest, however, that the majority could
have erred in that case and that the least we can do now is
to take a more careful look at the decision. Let us check our
bearings to make sure we have not gone astray. That is all I
ask
I repeat my view that the Chairman of the Commission on
Human Rights is subject to confirmation by the
Commission on Appointments, for the reasons stated in my
dissent in Mison Accordingly, I vote to DENY the petition.
GRIÑO-AQUINO, J.: dissenting:
I believe that the appointments of the chairman and the
members of the Commission on Human Rights by the
President require review and confirmation by the
Commission on Appointments in view of the following
provision of Section 16, Article VII of the 1987 Constitution:
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....
In my view, the "other officers" whose appointments are
vested in the President in the Constitution are the
constitutional officers, meaning those who hold offices
created under the Constitution, and whose appointments
are not otherwise provided for in the Charter. Those
constitutional officers are the chairmen and members of
the Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art.
IX-C), the Commission on Audit Art. IX-D), and the
Commission on Human Rights (Sec. 17, XIII). These
constitutional commissions are, without excaption,
declared to be "independent," but while in the case of the
Civil Service Commission, the Commission on Elections and
the Commission on Audit, the 1987 Constitution expressly
provides that "the Chairman and the Commissioners shall
be appointed by the President with the consent of the
Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec.
1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is
found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract from,
or diminish, the President's power to appoint the Chairman
and Commissioners of the said Commission. The source of
that power is the first sentence of Section 16, Article VII of
the Constitution for:
(1) the Commission on Human Rights is an office created
by the Constitution, and
(2) the appointment of the Chairman and Commissioners
thereof is vested in the President by the Constitution.
Therefore, the said appointments shall be made by the
President with the consent of the Commission on
Appointments, as provided in Section 16, Article VII of the
Constitution.
It is not quite correct to argue, as the petitioner does, that
the power of the Commission on Appointments to review
and confirm appointments made by the President is a
"derogation of the Chief Executive's appointing power."
That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic
form of government provided for in our Constitution. As
stated by a respected constitutional authority, former U.P.
Law Dean and President Vicente G. Sinco:
The function of confirming appointments is part of the
power of appointment itself. It is, therefore, executive
rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution
merely provides a detail in the scheme of checks and
balances between the executive and legislative organs of
the government. (Phil. Political Law by Sinco, 11th ed., p.
266).
WHEREFORE, I vote to dismiss the petition.
Medialdea, J., dissenting:
Footnotes
1 G.R. No. 79974, 17 December 1987, 156 SCRA 549.
2 See Section 2 (B), Section 2(C), and Section 2(D), Article
IX, 1987 Constitution.
3 Annex A, Petition, Rollo, p. 8.
4 Sec. 17(l), Art. XIII, 1987 Constitution.
5 Annex B, Petition, Rollo, p. 9.
6 Annex C, Petition, Rollo, p. 10.
7 Annex D, Petition, Rollo, p. 11-1 3.
8 Annex D-1, Petition, Rollo, p. 14.
9 Annex E, Petition, Rollo, pp. 15-16.
10 Emphasis supplied.
11 Annex 1, Commission's comment, Rollo, p. 53.
12 Annex 2, Commission's comment, Rollo, p. 54.
13 Annex 3, Commission's comment, Rollo, p. 55.
14 Rollo, p. 5.
15 Rollo, pp. 5-6.
16 Resolution of 2 February 1989, Rollo, p. 17.
17 Resolution of 9 February 1989, Rollo, p. 92.
18 Rollo, pp. 145-150.
19 Rollo, pp. 100-144.
20 Rollo, pp. 153-183.
21 Resolution of 28 February 1989, Rollo, p. 183-A.
22 Rollo, pp. 189-201.
23 1 Cranch 60, 2 Law Ed., U.S. 5-8.
24 Official Gazette, Vol. 83, July 29, 1987, p. 3307.
25 Official Gazette, Vol. 83, May 11, 1987, p. 2270.
26 100 Phil. at 683.
27 100 Phil. at 694.
28 Record of the 1986 Constitutional Commission, Vol. 3,
August 26,1986, p. 718.
29 Ibid., P. 728.
30 Ibid., P. 730.
31 Ibid., P. 734.
32 Ibid., P. 737.
33 Ibid., p. 743.
34 Ibid., p. 747.
35 Ibid., p. 748.
36 G.R. No. 69870, Naseco vs. NLRC: G.R. No. 70295,
Eugenia C. Credo vs. NLRC, 29 November 1988.
37 Sec. 13, Rep. Act No. 3019; People of the Philippines vs.
Hon. Rodolfo B. Albano , G.R. No. L-45376-77, July 26, 1988;
Luciano vs, Provincial Governor, 20 SCRA 516.
FIRST DIVISION
[G.R. No. 123989.  January 26, 1998]
ATTY. DAVID B. CORPUZ, petitioner, vs. COURT OF
APPEALS, and MOVIE AND TELEVISION REVIEW
ANDCLASSIFICATION BOARD, respondents.
DECISION
DAVIDE, JR., J.:
Petitioner Atty. David Corpuz (hereafter CORPUZ) asks us
to set aside the 13 October 1995 decision of the Court of
Appeals in CA-G.R. SP-No. 37694 which reversed
Resolution No. 93-5964 of the Civil Service Commission
(CSC), the latter declaring that petitioner’s separation from
the service as Attorney V in the Movie Television Review
Board (MTRCB) was not in order and directed that he be
automatically restored to his position.
The pleadings of the parties, the decision of the Court of
Appeals and the Resolution of the CSC disclose the
following facts:
On 18 July 1986, CORPUZ was appointed as the MTRCB’s
legal Counsel -- Prosecutor and Investigation Services
(Supervising Legal Staff Officer). The appointment was
approved by Asst. Regional Director Benita Santos of the
CSC-National Capital Region.  Subsequently, CORPUZ’
position was designated Attorney V under the Salary
Standardization Law.
As MTRCB Legal Counsel, CORPUZ’ duties included
“attendance in Board meetings” pursuant to then Chairman
Morato’s memorandum of 11 September 1987.
Sometime in August 1991, the MTRCB passed MTRCB
Resolution No. 8-1-91 entitled “An Act To Declare The
Appointments Of The Administrative And Subordinate
Employees Of This Board As Null And Void.”  This undated
resolution noted that the past and present Chairmen of the
MTRCB had failed to submit for approval the appointments
of administrative and subordinate employees to the
MTRCB before forwarding them to the CSC, in violation of
Section 5 of P.D. No. 876-A, and later, P.D. No. 1986. It thus
declared:
FOR ALL OF THE FOREGOING, this Board, in Session
Assembled, hereby declare[s] that ALL the appointments of
the present administrative and subordinate employees of
this Board suffers [sic] from illegality and therefore [are]
considered invalid and of no value and effect ab initio.
IT IS THEREFORE RESOLVED, AS IT IS HEREBY RESOLVED
BY THIS BOARD, that the Chairman recommend to this
Board, the appointment of all or some of the present
administrative and subordinate employees of this Board, or
new ones, at his initiative, discretion and preference,
including the category of the position for which the
appointees [are] recommended, within a period of ONE
MONTH from the approval of this Resolution;
IT IS FURTHER RESOLVED, that in the interregnum, and in
order not to disrupt the workings and functions of this
Board while this body is awaiting for [sic] the
recommendation of the appointments of the old and or new
appointees, the present administrative and subordinate
employees shall hold on [to] their position[s] in an [sic]
holdover capacity.
As certified by MTRCB Secretary Vicente G. Sales,
Resolution No. 8-1-91 was filed in his office on 1 August
1991, while Resolution No. 10-2-91, a mere reiteration of
Resolution No. 8-1-91, was approved by the MTRCB en
banc on 9 October 1991.  No copy of Resolution No. 10-2-
91, however, was found in the records.
CORPUZ was unaware of the promulgation of Resolution
No. 8-1-91 as he was then on leave.  The Resolution was
likewise kept secret and it was only on 12 March 1993 that
an announcement of its contents was posted by an Ad Hoc
Committee on the MTRCB bulletin board.  This
announcement invited the submission of any information
concerning the appointments involved therein to the
Committee.  It appears, however, that nothing was
immediately done to implement Resolution No. 8-1-91.
On 14 July 1992, Henrietta S. Mendez was appointed
MTRCB Chairman.  Thereafter, new members of the Board
were likewise appointed with Mendez assuming office in
August 1992.
At the MTRCB meeting of 19 January 1993, Mendez was
informed about Resolution No. 8-1-91.  An Ad Hoc
Committee composed of MTRCB members was then
constituted to look into the appointments extended by
former Chairman Morato, as well as the qualifications of
the appointees.  The Committee then posted on the MTRCB
bulletin board the 12 March 1993 announcement
mentioned above.
Thereafter, the Committee resolved to recommend to the
MTRCB the approval of the appointments, except that of
CORPUZ and seven others.
In a Memorandum dated 28 June 1993, Mendez informed
CORPUZ that at the MTRCB regular meeting of 25 June
1993, his appointment was disapproved effective 30 June
1993.  None of the parties attached to their pleadings a
copy of the MTRCB Resolution disapproving the
appointment.
On 27 July 1993, CORPUZ and one Larry Rigor filed a
complaint with the CSC requesting a formal investigation
and hearing.  In her comment to the complaint, Mendez
stated that she discovered that the appointments extended
by Morato were not submitted to the MTRCB for approval
pursuant to Section 5(c) of P.D. No. 1986; hence to cure the
defect, she submitted the appointments to the MTRCB.
On 31 August 1993, the CSC promulgated Resolution No.
93-3509 granting the MTRCB authority to fill up positions
vacated in the agency due to appointments which were not
submitted to the MTRCB for approval.
However, in Resolution No. 93-5964 dated 23 December
1993, the CSC ruled in favor of CORPUZ, as follows:
It must be appreciated that the appointment of Atty.
Corpuz was approved by the Commission because it was
signed by Mr. Manuel Morato, then Chairman of [the]
MTRCB and the duly authorized signatory of MTRCB
appointments.  All the appointments signed by Mr. Morato
in his capacity as MTRCB Chairman are presumed to have
been made after complying with all the legal requirements
including the Board approval, whether express or implied.
The appointment of Atty. Corpuz, if defective, could have
been the subject of a direct action for revocation or recall
which may be brought to the Commission within a
reasonable period of time after its approval… Since no such
action was filed with the Commission, we can safely state
that Corpuz had already acquired security of tenure in the
said position.  Hence, the Commission can not allow the
current Board’s disapproval of the said appointment to
produce any effect.  Atty. Corpuz can no longer be
separated from the service except for cause and after
observing the requirements of due process.
WHEREFORE, foregoing premises considered, the
Commission hereby resolves to rule that the separation of
Mr. David Corpuz from the service is not in order.  Aquino vs. Civil Service Commission, 208 SCRA 240; Mitra
Accordingly, he is automatically restored to his position of
Atty. V with payment of back salaries.
The MTRCB’s motion for reconsideration was denied by the
CSC in Resolution No. 94-2551 dated 20 June 1994.
In the meantime, specifically on 22 August 1994, CORPUZ
became a permanent employee of the Ombudsman.
The MTRCB filed with us a special civil action for certiorari
which we referred to the Court of Appeals in view of
Republic Act No. 7902. The Court of Appeals then docketed
the case as CA-G.R. SP No. 37694.
In its decision, the Court of Appeals declared null and void
Resolution No. 93-5964 of the CSC, ruling that since the
appointment of CORPUZ was not approved by the MTRCB,
the appointment was invalid and he could not invoke
security of tenure.  In support of its ruling, the Court of
Appeals held:
Presidential Decree No. 1986, the law creating the Movie
and Television Review and Classification Board, specifically
provides as follows:
“Section 16.  Organization Patterns; Personnel. -- The Board
shall determine its organizational structure and staffing
pattern.  It shall have the power to suspend or dismiss for
cause any employee and/or approve or disapprove the
appointment, transfer or detail of employees.  It shall
appoint the Secretary of the Board who shall be the official
custodian of the records of the meetings of the Board and
who shall perform such other duties and functions as
directed by the Board.”  (Underscoring supplied)
The record shows that the appointment of respondent Atty.
David Corpuz was not approved by the Board, as mandated
by Presidential Decree No. 1986, Section 16.
The Supreme Court, in a similar case has reiterated the
importance of complying with legal requirements for a
valid appointment.  In Tomali vs. Civil Service Commission
(238 SCRA 572), it held:
“Compliance with the legal requirements for an
appointment to a civil service position is essential in order
to make it fully effective (Favis vs. Rupisan, 17 SCRA 190,
cited in Mitra vs. Subido, 21 SCRA 127).  Without the
favorable certification or approval of the Commission, in
cases when such an approval is required, no title to the
office can yet be deemed to be permanent; vested in favor
of the appointee, and the appointment can still be recalled
or withdrawn by the appointing authority (Grospe vs.
Secretary of Public Works and Communication, 105 Phil.
129; Villanueva vs. Balallo, 9 SCRA 407; Suarez vs.
Commission on Elections, 20 SCRA 797).  Until an
appointment has become a completed act, it would likewise
be precipitate to invoke the rule of security of tenure (See
vs. Subido, 21 SCRA 797).”
It appearing that respondent Atty. Corpuz’ appointment
was not approved by the Board, the same cannot be
considered as [a] valid appointment.  As such, he cannot
invoke security of tenure, even if he has rendered service
for a number of years.
Neither would the silence or the failure of the Board to
recall the private respondent’s appointment constitute as a
[sic] consent or confirmation.  In the aforecited case, the
Supreme Court restated the existing jurisprudence on the
matter, thus:
“The tolerance, acquiescence or mistake of the proper
officials, resulting in the non-observance of the pertinent
rules on the matter does not render the legal requirement,
on the necessity of the approval of the Commissioner on
Civil Service of appointments, ineffective and
unenforceable.  The employee, whose appointment was not
approved, may only be considered as a de facto officer.”
(Tomali vs. Civil Service Commission, supra citing Favis vs.
Rupisan, 17 SCRA 190, 191)
Thus, We find merit in petitioner’s contention that
respondent Atty. David Corpuz did not acquire a vested
right nor does he presently enjoy a [sic] security of tenure
to the subject position in the MTRCB for failure to comply
with the legal requirements needed for a valid
appointment.  Hence, he cannot be reinstated.  Not being a
permanent employee of the Movie and Television Review
and Classification Board, the tenure of respondent Atty.
Corpuz ceased when he was not properly appointed under
present law.
His motion for reconsideration having been denied  in the
Resolution of 13 February 1996, CORPUZ filed the instant
petition under Rule 45 of the Rules of Court and asked us to
reverse the challenged decision of the Court of Appeals on
the sole ground that:
THE COURT OF APPEALS ERRED IN RULING THAT THE
APPOINTMENT OF PETITIONER ATTY. DAVID B. CORPUZ
DID NOT HAVE THE APPROVAL OF THE  MTRCB BOARD
WHICH IF NOT CORRECTED, IS TANTAMOUNT TO A
VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO
SECURITY OF TENURE.
 In his Memorandum, however, CORPUZ explicitly declared
that he “is no longer seeking reinstatement with
respondent MTRCB but for the continuity of his
government service from the time he was illegally
dismissed on 30 June 1993 up to the time he was
permanently employed with the Office of the Ombudsman
on 22 August 1994 plus back salaries and other benefits
due him if not for the illegal dismissal.”
Pursuant to Section 2 of P.D. No. 1986, the MTRCB is
composed of a Chairman, a Vice-Chairman and thirty (30)
members, all appointed by the President of the Philippines.  them; in Carillo v. Court of Appeals where the required
Section 5 thereof enumerates the following functions,
powers and duties of the Chairman as the Chief Executive
Officer of the MTRCB, to wit:
(a)  Execute, implement and enforce the decisions, orders,
awards, rules and regulations issued by the BOARD;
(b) Direct and supervise the operations and the internal affairs
of the BOARD;
(c)  Establish the internal organization and administrative
procedures of the BOARD, and recommend to the BOARD
the appointment of the necessary administrative and
subordinate personnel; and
(d)   Exercise such other powers and functions and perform such
duties as are not specifically lodged in the BOARD.
On the other hand, Section 16 thereof, quoted in the
challenged decision of the Court of Appeals, vests upon the
Board itself the power to, inter alia, approve or disapprove
the appointments of its personnel.
It is thus clear that there are two stages in the process of
appointing MTRCB personnel, other than its Secretary,
namely:  (a) recommendation by the Chairman which is
accomplished by the signing of the appointment paper,
which is among his powers under Section 5(d) above; and
(b) approval or disapproval by the MTRCB of the
appointment.  As to the Secretary, it is the MTRCB itself
that is empowered to appoint said official pursuant to
Section 16.
It is long settled in the law of public offices and officers that
where the power of appointment is absolute, and the
appointee has been determined upon, no further consent or
approval is necessary, and the formal evidence of the
appointment, the commission, may issue at once.  Where,
however, the assent or confirmation of some other officer
or body is required, the commission can issue or the
appointment may be complete only when such assent or
confirmation is obtained.  In either case, the appointment
becomes complete when the last act required of the
appointing power is performed. Until the process is
completed, the appointee can claim no vested right in the
office nor invoke security of tenure.  Hence, in the case of
CORPUZ, since the last act required for the completion of
his appointment, viz., approval by the MTRCB itself, was not
obtained, as a matter of fact, the MTRCB ultimately
disapproved it, his appointment ceased to have effect, if at
all, and his services were properly terminated.  This Court
so declared in Favis v. Rupisan where the appointment
involved was not approved by the Civil Service Commission
pursuant to Section 16(h) of R.A. No. 2260 and Section 2(a)
of Rule VI of the Civil Service Rules implementing said law;
Taboy v. Court of Appeals and Provincial Board of Cebu v.
Presiding Judge of Cebu Court of First Instance where the
appointments of subject employees were disapproved by
the Provincial Boards pursuant to the powers granted
consent of the municipal council in the appointment of the
chief of police was not obtained; and in Tomali v. Civil
Service Commission, which the Court of Appeals relied
upon, where the required submission to and approval by
the Civil Service Commission were not made as required by
Section 9(h) of P.D. No. 807 and Section 11, Rule V of the
Omnibus Rules Implementing Book V of Executive Order
No. 292, otherwise known as the Administrative Code of
1987.  In the latter, this Court held that compliance with the
legal requirements for an appointment to a civil service
position is essential to make it fully effective.  That the
employee involved had, in fact, assumed office and
performed the functions and duties thereof is of no
moment, for it matters not that the appointee had served
for several years.  Those years of service cannot substitute
for the want of consent of another body required by law to
complete the appointment.  The tolerance, acquiescence or
mistake of the proper officials resulting in non-observance
of the requirements of law or rules to complete the
appointment does not render the requirements ineffective
and unenforceable.
A public official or employee who assumed office under an
incomplete appointment is merely a de facto officer for the
duration of his occupancy of the office for the reason that
he assumed office under color of a known appointment
which is void by reason of some defect or irregularity in its
exercise. Undeniably, under the facts here, CORPUZ was
such a de facto officer.
WHEREFORE, the instant petition is DENIED and the
assailed decision of 13 October 1995 of the Court of
Appeals in CA-G.R. SP-No.37694 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bellosillo, Vitug and Kapunan, JJ., concur.
Per Ynares-Santiago C., J.; with Paras, G.C. and Reyes, R.T.,
JJ., concurring. Annex “A” of Petition, Rollo, 23-28.
Per Sto. Tomas, P.A., Chairman; with Ereñ eta, R.P. and
Gaminde, T.P., Commissioners, concurring. Annex “K” of
Petition, Rollo, 42-44.
Annex “C” of Petition, Rollo, 31.
Annex “E” of Petition, Id., 33.
Annex “G” of Petition, Id., 36-38.
Entitled “Creating the Movie and Television Review and
Classification Board.”
Annex “G” of Petition, Rollo, 35.
Annex “H” of Petition, Rollo, 39.
Annex “I” of Petition, Id., 40.
Memorandum for Respondent, 7; Rollo, 132.
Supra note 2.
Petition, 6; Rollo, 12.
Page 17 of Memorandum for CORPUZ, Rollo, 94.
An Act Expanding the Jurisdiction of the Court of Appeals,
Amending for the Purpose Section Nine of Batas Pambansa
Blg. 129, as Amended Known as the Judiciary
Reorganization Act of 1980.
Annex “B” of Petition, Rollo, 29-30.
Rollo, 94.
Mechem, Law of Public Office and Officers, §112, at 46.  See
Mitra v. Subido, 21 SCRA 127, 140 [1967].
17 SCRA 190 [1966].
105 SCRA 758 [1981].
171 SCRA 1 [1989].
77 SCRA 170 [1967].
238 SCRA 572 [1994].
Favis v. Rupisan, supra note 18, at 196.
Id., See also Ibañ ez v. COMELEC, 19 SCRA 1002, 1014
[1967]; Aparri v. Court of Appeals, 127 SCRA 231, 239
[1984].
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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
(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
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.
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.
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 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.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and
Cortes, JJ., concur.
 
 
Separate Opinions
 
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in
consonance with its constitutional duty, to adjudicate
promptly the issue at bar and to rule that the direct
appointment of respondent Salvador Mison as
Commissioner of the Bureau of Customs (without need of
submitting a prior nomination to the Commission on
Appointments and securing its confirmation) is valid and in
accordance with the President's constitutional authority to
so appoint officers of the Government as defined in Article
VII, section 16 of the 1987 Constitution. The paramount
public interest and the exigencies of the public service
demand that any doubts over the validity of such
appointments be resolved expeditiously in the test case at
bar.
It should be noted that the Court's decision at bar does not
mention nor deal with the Manifestation of December 1,
1987 filed by the intervenor that Senate Bill No. 137
entitled "An Act Providing For the Confirmation By the
Commission on Appointments of All Nominations and
Appointments Made by the President of the Philippines"
was passed on 23 October 1987 and was "set for perusal by
the House of Representatives. " This omission has been
deliberate. The Court has resolved the case at bar on the
basis of the issues joined by the parties. The contingency of
approval of the bill mentioned by intervenor clearly has no
bearing on and cannot affect retroactively the validity of
the direct appointment of respondent Mison and other
appointees similarly situated as in G.R. No. 80071, "Alex G.
Almario vs. Hon. Miriam Defensor- Santiago." The Court
does not deal with constitutional questions in the abstract
and without the same being properly raised before it in a
justiciable case and after thorough discussion of the
various points of view that would enable it to render
judgment after mature deliberation. As stressed at the
hearing of December 8, 1987, any discussion of the
reported bill and its validity or invalidity is premature and
irrelevant and outside the scope of the issues resolved in
the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring
opinion of Justice Sarmiento, and simply wish to add my
own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution 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 (Emphasis and
1st three paragraphings, supplied).
The difference in language used is significant. Under the
first sentence it is clear that the President "nominates" and
with the consent of the Commission on Appointments
"appoints" the officials enumerated. The second sentence,
however, significantly uses only the term "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. Deliberately eliminated
was any reference to nomination.
Thus, the intent of the framers of the Constitution to
exclude the appointees mentioned in the second sentence
from confirmation by the Commission on Appointments is,
to my mind, quite clear. So also is the fact that the term
"appoint" used in said sentence was not meant to include
the three distinct acts in the appointing process, namely,
nomination, appointment, and commission. For if that were
the intent, the same terminologies in the first sentence
could have been easily employed.
There should be no question either that the participation of
the Commission on Appointments in the appointment
process has been deliberately decreased in the 1987
Constitution compared to that in the 1935 Constitution,
which required that all presidential appointments be with
the consent of the Commission on Appointments.
The interpretation given by the majority may, indeed, lead
to some incongruous situations as stressed in the
dissenting opinion of Justice Cruz. The remedy therefor
addresses itself to the future. The task of constitutional
construction is to ascertain the intent of the framers of the
Constitution and thereafter to assure its realization (J.M.
Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No.
21064, February 18, 1970, 31 SCRA 413). And the primary
source from which to ascertain constitutional intent is the
language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all
Presidential appointments are subject to prior
Congressional confirmation, thus:
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 recess of the Congress, whether voluntary or
compulsory, but such appointment shall be effective only
until disapproval by the Commission on Appointments or
until the next adjournment of the Congress. 1
By its plain language, the Constitution has intended that
only those grouped under the first sentence are required to
undergo a consenting process. This is a significant
departure from the procedure set forth in the 1935
Charter:
(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 to 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. 2
under which, as noted by the majority, "almost all
presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As
far as the present Charter is concerned, no extrinsic aid is
necessary to ascertain its meaning. Had its framers
intended otherwise, that is to say, to require all
Presidential appointments clearance from the Commission
on Appointments, they could have simply reenacted the
Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of
appointments that the President may make: (1)
appointments of heads of executive departments,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or
naval captain, and those of other officers whose
appointments are vested in him under the Constitution,
including the regular members of the Judicial and Bar
Council, 5 the Chairman and Commissioners of the Civil
Service Commission, 6 the Chairman and Commissioners of
the Commission on Elections, 7 and the Chairman and
Commissioners of the Commission on Audit; 8 (2) those
officers whose appointments are not otherwise provided
for by law; (3) those whom he may be authorized by law to
appoint; and (4) officers lower in rank whose
appointments the Congress may vest in the President
alone.
But like Justice Cruz in his dissent, I too am aware that
authors of the fundamental law have written a "rather
confused Constitution" 9 with respect, to a large extent, to
its other parts, and with respect, to a certain extent, to the
appointing clause itself, in the sense that it leaves us for
instance, with the incongruous situation where a consul's
appointment needs confirmation whereas that of
Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it
were, of the Charter is not for us to judge. That is a question
addressed to the electorate, and who, despite those
"eccentricities," have stamped their approval on that
Charter. "The Court," avers the majority, "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." 10
It must be noted that the appointment of public officials is
essentially an exercise of executive power. 11 The fact that
the Constitution has provided for a Commission on
Appointments does not minimize the extent of such a
power, much less, make it a shared executive-legislative
prerogative. In Concepcion v. Paredes, we stated in no
uncertain terms that "[a]ppointment to office is
intrinsically an executive act involving the exercise of
discretion." 12 Springer v. Philippine Islands 13 on the
other hand, underscored the fact that while the legislature
may create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it
may prescribe the qualifications therefor, it cannot
circumscribe such qualifications, which would unduly
narrow the President's choice. In that event, it is as if it is
the legislature itself conferring the appointment.
Thus, notwithstanding the existence of a Commission on
Appointments, the Chief Executive retains his supremacy as
the appointing authority. In case of doubt, the same should
be resolved in favor of the appointing power.
It is the essence of a republican form of government, like
ours, that "[e]ach department of the government has
exclusive cognizance of matters within its jurisdiction." 14
But like all genuine republican systems, no power is
absolutely separate from the other. For republicanism
operates on a process of checks and balances as well, not
only to guard against excesses by one branch, but more
importantly, "to secure coordination in the workings of the
various departments of the government." 15 Viewed in that
light, the Commission on Appointments acts as a restraint
against abuse of the appointing authority, but not as a
means with which to hold the Chief Executive hostage by a
possibly hostile Congress, an unhappy lesson as the
majority notes, in our history under the regime of the 1935
Constitution.
The system of checks and balances is not peculiar to the
provision on appointments. The prohibition, for instance,
against the enactment of a bill of attainder operates as a
bar against legislative encroachment upon both judicial and
executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive
functions, respective y. 16
And then, the cycle of checks and balances pervading the
Constitution is a sword that cuts both ways. In a very real
sense, the power of appointment constitutes a check
against legislative authority. In Springer v. Philippine
Islands, 17 we are told that "Congress may not control the
law enforcement process by retaining a power to appoint
the individual who will execute the laws." 18 This is so,
according to one authority, because "the appointments
clause, rather than 'merely dealing with etiquette or
protocol,' seeks to preserve an executive check upon
legislative authority in the interest of avoiding an undue
concentration of power in Congress. " 19
The President has sworn to "execute [the] laws. 20 For that
matter, no other department of the Government may
discharge that function, least of all Congress. Accordingly, a
statute conferring upon a commission the responsibility of
administering that very legislation and whose members
have been determined therein, has been held to be
repugnant to the Charter. 21 Execution of the laws, it was
held, is the concern of the President, and in going about this
business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own
appointees "except for cause provided by law." 22
Parenthetically, this represents a deviation from the rule
prevailing in American jurisdiction that "the power of
removal . . . [is] incident to the power of appointment, 23
although this has since been tempered in a subsequent
case, 24 where it was held that the President may remove
only "purely executive officers, 25 that is, officers holding
office at his pleasure. In Ingles v. Mutuc, 26 this Court held
that the President may remove incumbents of offices
confidential in nature, but we likewise made clear that in
such a case, the incumbent is not "removed" within the
meaning of civil service laws, but that his term merely
expires.
It is to be observed, indeed, that the Commission on
Appointments, as constituted under the 1987 Constitution,
is itself subject to some check. Under the Charter, "[tlhe
Commission shall act on all appointments submitted to it
within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to
either consent or not consent to the appointments
preferred before it within the prescribed period results in a
de facto confirmation thereof
Certainly, our founding fathers have fashioned a
Constitution where the boundaries of power are blurred by
the predominance of checks and counterchecks, yet amid
such a rubble of competing powers emerges a structure
whose parts are at times jealous of each other, but which
are ultimately necessary in assuring a dynamic, but stable,
society. As Mr. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish
and divide fields of black and white. Even the more specific
of them are found to terminate in a penumbra shading
gradually from one extreme to the other. ... When we come
to the fundamental distinctions it is still more obvious that
they must be received with a certain latitude or our
government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however
we may disguise it by veiling words we do not and cannot
carry out the distinction between legislative and executive
action with mathematical precision and divide the
branches into watertight compartments, were it ever so
desirable to do so, which I am far from believing that it is,
or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and
counterpoises, which Newton might readily have
recognized as suggestive of the mechanism of the heavens,"
(W. Wilson, Constitutional Government in the United States
56 (1908)] can represent only the scaffolding of a far more
subtle "vehicle of life (Id. at 192: "The Constitution cannot
be regarded as a mere legal document, to be read as a will
or a contract would be. It must, of the necessity of the case,
be a vehicle of life.") The great difficulty of any theory less
rich, Woodrow Wilson once warned, "is that government is
not a machine, but a living thing. It falls, not under the
theory of the universe, but under the theory of organic life.
It is accountable to Darwin, not to Newton. It is . . . shaped
to its functions by the sheer pressure of life. No living thing
can have its organs offset against each other as checks, and
five." (Id. at 56.) Yet because no complex society can have
its centers of power not "offset against each other as
checks," and resist tyranny, the Model of Separated and
Divided Powers offers continuing testimony to the undying
dilemmas of progress and justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that
the 1973 Constitution deliberately denied the legislature
(the National Assembly under the 1971 draft Constitution)
the power to check executive appointments, and hence,
granted the President absolute appointing power. 30 As a
delegate to, and Vice-President of, the ill-fated 1971
Constitutional Convention, and more so as the presiding
officer of most of its plenary session, I am aware that the
Convention did not provide for a commission on
appointments on the theory that the Prime Minister, the
head of the Government and the sole appointing power,
was himself a member of parliament. For this reason, there
was no necessity for a separate body to scrutinize his
appointees. But should such appointees forfeit the
confidence of the assembly, they are, by tradition, required
to resign, unless they should otherwise have been removed
by the Prime Minister. 31 In effect, it is parliament itself that
"approves" such appointments. Unfortunately, supervening
events forestalled our parliamentary experiment, and
beginning with the 1976 amendments and some 140 or so
amendments thereafter, we had reverted to the
presidential form, 32 without provisions for a commission
on appointments.
In fine, while Presidential appointments, under the first
sentence of Section 16, of Article VII of the present
Constitution, must pass prior Congressional scrutiny, it is a
test that operates as a mere safeguard against abuse with
respect to those appointments. It does not accord Congress
any more than the power to check, but not to deny, the
Chief Executive's appointing power or to supplant his
appointees with its own. It is but an exception to the rule.
In limiting the Commission's scope of authority, compared
to that under the 1935 Constitution, I believe that the 1987
Constitution has simply recognized the reality of that
exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the
Constitution, as the supreme law of the land, should never
have any of its provisions interpreted in a manner that
results in absurd or irrational consequences.
The Commission on Appointments is an important
constitutional body which helps give fuller expression to
the principles inherent in our presidential system of
government. Its functions cannot be made innocuous or
unreasonably diminished to the confirmation of a limited
number of appointees. In the same manner that the
President shares in the enactment of laws which govern the
nation, the legislature, through its Commission on
Appointments, gives assurance that only those who can
pass the scrutiny of both the President and Congress will
help run the country as officers holding high appointive
positions. The third sentence of the first paragraph — " ...
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." — specifies only "officers lower in rank" as those
who may, by law, be appointed by the President alone. If as
expounded in the majority opinion, only the limited
number of officers in the first sentence of Section 16
require confirmation, the clear intent of the third sentence
is lost. In fact both the second and third sentences become
meaningless or superfluous. Superfluity is not to be read
into such an important part of the Constitution.
I agree with the intervenor that all provisions of the
Constitution on appointments must be read together. In
providing for the appointment of members of the Supreme
Court and judges of lower courts (Section 9, Article VIII),
the Ombudsman and his deputies (Section 9, Article XI), the
Vice President as a member of cabinet (Section 3, Article
VII) and, of course, those who by law the President alone
may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other
appointments need confirmation. Where there is no need
for confirmation or where there is an alternative process to
confirmation, the Constitution expressly so declares.
Without such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a
Commission on Appointments because the government it
set up was supposed to be a parliamentary one. The Prime
Minister, as head of government, was constantly
accountable to the legislature. In our presidential system,
the interpretation which Justice Cruz and myself espouse,
is more democratic and more in keeping with the system of
government organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority
opinion, is briefly as follows: Confirmation is required only
for the officers mentioned in the first sentence of Section
16, to wit: (1) the heads of the executive departments; (2)
ambassadors, other public ministers and consuls; (3)
officers of the armed forces from the rank of colonel or
naval captain; and (4) other officers whose appointments
are vested in the President in the Constitution. No
confirmation is required under the second sentence for (1)
all other officers whose appointments are not otherwise
provided for by law, and (2) those whom the President may
be authorized by law to appoint. Neither is confirmation
required by the third sentence for those other officers
lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of
Foreign Affairs, who is not the head of his department, does
not have to be confirmed by the Commission on
Appointments, but the ordinary consul, who is under his
jurisdiction, must be confirmed. The colonel is by any
standard lower in rank than the Chairman of the
Commission on Human Rights, which was created by the
Constitution; yet the former is subject to confirmation but
the latter is not because he does not come under the first
sentence. The Special Prosecutor, whose appointment is
not vested by the Constitution in the President, is not
subject to confirmation under the first sentence, and
neither are the Governor of the Central Bank and the
members of the Monetary Board because they fall under
the second sentence as interpreted by the majority opinion.
Yet in the case of the multi-sectoral members of the
regional consultative commission, whose appointment is
vested by the Constitution in the President under Article X,
Section 18, their confirmation is required although their
rank is decidedly lower.
I do not think these discrepancies were intended by the
framers as they would lead to the absurd consequences we
should avoid in interpreting the Constitution.
There is no question that bureau directors are not required
to be confirmed under the first sentence of Section 16, but
that is not the provision we ought to interpret. It is the
second sentence we must understand for a proper
resolution of the issues now before us. Significantly,
although there was a long discussion of the first sentence in
the Constitutional Commission, there is none cited on the
second sentence either in the Solicitor-General's comment
or in the majority opinion. We can therefore only speculate
on the correct interpretation of this provision in the light of
the first and third sentences of Section 16 or by reading
this section in its totality.
The majority opinion says that the second sentence is the
exception to the first sentence and holds that the two sets
of officers specified therein may be appointed by the
President without the concurrence of the Commission on
Appointments. This interpretation is pregnant with
mischievous if not also ridiculous results that presumably
were not envisioned by the framers.
One may wonder why it was felt necessary to include the
second sentence at all, considering the majority opinion
that the enumeration in the first sentence of the officers
subject to confirmation is exclusive on the basis of
expressio unius est exclusio alterius. If that be so, the first
sentence would have been sufficient by itself to convey the
Idea that all other appointees of the President would not
need confirmation.
One may also ask why, if the officers mentioned in the
second sentence do not need confirmation, it was still felt
necessary to provide in the third sentence that the
appointment of the other officers lower in rank will also
not need confirmation as long as their appointment is
vested by law in the President alone. The third sentence
would appear to be superfluous, too, again in view of the
first sentence.
More to the point, what will follow if Congress does not see
fit to vest in the President alone the appointment of those
other officers lower in rank mentioned in the third
sentence? Conformably to the language thereof, these
lower officers will need the confirmation of the
Commission on Appointments while, by contrast, the
higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and
the labor arbiters, as officers lower in rank than the bureau
director, will have to be confirmed if the Congress does not
vest their appointment in the President alone under the
third sentence. On the other hand, their superior, the
bureau director himself, will not need to be confirmed
because, according to the majority opinion, he falls not
under the first sentence but the second. This is carefulness
in reverse, like checking the bridesmaids but forgetting the
bride.
It must be borne in mind that one of the purposes of the
Constitutional Commission was to restrict the powers of
the Presidency and so prevent the recurrence of another
dictatorship. Among the many measures taken was the
restoration of the Commission on Appointments to check
the appointing power which had been much abused by
President Marcos. We are now told that even as this body
was revived to limit appointments, the scope of its original
authority has itself been limited in the new Constitution. I
have to disagree.
My own reading is that the second sentence is but a
continuation of the Idea expressed in the first sentence and
simply mentions the other officers appointed by the
President who are also subject to confirmation. The second
sentence is the later expression of the will of the framers
and so must be interpreted as complementing the rule
embodied in the first sentence or, if necessary, reversing
the original intention to exempt bureau directors from
confirmation. I repeat that there were no debates on this
matter as far as I know, which simply means that my
humble conjecture on the meaning of Section 16 is as
arguable, at least, as the suppositions of the majority. We
read and rely on the same records. At any rate, this view is
more consistent with the general purpose of Article VII,
which, to repeat, was to reduce the powers of the
Presidency.
The respondent cites the following exchange reported in
page 520, Volume II, of the Record of the Constitutional
Convention:
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.
However, the records do not show what particular part of
Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest
that the body was considering the first sentence of the said
section, which I reiterate is not the controversial provision.
In any case, although the excerpt shows that the proposed
amendment of Commissioner Foz was accepted by the
committee, it is not reflected, curiously enough, in the final
version of Section 16 as a perusal thereof will readily
reveal. Whether it was deleted later in the session or
reworded by the style committee or otherwise replaced for
whatever reason will need another surmise on this rather
confused Constitution.
I need only add that the records of the Constitutional
Commission are merely extrinsic aids and are at best
persuasive only and not necessarily conclusive.
Interestingly, some quarters have observed that the
Congress is not prevented from adding to the list of officers
subject to confirmation by the Commission on
Appointments and cite the debates on this matter in
support of this supposition. It is true enough that there was
such a consensus, but it is equally true that this thinking is
not at all expressed, or even only implied, in the language
of Section 16 of Article VII. Which should prevail then the
provision as worded or the debates?
It is not disputed that the power of appointment is
executive in nature, but there is no question either that it is
not absolute or unlimited. The rule re- established by the
new Constitution is that the power requires confirmation
by the Commission on Appointments as a restraint on
presidential excesses, in line with the system of checks and
balances. I submit it is the exception to this rule, and not
the rule, that should be strictly construed.
In my view, the only officers appointed by the President
who are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the
Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in
rank," but only when their appointment is vested by law in
the President alone. It is clear that this enumeration does
not include the respondent Commissioner of Customs who,
while not covered by the first sentence of Section 16, comes
under the second sentence thereof as I would interpret it
and so is also subject to confirmation.
I vote to grant the petition.
 
Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in
consonance with its constitutional duty, to adjudicate
promptly the issue at bar and to rule that the direct
appointment of respondent Salvador Mison as
Commissioner of the Bureau of Customs (without need of
submitting a prior nomination to the Commission on
Appointments and securing its confirmation) is valid and in
accordance with the President's constitutional authority to
so appoint officers of the Government as defined in Article
VII, section 16 of the 1987 Constitution. The paramount
public interest and the exigencies of the public service
demand that any doubts over the validity of such
appointments be resolved expeditiously in the test case at
bar.
It should be noted that the Court's decision at bar does not
mention nor deal with the Manifestation of December 1,
1987 filed by the intervenor that Senate Bill No. 137
entitled "An Act Providing For the Confirmation By the
Commission on Appointments of All Nominations and
Appointments Made by the President of the Philippines"
was passed on 23 October 1987 and was "set for perusal by
the House of Representatives. " This omission has been
deliberate. The Court has resolved the case at bar on the
basis of the issues joined by the parties. The contingency of
approval of the bill mentioned by intervenor clearly has no
bearing on and cannot affect retroactively the validity of
the direct appointment of respondent Mison and other
appointees similarly situated as in G.R. No. 80071, "Alex G.
Almario vs. Hon. Miriam Defensor- Santiago." The Court
does not deal with constitutional questions in the abstract
and without the same being properly raised before it in a
justiciable case and after thorough discussion of the
various points of view that would enable it to render
judgment after mature deliberation. As stressed at the
hearing of December 8, 1987, any discussion of the
reported bill and its validity or invalidity is premature and
irrelevant and outside the scope of the issues resolved in
the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring
opinion of Justice Sarmiento, and simply wish to add my
own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution 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 (Emphasis and
1st three paragraphings, supplied).
The difference in language used is significant. Under the
first sentence it is clear that the President "nominates" and
with the consent of the Commission on Appointments
"appoints" the officials enumerated. The second sentence,
however, significantly uses only the term "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. Deliberately eliminated
was any reference to nomination.
Thus, the intent of the framers of the Constitution to
exclude the appointees mentioned in the second sentence
from confirmation by the Commission on Appointments is,
to my mind, quite clear. So also is the fact that the term
"appoint" used in said sentence was not meant to include
the three distinct acts in the appointing process, namely,
nomination, appointment, and commission. For if that were
the intent, the same terminologies in the first sentence
could have been easily employed.
There should be no question either that the participation of
the Commission on Appointments in the appointment
process has been deliberately decreased in the 1987
Constitution compared to that in the 1935 Constitution,
which required that all presidential appointments be with
the consent of the Commission on Appointments.
The interpretation given by the majority may, indeed, lead
to some incongruous situations as stressed in the
dissenting opinion of Justice Cruz. The remedy therefor
addresses itself to the future. The task of constitutional
construction is to ascertain the intent of the framers of the
Constitution and thereafter to assure its realization (J.M.
Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No.
21064, February 18, 1970, 31 SCRA 413). And the primary
source from which to ascertain constitutional intent is the
language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all
Presidential appointments are subject to prior
Congressional confirmation, thus:
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 recess of the Congress, whether voluntary or
compulsory, but such appointment shall be effective only
until disapproval by the Commission on Appointments or
until the next adjournment of the Congress. 1
By its plain language, the Constitution has intended that
only those grouped under the first sentence are required to
undergo a consenting process. This is a significant
departure from the procedure set forth in the 1935
Charter:
(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 to 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. 2
under which, as noted by the majority, "almost all
presidential appointments required the consent
(confirmation) of the Commission on Appointments. 3 As
far as the present Charter is concerned, no extrinsic aid is
necessary to ascertain its meaning. Had its framers
intended otherwise, that is to say, to require all
Presidential appointments clearance from the Commission
on Appointments, they could have simply reenacted the
Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of
appointments that the President may make: (1)
appointments of heads of executive departments,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or
naval captain, and those of other officers whose
appointments are vested in him under the Constitution,
including the regular members of the Judicial and Bar
Council, 5 the Chairman and Commissioners of the Civil
Service Commission, 6 the Chairman and Commissioners of
the Commission on Elections, 7 and the Chairman and
Commissioners of the Commission on Audit; 8 (2) those
officers whose appointments are not otherwise provided
for by law; (3) those whom he may be authorized by law to
appoint; and (4) officers lower in rank whose
appointments the Congress may vest in the President
alone.
But like Justice Cruz in his dissent, I too am aware that
authors of the fundamental law have written a "rather
confused Constitution" 9 with respect, to a large extent, to
its other parts, and with respect, to a certain extent, to the
appointing clause itself, in the sense that it leaves us for
instance, with the incongruous situation where a consul's
appointment needs confirmation whereas that of
Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it
were, of the Charter is not for us to judge. That is a question
addressed to the electorate, and who, despite those
"eccentricities," have stamped their approval on that
Charter. "The Court," avers the majority, "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." 10
It must be noted that the appointment of public officials is
essentially an exercise of executive power. 11 The fact that
the Constitution has provided for a Commission on
Appointments does not minimize the extent of such a
power, much less, make it a shared executive-legislative
prerogative. In Concepcion v. Paredes, we stated in no
uncertain terms that "[a]ppointment to office is
intrinsically an executive act involving the exercise of
discretion." 12 Springer v. Philippine Islands 13 on the
other hand, underscored the fact that while the legislature
may create a public office, it cannot name the official to
discharge the functions appurtenant thereto. And while it
may prescribe the qualifications therefor, it cannot
circumscribe such qualifications, which would unduly
narrow the President's choice. In that event, it is as if it is
the legislature itself conferring the appointment.
Thus, notwithstanding the existence of a Commission on
Appointments, the Chief Executive retains his supremacy as
the appointing authority. In case of doubt, the same should
be resolved in favor of the appointing power.
It is the essence of a republican form of government, like
ours, that "[e]ach department of the government has
exclusive cognizance of matters within its jurisdiction." 14
But like all genuine republican systems, no power is
absolutely separate from the other. For republicanism
operates on a process of checks and balances as well, not
only to guard against excesses by one branch, but more
importantly, "to secure coordination in the workings of the
various departments of the government." 15 Viewed in that
light, the Commission on Appointments acts as a restraint
against abuse of the appointing authority, but not as a
means with which to hold the Chief Executive hostage by a
possibly hostile Congress, an unhappy lesson as the
majority notes, in our history under the regime of the 1935
Constitution.
The system of checks and balances is not peculiar to the
provision on appointments. The prohibition, for instance,
against the enactment of a bill of attainder operates as a
bar against legislative encroachment upon both judicial and
executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive
functions, respective y. 16
And then, the cycle of checks and balances pervading the
Constitution is a sword that cuts both ways. In a very real
sense, the power of appointment constitutes a check
against legislative authority. In Springer v. Philippine
Islands, 17 we are told that "Congress may not control the
law enforcement process by retaining a power to appoint
the individual who will execute the laws." 18 This is so,
according to one authority, because "the appointments
clause, rather than 'merely dealing with etiquette or
protocol,' seeks to preserve an executive check upon
legislative authority in the interest of avoiding an undue
concentration of power in Congress. " 19
The President has sworn to "execute [the] laws. 20 For that
matter, no other department of the Government may
discharge that function, least of all Congress. Accordingly, a
statute conferring upon a commission the responsibility of
administering that very legislation and whose members
have been determined therein, has been held to be
repugnant to the Charter. 21 Execution of the laws, it was
held, is the concern of the President, and in going about this
business, he acts by himself or through his men and
women, and no other.
The President, on the other hand, cannot remove his own
appointees "except for cause provided by law." 22
Parenthetically, this represents a deviation from the rule
prevailing in American jurisdiction that "the power of
removal . . . [is] incident to the power of appointment, 23
although this has since been tempered in a subsequent
case, 24 where it was held that the President may remove
only "purely executive officers, 25 that is, officers holding
office at his pleasure. In Ingles v. Mutuc, 26 this Court held
that the President may remove incumbents of offices
confidential in nature, but we likewise made clear that in
such a case, the incumbent is not "removed" within the
meaning of civil service laws, but that his term merely
expires.
It is to be observed, indeed, that the Commission on
Appointments, as constituted under the 1987 Constitution,
is itself subject to some check. Under the Charter, "[tlhe
Commission shall act on all appointments submitted to it
within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to
either consent or not consent to the appointments
preferred before it within the prescribed period results in a
de facto confirmation thereof
Certainly, our founding fathers have fashioned a
Constitution where the boundaries of power are blurred by
the predominance of checks and counterchecks, yet amid
such a rubble of competing powers emerges a structure
whose parts are at times jealous of each other, but which
are ultimately necessary in assuring a dynamic, but stable,
society. As Mr. Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish
and divide fields of black and white. Even the more specific
of them are found to terminate in a penumbra shading
gradually from one extreme to the other. ... When we come
to the fundamental distinctions it is still more obvious that
they must be received with a certain latitude or our
government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however
we may disguise it by veiling words we do not and cannot
carry out the distinction between legislative and executive
action with mathematical precision and divide the
branches into watertight compartments, were it ever so
desirable to do so, which I am far from believing that it is,
or that the Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and
counterpoises, which Newton might readily have
recognized as suggestive of the mechanism of the heavens,"
(W. Wilson, Constitutional Government in the United States
56 (1908)] can represent only the scaffolding of a far more
subtle "vehicle of life (Id. at 192: "The Constitution cannot
be regarded as a mere legal document, to be read as a will
or a contract would be. It must, of the necessity of the case,
be a vehicle of life.") The great difficulty of any theory less
rich, Woodrow Wilson once warned, "is that government is
not a machine, but a living thing. It falls, not under the
theory of the universe, but under the theory of organic life.
It is accountable to Darwin, not to Newton. It is . . . shaped
to its functions by the sheer pressure of life. No living thing
can have its organs offset against each other as checks, and
five." (Id. at 56.) Yet because no complex society can have
its centers of power not "offset against each other as
checks," and resist tyranny, the Model of Separated and
Divided Powers offers continuing testimony to the undying
dilemmas of progress and justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that
the 1973 Constitution deliberately denied the legislature
(the National Assembly under the 1971 draft Constitution)
the power to check executive appointments, and hence,
granted the President absolute appointing power. 30 As a
delegate to, and Vice-President of, the ill-fated 1971
Constitutional Convention, and more so as the presiding
officer of most of its plenary session, I am aware that the
Convention did not provide for a commission on
appointments on the theory that the Prime Minister, the
head of the Government and the sole appointing power,
was himself a member of parliament. For this reason, there
was no necessity for a separate body to scrutinize his
appointees. But should such appointees forfeit the
confidence of the assembly, they are, by tradition, required
to resign, unless they should otherwise have been removed
by the Prime Minister. 31 In effect, it is parliament itself that
"approves" such appointments. Unfortunately, supervening
events forestalled our parliamentary experiment, and
beginning with the 1976 amendments and some 140 or so
amendments thereafter, we had reverted to the
presidential form, 32 without provisions for a commission
on appointments.
In fine, while Presidential appointments, under the first
sentence of Section 16, of Article VII of the present
Constitution, must pass prior Congressional scrutiny, it is a
test that operates as a mere safeguard against abuse with
respect to those appointments. It does not accord Congress
any more than the power to check, but not to deny, the
Chief Executive's appointing power or to supplant his
appointees with its own. It is but an exception to the rule.
In limiting the Commission's scope of authority, compared
to that under the 1935 Constitution, I believe that the 1987
Constitution has simply recognized the reality of that
exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the
Constitution, as the supreme law of the land, should never
have any of its provisions interpreted in a manner that
results in absurd or irrational consequences.
The Commission on Appointments is an important
constitutional body which helps give fuller expression to
the principles inherent in our presidential system of
government. Its functions cannot be made innocuous or
unreasonably diminished to the confirmation of a limited
number of appointees. In the same manner that the
President shares in the enactment of laws which govern the
nation, the legislature, through its Commission on
Appointments, gives assurance that only those who can
pass the scrutiny of both the President and Congress will
help run the country as officers holding high appointive
positions. The third sentence of the first paragraph — " ...
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." — specifies only "officers lower in rank" as those
who may, by law, be appointed by the President alone. If as
expounded in the majority opinion, only the limited
number of officers in the first sentence of Section 16
require confirmation, the clear intent of the third sentence
is lost. In fact both the second and third sentences become
meaningless or superfluous. Superfluity is not to be read
into such an important part of the Constitution.
I agree with the intervenor that all provisions of the
Constitution on appointments must be read together. In
providing for the appointment of members of the Supreme
Court and judges of lower courts (Section 9, Article VIII),
the Ombudsman and his deputies (Section 9, Article XI), the
Vice President as a member of cabinet (Section 3, Article
VII) and, of course, those who by law the President alone
may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other
appointments need confirmation. Where there is no need
for confirmation or where there is an alternative process to
confirmation, the Constitution expressly so declares.
Without such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a
Commission on Appointments because the government it
set up was supposed to be a parliamentary one. The Prime
Minister, as head of government, was constantly
accountable to the legislature. In our presidential system,
the interpretation which Justice Cruz and myself espouse,
is more democratic and more in keeping with the system of
government organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority
opinion, is briefly as follows: Confirmation is required only
for the officers mentioned in the first sentence of Section
16, to wit: (1) the heads of the executive departments; (2)
ambassadors, other public ministers and consuls; (3)
officers of the armed forces from the rank of colonel or
naval captain; and (4) other officers whose appointments
are vested in the President in the Constitution. No
confirmation is required under the second sentence for (1)
all other officers whose appointments are not otherwise
provided for by law, and (2) those whom the President may
be authorized by law to appoint. Neither is confirmation
required by the third sentence for those other officers
lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of
Foreign Affairs, who is not the head of his department, does
not have to be confirmed by the Commission on
Appointments, but the ordinary consul, who is under his
jurisdiction, must be confirmed. The colonel is by any
standard lower in rank than the Chairman of the
Commission on Human Rights, which was created by the
Constitution; yet the former is subject to confirmation but
the latter is not because he does not come under the first
sentence. The Special Prosecutor, whose appointment is
not vested by the Constitution in the President, is not
subject to confirmation under the first sentence, and
neither are the Governor of the Central Bank and the
members of the Monetary Board because they fall under
the second sentence as interpreted by the majority opinion.
Yet in the case of the multi-sectoral members of the
regional consultative commission, whose appointment is
vested by the Constitution in the President under Article X,
Section 18, their confirmation is required although their
rank is decidedly lower.
I do not think these discrepancies were intended by the
framers as they would lead to the absurd consequences we
should avoid in interpreting the Constitution.
There is no question that bureau directors are not required
to be confirmed under the first sentence of Section 16, but
that is not the provision we ought to interpret. It is the
second sentence we must understand for a proper
resolution of the issues now before us. Significantly,
although there was a long discussion of the first sentence in
the Constitutional Commission, there is none cited on the
second sentence either in the Solicitor-General's comment
or in the majority opinion. We can therefore only speculate
on the correct interpretation of this provision in the light of
the first and third sentences of Section 16 or by reading
this section in its totality.
The majority opinion says that the second sentence is the
exception to the first sentence and holds that the two sets
of officers specified therein may be appointed by the
President without the concurrence of the Commission on
Appointments. This interpretation is pregnant with
mischievous if not also ridiculous results that presumably
were not envisioned by the framers.
One may wonder why it was felt necessary to include the
second sentence at all, considering the majority opinion
that the enumeration in the first sentence of the officers
subject to confirmation is exclusive on the basis of
expressio unius est exclusio alterius. If that be so, the first
sentence would have been sufficient by itself to convey the
Idea that all other appointees of the President would not
need confirmation.
One may also ask why, if the officers mentioned in the
second sentence do not need confirmation, it was still felt
necessary to provide in the third sentence that the
appointment of the other officers lower in rank will also
not need confirmation as long as their appointment is
vested by law in the President alone. The third sentence
would appear to be superfluous, too, again in view of the
first sentence.
More to the point, what will follow if Congress does not see
fit to vest in the President alone the appointment of those
other officers lower in rank mentioned in the third
sentence? Conformably to the language thereof, these
lower officers will need the confirmation of the
Commission on Appointments while, by contrast, the
higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and
the labor arbiters, as officers lower in rank than the bureau
director, will have to be confirmed if the Congress does not
vest their appointment in the President alone under the
third sentence. On the other hand, their superior, the
bureau director himself, will not need to be confirmed
because, according to the majority opinion, he falls not
under the first sentence but the second. This is carefulness
in reverse, like checking the bridesmaids but forgetting the
bride.
It must be borne in mind that one of the purposes of the
Constitutional Commission was to restrict the powers of
the Presidency and so prevent the recurrence of another
dictatorship. Among the many measures taken was the
restoration of the Commission on Appointments to check
the appointing power which had been much abused by
President Marcos. We are now told that even as this body
was revived to limit appointments, the scope of its original
authority has itself been limited in the new Constitution. I
have to disagree.
My own reading is that the second sentence is but a
continuation of the Idea expressed in the first sentence and
simply mentions the other officers appointed by the
President who are also subject to confirmation. The second
sentence is the later expression of the will of the framers
and so must be interpreted as complementing the rule
embodied in the first sentence or, if necessary, reversing
the original intention to exempt bureau directors from
confirmation. I repeat that there were no debates on this
matter as far as I know, which simply means that my
humble conjecture on the meaning of Section 16 is as
arguable, at least, as the suppositions of the majority. We
read and rely on the same records. At any rate, this view is
more consistent with the general purpose of Article VII,
which, to repeat, was to reduce the powers of the
Presidency.
The respondent cites the following exchange reported in
page 520, Volume II, of the Record of the Constitutional
Convention:
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.
However, the records do not show what particular part of
Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest
that the body was considering the first sentence of the said
section, which I reiterate is not the controversial provision.
In any case, although the excerpt shows that the proposed
amendment of Commissioner Foz was accepted by the
committee, it is not reflected, curiously enough, in the final
version of Section 16 as a perusal thereof will readily
reveal. Whether it was deleted later in the session or
reworded by the style committee or otherwise replaced for
whatever reason will need another surmise on this rather
confused Constitution.
I need only add that the records of the Constitutional
Commission are merely extrinsic aids and are at best
persuasive only and not necessarily conclusive.
Interestingly, some quarters have observed that the
Congress is not prevented from adding to the list of officers
subject to confirmation by the Commission on
Appointments and cite the debates on this matter in
support of this supposition. It is true enough that there was
such a consensus, but it is equally true that this thinking is
not at all expressed, or even only implied, in the language
of Section 16 of Article VII. Which should prevail then the
provision as worded or the debates?
It is not disputed that the power of appointment is
executive in nature, but there is no question either that it is
not absolute or unlimited. The rule re- established by the
new Constitution is that the power requires confirmation
by the Commission on Appointments as a restraint on
presidential excesses, in line with the system of checks and
balances. I submit it is the exception to this rule, and not
the rule, that should be strictly construed.
In my view, the only officers appointed by the President
who are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the
Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council; (2) the Vice-President when he is
appointed to the Cabinet; and (3) "other officers lower in
rank," but only when their appointment is vested by law in
the President alone. It is clear that this enumeration does
not include the respondent Commissioner of Customs who,
while not covered by the first sentence of Section 16, comes
under the second sentence thereof as I would interpret it
and so is also subject to confirmation.
I vote to grant the petition.
Footnotes
1 66 Phil. 259, at 264.
2 The "other officers" whose appointments are vested in
the President in the 1987 Constitution are:
1. Regular members of the Judicial and Bar Council (ART.
VIII, Sec. 8(2);
2. Chairman and Commissioners of the Civil Service
Commission (ART. IX-B, Sec. 1 (2);
3. Chairman and Commissioners of the Commission on
Elections (ART. IX-C, Sec. 1(2);
4. Chairman and Commissioners of the Commission on
Audit (ART. IX-D, Sec. 112); and,
5. Members of the regional consultative commission (ART.
X, Sec. 18)
3 When Congress creates inferior offices and omits to
provide for appointments to them, or provides in an
unconstitutional way for such appointment, the officers are
within the meaning of the clause officers of the
Government whose appointments are not otherwise
provided for by law" and the power to appoint such officers
devolves on the President. (USC, Const., Par, II, p. 529, citing
Op., Atty. Gen. 213.)
4 The 1935 Constitution says "inferior officers" while the
1987 Constitution states "officers lower in rank. "
5 Example: Sen. Raul S. Manglapus was first nominated by
the President for the position of Secretary of the
Department of Foreign Affairs (an executive department).
After his nomination was confirmed by the Commission on
Appointments, the President appointed him Secretary of
Foreign Affairs.
6 66 Phil. 259, at 265.
7 Pp. 384-385, Vol. 11, RECORD OF THE CONSTITUTIONAL
COMMISSION OF 1986.
8 Pp. 433-435, Vol. 11, RECORD OF THE 1986
CONSTITUTIONAL COMMISSION.
9 The second sentence of Sec. 16, ART. VII of the 1987
Constitution refers to what this Decision calls the second
and third groups of officers appointed by the President.
10 Pp. 514-521, Vol. 11, RECORD OF THE 1986 CON-
CONSTITUTIONAL COMMISSION.
Sarmiento, J.:
1 CONST., art. VII, sec. 16.
2 CONST. (1935), art. VII, sec. 10(3).
3 Sarmiento v. Mison, G.R. No. 79974, 6.
4 As Justice Padilla further notes, Section 16, of Article VII,
was originally a verbatim copy of the 1935 provisions.
Upon further deliberations of the Constitutional
Commission, however, the consensus was reached to
amend the same to its present form.
5 CONST., art. VII I, sec. 8 (2).
6 Supra, art. IX (B), see. 1 (2).
7 Supra, art. IX (C), sec. 1 (2).
8 Supra, art. IX (D), sec. 1 (2).
9 Sarmiento v. Mison, supra, Cruz., J., Dissenting, 5.
10 Supra, 3.
11 Concepcion v. Paredes, 42 Phil. 599 (1921); Government
v. Springer, 50 Phil. 259 (1927); Springer v. P.I., 277 U.S.
189 (1929). The Supreme Court has been vested with the
power to "[a]ppoint all officials of the Judiciary in
accordance with the Civil Service Law" [CONST., art. VIII,
sec. 5(6)] but that is by fiat of the Constitution itself. (See
also supra, art. VII, sec. 16.). In Government v. Springer,
supra, we recognized the authority of the legislature to
appoint its officers but only as "an incident to the discharge
of its functions." (At 278). When the Constitution
authorizes Congress to vest in the President the
appointment of other officers, it is not Congress being
empowered to make the appointments; the President
retains his appointing power, through, however, a
procedure established by Congress.
12 Supra, at 603.
13 Supra.
14 Angara v. Electoral Commission, 63 Phil. 139, 156
(1936).
15 Angara v. Electoral Commission, supra.
16 TRIBE, AMERICAN CONSTITUTIONAL LAW, 184-185
(1978), citing Buckley v. Valeo. 424 US 1 (1976).
17 Supra.
18 TRIBE, Id, 184.
19 Id., 184-185, citing Buckley v. Valeo, supra.
20 CONST., art. VII, sec. 5.
21 Buckley v. Valeo, supra.
22 CONST., art, IX (B), sec. 2 (3).
23 Myers v. United States, 272 US 52 (1926).
24 TRIBE, Id, at 188, citing Humphrey's Executor v. United
States, 295 US 602 (1935).
25 Id., 11 No. L-20390, November 29, 1968,
26 SCRA 171 (1968).
27 CONST., art. VI, sec. 18.
28 Holmes, J, Dissenting, Springer v. Philippine Islands,
supra, 210-212.
29 TRIBE, Id, 18-19; emphasis in original.
30 Sarmiento v. Mison, supra, 6.
31 CONST. (1973), art. IX, sec. 4; art. XII (B), sec. 3.
32 See Free Telephone Workers Union v. Minister of Labor
and Employment, No. L-58184, October 30, 1981,108 SCRA
757 (1981).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
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 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 transgresses Section
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 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
continuance in office," found in Section 9, Article VIII of the
Constitution, referring to the salaries of judicial officers.
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)
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. Subsection 3, Section 10, Art. VII of the 1935
Constitution provided:
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.
Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Bidin,
Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and
Nocon, JJ., concur.
Bellosillo, J., took no part.
 
 
 
Separate Opinions
GUTIERREZ, JR., concurring:
When the issues in this petition were first raised in
Sarmiento III v. Mison (156 SCRA 549 [1987]), I joined
Justice Cruz in a dissent because I felt that the
interpretation of Section 16, Article VII by the majority of
the Court results in absurd or irrational consequences. The
framers could not have intended what the majority ruled to
be the meaning of the provision. When the question was
again raised in Bautista v. Salonga (172 SCRA 160 [1989]), I ground merely of adherence to judicial precedent, however
reiterated my dissent and urged a re-examination of the unsound.
doctrine stated in Sarmiento v. Mison.
Footnotes
The issue is again before us. Even as I continue to believe
that the majority was wrong in the Sarmiento and Bautista 1 Sec. 16, Art. VII, 1987 Constitution.
cases, I think it is time to finally accept the majority opinion
as the Court's ruling on the matter and one which 2 G.R. No. 79974, 17 December 1987, 156 SCRA 549.
everybody should respect. There will be no end to litigation
if, everytime a high government official is appointed
3 G.R. No. 86439, 13 April 1989, 172 SCRA 160.
without confirmation by the Commission on Appointments,
another petition is filed with this Court.
4 G.R. No. 83216, 4 September 1989, 177 SCRA 259, 260.
I, therefore, VOTE with the majority to DISMISS the
PETITION. 5 Rollo, pp. 10-11.

CRUZ, J., dissenting: 6 Memorandum for respondents, Rollo, p. 8.

I dissent on the basis of my dissent in Sarmiento v. Mison, 7 Supra at pp. 553-554.

which I believe should be re-examined instead of being
automatically re-affirmed simply because of its original 10 Art. 8, New Civil Code of the Philippines.
adoption. I do not believe we should persist in error on the
ground merely of adherence to judicial precedent, however 11 Art. VII, Sec. 4(3), 1987 Constitution.
unsound.
12 People vs. Jabinal, G.R. No. L-30061, 27 February 1974,
Separate Opinion 55 SCRA 607.

GUTIERREZ, JR., J., concurring: 13 G.R. Nos. L-6355-56, 31 August 1953, 93 Phil. 699.

When the issues in this petition were first raised in 14 Ibid., pp. 701-702.
Sarmiento III v. Mison (156 SCRA 549 [1987]), I joined
Justice Cruz in a dissent because I felt that the 15 Swisher, Carl Brent. The Supreme Court in Modern Role,
interpretation of Section 16, Article VII by the majority of NYU Press, Inc., 1958, pp. 34-35.
the Court results in absurd or irrational consequences. The
framers could not have intended what the majority ruled to
16 Ibid., former Chief Justice Taney in Dred Scott vs.
be the meaning of the provision. When the question was
Sandford, 19 Howard 393, 407 (1857), p. 147.
again raised in Bautista v. Salonga (172 SCRA 160 [1989]), I
reiterated my dissent and urged a re-examination of the
doctrine stated in Sarmiento v. Mison. 17 Ibid., Justice Roberts in United States vs. Butler, 297 U.S.
I, 62-63 (1936), p. 170.
The issue is again before us. Even as I continue to believe
that the majority was wrong in the Sarmiento and Bautista
cases, I think it is time to finally accept the majority opinion The Lawphil Project - Arellano Law Foundation
as the Court's ruling on the matter and one which
everybody should respect. There will be no end to litigation
if, everytime a high government official is appointed Republic of the Philippines
without confirmation by the Commission on Appointments,
another petition is filed with this Court. Supreme Court

I, therefore, VOTE with the majority to DISMISS the Manila

PETITION.
                                                              
CRUZ, J., dissenting:

I dissent on the basis of my dissent in Sarmiento v. Mison, EN BANC

which I believe should be re-examined instead of being
automatically re-affirmed simply because of its original  
adoption. I do not believe we should persist in error on the
ARTURO M. DE CASTRO,
                               
 
                   - versus -
 
JUDICIAL AND BAR COUNCIL
(JBC) and PRESIDENT GLORIA
MACAPAGAL – ARROYO,
            
x-----------------------x
JAIME N. SORIANO,
                               
                    - versus -
JUDICIAL AND BAR COUNCIL
(JBC),
            
x-----------------------x
PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA),
                               
                   - versus -
  
JUDICIAL AND BAR COUNCIL
(JBC),
                               
x-----------------------x
IN RE APPLICABILITY OF
SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO
G. R. No. 191002
APPOINTMENTS TO THE  
Petitioner,            JUDICIARY,
  ESTELITO P. MENDOZA,
                                   Petitioner,         
   x - - - - - - - - - - - - - - - - - - - - - - - x
  JOHN G. PERALTA,
 
                                   Petitioner,         
        Respondents.                      - versus -
   
  JUDICIAL AND BAR COUNCIL
(JBC).  
 Petitioner,          G.R. No. 191032
                                Respondent.  
x - - - - - - - - - - - - - - - - - - - - - - - -x  
 
PETER IRVING CORVERA;  
 
CHRISTIAN ROBERT S. LIM;  
        Respondent.    
  ALFONSO V. TAN, JR.;  
G.R. No. 191057    
 
  NATIONAL UNION OF PEOPLE’S  
 Petitioner,            LAWYERS;
MARLOU B. UBANO;
A.M. No. 10-2-5-  
SC         
  INTEGRATED BAR OF THE
  PHILIPPINES-DAVAO DEL SUR  
  CHAPTER, represented by its
 Respondent.   Immediate Past President, ATTY.
  ISRAELITO P. TORREON, and the  
  latter in his own personal
capacity as a MEMBER of the  
G.R. No. 191149 PHILIPPINE BAR;
    GUINEVERE DE LEON.  

MITCHELL JOHN L. BOISER;                               Intervenors.  

    x - - - - - - - - - - - - - - - - - - - - - - - -x  

BAGONG ALYANSANG BAYAN   ATTY. AMADOR  Z. TOLENTINO,  

(BAYAN) CHAIRMAN DR. JR., (IBP
CAROLINA P. ARAULLO; BAYAN    
SECRETARY GENERAL RENATO Governor–Southern Luzon), and
M. REYES, JR.; CONFEDERATION   ATTY. ROLAND B. INTING  
FOR UNITY, RECOGNITION AND
ADVANCE-MENT OF (IBP Governor–Eastern Visayas),  
 
GOVERNMENT EMPLOYEES
(COURAGE) CHAIRMAN
                                  Petitioners,  
FERDINAND GAITE; KALIPUNAN
NG DAMAYANG MAHIHIRAP
(KADAMAY) SECRETARY      
GENERAL GLORIA ARELLANO;
ALYANSA NG NAGKAKAISANG                      - versus -  
KABATAAN NG SAMBAYANAN
PARA SA KAUNLARAN      
(ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG  
   
PAG-ASA CONVENOR ALVIN
PETERS; LEAGUE OF FILIPINO
  JUDICIAL AND BAR COUNCIL  
STUDENTS (LFS) CHAIRMAN
(JBC),
JAMES MARK TERRY LACUANAN
RIDON; NATIONAL UNION OF    
STUDENTS OF THE PHILIPPINES                                  Respondent.
(NUSP) CHAIRMAN EINSTEIN    
RECEDES; COLLEGE EDITORS x-----------------------x
GUILD OF THE PHILIPPINES    
(CEGP) CHAIRMAN VIJAE PHILIPPINE BAR ASSOCIATION,
ALQUISOLA; and STUDENT INC.,
   
CHRISTIAN MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN                                  Petitioner,
MA. CRISTINA ANGELA    
GUEVARRA;
     
 
     
WALDEN F. BELLO and LORETTA
     
ANN P. ROSALES;

     
 

     
WOMEN TRIAL LAWYERS
ORGANIZATION OF THE
PHILIPPINES, represented by      
YOLANDA QUISUMBING-
     
JAVELLANA; BELLEZA ALOJADO
DEMAISIP; TERESITA                        - versus -                     
GANDIONCO-OLEDAN; MA.
VERENA KASILAG-VILLANUEVA;  
   
MARILYN STA. ROMANA;
LEONILA DE JESUS; and
    BRION,

    PERALTA,

  G.R. No. 191342 BERSAMIN,

        DEL CASTILLO,

JUDICIAL AND BAR COUNCIL and   ABAD,

HER EXCELLENCY GLORIA
MACAPAGAL-ARROYO,   VILLARAMA, JR.,

                                Respondents.   PEREZ, and

  MENDOZA, JJ.

   

  Promulgated:

  March 17, 2010

  x---------------------------------------------------------------------------
--------------x
 
 
 
DECISION
 
 
 
BERSAMIN, J.:
G.R. No. 191420
 
 

          The compulsory retirement of Chief Justice Reynato S.

 Present:
Puno by May 17, 2010 occurs just days after the coming
  presidential elections on May 10, 2010. Even before the

PUNO, C.J., event actually happens, it is giving rise to many legal

dilemmas. May the incumbent President appoint his
CARPIO,
successor, considering that Section 15, Article VII
CORONA,
(Executive Department) of the Constitution prohibits the
CARPIO MORALES, President or Acting President from making appointments
within two months immediately before the next
VELASCO, JR.,
presidential elections and up to the end of his term, except
NACHURA, temporary appointments to executive positions when

LEONARDO-DE continued vacancies therein will prejudice public service or

CASTRO, 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?
 
Precís of the Consolidated Cases
 
Petitioners Arturo M. De Castro and John G. Peralta
respectively commenced G.R. No. 191002 and G.R. No.
191149 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, 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,  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 G.R. No. 191002, De Castro submits that the
 
          In Administrative Matter No. 10-2-5-SC, 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, 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 President’s 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), 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.
 
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. 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.”
 
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 President’s 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.
 
 
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 “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 JBC’s 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.” 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.”
 
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.
 
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.”
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, 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, 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.
          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 came out in the Philippine Daily Inquirer and The Philippine
Associate Justice Antonio Eduardo B. Nachura. However, Star issues of February 13, 2010.
the last two declined their nomination through letters
dated January 18, 2010 and January 25, 2010, respectively.  

  Issues

          Others either applied or were nominated. Victor  

Fernandez, the retired Deputy Ombudsman for Luzon,

Although it has already begun the process for the
applied, but later formally withdrew his name from
filling of the position of Chief Justice Puno in accordance
consideration through his letter dated February 8, 2010.
with its rules, the JBC is not yet decided on when to submit
Candidates who accepted their nominations without
to the President its list of nominees for the position due to
conditions were Associate Justice Renato C. Corona;
the controversy now before us being yet unresolved. In the
Associate Justice Teresita J. Leonardo-De Castro; Associate
meanwhile, time is marching in quick step towards May 17,
Justice Arturo D. Brion; and Associate Justice Edilberto G.
2010 when the vacancy occurs upon the retirement of Chief
Sandoval (Sandiganbayan). Candidates who accepted their
Justice Puno.
nominations with conditions were Associate Justice Antonio
T. Carpio and Associate Justice Conchita Carpio Morales. 
 
Declining their nominations were Atty. Henry Villarica (via
telephone conversation with the Executive Officer of the The actions of the JBC have sparked a vigorous
JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. debate not only among legal luminaries, but also among
(via telephone conversation with the Executive Officer of non-legal quarters, and brought out highly disparate
the JBC on February 8, 2010). 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
          The JBC excluded from consideration former RTC
issue now before us as an administrative matter “to avoid
Judge Florentino Floro (for failure to meet the standards
any possible polemics concerning the matter,” but he
set by the JBC rules); and Special Prosecutor Dennis Villa-
opines that the polemics leading to Valenzuela “would be
Ignacio of the Office of the Ombudsman (due to cases
miniscule [sic] compared to the “polemics” that have now
pending in the Office of the Ombudsman).
erupted in regard to the current controversy,” and that

  unless “put to a halt, and this may only be achieved by a

          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
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.”
 

than February 22, 2010, to wit: Associate Justice Carpio,

          Accordingly, we reframe the issues as submitted by
Associate Justice Corona, Associate Justice Carpio Morales,
each petitioner in the order of the chronological filing of
Associate Justice Leonardo-De Castro, Associate Justice
their petitions.
Brion, and Associate Justice Sandoval. The announcement

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 JBC’s 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.” It stated:
 
Likewise, the JBC has yet to take a position on when to
submit the shortlist to the proper appointing authority,
in light of 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 JBC’s 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 Malacañ ang on
the very day the vacancy arises”; 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; (c) petitioner Soriano’s
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; (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; 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 JBC’s determination of
who it nominates to the President is an exercise of a
discretionary duty.
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; 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; 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 President’s power to appoint members of
the Supreme Court to ensure its independence from
“political vicissitudes” and its “insulation from political
pressures,” such as stringent qualifications for the
positions, the establishment of the JBC, the specified period the filling up of the vacancy in accordance with the
within which the President shall appoint a Supreme Court constitutional mandate.
Justice.
 
 
On March 9, 2010, the Court admitted the
The OSG posits that although Valenzuela involved following comments/oppositions-in-intervention, to wit:
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

(a) The opposition-in-intervention dated February 22, 2010 of
even recognized that there might be “the imperative need Atty. Peter Irving Corvera (Corvera);
for an appointment during the period of the ban,” like when  
(b) The opposition-in-intervention dated February 22, 2010 of
the membership of the Supreme Court should be “so Atty. Christian Robert S. Lim (Lim);
reduced that it will have no quorum, or should the voting  
(c) The opposition-in-intervention dated February 23, 2010 of
on a particular important question requiring expeditious Atty. Alfonso V. Tan, Jr. (Tan);
resolution be divided”; and that Valenzuela also recognized  
(d) The comment/opposition-in-intervention dated March 1,
that the filling of vacancies in the Judiciary is undoubtedly 2010 of the National Union of People’s Lawyers (NUPL);
in the public interest, most especially if there is any  
(e) The opposition-in-intervention dated February 25, 2010 of
compelling reason to justify the making of the Atty. Marlou B. Ubano (Ubano);
appointments during the period of the prohibition.  
(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);
 
Lastly, the OSG urges that there are now
(g) The opposition-in-intervention dated February 26, 2010 of
undeniably compelling reasons for the incumbent Atty. Mitchell John L. Boiser (Boiser);
 
President to appoint the next Chief Justice, to wit: (a) a
(h)The consolidated comment/opposition-in-intervention
deluge of cases involving sensitive political issues is “quite dated February 26, 2010 of BAYAN Chairman Dr. Carolina
P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.;
expected”; (b) the Court acts as the Presidential Electoral
Confederation for Unity, Recognition and Advancement of
Tribunal (PET), which, sitting en banc, is the sole judge of Government Employees (COURAGE) Chairman Ferdinand
Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY)
all contests relating to the election, returns, and
Secretary General Gloria Arellano; Alyansa ng
qualifications of the President and Vice President and, as Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran
(ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang
such, has “the power to correct manifest errors on the
Pag-asa Convenor Alvin Peters; League of Filipino Students
statement of votes (SOV) and certificates of canvass (COC)”; (LFS) Chairman James Mark Terry Lacuanan Ridon;
National Union of Students of the Philippines (NUSP)
(c) if history has shown that during ordinary times the Chief
Chairman Einstein Recedes, College Editors Guild of the
Justice was appointed immediately upon the occurrence of Philippines (CEGP) Chairman Vijae Alquisola; and Student
Christian Movement of the Philippines (SCMP) Chairman
the vacancy, from the time of the effectivity of the
Ma. Cristina Angela Guevarra (BAYAN et al.);
Constitution, there is now even more reason to appoint the  
(i)    The opposition-in-intervention dated March 3, 2010 of
next Chief Justice immediately upon the retirement of Chief
Walden F. Bello and Loretta Ann P. Rosales (Bello et al.);
Justice Puno; and (d) should the next Chief Justice come and
 
from among the incumbent Associate Justices of the
(j) The consolidated comment/opposition-in-intervention
Supreme Court, thereby causing a vacancy, it also becomes dated March 4, 2010 of the Women Trial Lawyers
Organization of the Philippines (WTLOP), represented by
incumbent upon the JBC to start the selection process for
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 Castro’s
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 Castro’s 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 temporary or 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.  the Associate Justices of the Supreme Court; that
 
Intervenor Boiser adds that De Castro’s 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
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.
“members” was interpreted in Vargas v. Rillaroza (G.R. No.
L-1612, February 26, 1948) to refer to the Chief Justice and
PHILCONSA’s 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
PHILCONSA’s petition; that the role of the JBC cannot be
advance
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.

          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
applicable to judicial appointments.
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
as to the Judiciary does not violate the principle of separation
of powers, because said provision is an exception.

           

Intervenor WTLOP further posits that petitioner

Oppositors NUPL, Corvera, Lim and BAYAN et al.
Soriano’s contention that the power to appoint the Chief
state that the JBC’s act of nominating appointees to the
Justice is vested, not in the President, but in the Supreme
Supreme Court is purely ministerial and does not involve
Court, is utterly baseless, because the Chief Justice is also a
the exercise of judgment; that there can be no default on
Member of the Supreme Court as contemplated under
the part of the JBC in submitting the list of nominees to the
Section 9, Article VIII; and that, at any rate, the term
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 President’s
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.” 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.:
 
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.”
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.
It is true that as early as in 1937, in People v. Vera,
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, Manila Race Horse
Trainers’ Association v. De la Fuente, Anti-Chinese League of
the Philippines v. Felix, and Pascual v. Secretary of Public
Works.
 
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, the Court
liberalized the approach when the cases
“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.  of public funds, while in the latter, he is but the mere
 
In the 1975 decision in Aquino v. Commission on Elections,
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
constitutionality or validity of laws, regulations, and
rulings.
 
However, the assertion of a public right as a
predicate for challenging a supposedly illegal
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, the Court aptly explains
why:
 
had 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, where
it was held that the plaintiff in a taxpayer’s suit is in a
different category from the plaintiff in a citizen’s suit. In
the former, the plaintiff is affected by the expenditure
instrument of the public concern. As held by the New
York Supreme Court in People ex rel Case v. Collins: “In
matter of mere public right, however…the people are
the real parties…It 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
taxpayer’s suits, Terr v. Jordan 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.”
 
Petitioners De Castro (G.R. No. 191002), Soriano
the (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
or disbursement of public funds.”
 
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.
  
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 JBC’s 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.
         
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
petitioners), regardless of one’s 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.
 
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., 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 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.”
 
Justiciability
the
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 Castro’s 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
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 a challenge, provided the Court has
sufficient facts before it to enable it to intelligently
adjudicate the issues. Herein, the facts are not in doubt, for
only legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply

compel the JBC through mandamus to submit the short list to appointments to fill a vacancy in the Supreme Court
to the incumbent President; the counter-insistence of the
or to other appointments to the Judiciary
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
Two constitutional provisions are seemingly in
appointments, including those to the Judiciary, starting on
conflict.
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

The first, Section 15, Article VII (Executive
establish the ripeness of the controversy, considering that
Department), provides:
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.     
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.
 
 
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 President’s
or Acting President’s term does not refer to the Members of
the Supreme Court.
 
 
Although Valenzuela 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 Court’s
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 of  his term” - was approved without
discussion.
 
          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. 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.
         
Moreover, the usage in Section 4(1), Article VIII of
the word shall – an imperative, operating to impose a duty
that may be enforced – 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
Commission’s 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 rule’s application, largely because of the principle of
implied repeal.
 
In this connection, PHILCONSA’s urging of a revisit
and a review of Valenzuela is timely and 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.
 
          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. 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. 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.:
 
xxx
 
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 appointee’s 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.
   should seek to carry out this purpose rather than to defeat
Considering the respective reasons for the time
it.
frames for filling vacancies in the courts and the restriction
on the President's power of appointment, it is this Court’s
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 Also, the intervention of the JBC eliminates the
disposition of some cases.  Temporary vacancies can abide danger that appointments to the Judiciary can be made for
the period of the ban which, incidentally and as earlier 
pointed  out, comes to exist only once in every six years.  the purpose of buying votes in a coming presidential
Moreover, those occurring in the lower courts can be filled election, or of satisfying partisan considerations. The
temporarily by designation.  But prohibited appointments
are long-lasting and permanent in their effects.  They may, experience from the time of the establishment of the JBC
as earlier pointed out, in fact influence the results of shows that even candidates for judicial positions at any
elections and, for that reason, their making is considered an
election offense. 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

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
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.
 

of the JBC and their subjecting the nomination and

Third. As earlier stated, the non-applicability of
screening of candidates for judicial positions to the
Section 15, Article VII to appointments in the Judiciary was
unhurried and deliberate prior process of the JBC ensured
confirmed by then Senior Associate Justice Regalado to the
that there would no longer be midnight appointments to
JBC itself when it met on March 9, 1998 to discuss the
the Judiciary. If midnight appointments in the mold of
question raised by some sectors about the
Aytona were made in haste and with irregularities, or made
“constitutionality of xxx appointments” to the Court of
by an outgoing Chief Executive in the last days of his
Appeals in light of the forthcoming presidential elections.
administration out of a desire to subvert the policies of the
He assured that “on the basis of the (Constitutional)
incoming President or for partisanship, the appointments
Commission’s records, the election ban had no application
to the Judiciary made after the establishment of the JBC
to appointments to the Court of Appeals.” This
would not be suffering from such defects because of the
confirmation was accepted by the JBC, which then
JBC’s prior processing of candidates. Indeed, it is axiomatic
submitted to the President for consideration the
in statutory construction that the ascertainment of the
nominations for the eight vacancies in the Court of Appeals.
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 The fault of Valenzuela was that it accorded no
intent; hence, the enactment should be construed with weight and due consideration to the confirmation of Justice
reference to its intended scope and purpose, and the court 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 President’s 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, and evidently refers only to appointments in the
Executive Department. It has no application
appointments in the Judiciary, because temporary or acting
appointments can only undermine the independence of the
Judiciary due to their being revocable at will. 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
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.
 
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. 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.
to
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
the
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 Puno’s
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.
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.
xxx
          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 Enrile’s 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
5.     When Chief Justice Davide retired on December 19, 2005,
Justice who is first in precedence take over. Under the Chief Justice Artemio Panganiban was appointed the next
Constitution, the heads of the Legislative and Executive day, December 20, 2005; and
 
Departments are popularly elected, and whoever are 6.     When Chief Justice Panganiban retired on December 6,
elected and proclaimed at once become the leaders of their 2006, Chief Justice Reynato S. Puno took his oath as Chief
Justice at midnight of December 6, 2006.
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 III

functions absolutely significant to the life of the nation. Writ of mandamus does not lie against the JBC
With the entire Supreme Court being the 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           May the JBC be compelled to submit the list of

incumbent President to make within the 90-day period nominees to the President? 

from May 17, 2010, there is no justification to insist that

 
the successor of Chief Justice Puno be appointed by the
next 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

Historically, under the present Constitution, there duty resulting from an office, trust, or station. It is proper

has been no wide gap between the retirement and the when the act against which it is directed is one addressed

resignation of an incumbent Chief Justice, on one hand, and to the discretion of the tribunal or officer. Mandamus is not

the appointment to and assumption of office of his available to direct the exercise of a judgment or discretion

successor, on the other hand. As summarized in the in a particular way.

comment of the OSG, the chronology of succession is as

 
follows:

          For mandamus to lie, the following requisites must be

 
complied with: (a) the plaintiff has a clear legal right to the

1.     When Chief Justice Claudio Teehankee retired on April 18, act demanded; (b) it must be the duty of the defendant to
1988, Chief Justice Pedro Yap was appointed on the same perform the act, because it is mandated by law; (c) the
day;
  defendant unlawfully neglects the performance of the duty
2.     When Chief Justice Yap retired on July 1, 1988, Chief Justice enjoined by law; (d) the act to be performed is ministerial,
Marcelo Fernan was appointed on the same day;
  not discretionary; and (e) there is no appeal or any other
3.     When Chief Justice Fernan resigned on December 7, 1991, plain, speedy and adequate remedy in the ordinary course
Chief Justice Andres Narvasa was appointed the following
day, December 8, 1991; of law.
 
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;
 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 President’s 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. 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.
 
          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, Soriano’s 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.
 
                 Associate Justice                                         Associate
Justice
                                                                    LUCAS P. BERSAMIN
 
                                                                          Associate Justice
 
 
 
WE CONCUR:
 
 
 
 
ANTONIO EDUARDO B. NACHURA    TERESITA J.
  LEONARDO-DE CASTRO                                                                 

             Associate Justice                                                  Associate

Justice
 
 
REYNATO S. PUNO
 
Chief Justice
 
 
 
 
 
 
           ARTURO D. BRION                         DIOSDADO M.
  PERALTA

                  Associate Justice                                      Associate

Justice
         ANTONIO T. CARPIO                        RENATO C.
CORONA  

                Associate Justice                                     Associate

Justice

   

                                                                                        

      MARIANO C. DEL CASTILLO                    ROBERTO A.

ABAD
 
                  Associate Justice                                       Associate
Justice
 

 
 

 
 

 
CONCHITA CARPIO MORALES       PRESBITERO J.
VELASCO, JR.     
                                                                            Chief Justice

 
 
 
      Filed on February 9, 2010.
        MARTIN S. VILLARAMA, JR.           JOSE PORTUGAL
PEREZ       Begun on February 23, 2010.

                      Associate Justice                                  Associate       Initiated on February 10, 2010.

Justice
      Commenced on February 11, 2010.
 
      Dated February 15, 2010.
 
      Filed on March 8, 2010.
 
      A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
 
      Petition in G.R. No. 191002, pp. 3-4.
 
      Id., p. 5.
 
    Petition in G.R. No. 191032, pp. 4-8.
JOSE CATRAL MENDOZA
    Petition in G.R. No. 191057, pp. 1-2.
Associate Justice
    Id., p. 11.
 
     Petition in G.R. No. 191149.
 
     Petition in G.R. No. 191342.
 
     http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
CERTIFICATION
   
  http://jbc.judiciary.gov.ph/announcements/jbc_announce_
2009/jan22%20%2710.pdf
 
    Comment of the JBC, p. 3.
            Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions in     Id.
the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the     Id., pp. 4-5.
Court.
    Id., p. 5.
 
    Id.
 
    Id., p. 6.
 
    Petition in A.M. No. 10-2-5-SC, pp. 5-6.
 
    Comment of the JBC, p. 6.
                                                                   REYNATO S. PUNO
    Id., p. 7; bold emphasis is in the original text.
    Comment of the OSG, pp. 13-14.
    Id., p. 14.
    Id., p. 15.
    Id., pp. 20-24.
    Id., pp. 25-27.
    Id., pp. 29-30.
    Id.
    Id., pp. 32-33.
    Id., pp. 34-35.
    Id.
    Id., pp. 35-36. The OSG posits:
National interest compels the President to make
such appointment for it is particularly during this
crucial period when national leaders are seeking fresh
mandates from the people that the Supreme Court,
more than at any other time, represents stability.
Hence, a full court is ideal to ensure not only due
deliberation on and careful consideration of issues but
also expeditious disposition of cases.
Indeed, such function becomes especially
significant in view of the fact that this is the first time
that the whole country will experience automated
elections.
    Id., pp. 36-37. The OSG stresses:
The possible fallouts or serious aftermath of
allowing a vacuum in the position of the Chief Justice
may be greater and riskier than the consequences or
repercussions of inaction. Needless to state, the
appointment of the Chief Justice of this Honorable
Court (sic) is the most important appointment vested
by the 1987 Constitution to (sic) the President.
    Id., p. 37.
    Id., p. 38.
    Filed by Atty. Pitero M. Reig.
    Black’s Law Dictionary, 941 (6th Ed. 1991).
     G.R. No. 155001, May 5, 2003, 402 SCRA 612.
    Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17,
1995, 246 SCRA 540, 562-563, citing Baker v. Carr, 369 U.S.
186, 7 L. Ed. 633 (1962).
    Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora,
G.R. No. 138570, October 10, 2000; 342 SCRA 449, 478.
    65 Phil. 56.
    G.R. No. 117, November 7, 1945 (Unreported).
    G.R. No. 2947, January 11, 1959 (Unreported).
    77 Phil. 1012 (1947).
    110 Phil. 331 (1960).
    84 Phil. 368 (1949)
    E.g., Chavez v. Public Estates Authority, G.R. No. 133250,
July 9, 2002, 384 SCRA 152 (in which the Court ruled that
the enforcement of the constitutional right to information
and the equitable diffusion of natural resources are matters
of transcendental importance which clothe the petitioner
with locus standi); Bagong Alyansang Makabayan v.
Zamora, G.R. Nos. 138570, 138572, 138587, 138680,
138698, October 10, 2000, 342 SCRA 449 (in which the
Court held that “given the transcendental importance of the
issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack
of direct injury to the parties seeking judicial review” of the
Visiting Forces Agreement); Lim v. Executive Secretary, G.R.
No. 151445, April 11, 2002, 380 SCRA 739 (in which the
Court, albeit conceding that the petitioners might not file
suit in their capacity as taxpayers without a showing that
Balikatan 02-01 involved the exercise of Congress’ taxing
or spending powers, reiterated Bagong Alyansang
Makabayan v. Zamora, declaring that cases of
transcendental importance must be settled promptly and
definitely and the standing requirements may be relaxed);
and Osmeña v. Commission on Elections, G.R. No. 100318,
100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in
which the Court held that where serious constitutional
questions were involved, the transcendental  importance to
the public of the cases demanded that they be settled
promptly and definitely, brushing aside technicalities of
procedure).
    L-No. 40004, January 31, 1975, 62 SCRA 275.
    E.g., Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136
SCRA 27 (in which the Court held that it is sufficient that
the petitioner is a citizen interested in the execution of the
law, because the question is one of public duty and the
enforcement of a public right, and the people are the real
party-in-interest); Legaspi v. Civil Service Commission, G.R.
No. 72119, May 29, 1987, 150 SCRA 530 (in which the
Court declared that where an assertion of a public right is
involved, the requirement of personal interest is satisfied
by the mere fact that the petitioner is a citizen and is part of
the general public which possesses the right); Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L.
No. 81311, June 30, 1988, 163 SCRA 371 (in which the
Court disregarded objections to taxpayers’ lack of
personality to sue in determining the validity of the VAT
Law); Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175
SCRA 264 (in which the Court pronounced that although no
expenditure of public funds was involved in the questioned
contract, the petitioner was nonetheless clothed with the
legal personality under the disclosure provision of the
Constitution to question it, considering its important role in
the economic development of the country and the
magnitude of the financial consideration involved,
indicating that public interest was definitely involved); and
Association of Small Landowners in the Philippines, Inc. v.
Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175
SCRA 343 (in which the Court ruled that it had the
discretion to waive the requirement of locus standi in
determining the validity of the implementation of the
Comprehensive Agrarian Reform Program, although the
petitioners were not, strictly speaking, covered by the
definition of  proper party).
     David v. Macapagal-Arroyo, G.R. No. 171396, May 3,
2006, 489 SCRA 160.
    275 Ky 91, 120 SW2d 765 (1938).
    19  Wend. 56 (1837).
    232  NC 48, 59 SE2d 359 (1950).
    Bold emphasis is in the original text.
     Petition in G.R. No. 191032, p. 2.
     Petition in G.R. No. 191057, pp. 3-4; citing  the cases of
PHILCONSA v. Gimenez, 15 SCRA 479; PHILCONSA v.
Mathay, 18 SCRA 300; PHILCONSA v. Enriquez, 235 SCRA
506; and Lambino v. COMELEC, 505 SCRA 160.
    Petition in G.R. No. 191342, pp. 2-3.
    See, for instance, Integrated Bar of the Philippines v.
Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81
(where the petitioner questioned the validity of the
deployment and utilization of the Marines to assist the PNP
in law enforcement,  asserting that IBP was the official
organization of Filipino lawyers tasked with the bounden
duty to uphold the rule of law and the Constitution, but the
Court held that the IBP had not shown that it was so
tasked: “In this case, a reading of the petition shows that
the IBP has advanced constitutional issues which deserve
the attention of this Court in view of their seriousness,
novelty and weight as precedents.  Moreover, because
peace and order are under constant threat and lawless
violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not
go away.  It will stare us in the face again.  It, therefore,
behooves the Court to relax the rules on standing and to
resolve the issue now, rather than later”, and went on to
resolve the issues because the petitioner advanced
constitutional issues that deserved the attention of the
Court in view of their seriousness, novelty, and weight as
precedents).
     Supra, note 42, p. 645.
    Id.
    See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional
Rail Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
   Record of Proceedings and Debates of the Constitutional
Commission, Vol. V., p. 912, October 12, 1998.
    Supra, note 6, p. 426-427, stating:
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 Court’s 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.
To the contention that may perhaps be asserted, that
Sections 4 (1) and 9 of Article VIII should prevail over
Section 15 of Article VII, because they may be considered
later expressions of the people when they adopted  the
Constitution, it suffices to point out that the Constitution
must be construed in its entirety as one, single, instrument.
To be sure, instances may be conceived of the
imperative need for an appointment, during the period of
the ban, not only in the executive but also in the Supreme
Court. This may be the case should the membership of the
court be so reduced that it will have no quorum or should
the voting on a particularly important question requiring
expeditious resolution be evenly divided.  Such a case,
however, is covered by neither Section 15 of Article VII nor
Section 4 (1) and 9 of Article VIII.
    Id., pp. 422-423.
    Id., p. 423.
     Record of Proceedings and Debates of the Constitutional
Commission, Vol. V.,  pp. 632-633.
     Dizon v. Encarnacion, G.R. No. L-18615, December 24,      Section 3, Rule 65, 1997 Rules of Civil Procedure.
1963, 9 SCRA 714.
     JG Summit Holdings, Inc. v. Court of Appeals, G.R. No.
    Crawford, Earl. T., The Construction of Statutes, Thomas 124293, November 20, 2000, 345 SCRA 143.
Law Book Company, St. Louis, Missouri, 262-264 (1940).
     Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003,
    Garcia v. Social Security Commission Legal and Collection, 397 SCRA 110, citing Musni v. Morales, 315 SCRA 85, 86
G.R. No. 170735, December 17, 2007, 540 SCRA 456, 472; (1999).
citing Escosura v. San Miguel Brewery, Inc., 4 SCRA 285,
(1962).      Espiridion v. Court of Appeals, G.R. No. 146933, June 8,
2006, 490 SCRA 273.
    According to Arizona v. Rumsey, 467 U. S. 203, 212
(1984): “Although adherence to precedent is not rigidly . No. 146933, June 8, 2006, 490 SCRA 273.
required in constitutional cases, any departure from the
doctrine of stare decisis demands special justification.” The
EN BANC  
special justification for the reversal of Valenzuela lies in its
intrinsic unsoundness.
Agenda for April 20, 2010
    No. L-19313, January 19, 1962, 4 SCRA 1.
Item No. 43
    Supra, note 6, pp. 424-426; bold underscoring supplied
for emphasis.  

    Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the
time material to Aytona, there were judges of the Court of
First Instance who were appointed to districts that had no Arturo M. De Castro v. Judicial and Bar Council, and President
vacancies, because the incumbents had not qualified for Gloria Macapagal Arroyo
other districts to which they had been supposedly
transferred or promoted; at any rate, the appointments still  
required confirmation by the Commission on
Appointments). G.R. No. 191032           Jaime N. Soriano v. Judicial and
Bar Council
    Crawford, op. cit., supra, note 72, pp. 248-249.
 
    Supra, note 6, p. 413.
Philippine  Constitution   Association  v.  Judicial and Bar Council
[80]     Id.
 
    Section 14. Appointments extended by an Acting
President shall remain effective, unless revoked by the
In Re:  Applicability  of  Section 15, Article VII of the Constitution
elected President within ninety days from his assumption to Appointments to the Judiciary
or reassumption of office.
 
     Cruz, I., Philippine Political Law, 253 (2002); also
Rilloraza v. Vargas,  80 Phil. 297 (1948).
G.R. No. 191149           John G. Peralta v. Judicial and Bar
Council
     Record of Proceedings and Debates of the Constitutional
Commission, Vol. V., p. 908, which indicates that in his
 
sponsorship speech delivered on October 12, 1986 on the
floor of the Constitutional Commission, Commissioner
Teofisto Guingona explained that “[a]ppointments to the   Amador  Z.  Tolentino, Jr.  (IBP Governor-Southern Luzon),   
judiciary shall not be subject to confirmation by the and  Atty.  Roland  B.   Inting (IBP Governor- Eastern
Commission on Appointments.” Visayas) v. Judicial and Bar Council  

       Rodriguez, Statutory Construction, 171 (1999).

    Comment of the OSG, p. 37. Philippine  Bar  Association,  Inc. v. Judicial  and Bar Council and
Her Excellency Gloria Macapagal-Arroyo 
----------------------------------------------------------------------------
----------------
 
DISSENTING OPINION
 
CARPIO MORALES, J.:      
No compelling reason exists for the Court to deny a
reconsideration of the assailed Decision.  The various
motions for reconsideration raise hollering substantial
arguments and legitimately nagging questions which the
Court must meet head on.
 
          If this Court is to deserve or preserve its revered place
not just in the hierarchy but also in history, passion for
reason demands the issuance of an extended and extensive
resolution that confronts the ramifications and
repercussions of its assailed Decision.  Only then can it
offer an illumination that any self-respecting student of the
law clamors and any adherent of the law deserves.  temporary physical or legal impossibility of compliance, as
Otherwise, it takes the risk of reeking of an objectionable
air of supreme judicial arrogance.
 
          It is thus imperative to settle the following issues and
concerns:
 
 
Whether the incumbent President is constitutionally
proscribed from appointing the successor of Chief
Justice Reynato S. Puno upon his retirement on May 17,
2010 until the ban ends at 12:00 noon of June 30, 2010
 
1.  In interpreting the subject constitutional provisions, the
Decision disregarded established canons of statutory
construction.  Without explaining the inapplicability of
each of the relevant rules, the Decision immediately placed
premium on the arrangement and ordering of provisions,
one of the weakest tools of construction, to arrive at its
conclusion.
2.  In reversing Valenzuela, the Decision held that the
Valenzuela dictum did not firmly rest on ConCom
deliberations, yet it did not offer to cite a material ConCom
deliberation.   It instead opted to rely on the memory of
Justice Florenz Regalado which incidentally mentioned
only the “Court of Appeals.”  The Decision’s conclusion
must rest on the strength of its own favorable Concom
deliberation, none of which to date has been cited.
 
3.  Instead of choosing which constitutional provision
carves out an exception from the other provision, the most
legally feasible interpretation (in the limited cases of
expounded in my Dissenting Opinion) is to consider the
appointments ban or other substantial obstacle as a
temporary impossibility which excuses or releases the
constitutional obligation of the Office of the President for
the duration of the ban or obstacle. 
 
In view of the temporary nature of the circumstance
causing the impossibility of performance, the outgoing
President is released from non-fulfillment of the obligation
to appoint, and the duty devolves upon the new President. 
The delay in the fulfillment of the obligation becomes
excusable, since the law cannot exact compliance with what
is impossible.  The 90-day period within which to appoint a
member of the Court is thus suspended and the period
could only start or resume to run when the temporary
obstacle disappears (i.e., after the period of the is provided for by law, confirmed by tradition, and settled
appointments ban; when there is already a quorum in the by jurisprudence to be an internal matter.
JBC; or when there is already at least three applicants).
 
 
 
Whether the Judicial and Bar Council is obliged to
submit to the President the shortlist of nominees for           The RESOLUTION of the majority, in denying the
the position of Chief Justice (or Justice of this Court) on
or before the occurrence of the vacancy. present Motions for Reconsideration, failed to rebut the
foregoing crucial matters.
 
 
 

1.  The ruling in the Decision that obligates the JBC to
submit the shortlist to the President on or before the
occurrence of the vacancy in the Court runs counter to the
Concom deliberations which explain that the 90-day period
is allotted for both the nomination by the JBC and the
appointment by the President.  In the move to increase the
period to 90 days, Commissioner Romulo stated that “[t]he
sense of the Committee is that 60 days is awfully short and
that the [Judicial and Bar] Council, as well as the President,
may have difficulties with that.”
I, THEREFORE, maintain my dissent and vote to
GRANT the Motions for Reconsideration of the Decision of
March 17, 2010 insofar as it holds that the incumbent
President is not constitutionally proscribed from
appointing the successor of Chief Justice Reynato S. Puno
upon his retirement on May 17, 2010 until the ban ends at
12:00 noon of June 30, 2010 and that the Judicial and Bar
Council is obliged to submit to the President the shortlist of
nominees for the position of Chief Justice on or before May
17, 2010.   

   

2.  To require the JBC to submit to the President a shortlist  

of nominees on or before the occurrence of vacancy in the
 
Court leads to preposterous results.        It bears reiterating
that the requirement is absurd when, inter alia, the vacancy  
is occasioned by the death of a member of the Court, in
CONCHITA CARPIO MORALES
which case the JBC could never anticipate the death of a
Justice, and could never submit a list to the President on or    Associate Justice

before the occurrence of vacancy.

 

  ARTURO M. DE CASTRO, G.R. No. 191002

                                   Petitioner,  
3.  The express allowance in the Constitution of a 90-day
period of vacancy in the membership of the Court rebuts    
any public policy argument on avoiding a vacuum of even a
- versus -  
single day without a duly appointed Chief Justice. 
Moreover, as pointed out in my Dissenting Opinion, the    
practice of having an acting Chief Justice in the interregnum
JUDICIAL AND BAR COUNCIL                                        Petitioner,  
(JBC) and PRESIDENT GLORIA
MACAPAGAL-ARROYO,      

                                      Respondents.   - versus -  

x----------------------------------------- x      

JAIME N. SORIANO,   JUDICIAL AND BAR COUNCIL  

(JBC).
                                    Petitioner, G.R. No. 191032  
                                        Respondent.
    G.R. No. 191149
x----------------------------------------- x
- versus -    
PETER IRVING CORVERA;
     
CHRISTIAN ROBERT S. LIM;
JUDICIAL AND BAR COUNCIL    
(JBC),  
   
                                    Respondent. ALFONSO V. TAN, JR.;
   
x----------------------------------------- x NATIONAL UNION OF PEOPLE’S
  LAWYERS;  
PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA),   MARLON B. UBANO;  

                                    Petitioner,   INTEGRATED BAR OF THE  

PHILIPPINES-DAVAO DEL SUR
  G.R. No. 191057 CHAPTER, represented by its  
Immediate Past President,
- versus - ATTY. ISRAELITO P. TORREON,
   
and the latter in his own
  personal capacity as a MEMBER
  of the PHILIPPINE BAR;  

JUDICIAL AND BAR COUNCIL    

(JBC), MITCHELL JOHN L. BOISER;

  BAGONG ALYANSANG BAYAN  

                                    Respondent.
(BAYAN) CHAIRMAN DR.
  CAROLINA P. ARAULLO; BAYAN  
x----------------------------------------- x SECRETARY GENERAL RENATO
  M. REYES, JR.; CONFEDERATION  
IN RE APPLICABILITY OF FOR UNITY, RECOGNITION AND
SECTION 15, ARTICLE VII OF ADVANCEMENT OF
   
THE CONSTITUTION TO GOVERNMENT EMPLOYEES
APPOINTMENTS TO THE (COURAGE) CHAIRMAN
JUDICIARY – ESTELITO P.    
FERDINAND GAITE; KALIPUNAN
MENDOZA, NG DAMAYANG MAHIHIRAP
  (KADAMAY) SECRETARY  
                                     Petitioner, GENERAL GLORIA ARELLANO;
A.M. No. 10-2-5-SC ALYANSA NG NAGKAKAISANG  
x----------------------------------------- x KABATAAN NG SAMAYANAN
  PARA SA KAUNLARAN  
JOHN G. PERALTA, (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG
PAG-ASA CONVENOR ALVIN   ASSOCIATION, INC.,  
PETERS; LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN                                        Petitioner,  
JAMES MARK TERRY LACUANAN
RIDON; NATIONAL UNION OF      
STUDENTS OF THE PHILIPPINES
(NUSP) CHAIRMAN EINSTEIN
  - versus -  
RECEDES; COLLEGE EDITORS
GUILD OF THE PHILIPPINES
(CEGP) CHAIRMAN VIJAE      
ALQUISOLA; and STUDENT
CHRISTIAN MOVEMENT OF THE   JUDICIAL AND BAR COUNCIL  
PHILIPPINES (SCMP) CHAIRMAN AND HER EXCELLENCY GLORIA
MA. CRISTINA ANGELA   MACAPAGAL-ARROYO,  
GUEVARRA;
                                      Respondents.  
WALDEN F. BELLO and
LORETTA ANN P. ROSALES; and    

WOMEN TRIAL LAWYERS    

ORGANIZATION OF THE
PHILIPPINES, represented by
   
YOLANDA QUISUMBING-
JAVELLANA; BELLEZA ALOJADO
DEMAISIP; TERESITA    
GANDIONCO-OLEDAN; MA.
VERENA KASILAG-VILLANUEVA;    
LEONILA DE JESUS; and
GUINEVERE DE LEON,    

                                        Intervenors.    

x----------------------------------------- x    

ATTY. AMADOR Z. TOLENTINO,    

JR., (IBP Governor-Southern
Luzon), and ATTY. ROLAND B.    
INTING (IBP Governor-Eastern
Visayas),
   

                                        Petitioners,
   

 
   

- versus -
   

 
   

JUDICIAL AND BAR COUNCIL

   
(JBC),
   
                                       Respondent.
   
x ---------------------------------------- x
   
PHILIPPINE BAR
  April 20, 2010

    

  x-------------------------------------------------------------------------
----------------x 
 
 
 
CONCURRING AND DISSENTING OPINION
 

   

G.R. No. 191342 BRION, J.:

 
 
 
The Motions for Reconsideration
 
 
 

            After sifting through the motions for reconsideration,

I found that the arguments are largely the same arguments
  that we have passed upon, in one form or another, in the

  various petitions.  Essentially, the issues boil down to

justiciability; the conflict of constitutional provisions; the
 
merits of the cited constitutional deliberations; and the
  status and effect of the Valenzuela ruling. Even the
motion for reconsideration of the Philippine Bar
 
Association (G.R. No. 191420), whose petition I did not
  expressly touch upon in my Separate Opinion, basically
dwells on these issues.  
 

G.R. No. 191420  

            I have addressed most, if not all, of these issues and I

submit my Separate Opinion as my basic response to the
 
motions for reconsideration, supplemented by the
  discussions below.

 
         
Promulgated:
As I reflected in my Separate Opinion (which three
 
other Justices joined), the election appointment ban
under Article VII, Section 15 of the Constitution should
not apply to the appointment of Members of the
Supreme Court whose period for appointment is
separately provided for under Article VIII, Section 4(1).
I shared this conclusion with the Court’s Decision although
our reasons differed on some points.  why the De Castro and Peralta petitions should be
 
I diverged fully from the Decision on the question
of whether we should maintain or reverse our ruling in
Valenzuela. I maintained that it is still good law; no reason
exists to touch the ruling as its main focus – the application
of the election ban on the appointment of lower court judges
under Article VIII, Section 9 of the Constitution – is not even
an issue in the present case and was discussed only
because the petitions incorrectly cited the ruling as
authority on the issue of the Chief Justice’s appointment.  functions and, for this reason, cannot be the subject of a
The Decision proposed to reverse Valenzuela but only
secured the support of five (5) votes, while my Separate
Opinion in support of Valenzuela had four (4) votes.  Thus,
on the whole, the Decision did not prevail in reversing
Valenzuela, as it only had five (5) votes in a field of 12
participating Members of the Court.  Valenzuela should
therefore remain, as of the filing of this Opinion, as a valid
precedent.
Acting on the present motions for reconsideration,
I join the majority in denying the motions with respect to
the Chief Justice issue, although we differ in some respects
on the reasons supporting the denial.  I dissent from the
conclusion that the Valenzuela ruling should be reversed.  They claim that the Court cannot exercise the power of
My divergence from the majority’s reasons and conclusions
compels me to write this Concurring and Dissenting
Opinion.
The Basic Requisites / Justiciability
 
One marked difference between the Decision and
my Separate Opinion is our approach on the basic
requisites/justiciability issues.  The Decision apparently
glossed over this aspect of the case, while I fully explained
dismissed outright.  In my view, these petitions violated the
most basic requirements of their chosen medium for
review – a petition for certiorari and mandamus under Rule
65 of the Rules of Court.
 
The petitions commonly failed to allege that the
Judicial and Bar Council (JBC) performs judicial or quasi-
judicial functions, an allegation that the petitions could not
really make, since the JBC does not really undertake these
petition for certiorari; hence, the petitions should be
dismissed outright.  They likewise failed to facially show
any failure or refusal by the JBC to undertake a
constitutional duty to justify the issuance of a writ of
mandamus; they invoked judicial notice that we could not
give because there was, and is, no JBC refusal to act. Thus,
the mandamus aspects of these petitions should have also
been dismissed outright. The ponencia, unfortunately,
failed to fully discuss these legal infirmities.
          The motions for reconsideration lay major emphasis
on the alleged lack of an actual case or controversy that
made the Chief Justice’s appointment a justiciable issue. 
judicial review where there is no clash of legal rights and
interests or where this clash is merely anticipated,
although the anticipated event shall come with certainty.
          What the movants apparently forgot, focused as they
were on their respective petitions, is that the present case
is not a single-petition case that rises or falls on the
strength of that single petition.  The present case involves
various petitions and interventions, not necessarily pulling
towards the same direction, although each one is focused on
the issue of whether the election appointment ban under
Article VII, Section 15 of the Constitution should apply to
the appointment of the next Chief Justice of the Supreme
Court.    
 
          Among the petitions filed were those of Tolentino
(G.R. No. 191342), Soriano (G.R. No. 191032) and
Mendoza (A.M. No. 10-2-5-SC).  The first two are petitions
for prohibition under Section 2 of Rule 65 of the Rules of
Court.  While they commonly share this medium of review,
they differ in their supporting reasons.  The Mendoza
petition, on the other hand, is totally different – it is a
petition presented as an administrative matter (A.M.) in the
manner that the Valenzuela case was an A.M. case.  As I
pointed out in the Separate Opinion, the Court uses the A.M.
docket designation on matters relating to its exercise of
supervision over all courts and their personnel.  I failed to
note then, but I make of record now, that court rules and
regulations – the outputs in the Court’s rulemaking
function – are also docketed as A.M. cases. 
         
          That an actual case or controversy involving a clash of
rights and interests exists is immediately and patently
obvious in the Tolentino and Soriano petitions.  At the time
the petitions were filed, the JBC had started its six-phase
nomination process that would culminate in the
submission of a list of nominees to the President of the
Philippines for appointive action.  Tolentino and Soriano –
lawyers and citizens with interest in the strict observance
of the election ban – sought to prohibit the JBC from
continuing with this process.  The JBC had started to act,
without any prodding from the Court, because of its duty to
start the nomination process but was hampered by the
petitions filed and the legal questions raised that only the
Supreme Court can settle with finality.  Thus, a clash of
interests based on law existed between the petitioners and
the JBC.  To state the obvious, a decision in favor of
Tolentino or Soriano would result in a writ of
prohibition that would direct the JBC not to proceed
with the nomination process.
 
          The Mendoza petition cited the effect of a complete
election ban on judicial appointments (in view of the
already high level of vacancies and the backlog of cases) as
basis, and submitted the question as an administrative
matter that the Court, in the exercise of its supervisory
authority over the Judiciary and the JBC itself, should act
upon. At the same time, it cited the “public discourse and
controversy” now taking place because of the application of
the election ban on the appointment of the Chief Justice,
pointing in this regard to the very same reasons mentioned
in Valenzuela about the need to resolve the issue and avoid
the recurrence of conflict between the Executive and the
Judiciary, and the need to “avoid polemics concerning the
matter.”
 
          I recognized in the Separate Opinion that, unlike in
Valenzuela where an outright defiance of the election ban
took place, no such obvious triggering event transpired in
the Mendoza petition.  Rather, the Mendoza petition looked
to the supervisory power of the Court over judicial
personnel and over the JBC as basis to secure a resolution
of the election ban issue.  The JBC, at that time, had
indicated its intent to look up to the Court’s supervisory
power and role as the final interpreter of the Constitution
to guide it in responding to the challenges it confronts.  To
me, this was “a point no less critical, from the point of view
of supervision, than the appointment of the two judges
during the election ban period in Valenzuela.” 
 
 In making this conclusion, I pointed out in my
Separate Opinion the unavoidable surrounding realities
evident from the confluence of events, namely:  (1)  an
election to be held on May 10, 2010; (2)  the retirement of
the Chief Justice on May 17, 2010; (3)  the lapse of the
terms of the elective officials from the President to the
congressmen on June 30, 2010; (4)  the delay before the
Congress can organize and send its JBC representatives;
and (5)  the expiration of the term of a non-elective JBC
member in July 2010.  All these – juxtaposed with the
Court’s supervision over the JBC, the latter’s need for
guidance, and the existence of an actual controversy on the
same issues bedeviling the JBC – in my view, were sufficient
to save the Mendoza petition from being a mere request for
opinion or a petition for declaratory relief that falls under
the jurisdiction of the lower court.  This recognition is
beyond the level of what this Court can do in handling a
moot and academic case – usually, one that no longer
presents a judiciable controversy but one that can still be
ruled upon at the discretion of the court when the
constitutional issue is of paramount public interest and
controlling principles are needed to guide the bench, the
bar and the public.    
To be sure, this approach in recognizing when a
petition is actionable is novel.  An overriding reason for this
approach can be traced to the nature of the petition, as it
rests on the Court’s supervisory authority and relates to the
exercise of the Court’s administrative rather than its judicial
functions (other than these two functions, the Court also
has its rulemaking function under Article VIII, Section 5(5)
of the Constitution).  Strictly speaking, the Mendoza
petition calls for directions from the Court in the exercise
of its power of supervision over the JBC, not on the basis of
the power of judicial review.  In this sense, it does not need
the actual clash of interests of the type that a judicial
adjudication requires. All that must be shown is the active
need for supervision to justify the Court’s intervention as
supervising authority.   or what standards to use to determine who to recommend.
 
Under these circumstances, the Court’s recognition
of the Mendoza petition was not an undue stretch of its
constitutional powers.  If the recognition is unusual at all, it
is so only because of its novelty; to my knowledge, this is
the first time ever in Philippine jurisprudence that the
supervisory authority of the Court over an attached
agency has been highlighted in this manner.  Novelty,
per se, however, is not a ground for objection nor a mark of
infirmity for as long as the novel move is founded in law.  In
this case, as in the case of the writ of amparo and habeas
data that were then novel and avowedly activist in
character, sufficient legal basis exists to actively invoke the
Court’s supervisory authority – granted under the
Constitution, no less – as basis for action.
To partly quote the wording of the Constitution,
Article VIII, Section 8(1) and (5) provide that “A Judicial
and Bar Council is hereby created under the supervision of
the Supreme Court… It may exercise such other functions
and duties as the Supreme Court may assign to it.” 
Supervision, as a legal concept, more often than not, is
defined in relation with the concept of control.  In Social
Justice Society v. Atienza, we defined “supervision” as
follows:
[Supervision] means overseeing or the power or authority
of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them, the former
may take such action or step as prescribed by law to make
them perform their duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify
or set aside what a subordinate officer ha[s] done in the
performance of his duties and to substitute the judgment of
the former for that of the latter.
 
          Under this definition, the Court cannot dictate on the
JBC the results of its assigned task, i.e., who to recommend
It cannot even direct the JBC on how and when to do its
duty, but it can, under its power of supervision, direct the
JBC to “take such action or step as prescribed by law to make
them perform their duties,” if the duties are not being
performed because of JBC’s fault or inaction, or because of
extraneous factors affecting performance.  Note in this
regard that, constitutionally, the Court can also assign the
JBC other functions and duties – a power that suggests
authority beyond what is purely supervisory.
 
Where the JBC itself is at a loss on how to proceed
in light of disputed constitutional provisions that require
interpretation, the Court is not legally out of line – as the
final authority on the interpretation of the Constitution and
as the entity constitutionally-tasked to supervise the JBC –
in exercising its oversight function by clarifying the
interpretation of the disputed constitutional provision to
guide the JBC.  In doing this, the Court is not simply
rendering a general legal advisory; it is providing concrete
and specific legal guidance to the JBC in the exercise of its
supervisory authority, after the latter has asked for
assistance in this regard.  That the Court does this while
concretely resolving actual controversies (the Tolentino
and Soriano petitions) on the same issue immeasurably
strengthens the intrinsic correctness of the Court’s action.
It may be asked:  why does the Court have to
recognize the Mendoza petition when it can resolve the
conflict between Article VII, Section 15 and Article VIII,
Section 4(1) through the Tolentino and Soriano petitions?
 The answer is fairly simple and can be read
between the lines of the above explanation on the
relationship between the Court and the JBC.  First,
administrative is different from judicial function and
providing guidance to the JBC can only be appropriate in
the discharge of the Court’s administrative function. 
Second, the resolution of the Tolentino and Soriano
petitions will lead to rulings directly related to the
underlying facts of these petitions, without clear guidelines
to the JBC on the proper parameters to observe vis-à-vis the
constitutional dispute along the lines the JBC needs. In fact,
concrete guidelines addressed to the JBC in the resolution
of the Tolentino/Soriano petitions may even lead to
accusations that the Court’s resolution is broader than is
required by the facts of the petitions.  The Mendoza
petition, because it pertains directly to the performance of
the JBC’s duty and the Court’s supervisory authority, allows
the issuance of precise guidelines that will enable the JBC
to fully and seasonably comply with its constitutional
mandate.
 
I hasten to add that the JBC’s constitutional task is
not as simple as some people think it to be.  The process of
preparing and submitting a list of nominees is an arduous
and time-consuming task that cannot be done overnight.  It
is a six-step process lined with standards requiring the JBC
to attract the best available candidates, to examine and
investigate them, to exhibit transparency in all its actions
while ensuring that these actions conform to constitutional
and statutory standards (such as the election ban on
appointments), to submit the required list of nominees on
time, and to ensure as well that all these acts are politically
neutral.  On the time element, the JBC list for the Supreme
Court has to be submitted on or before the vacancy occurs
given the 90-day deadline that the appointing President is
given in making the appointment.  The list will be
submitted, not to the President as an outgoing
President, nor to the election winner as an incoming
President, but to the President of the Philippines
whoever he or she may be.  If the incumbent President
does not act on the JBC list within the time left in her term,
the same list shall be available to the new President for him
to act upon.  In all these, the Supreme Court bears the
burden of overseeing that the JBC’s duty is done, unerringly
and with utmost dispatch; the Court cannot undertake this
supervision in a manner consistent with the Constitution’s
expectation from the JBC unless it adopts a pro-active
stance within the limits of its supervisory authority.
The Disputed Provisions
 
The movants present their arguments on the main
issue at several levels.  Some argue that the disputed
constitutional provisions – Article VII, Section 15 and
Article VIII, Section 4(1) – are clear and speak for
themselves on what the Constitution covers in banning
appointments during the election period.  One even posits
that there is no conflict because both provisions can be
given effect without one detracting against the full
effectiveness of the  other, although the effect is to deny the
sitting President the option to appoint in favor of a
deferment for the incoming President’s action. Still others,
repeating their original arguments, appeal to the principles
of interpretation and latin maxims to prove their point.
 
In my discussions in the Separate Opinion, I stated
upfront my views on how the disputed provisions interact
with each other.  Read singly and in isolation, they appear
clear (this reading applies the “plain meaning rule” that
Tolentino advocates in his motion for reconsideration, as
explained below).  Arrayed side by side with each other
and considered in relation with the other provisions of the
Constitution, particularly its structure and underlying
intents, the conflict however becomes obvious and
unavoidable.  Constitution must be read and understood as a whole,
 
Section 15 on its face disallows any appointment in
clear negative terms (“shall not make”) without specifying
the appointments covered by the prohibition.  From this
literal and isolated reading springs the argument that no
exception is provided (except that found in Section 15
itself) so that even the Judiciary is covered by the ban on
appointments. 
On the other hand, Section 4(1) is likewise very
clear and categorical in its terms: any vacancy in the Court
shall be filled within 90 days from its occurrence.  In the way
of Section 15, Section 4(1) is also clear and categorical and
provides no exception; the appointment refers solely to the
Members of the Supreme Court and does not mention any
period that would interrupt, hold or postpone the 90-day
requirement.  
 
From this perspective, the view that no conflict
exists cannot be seriously made, unless with the mindset
that one provision controls and the other should yield. 
Many of the petitions in fact advocate this kind of reading,
some of them openly stating that the power of appointment
should be reserved for the incoming President. The
question, however, is whether – from the viewpoint of
strict law and devoid of the emotionalism and political
partisanship that permeate the present Philippine political
environment – this kind of mindset can really be adopted in
reading and applying the Constitution.
 
In my view, this kind of mindset and the
conclusion it inevitably leads to cannot be adopted; the
provisions of the Constitution cannot be read in isolation
from what the whole contains.  To be exact, the
reconciling and harmonizing apparently conflicting
provisions so that all of them can be given full force and
effect, unless the Constitution itself expressly states
otherwise.
 
 Not to be forgotten in reading and understanding
the Constitution are the many established underlying
constitutional principles that we have to observe and
respect if we are to be true to the Constitution. These
principles – among them the principles of checks and
balances and separation of powers – are not always
expressly stated in the Constitution, but no one who
believes in and who has studied the Constitution can deny
that they are there and deserve utmost attention, respect,
and even priority consideration. 
 
In establishing the structures of government, the
ideal that the Constitution seeks to achieve is one of
balance among the three great departments of government
– the Executive, the Legislative and the Judiciary, with each
department undertaking its constitutionally-assigned task
as a check against the exercise of power by the others,
while all three departments move forward in working for
the progress of the nation.  Thus, the Legislature makes the
laws and is supreme in this regard, in the way that the
Executive is supreme in enforcing and administering the
law, while the Judiciary interprets both the Constitution
and the law. Any provision in each of the Articles on these
three departments that intrudes into the other must be
closely examined if the provision affects and upsets the
desired balance.
 
Under the division of powers, the President as
Chief Executive is given the prerogative of making
appointments, subject only to the legal qualification
standards, to the checks provided by the Legislature’s
Commission on Appointments (when applicable) and by
the JBC for appointments in the Judiciary, and to the
Constitution’s own limitations. Conflict comes in when the
Constitution laid down Article VII, Section 15 limiting the
President’s appointing power during the election period.  President’s appointing authority. This harmonization will
This limitation of power would have been all-encompassing
and would, thus, have extended to all government positions
the President can fill, had the Constitution not inserted a
provision, also on appointments, in the Article on the
Judiciary with respect to appointments to the Supreme
Court.  This conflict gives rise to the questions: which
provision should prevail, or should both be given
effect?  Or should both provisions yield to a higher
concern – the need to maintain the integrity of our
elections?    
 
A holistic reading of the Constitution – a must in
constitutional interpretation – dictates as a general rule
that the tasks assigned to each department and their
limitations should be given full effect to fulfill the
constitutional purposes under the check and balance
principle, unless the Constitution itself expressly indicates
its preference for one task, concern or standard over the
others, or unless this Court, in its role as interpreter of the
Constitution, has spoken on the appropriate interpretation
that should be made.
 
In considering the interests of the Executive and
the Judiciary, a holistic approach starts from the premise
that the constitutional scheme is to grant the President the
power of appointment, subject to the limitation provided
under Article VII, Section 15.  At the same time, the
Judiciary is assured, without qualifications under Article
VIII, Section 4(1), of the immediate appointment of
Members of the Supreme Court, i.e., within  90 days from
the occurrence of the vacancy. If both provisions would be
allowed to take effect, as I believe they should, the
limitation on the appointment power of the President under
Article VII, Section 15 should itself be limited by the
appointment of Members of the Court pursuant to Article
VIII, Section 4(1), so that the provision applicable to the
Judiciary can be given full effect without detriment to the
result in restoring to the President the full authority to
appoint Members of the Supreme Court pursuant to the
combined operation of Article VII, Section 15 and Article
VIII, Section 4(1).   integrity of the election; a full Court is ideal during this
 
Viewed in this light, there is essentially no conflict,
in terms of the authority to appoint, between the Executive
and Judiciary; the President would effectively be allowed to
exercise the Executive’s traditional presidential power of
appointment while respecting the Judiciary’s own
prerogative.  In other words, the President retains full
powers to appoint Members of the Court during the
election period, and the Judiciary is assured of a full
membership within the time frame given.
 
Interestingly, the objection to the full application
of Article VIII, Section 4(1) comes, not from the current
President, but mainly from petitioners echoing the present
presidential candidates, one of whom shall soon be the
incoming President.  They do not, of course, cite reasons of
power and the loss of the opportunity to appoint the Chief
Justice; many of the petitioners/intervenors oppose the full
application of Article VIII, Section 4(1) based on the need to
maintain the integrity of the elections through the
avoidance of a “midnight appointment.”  
This “integrity” reason is a given in a democracy
and can hardly be opposed on the theoretical plane, as the
integrity of the elections must indeed prevail in a true
democracy.  The statement, however, begs a lot of
questions, among them the question of whether the
appointment of a full Court under the terms of Article VIII,
Section 4(1) will adversely affect or enhance the integrity of
the elections.
In my Separate Opinion, I concluded that the
appointment of a Member of the Court even during the
election period per se implies no adverse effect on the
period in light of the Court’s unique role during elections.  I
maintain this view and fully concur in this regard with the
majority.
 
During the election period, the court is not only the
interpreter of the Constitution and the election laws; other
than the Commission on Elections and the lower courts to a
limited extent, the Court is likewise the highest impartial
recourse available to decisively address any problem or
dispute arising from the election.  It is the leader and the
highest court in the Judiciary, the only one of the three
departments of government directly unaffected by the
election.  The Court is likewise the entity entrusted by the
Constitution, no less, with the gravest election-related
responsibilities.  In particular, it is the sole judge of all
contests in the election of the President and the Vice-
President, with leadership and participation as well in the
election tribunals that directly address Senate and House of
Representatives electoral disputes.  With this grant of
responsibilities, the Constitution itself has spoken on the
trust it reposes on the Court on election matters.  This
reposed trust, to my mind, renders academic any question
of whether an appointment during the election period will
adversely affect the integrity of the elections – it will not, as
the maintenance of a full Court in fact contributes to the
enforcement of the constitutional scheme to foster a free
and orderly election. 
In reading the motions for reconsideration against
the backdrop of the partisan political noise of the coming
elections, one cannot avoid hearing echoes from some of
the arguments that the objection is related, more than
anything else, to their lack of trust in an appointment to be
made by the incumbent President who will soon be bowing
out of office.  They label the incumbent President’s act as a
“midnight appointment” – a term that has acquired a by June 30, 2010; by a possible failure of succession if for
pejorative meaning in contemporary society.  some reason the election of the new leadership becomes
problematic; and by the similar absence of congressional
  leadership because Congress has not yet convened to
organize itself.  In this scenario, only the Judiciary of the
As I intimated in my Separate Opinion, the
three great departments of government stands unaffected
imputation of distrust can be made against any appointing
by the election and should at least therefore be complete to
authority, whether outgoing or incoming. The incoming
enable it to discharge its constitutional role to its fullest
President himself will be before this Court if an election
potential and capacity.  To state the obvious, leaving the
contest arises; any President, past or future, would also
Judiciary without any permanent leader in this scenario
naturally wish favorable outcomes in legal problems that
may immeasurably complicate the problem, as all three
the Court would resolve. These possibilities and the
departments of government will then be leaderless.  
potential for continuing influence in the Court, however,
cannot be active considerations in resolving the election  
ban issue as they are, in their present form and
presentation, all speculative.  If past record is to be the To stress what I mentioned on this point in my
measure, the record of past Chief Justices and of this Court Separate Opinion, the absence of a Chief Justice will make a
speaks for itself with respect to the Justices’ relationship lot of difference in the effectiveness of the Court as he or
with, and deferral to, the appointing authority in their she heads the Judiciary, sits as Chair of the JBC and of the
decisions.  Presidential Electoral Tribunal, presides over impeachment
proceedings, and provides the moral suasion and
  leadership that only the permanent mantle of the Chief
Justice can bestow.  EDSA II is just one of the many lessons
What should not be forgotten in examining the
from the past when the weightiest of issues were tackled
records of the Court, from the prism of problems an
and promptly resolved by the Court.  Unseen by the general
electoral exercise may bring, is the Court’s unique and
public in all these was the leadership that was there to
proven capacity to intervene and diffuse situations that are
ensure that the Court would act as one, in the spirit of
potentially explosive for the nation.  EDSA II particularly
harmony and stability although divergent in their
comes to mind in this regard (although it was an event that
individual views, as the Justices individually make their
was not rooted in election problems) as it is a perfect
contributions to the collegial result.  To some, this
example of the potential for damage to the nation that the
leadership may only be symbolic, as the Court has fully
Court can address and has addressed. When acting in this
functioned in the past even with an incomplete
role, a vacancy in the Court is not only a vote less, but a
membership or under an Acting Chief Justice.  But as I said
significant contribution less in the Court’s deliberations
before, an incomplete Court “is not a whole Supreme Court;
and capacity for action, especially if the missing voice is the
it will only be a Court with 14 members who would act and
voice of the Chief Justice. 
vote on all matters before it.”  To fully recall what I have
said on this matter:
 

 
Be it remembered that if any EDSA-type situation
arises in the coming elections, it will be compounded by the The importance of the presence of one Member of
lack of leaders because of the lapse of the President’s term the Court can and should never be underestimated,
particularly on issues that may gravely affect the nation. 
Many a case has been won or lost on the basis of one vote.  while the history of provisions, including the intents behind
On an issue of the constitutionality of a law, treaty or
them, are primarily important to ascertain the purposes
statute, a tie vote – which is possible in a 14 member court
– means that the constitutionality is upheld.  This was our the provisions serve.  
lesson in Isagani Cruz v. DENR Secretary.
 
More than the vote, Court deliberation is the core  
of the decision-making process and one voice is less is not
only a vote less but a contributed opinion, an observation, From these perspectives and without denigrating
or a cautionary word less for the Court.  One voice can be a
big difference if the missing voice is that of the Chief the framers’ historical contributions, I say that it is the
Justice.    Constitution that now primarily speaks to us in this case
 
Without meaning to demean the capability of an and what we hear are its direct words, not merely the
Acting Chief Justice, the ascendancy in the Court of a recorded isolated debates reflecting the personal intents of
permanent sitting Chief Justice cannot be equaled.  He is
the first among equals – a primus inter pares – who sets the the constitutional commissioners as cited by the parties to
tone for the Court and the Judiciary, and who is looked up fit their respective theories. The voice speaking the words
to on all matters, whether administrative or judicial. To the
world outside the Judiciary, he is the personification of the of the Constitution is our best guide, as these words will
Court and the whole Judiciary. And this is not surprising unalterably be there for us to read in the context of their
since, as Chief Justice, he not only chairs the Court en banc,
but chairs as well the Presidential Electoral Tribunal that purposes and the nation’s needs and circumstances.  This
sits in judgment over election disputes affecting the Concurring and Dissenting Opinion hears and listens to
President and the Vice-President.  Outside of his immediate
Court duties, he sits as Chair of the Judicial and Bar Council, that voice.
the Philippine Judicial Academy and, by constitutional
command, presides over the impeachment of the
 
President.  To be sure, the Acting Chief Justice may be the
ablest, but he is not the Chief Justice without the mantle
and permanent title of the Office, and even his presence as The Valenzuela Decision
Acting Chief Justice leaves the Court with one member less.
Sadly, this member is the Chief Justice; even with an Acting
Chief Justice, the Judiciary and the Court remains headless.  

  The ponencia’s ruling reversing Valenzuela, in my

view, is out of place in the present case, since at issue here
Given these views, I see no point in re-discussing
is the appointment of the Chief Justice during the period of
the finer points of technical interpretation and their
the election ban, not the appointment of lower court judges
supporting latin maxims that I have addressed in my
that Valenzuela resolved.  To be perfectly clear, the conflict
Separate Opinion and now feel need no further elaboration;
in the constitutional provisions is not confined to Article
maxims can be found to serve a pleader’s every need and in
VII, Section 15 and Article VIII, Section 4(1) with respect to
any case are the last interpretative tools in constitutional
the appointment of Members of the Supreme Court; even
interpretation.  Nor do I see any point in discussing
before the Valenzuela ruling, the conflict already existed
arguments based on the intent of the framers of the
between Article VII, Section 15 and Article VIII, Section 9 –
Constitution now cited by the parties in the contexts that
the provision on the appointment of the justices and judges
would serve their own ends. As may be evident in these
of courts lower than the Supreme Court.   After this Court’s
discussions, other than the texts of the disputed provisions,
ruling in Valenzuela, no amount of hairsplitting can result
I prefer to examine their purposes and the consequences of
in the conclusion that Article VII, Section 15 applied the
their application, understood within the context of
election ban over the whole Judiciary, including the Supreme
democratic values.  Past precedents are equally invaluable
Court, as the facts and the fallo of Valenzuela plainly spoke
for the lead, order, and stability they contribute, but only if
of the objectionable appointment of two Regional Trial
they are in point, certain, and still alive to current realities,
Court judges.  To reiterate, Valenzuela only resolved the
conflict between Article VII, Section 15 and appointments
to the Judiciary under Article VIII, Section 9.
 
If Valenzuela did prominently figure at all in the
present case, the prominence can be attributed to the
petitioners’ mistaken reading that this case is primary
authority for the dictum that Article VII, Section 15
completely bans all appointments to the Judiciary,
including appointments to the Supreme Court, during the
election period up to the end of the incumbent President’s
term.  appointment
 
In reality, this mistaken reading is an obiter dictum
in Valenzuela, and hence, cannot be cited for its primary
precedential value.  This legal situation still holds true as
Valenzuela was not doctrinally reversed as its proposed
reversal was supported only by five (5) out of the 12
participating Members of the Court.  In other words, this
ruling on how Article VII, Section 15 is to be interpreted in
relation with Article VIII, Section 9, should continue to
stand unless otherwise expressly reversed by this Court.
But separately from the mistaken use of an obiter
ruling as primary authority, I believe that I should sound
the alarm bell about the Valenzuela ruling in light of a
recent vacancy in the position of Presiding Justice of the
Sandiganbayan resulting from Presiding Justice Norberto
Geraldez’s death soon after we issued the decision in the
present case. Reversing the Valenzuela ruling now, in the
absence of a properly filed case addressing an appointment
at this time to the Sandiganbayan or to any other vacancy in
the lower courts, will be an irregular ruling of the first
magnitude by this Court, as it will effectively be a shortcut
that lifts the election ban on appointments to the lower
courts without the benefit of a case whose facts and
arguments would directly confront the continued validity
of the Valenzuela ruling.  This is especially so after we have
placed the Court on notice that a reversal of Valenzuela is
uncalled for because its ruling is not the litigated issue in
this case.
 
In any case, let me repeat what I stressed in my
Separate Opinion about Valenzuela which rests on the
reasoning that the evils Section 15 seeks to remedy – vote
buying, midnight appointments and partisan reasons to
influence the elections – exist, thus justifying an election
ban. In particular, the “midnight
appointment” justification, while fully applicable to the
more numerous vacancies at the lower echelons of the
Judiciary (with an alleged current lower court vacancy level
of 537 or a 24.5% vacancy rate), should not apply to the
Supreme Court which has only a total of 15 positions that
are not even vacated at the same time.  The most number of
vacancies for any one year occurred only last year (2009)
when seven (7) positions were vacated by retirement, but
this vacancy rate is not expected to be replicated at any
time within the next decade. Thus “midnight
appointments” to the extent that they were understood in
Aytona will not occur in the vacancies of this Court as
nominations to its vacancies are all processed through the
JBC under the public’s close scrutiny. As already discussed
above, the institutional integrity of the Court is hardly an
issue.  If at all, only objections personal to the individual
Members of the Court or against the individual applicants
can be made, but these are matters addressed in the first
place by the JBC before nominees are submitted. There, too,
are specific reasons, likewise discussed above, explaining
why the election ban should not apply to the Supreme
Court.  These exempting reasons, of course, have yet to be
shown to apply to the lower courts.  Thus, on the whole, the
reasons justifying the election ban in Valenzuela still obtain
in so far as the lower courts are concerned, and have yet to
be proven otherwise in a properly filed case.  Until then,
Valenzuela, except to the extent that it mentioned Section
4(1), should remain an authoritative ruling of this Court.
 
CONCLUSION
In light of these considerations, a writ of
prohibition cannot issue to prevent the JBC from
performing its principal function, under the Constitution, of
recommending nominees for the position of Chief Justice.
Thus, I vote to deny with finality the Tolentino and Soriano
motions for reconsideration.
 
The other motions for reconsideration in so far as
they challenge the conclusion that the President can
appoint the Chief Justice even during the election period
are likewise denied with finality for lack of merit, but are
granted in so far as they support the continued validity of
the ruling of this Court in In Re: Valenzuela and Vallarta,
A.M. No. 98-5-01-SC, November 9, 1998.
 
My opinion on the Mendoza petition stands. 
 
                                                         ARTURO D. BRION
                                                             Associate Justice
 
 
 
  A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.  This
A.M. involves the constitutional validity of the appointment
of two (2) RTC Judges on March 30, 1998 – a date that falls
within the supposed ban under Section 15, Article VII of the
Constitution.  We nullified the appointments.
  G.R. No. 191002 and companion cases, promulgated on
March 17, 2010.
  Justices Diosdado M. Peralta, Mariano C. Del Castillo and
Jose Catral Mendoza.
  G.R. No. 191002, Petition for Certiorari and Mandamus.
  G.R. No. 191149, Petition for Certiorari and Mandamus.
The JBC reiterates its position in its Comment (dated April 12,
2010) on the motions for reconsideration that it is still
acting on the preparation of the list of nominees and is set
to interview the nominees.
  See, for instance, the motion for reconsideration of
intervenor Alfonso Tan, Jr.
  The docketed petitions were seven; the petitions-in-
intervention were ten.
A prohibition petition seeks to stop the proceedings of a
tribunal, corporation, board, officer or person exercising
judicial, quasi-judicial or ministerial functions if any of its
act is without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction.
  Separate Opinion, p. 16.
  The JBC position states:
x  x  x  x
                Likewise, the JBC has yet to take a position on
when to submit the shortlist to the proper appointing
authority, in light of 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 XXIII 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. [Emphasis supplied.]
 
  Mendoza Petition, pp. 5-6.
  Separate Opinion, pp. 16-17.
  Supra note 11.
  Id. at 17.
Separate Opinion, pp. 19-22:
 
A first reality is that the JBC cannot, on its own due
to lack of the proper authority, determine the   appropriate
course of action to take under the Constitution.  Its
principal function is to recommend appointees to the
Judiciary and it has no authority to interpret constitutional
provisions, even those affecting its principal function; the
authority to undertake constitutional interpretation
belongs to the courts alone.
A second reality is that the disputed
constitutional provisions do not stand alone and cannot be
read independently of one another; the Constitution and its
various provisions have to be read and interpreted as one
seamless whole, giving sufficient emphasis to every aspect
in accordance with the hierarchy of our constitutional
values.  The disputed provisions should be read together and,
as reflections of the will of the people, should be given effect
to the extent that they should be reconciled.
 
The third reality, closely related to the second, is
that in resolving the coverage of the election ban vis-à-vis
the appointment of the Chief Justice and the Members of
the Court, provisions of the Constitution other than the
disputed provisions must be taken into account. In
considering when and how to act, the JBC has to consider
that:
 
1.                    The President has a term of six years which
begins at noon of June 30 following the election, which
implies that the outgoing President remains President up
to that time. (Section 4, Article VII).  The President assumes
office at the beginning of his or her term, with provision for
the situations where the President fails to qualify or is
unavailable at the beginning of his term (Section 7, Article
VII).
 
2.                    The Senators and the Congressmen begin their
respective terms also at midday of June 30 (Sections 4 and
7, Article VI).  The Congress convenes on the 4th Monday of
July for its regular session, but the President may call a
special session at any time. (Section 15, Article VI)
3.                    The Valenzuela case cited as authority for the
position that the election ban provision applies to the
whole Judiciary, only decided the issue with respect to
lower court judges, specifically, those covered by Section 9,
Article VIII of the Constitution.  Any reference to the filling
up of vacancies in the Supreme Court pursuant to Section
4(1), Article VIII constitutes obiter dictum as this issue was
not directly in issue and was not ruled upon.
 
These provisions and interpretation of the
Valenzuela ruling – when read together with disputed
provisions, related with one another, and considered with
the May 17, 2010 retirement of the current Chief Justice –
bring into focus certain unavoidable realities, as follows:
1.                    If the election ban would apply fully to the
Supreme Court, the incumbent President cannot appoint a
Member of the Court beginning March 10, 2010, all the way
up to June 30, 2010.
 
2.                    The retirement of the incumbent Chief Justice –
May 17, 2010 – falls within the period of the election ban. 
(In an extreme example where the retirement of a Member of
the Court falls on or very close to the day the election ban
starts, the Office of the Solicitor General calculates in its
Comment that the whole 90 days given to the President to
make appointment would be covered by the election ban.)
 
3.                    Beginning May 17, 2010, the Chief Justice
position would be vacant, giving rise to the question of
whether an Acting Chief Justice can act in his place.  While
this is essentially a Supreme Court concern, the Chief
Justice is the ex officio Chair of the JBC; hence it must be
concerned and be properly guided.
 
 4.                    The appointment of the new Chief Justice has
to be made within 90 days from the time the vacancy
occurs, which translates to a deadline of August 15, 2010.
 
5.                    The deadline for the appointment is fixed (as it
is not reckoned from the date of submission of the JBC list,
as in the lower courts) which means that the JBC ideally
will have to make its list available at the start of the 90-day
period so that its process will not eat up the 90-day period
granted the President.
 
6.                    After noon of June 30, 2010, the JBC
representation from Congress would be vacant; the current
representatives’ mandates to act for their principals extend
only to the end of their present terms; thus, the JBC shall be
operating at that point at less than its full membership.
 
7.                    Congress will not convene until the 4 th Monday
of July, 2010, but would still need to organize before the
two Houses of Congress can send their representatives to
the JBC – a process may extend well into August, 2010.
 
8.                    By July 5, 2010, one regular member of the JBC
would vacate his post.  Filling up this vacancy requires a
presidential appointment and the concurrence of the
Commission on Appointments.  Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving
9.                    Last but not the least, the prohibition in Section
15, Article VII is that “a President or Acting President shall
not make appointments.” This prohibition is expressly
addressed to the President and covers the act of
appointment; the prohibition is not against the JBC in the
performance of its function of “recommending appointees
to the Judiciary” – an act that is one step away from the act
of making appointments.
The Province of North Cotabato v. Government of the Republic
of the Philippines Peace Panel Ancestral Domain, G.R. Nos.
183591, 183791, 183752, 183893, 183951 and 183962,
October 14, 2008.
By virtue of its power of administrative supervision, the
Supreme Court oversees the judges’ and court personnel’s
compliance with the laws, rules and regulations.  It may
take the proper administrative action against them if they
commit any violation.  See Ampong v. CSC, G.R. No. 107910,
August 26, 2008, 563 SCRA 293.  The Constitution
separately provides for the Supreme Court’s supervision
over the JBC. See Article VIII, Section 8 of the
CONSTITUTION.   
Judicial Review is the power of the courts to test the validity
of executive and legislative acts for their conformity with
the Constitution, Garcia v. Executive Secretary, G.R. No.
157584, April 2, 2009.
Control is the power of an officer to alter or modify or nullify
or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of
the former for that of the latter.  It is distinguished from
supervision in that the latter means overseeing, or the
power or authority of an officer to see that subordinate
officers perform their duties, and if the latter fail or neglect
to fulfill them, then the former may take such action or
steps as prescribed by law to make them perform these
duties. Nachura, J., Outline Reviewer in Political Law, 2006
ed., p. 276.
G.R. No. 156052, February 13, 2008, 545 SCRA 92.
Supra notes 11 and 14.
Philippine Bar Association (PBA), Women Trial Lawyers
Organization of the Philippines (WTLOP), Atty. Amador Z.
Tolentino, Atty. Roland B. Inting,  Peter Irving Corvera and
Alfonso V. Tan, Jr. 
See PBA’s Motion for Reconsideration.
See the Motions for Reconsideration for PBA, WTLOP, Atty.
Corvera and Alfonso V. Tan, Jr.
CONSTITUTION, Article VII, 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.
CONSTITUTION, Article VIII, Section 4(1):
 
(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 divisions of three, five, or seven Members. 
Any vacancy shall be filled within ninety days from the
occurrence thereof.
 
x  x  x  x
See Petition on Intervention of WTLOP, as cited in the
decision in the above-captioned cases; see also:  PBA’s    
motion for reconsideration. 
JUDICIAL AND BAR COUNCIL  
Francisco v. House of Representatives, G.R. No. 160261, (JBC) and PRESIDENT GLORIA
November 10, 2003, 415 SCRA 44, citing Civil Liberties MACAPAGAL – ARROYO,  
Union v. Executive Secretary, 194 SCRA 317 (1994); Peralta
v. Commission on Elections, G.R. No. 47771, March 11, 1978,
82 SCRA 30 (1978); Ang-Angco v. Castillo, G.R. No. 17169,                     Respondents.  
November 30, 1963, 9 SCRA 619 (1963).
x-----------------------x  
Macalintal v. Commission on Elections, G.R. No. 157013, July
10, 2003, 310 SCRA 614, citing Chiongbian v. De Leon, 82 JAIME N. SORIANO,  
Phil 771 (1949).
                                 Petitioner,          G.R. No. 191032
Article VI for the Legislature, Article VII for the Executive,
and Article VIII for the Judiciary.                   

See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380                     - versus -  
SCRA 49; where the court resolved the clash between the
power of the President to extend ad interim appointments    
and the power of the Commission on Appointments to
confirm presidential appointments. JUDICIAL AND BAR COUNCIL  
(JBC),
Ibid.
 
                    Respondent.
Supra note 13.
 
x-----------------------x  
Separate Opinion, p. 32.  
PHILIPPINE CONSTITUTION G.R. No. 191057
Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA ASSOCIATION (PHILCONSA),  
1.  
                                 Petitioner,           
 
       
Republic of the Philippines  
 
                   - versus -  
Supreme Court
A.M. No. 10-2-5-
   SC       
Baguio City  
JUDICIAL AND BAR COUNCIL  
                                                               (JBC),  
 
                                Respondent.  
EN BANC  
x-----------------------x  
 

IN RE APPLICABILITY OF G.R. No. 191149

ARTURO M. DE CASTRO, G. R. No. 191002 SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO  
                               Petitioner,            APPOINTMENTS TO THE
JUDICIARY,  
   
ESTELITO P. MENDOZA,  
                   - versus -  
                                 Petitioner,           
 x - - - - - - - - - - - - - - - - - - - - - - - x   CAROLINA P. ARAULLO; BAYAN  
SECRETARY GENERAL RENATO
JOHN G. PERALTA,   M. REYES, JR.; CONFEDERATION  
FOR UNITY, RECOGNITION AND
                                Petitioner,            ADVANCE-MENT OF  
GOVERNMENT EMPLOYEES
(COURAGE) CHAIRMAN
                   - versus -    
FERDINAND GAITE; KALIPUNAN
NG DAMAYANG MAHIHIRAP
    (KADAMAY) SECRETARY  
GENERAL GLORIA ARELLANO;
JUDICIAL AND BAR COUNCIL   ALYANSA NG NAGKAKAISANG  
(JBC). KABATAAN NG SAMBAYANAN
  PARA SA KAUNLARAN  
                                Respondent. (ANAKBAYAN) CHAIRMAN KEN
  LEONARD RAMOS; TAYO ANG  
x - - - - - - - - - - - - - - - - - - - - - - - -x PAG-ASA CONVENOR ALVIN
PETERS; LEAGUE OF FILIPINO
   
STUDENTS (LFS) CHAIRMAN
PETER IRVING CORVERA;
JAMES MARK TERRY LACUANAN
  RIDON; NATIONAL UNION OF  
  STUDENTS OF THE PHILIPPINES
  (NUSP) CHAIRMAN EINSTEIN  
CHRISTIAN ROBERT S. LIM; RECEDES; COLLEGE EDITORS
  GUILD OF THE PHILIPPINES  
  (CEGP) CHAIRMAN VIJAE
  ALQUISOLA; and STUDENT  
ALFONSO V. TAN, JR.; CHRISTIAN MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN
   
MA. CRISTINA ANGELA
 
GUEVARRA;
   
NATIONAL UNION OF PEOPLE’S
 
LAWYERS;    
WALDEN F. BELLO and LORETTA
     
ANN P. ROSALES;
MARLOU B. UBANO;    
 
     
WOMEN TRIAL LAWYERS
ORGANIZATION OF THE
INTEGRATED BAR OF THE   PHILIPPINES, represented by  
PHILIPPINES-DAVAO DEL SUR YOLANDA QUISUMBING-
CHAPTER, represented by its    
Immediate Past President, ATTY.
JAVELLANA; BELLEZA ALOJADO
ISRAELITO P. TORREON, and the
  DEMAISIP; TERESITA  
latter in his own personal
GANDIONCO-OLEDAN; MA.
capacity as a MEMBER of the
  VERENA KASILAG-VILLANUEVA;  
PHILIPPINE BAR;
MARILYN STA. ROMANA;
LEONILA DE JESUS; and
     
GUINEVERE DE LEON;

MITCHELL JOHN L. BOISER;    

 

     
AQUILINO Q. PIMENTEL, JR.;

BAGONG ALYANSANG BAYAN    

                            Intervenors.
(BAYAN) CHAIRMAN DR.
x - - - - - - - - - - - - - - - - - - - - - - - -x     G.R. No. 191342

ATTY. AMADOR  Z. TOLENTINO,          

JR., (IBP
  JUDICIAL AND BAR COUNCIL and  
Governor–Southern Luzon), and HER EXCELLENCY GLORIA
ATTY. ROLAND B. INTING   MACAPAGAL-ARROYO,  

(IBP Governor–Eastern Visayas),                                   Respondents.  

                                Petitioners,    

     

                   - versus -    

     

     

JUDICIAL AND BAR COUNCIL    

(JBC),
   
                                 Respondent.
   
x-----------------------x
   
PHILIPPINE BAR ASSOCIATION,
INC.,   G.R. No. 191420

                                 Petitioner,    

     Present:

     

    PUNO, C.J.,

    CARPIO,
CORONA,
   
CARPIO MORALES,
   
VELASCO, JR.,
   
NACHURA,
                     - versus -                     
LEONARDO-DE
    CASTRO,

    BRION,

    PERALTA,
 (a) To resume its proceedings for the nomination of
candidates to fill the vacancy to be created by the
BERSAMIN,
compulsory retirement of Chief Justice Reynato S. Puno by
May 17, 2010;
DEL CASTILLO,
 
ABAD,
(b) To prepare the short list of nominees for the
VILLARAMA, JR., position of Chief Justice;

PEREZ, and  

MENDOZA, JJ. (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

Promulgated:  

  (d) To continue its  proceedings  for the  nomination

of candidates to fill other vacancies in the Judiciary and
April 20, 2010 submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
 
x---------------------------------------------------------------------------
SO ORDERED.
--------------x

 
 

 
RESOLUTION

MOTIONS FOR RECONSIDERATION

 

 
BERSAMIN, J.:

 
 

          Petitioners Jaime N. Soriano (G.R. No. 191032),

          On March 17, 2010, the Court promulgated its
decision, holding:        
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:
Amador Z. Tolentino and Roland B. Inting (G.R. No.
191342), and Philippine Bar Association (G.R. No. 191420),
as well as intervenors Integrated Bar of the Philippines-
Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert
S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and
others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial
Lawyers Organization of the Philippines (WTLOP); Marlou
B. Ubano; Mitchell John L. Boiser; and Walden F. Bello and
Loretta Ann P. Rosales (Bello, et al.), filed their respective
motions for reconsideration. Also filing a motion for
reconsideration was Senator Aquilino Q. Pimentel, Jr.,
whose belated intervention was allowed.

   
 We summarize the arguments and submissions of
the various motions for reconsideration, in the aforegiven
order:
Soriano
1.     The Court has not squarely ruled upon or addressed the
issue of whether or not the power to designate the Chief
Justice belonged to the Supreme Court en banc.
2.     The Mendoza petition should have been dismissed, because
it sought a mere declaratory judgment and did not involve
a justiciable controversy.
 
3.     All Justices of the Court should participate in the next
deliberations. The mere fact that the Chief Justice sits as ex
officio head of the JBC should not prevail over the more
compelling state interest for him to participate as a
Member of the Court.
 
Tolentino and Inting
 
1.     A plain reading of Section 15, Article VII does not lead to an
interpretation that exempts judicial appointments from the
express ban on midnight appointments.
2.     In excluding the Judiciary from the ban, the Court has made
distinctions and has created exemptions when none exists.
 
3.     The ban on midnight appointments is placed in Article VII,
not in Article VIII, because it limits an executive, not a
judicial, power.
 
4.     Resort to the deliberations of the Constitutional
Commission is superfluous, and is powerless to vary the
terms of the clear prohibition.
 
5.     The Court has given too much credit to the position taken
by Justice Regalado. Thereby, the Court has raised the
Constitution to the level of a venerated text whose intent
can only be divined by its framers as to be outside the
realm of understanding by the sovereign people that
ratified it.
6.     Valenzuela should not be reversed.
7.     The petitioners, as taxpayers and lawyers, have the clear
legal standing to question the illegal composition of the JBC.
 
Philippine Bar Association
 
1.     The Court’s strained interpretation of the Constitution
violates the basic principle that the Court should not
formulate a rule of constitutional law broader than what is
required by the precise facts of the case.
2.     Considering that Section 15, Article VII is clear and
straightforward, the only duty of the Court is to apply it.
The provision expressly and clearly provides a general
limitation on the appointing power of the President in
prohibiting the appointment of any person to any position
in the Government without any qualification and
distinction.
 
3.     The Court gravely erred in unilaterally ignoring the
constitutional safeguard against midnight appointments.
 
4.     The Constitution has installed two constitutional
safeguards:- the prohibition against midnight
appointments, and the creation of the JBC. It is not within
the authority of the Court to prefer one over the other, for
the Court’s duty is to apply the safeguards as they are, not
as the Court likes them to be.
 
5.     The Court has erred in failing to apply the basic principles
of statutory construction in interpreting the Constitution.
 
6.     The Court has erred in relying heavily on the title, chapter
or section headings, despite precedents on statutory
construction holding that such headings carried very little
weight.
 7.     The Constitution has provided a general rule on midnight
appointments, and the only exception is that on temporary
appointments to executive positions.
 
8.     The Court has erred in directing the JBC to resume the
proceedings for the nomination of the candidates to fill the
vacancy to be created by the compulsory retirement of
Chief Justice Puno with a view to submitting the list of
nominees for Chief Justice to President Arroyo on or before
May 17, 2010. The Constitution grants the Court only the
power of supervision over the JBC; hence, the Court cannot
tell the JBC what to do, how to do it, or when to do it,
especially in the absence of a real and justiciable case
assailing any specific action or inaction of the JBC.
 
9.     The Court has engaged in rendering an advisory opinion
and has indulged in speculations.
 
10.     The constitutional ban on appointments being already in
effect, the Court’s directing the JBC to comply with the
decision constitutes a culpable violation of the Constitution
and the commission of an election offense.
 
11.    The Court cannot reverse on the basis of a secondary
authority a doctrine unanimously formulated by the Court
en banc.
12.    The practice has been for the most senior Justice to act as
Chief Justice whenever the incumbent is indisposed. Thus,
the appointment of the successor Chief Justice is not
urgently necessary.
 
13.    The principal purpose for the ban on midnight
appointments is to arrest any attempt to prolong the
outgoing President’s powers by means of proxies. The
attempt of the incumbent President to appoint the next
Chief Justice is undeniably intended to perpetuate her
power beyond her term of office.
 
IBP-Davao del Sur, et al.
1.      Its language being unambiguous, Section 15, Article VII of
the Constitution applies to appointments to the Judiciary.
Hence, no cogent reason exists to warrant the reversal of
the Valenzuela pronouncement.
2.      Section 16, Article VII of the Constitution provides for
presidential appointments to the Constitutional
Commissions and the JBC with the consent of the
Commission on Appointments. Its phrase “other officers
whose appointments are vested in him in this Constitution”
is enough proof that the limitation on the appointing power
of the President extends to appointments to the Judiciary.
Thus, Section 14, Section 15, and Section 16 of Article VII
apply to all presidential appointments in the Executive and
Judicial Branches of the Government.
 
3.      There is no evidence that the framers of the Constitution
abhorred the idea of an Acting Chief Justice in all cases.
 
Lim
1.     There is no justiciable controversy that warrants the
Court’s exercise of judicial review.
 
2.     The election ban under Section 15, Article VII applies to
appointments to fill a vacancy in the Court and to other
appointments to the Judiciary.
 
3.     The creation of the JBC does not justify the removal of the
safeguard under Section 15 of Article VII against midnight
appointments in the Judiciary.
Corvera
 
1.     The Court’s exclusion of appointments to the Judiciary
from the Constitutional ban on midnight appointments is
based on an interpretation beyond the plain and
unequivocal language of the Constitution.
 
2.     The intent of the ban on midnight appointments is to cover
appointments in both the Executive and Judicial
Departments. The application of the principle of verba legis
(ordinary meaning) would have obviated dwelling on the
organization and arrangement of the provisions of the
Constitution. If there is any ambiguity in Section 15, Article
VII, the intent behind the provision, which is to prevent
political partisanship in all branches of the Government,
should have controlled.
3.     A plain reading is preferred to a contorted and strained
interpretation based on compartmentalization and physical
arrangement, especially considering that the Constitution
must be interpreted as a whole.
4.     Resort to the deliberations or to the personal
interpretation of the framers of the Constitution should
yield to the plain and unequivocal language of the
Constitution.
 
5.     There is no sufficient reason for reversing Valenzuela, a
ruling that is reasonable and in accord with the
Constitution.
 
 
BAYAN, et al.
 
1.     The Court erred in granting the petition in A.M. No. 10-2-5-
SC, because the petition did not present a justiciable
controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice
was not yet vacant and that the JBC itself has yet to decide
whether or not to submit a list of nominees to the
President.
 
2.     The collective wisdom of Valenzuela Court is more
important and compelling than the opinion of Justice
Regalado.
3.     In ruling that Section 15, Article VII is in conflict with
Section 4(1), Article VIII, the Court has violated the
principle of ut magis valeat quam pereat (which mandates
that the Constitution should be interpreted as a whole, such
that any conflicting provisions are to be harmonized as to
fully give effect to all). There is no conflict between the
provisions; they complement each other.
 
4.     The form and structure of the Constitution’s titles,
chapters, sections, and draftsmanship carry little weight in
statutory construction. The clear and plain language of
Section 15, Article VII precludes interpretation.
 
 
Tan, Jr.
1.     The factual antecedents do not present an actual case or
controversy. The clash of legal rights and interests in the
present case are merely anticipated. Even if it is anticipated
with certainty, no actual vacancy in the position of the Chief
Justice has yet occurred.
 
2.     The ruling that Section 15, Article VII does not apply to a
vacancy in the Court and the Judiciary runs in conflict with
long standing principles and doctrines of statutory
construction. The provision admits only one exception, 
temporary appointments in the Executive Department.
Thus, the Court should not distinguish, because the law
itself makes no distinction.
3.     Valenzuela was erroneously reversed. The framers of the
Constitution clearly intended the ban on midnight
appointments to cover the members of the Judiciary.
Hence, giving more weight to the opinion of Justice
Regalado to reverse the en banc decision in Valenzuela was
unwarranted.
 
4.     Section 15, Article VII is not incompatible with Section
4(1), Article VIII. The 90-day mandate to fill any vacancy
lasts until August 15, 2010, or a month and a half after the
end of the ban. The next President has roughly the same
time of 45 days as the incumbent President (i.e., 44 days)
within which to scrutinize and study the qualifications of
the next Chief Justice. Thus, the JBC has more than enough
opportunity to examine the nominees without haste and
political uncertainty.
5.     When the constitutional ban is in place, the 90-day period
under Section 4(1), Article VIII is suspended.
 
6.     There is no basis to direct the JBC to submit the list of
nominees on or before May 17, 2010. The directive to the
JBC sanctions a culpable violation of the Constitution and
constitutes an election offense.
 
7.     There is no pressing necessity for the appointment of a
Chief Justice, because the Court sits en banc, even when it
acts as the sole judge of all contests relative to the election,
returns and qualifications of the President and Vice-
President. Fourteen other Members of the Court can validly
comprise the Presidential Electoral Tribunal.
 
WTLOP
  
1.     The Court exceeded its jurisdiction in ordering the JBC to
submit the list of nominees for Chief Justice to the
President on or before May 17, 2010, and to continue its
proceedings for the nomination of the candidates, because
it granted a relief not prayed for; imposed on the JBC a
deadline not provided by law or the Constitution; exercised
control instead of mere supervision over the JBC; and
lacked sufficient votes to reverse Valenzuela.
 
2.     In interpreting Section 15, Article VII, the Court has
ignored the basic principle of statutory construction to the
effect  that the literal meaning of the law must be applied
when it is clear and unambiguous; and that we should not
distinguish where the law does not distinguish.
3.     There is no urgency to appoint the next Chief Justice,
considering that the Judiciary Act of 1948 already provides
that the power and duties of the office devolve on the most
senior Associate Justice in case of a vacancy in the office of
the Chief Justice.
Ubano
 
1.     The language of Section 15, Article VII, being clear and
unequivocal, needs no interpretation
 
2.     The Constitution must be construed in its entirety, not by
resort to the organization and arrangement of its
provisions.
3.     The opinion of Justice Regalado is irrelevant, because
Section 15, Article VII and the pertinent records of the
Constitutional Commission are clear and unambiguous.
4.     The Court has erred in ordering the JBC to submit the list of
nominees to the President by May 17, 2010 at the latest,
because no specific law requires the JBC to submit the list
of nominees even before the vacancy has occurred.
 
Boiser
 
1.     Under Section 15, Article VII, the only exemption from the
ban on midnight appointments is the temporary
appointment to an executive position. The limitation is in
keeping with the clear intent of the framers of the
Constitution to place a restriction on the power of the
outgoing Chief Executive to make appointments.
 
2.     To exempt the appointment of the next Chief Justice from
the ban on midnight appointments makes the appointee
beholden to the outgoing Chief Executive, and
compromises the independence of the Chief Justice by
having the outgoing President be continually influential.
 
3.     The Court’s reversal of Valenzuela without stating the
sufficient reason violates the principle of stare decisis.
 
 
Bello, et al.
1.     Section 15, Article VII does not distinguish as to the type of
appointments an outgoing President is prohibited from
making within the prescribed period. Plain textual reading
and the records of the Constitutional Commission support
the view that the ban on midnight appointments extends to
judicial appointments.
 
2.     Supervision of the JBC by the Court involves oversight. The
subordinate subject to oversight must first act not in
accord with prescribed rules before the act can be redone
to conform to the prescribed rules.
3.     The Court erred in granting the petition in A.M. No. 10-2-5-
SC, because the petition did not present a justiciable
controversy.
 
Pimentel
 
1.     Any constitutional interpretative changes must be
reasonable, rational, and conformable to the general intent
of the Constitution as a limitation to the powers of
Government and as a bastion for the protection of the
rights of the people. Thus, in harmonizing seemingly
conflicting provisions of the Constitution, the
interpretation should always be one that protects the
citizenry from an ever expanding grant of authority to its
representatives.
 
2.     The decision expands the constitutional powers of the
President in a manner totally repugnant to republican
 constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
 
COMMENTS
The Office of the Solicitor General (OSG) and the
JBC separately represent in their respective comments,
thus:
 
 
OSG
 
1.                 The JBC may be compelled to submit to the President
a short list of its nominees for the position of Chief Justice.
 
2.                 The incumbent President has the power to appoint
the next Chief Justice.
 
3.                 Section 15, Article VII does not apply to the Judiciary.
 
4.                 The principles of constitutional construction favor
the exemption of the Judiciary from the ban on midnight
appointments.
5.                 The Court has the duty to consider and resolve all
issues raised by the parties as well as other related matters.
 
JBC
 
1.                 The consolidated petitions should have been
dismissed  for prematurity, because the JBC has not yet
decided at the time the petitions were filed whether the
incumbent President has the power to appoint the new
Chief Justice, and because the JBC, having yet to interview
the candidates, has not submitted a short list to the
President.
2.                 The statement in the decision that there is a doubt on
whether a JBC short list is necessary for the President to
appoint a Chief Justice should be struck down as bereft of
constitutional and legal basis. The statement undermines
the independence of the JBC.
3.                 The JBC will abide by the final decision of the Court,
but in accord with its constitutional mandate and its
implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M.
No. 10-2-5-SC) submits his comment even if the OSG and
the JBC were the only ones the Court has required to do so.
He states that the motions for reconsideration were
directed at the administrative matter he initiated and
which the Court resolved. His comment asserts:
 
1.                 The grounds of the motions for reconsideration were
already resolved by the decision and the separate opinion.
2.                 The administrative matter he brought invoked the
Court’s power of supervision over the JBC as provided by
Section 8(1), Article VIII of the Constitution, as
distinguished from the Court’s adjudicatory power under
Section 1, Article VIII. In the former, the requisites for
judicial review are not required, which was why Valenzuela
was docketed as an administrative matter. Considering that
the JBC itself has yet to take a position on when to submit
the short list to the proper appointing authority, it has
effectively solicited the exercise by the Court of its power of
supervision over the JBC.
3.                 To apply Section 15, Article VII to Section 4(1) and
Section 9, Article VIII is to amend the Constitution.
4.                 The portions of the deliberations of the
Constitutional Commission quoted in the dissent of Justice
Carpio Morales, as well as in some of the motions for
reconsideration do not refer to either Section 15, Article VII
or Section 4(1), Article VIII, but to Section 13, Article VII
(on nepotism).
 
RULING
 
          We deny the motions for reconsideration for lack of
merit, for all the matters being thereby raised and argued,
not being new, have all been resolved by the decision of
March 17, 2010.       bind the lower courts, but the courts of co-ordinate
 
Nonetheless, the Court opts to dwell on some
matters only for the purpose of clarification and emphasis.
 
First: Most of the movants contend that the
principle of stare decisis is controlling, and accordingly
insist that the Court has erred in disobeying or abandoning
Valenzuela.
 
The contention has no basis.
          Stare decisis derives its name from the Latin maxim
stare decisis et non quieta movere, i.e., to adhere to
precedent and not to unsettle things that are settled. It
simply means that a principle underlying the decision in
one case is deemed of imperative authority, controlling the
decisions of like cases in the same court and in lower
courts within the same jurisdiction, unless and until the
decision in question is reversed or overruled by a court of
competent authority. The decisions relied upon as
precedents are commonly those of appellate courts,
because the decisions of the trial courts may be appealed to
higher courts and for that reason are probably not the best
evidence of the rules of law laid down.   modify or reverse a doctrine or principle of law laid down
Judicial decisions assume the same authority as a
statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable,
the criteria that must control the actuations, not only of
those called upon to abide by them, but also of those duty-
bound to enforce obedience to them. In a hierarchical
judicial system like ours, the decisions of the higher courts
authority do not bind each other. The one highest court
does not bind itself, being invested with the innate
authority to rule according to its best lights.
 
The Court, as the highest court of the land, may be
guided but is not controlled by precedent. Thus, the Court,
especially with a new membership, is not obliged to follow
blindly a particular decision that it determines, after re-
examination, to call for a rectification. The adherence to
precedents is strict and rigid in a common-law setting like
the United Kingdom, where judges make law as binding as
an Act of Parliament. But ours is not a common-law system;
hence, judicial precedents are not always strictly and
rigidly followed. A judicial pronouncement in an earlier
decision may be followed as a precedent in a subsequent
case only when its reasoning and justification are relevant,
and the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of
the precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought
not to be disobeyed, or abandoned, or reversed, and that its
wisdom should guide, if not control, the Court in this case
is, therefore, devoid of rationality and foundation. They
seem to conveniently forget that the Constitution itself
recognizes the innate authority of the Court en banc to
in any decision rendered en banc or in division.
Second: Some intervenors are grossly misleading
the public by their insistence that the Constitutional
Commission extended to the Judiciary the ban on
presidential appointments during the period stated in
Section 15, Article VII.
  
The deliberations that the dissent of Justice Carpio
Morales quoted from the records of the Constitutional
Commission did not concern either Section 15, Article VII
or Section 4(1), Article VIII, but only Section 13, Article VII,
a provision on nepotism. The records of the Constitutional
Commission show that Commissioner Hilario G. Davide, Jr.
had proposed to include judges and justices related to the
President within the fourth civil degree of consanguinity or
affinity among the persons whom the President might not
appoint during his or her tenure. In the end, however,
Commissioner Davide, Jr. withdrew the proposal to include
the Judiciary in Section 13, Article VII “(t)o avoid any
further complication,” such that the final version of the
second paragraph of Section 13, Article VII even completely
omits any reference to the Judiciary, to wit:
 
       Section 13. xxx
         The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not
during his tenure be appointed as Members of the
Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen
or heads of bureaus or offices, including government-
owned or controlled corporations and their subsidiaries.
Last:  The movants take the majority to task for
holding that Section 15, Article VII does not apply to
appointments in the Judiciary. They aver that the Court
either ignored or refused to apply many principles of
statutory construction.
 
          The movants gravely err in their posture, and are
themselves apparently contravening their avowed reliance
on the principles of statutory construction.
 
For one, the movants, disregarding the absence
from Section 15, Article VII of the express extension of the
ban on appointments to the Judiciary, insist that the ban
applied to the Judiciary under the principle of verba legis.
That is self-contradiction at its worst.
 
Another instance is the movants’ unhesitating
willingness to read into Section 4(1) and Section 9, both of
Article VIII, the express applicability of the ban under
Section 15, Article VII during the period provided therein,
despite the silence of said provisions thereon. Yet,
construction cannot supply the omission, for doing so
would generally constitute an encroachment upon the field
of the Constitutional Commission. Rather, Section 4(1) and
Section 9 should be left as they are, given that their
meaning is clear and explicit, and no words can be
interpolated in them. Interpolation of words is
unnecessary, because the law is more than likely to fail to
express the legislative intent with the interpolation. In
other words, the addition of new words may alter the
thought intended to be conveyed. And, even where the
meaning of the law is clear and sensible, either with or
without the omitted word or words, interpolation is
improper, because the primary source of the legislative
intent is in the language of the law itself.
Thus, the decision of March 17, 2010 has fittingly
observed:
 
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 President’s or Acting President’s term does not           ACCORDINGLY, the motions for reconsideration are
refer to the Members of the Supreme Court.
denied with finality.
 
 
We cannot permit the meaning of the Constitution
to be stretched to any unintended point in order to suit the           SO ORDERED.

purposes of any quarter.  

FINAL WORD  

 
 
 
It has been insinuated as part of the polemics
attendant to the controversy we are resolving that because                                                                     LUCAS P. BERSAMIN

all the Members of the present Court were appointed by                                                                           Associate Justice
the incumbent President, a majority of them are now
 
granting to her the authority to appoint the successor of
the retiring Chief Justice.  

  WE CONCUR:

 
The insinuation is misguided and utterly unfair.
 
 
 

The Members of the Court vote on the sole basis of  

their conscience and the merits of the issues. Any claim to
REYNATO S. PUNO
the contrary proceeds from malice and condescension.
Neither the outgoing President nor the present Members of Chief Justice
the Court had arranged the current situation to happen and
 
to evolve as it has. None of the Members of the Court could
have prevented the Members composing the Court when  
she assumed the Presidency about a decade ago from
 
retiring during her prolonged term and tenure, for their
retirements were mandatory. Yet, she is now left with an  
imperative duty under the Constitution to fill up the
         ANTONIO T. CARPIO                        RENATO C.
vacancies created by such inexorable retirements within 90 CORONA
days from their occurrence. Her official duty she must
                Associate Justice                                     Associate
comply with. So must we ours who are tasked by the Justice
Constitution to settle the controversy.
 
   

   

   

CONCHITA CARPIO MORALES       PRESBITERO J.         MARTIN S. VILLARAMA, JR.           JOSE PORTUGAL
VELASCO, JR.      PEREZ

               Associate Justice                                        Associate                       Associate Justice                                  Associate

Justice Justice

   

   

   

   

ANTONIO EDUARDO B. NACHURA    TERESITA J.  

LEONARDO-DE
CASTRO                                                                                                     
                                                                                      
 
           Associate Justice                                         Associate
Justice JOSE CATRAL MENDOZA

  Associate Justice

   

   

   

       ARTURO D. BRION                         DIOSDADO M. CERTIFICATION

PERALTA
 
            Associate Justice                                               Associate
Justice
 
 
            Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions in
  the above Resolution had been reached in consultation
before the case was assigned to the writer of the opinion of
  the Court.

   

    MARIANO C. DEL CASTILLO                    ROBERTO A.  

ABAD
 
                  Associate Justice                                       Associate
Justice  

 
                                                                   REYNATO S. PUNO
                                                                          Chief Justice
 
      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, A.M. No. 98-5-01-SC,
November 9, 1998, 298 SCRA 408.
       Price & Bitner, Effective Legal Research, Little, Brown &
Co., New York (1962), § 9.7.
       Caltex (Phil.), Inc. v. Palomar, No. L-19650, September
29, 1966, 18 SCRA 247
      E.g., Dias, Jurisprudence, Butterworths, London, 1985,
Fifth Edition, p. 127.
      Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No.
118509, September 5, 1996, 261 SCRA 464.
      See Calabresi, A Common Law for the Age of Statutes,
Harvard University Press, p. 4 (1982) and endnote 12 of
the page, which essentially recounts that the strict
application of the doctrine of stare decisis is true only in a
common-law jurisdiction like England (citing Wise, The
Doctrine of Stare Decisis, 21 Wayne Law Review, 1043,
1046-1047 (1975). Calabresi recalls that the English House
of Lords decided in 1898 (London Tramways Co. v. London
County Council, A.C. 375) that they could not alter
precedents laid down by the House of Lords acting as the
supreme court in previous cases, but that such precedents
could only be altered by an Act of Parliament, for to do
otherwise would mean that the courts would usurp
legislative function; he mentions that in 1966, Lord
Chancellor Gardiner announced in a Practice Statement a
kind of general memorandum from the court that while:
“Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the
law,” they “nevertheless recognize that too rigid adherence
to precedent may lead to injustice in a particular case and
also unduly restrict the proper development of the law.
They propose, therefore, to modify their present practice
and, while treating former decisions of this House as
normally binding, to depart from a previous decision when
it appears right to do so.” (Calabresi cites Leach,
Revisionism in the House of Lords: The Bastion of Rigid Stare
Decisis Falls, 80 Harvard Law Review, 797 (1967).
      Section 4 (2), Article VIII, provides:
xxx
     (3) Cases or matters heard by a division shall be decided
or resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on the
issues in the case and voted thereon, and in no case,
without the concurrence of at least three of such Members.
When the required number is not obtained, the case shall
be decided en banc; Provided, that 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.
      Record of the 1986 Constitutional Commission, Vol. 2,
July 31, 1986, RCC No. 44. pp. 542-543.
      Smith v. State, 66 Md. 215, 7 Atl. 49.
    State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19313             January 19, 1962
DOMINADOR R. AYTONA, petitioner,
vs.
ANDRES V. CASTILLO, ET AL., respondents.
R E S O L U T I O N.
BENGZON, C.J.:
Without prejudice to the subsequent promulgation of more
extended opinion, the Court adopted today, the following
resolutions: .
On December 29, 1961, then President Carlos P. Garcia
appointed Dominador R. Aytona as ad interim Governor of
the Central Bank. On the same day, the latter took the
corresponding oath.
On December 30, 1961, at noon, President-elect Diosdado
Macapagal assumed office; and on December 31, 1961, he
issued Administrative Order No. 2 recalling, withdrawing,
and cancelling all ad interim appointment made by
President Garcia after December 13, 1961, (date when he,
Macapagal, had been proclaimed elected by the Congress).
On January 1, 1962, President Macapagal appointed Andres
V. Castillo as ad interim Governor of the Central Bank, and
the latter qualified immediately.
On January 2, 1962, both appointed exercised the powers
of their office, although Castillo informed Aytona of his title
thereto; and some unpleasantness developed in the
premises of the Central Bank. However, the next day and
thereafter, Aytona was definitely prevented from holding
office in the Central Bank.
So, he instituted this proceeding which is practically, a quo
warranto, challenging Castillo's right to exercise the
powers of Governor of the Central Bank. Aytona claims he
was validly appointed, had qualified for the post, and
therefore, the subsequent appointment and qualification of
Castillo was void, because the position was then occupied
by him. Castillo replies that the appointment of Aytona had
been revoked by Administrative Order No. 2 of Macapagal;
and so, the real issue is whether the new President had
power to issue the order of cancellation of the ad interim
appointments made by the past President, even after the
appointees had already qualified.1äwphï1.ñët
The record shows that President Garcia sent to the
Commission on Appointments — which was not then in
session — a communication dated December 29, 1961,
submitting "for confirmation" ad interim appointments of
assistant director of lands, councilors, mayors, members of
the provincial boards, fiscals, justices of the peace, officers
of the army, etc.; and the name of Dominador R. Aytona as
Governor of the Central Bank occupies number 45, between
a justice of the peace and a colonel of the Armed Forces.
Another communication of President Garcia bearing the
same date, submitted a list of ad interim appointments of
Foreign Affairs officers, judges, fiscals, chiefs of police,
justices of the peace, mayors, councilors, etc. number 63 of
which was that of Dominador R. Aytona for Governor of the
Philippines in the Boards of International Monetary Fund,
International Bank for Reconstruction and Development,
etc.
A third communication likewise dated December 29, 1961,
addressed to the Commission on Appointments submitted
for confirmation 124 names of persons appointed as judges
of first instance, members of provincial boards, and boards
of government corporations, fiscals, justice of the peace,
even one associate justice of this Court occupying position
No. 8 and two associate justices of the Court of Appeals (9
and 10) between an assistant of the Solicitor-General's
Office, and the chairman of the board of tax appeals of
Pasay City, who in turn are followed by judges of first
instance, and inserted between the latter is the name of
another associate justice of the Court of Appeals.
There were other appointments thus submitted by
President Garcia on that date, December 29, 1961. All in all,
about three hundred fifty (350) "midnight" or "last minute"
appointments.
In revoking the appointments, President Macapagal is said
to have acted for these and other reasons: (1) the outgoing
President should have refrained from filling vacancies to
give the new President opportunity to consider names in
the light of his new policies, which were approved by the
electorate in the last elections; (2) these scandalously
hurried appointments in mass do not fall within the intent
and spirit of the constitutional provision authorizing the
issuance of ad interim appointments; (3) the appointments
were irregular, immoral and unjust, because they were
issued only upon the condition that the appointee would
immediately qualify obviously to prevent a recall or
revocation by the incoming President, with the result that
those deserving of promotion or appointment who
preferred to be named by the new President declined and
were by-passed; and (4) the abnormal conditions
surrounding the appointment and qualifications evinced a
desire on the part of the outgoing President merely subvert
the policies of the incoming administration.
It is admitted that many of the persons mentioned in the
communication to the Commission on Appointments dated
December 29, 1961, did not qualify. There is evidence that
in the night of December 29, there was a scramble in
Malacañ an of candidates for positions trying to get their
written appointments or having such appointments
changed to more convenient places, after some last minute
bargaining. There was unusual hurry in the issuance of the
appointments — which were not coursed through the
Department Heads — and in the confusion, a woman
appointed judge was designated "Mr." and a man was
designated "Madam." One appointee who got his
appointment and was required to qualify, resorted to the
rush of asking permission to swear before a relative official,
and then never qualified.
We are informed, it is Malacañ an's practice — which we
find to be logical — to submit ad interim appointments only
when the Commission on Appointments is in session. One
good reason for the practice is that only those who have
accepted the appointment and qualified are submitted for
confirmation. Nevertheless, this time, Malacañ an submitted
its appointments on the same day they were issued; and the
Commission was not then in session; obviously because it
foresaw the possibility that the incoming President would
refuse to submit later the appointees of his predecessor. As
a result, as already adverted to, some persons whose
names were submitted for confirmation had not qualified
nor accepted their appointments.
Because of the haste and irregularities, some judges of first
instance qualified for districts wherein no vacancies
existed, because the incumbents had not qualified for other
districts to which they had been supposedly transferred or
promoted.
Referring specifically to judges who had not qualified, the
course of conduct adopted by Former Chief Justice Moran is
cited. Being ambassador in Spain and desiring to return to
this Court even as associate justice, Moran was tendered an
ad interim appointment thereto by President Quirino, after
the latter had lost the election to President Magsaysay, and
before leaving the Presidency. Said Ambassador declined to
qualify being of the opinion that the matter should be left to
the incoming newly-elected President.
Of course, nobody will assert that President Garcia ceased
to be such earlier than at noon of December 30, 1961. But it
is common sense to believe that after the proclamation of
the election of President Macapagal, his was no more than a
"care-taker" administration. He was duty bound to prepare
for the orderly transfer of authority the incoming
President, and he should not do acts which he ought to
know, would embarrass or obstruct the policies of his
successor. The time for debate had passed; the electorate
had spoken. It was not for him to use powers as incumbent
President to continue the political warfare that had ended
or to avail himself of presidential prerogatives to serve
partisan purposes. The filling up vacancies in important
positions, if few, and so spaced 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 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 Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions 1
irrespective of fitness and other conditions, and thereby
deprive the new administration of an opportunity to make
the corresponding appointments.
Normally, when the President makes appointments the
consent of the Commission on Appointments, he has
benefit of their advice. When he makes ad interim
appointments, he exercises a special prerogative and is
bound to be prudent to insure approval of his selection
either previous consultation with the members of the
Commission or by thereafter explaining to them the reason
such selection. Where, however, as in this case, the
Commission on Appointments that will consider the
appointees is different from that existing at the time of the
appointment2 and where the names are to be submitted by
successor, who may not wholly approve of the selections,
the President should be doubly careful in extending such
appointments. Now, it is hard to believe that in signing 350
appointments in one night, President Garcia exercised such
"double care" which was required and expected of him; and
therefore, there seems to be force to the 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 revocation3
and if any circumstances justify revocation, those described
herein should fit the exception.
Incidentally, it should be stated that the underlying reason
for denying the power to revoke after the appointee has
qualified is the latter's equitable rights. Yet it is doubtful if
such equity might be successfully set up in the present
situation, considering the rush conditional appointments,
hurried maneuvers and other happenings detracting from
that degree of good faith, morality and propriety which
form the basic foundation of claims to equitable relief. The
appointees, it might be argued, wittingly or unwittingly
cooperated with the stratagem to beat the deadline,
whatever the resultant consequences to the dignity and
efficiency of the public service. Needless to say, there are
instances wherein not only strict legality, but also fairness,
justice and righteousness should be taken into account.
WHEREFORE, the Court exercising its judgment and
discretion in the matter, hereby dismiss the action, without
costs.
Labrador, Reyes, J.B.L., Paredes and De Leon, J.J., concur.
Separate Opinions
PADILLA, J., concurring:
Once more this Court has to pass upon and determine a
controversy that calls for an interpretation of the
provisions of the Constitution. The facts that gave rise to
the petition need not be restated as they are set forth in
opinion rendered for the Court. The question is whether
the appointment of a person to a public office by a
President whose term of office was about to expire or cease
is lawful or does not contravene the Constitution; or, if
lawful after the appointee has taken his oath, until when
would such appointment be valid and effective. The
constitutional point involved seems to have been
overlooked the framers of the Constitution. It would seem
that the framers, well-meaning persons that they were,
never foresaw an eventuality such as the one confronting
the Republic. The framers never thought and anticipated
that citizen elevated by the people to such an exalted office
the President of the Republic, would perform an act which
though not expressly prohibited by the Constitution and
the law, ought not to be done, since a sense of propriety
would be enough to stop him from performing it.
The petitioner invokes section 10, paragraph 4, article VII,
of the Constitution which provides that —
The President shall have the power to make appointments
during the recess of the Congress, but such appointments
shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the
Congress.
Under these constitutional provisions there seems to be no
doubt that the President may make the appointment, and if
approved by the Commission on Appointments, it would
unquestionably be lawful, valid and effective, but if
disapproved or not acted upon by the Commission on
Appointments then the appointment becomes ineffectual
and the appointee ceases and can no longer perform the
duties of the office to which he had been appointed.
It is urged that the petitioner's appointment having been
made by the President during the recess of the Congress
and he having taken his oath, the appointment is lawful,
valid and effective until disapproval by the Commission on
Appointments or until the next adjournment of the
Congress should the Commission on Appointments fail to
act on it.
Ad interim appointments that the President may make
during the recess of the Congress are those made during a
period of time from the adjournment of the Congress to the
opening session, regular or special, of the same Congress.
In other words, if the President had convened in a special
session the fourth Congress whose term was to expire on
the 30th of December 1961 and during such session the ad
interim appointments had been confirmed by the
Commission on Appointments there would be little doubt
that the appointments would be lawful and valid.
The government established by the Constitution is one of
checks and balances to preclude and prevent arrogation of
powers by officers elected or appointed under it.
Under the provisions of the Constitution "The term of office
of Senators shall be six years and shall begin on the
thirtieth day of December next following their election."1
And "The term of office of the Members of the House of
Representatives shall be four years and shall begin on the
thirtieth day of December next following their election."2
Under section 10, paragraph 4, article VII, of the
Constitution, above quoted, the President may make
appointments during the recess of the Congress, "but such
appointments shall be effective only until disapproval by
the Commission on Appointments or until the next
adjournment of the Congress." .
The term "recess", in its broadest sense, means and refers
to the intervening period between adjournment of a
regular session of one hundred days exclusive of Sundays,
or of a Special session which cannot continue longer than
thirty days, and the convening thereof in regular session
once every year on the fourth Monday of January or in
special session to consider general legislation or only such
subjects as he (the President) may designate.3 And such
intervening period refers to the same Congress that had
adjourned and was to be convened. Such intervening
period cannot refer to two different Congresses, one that
has adjourned and one newly chosen or elected to meet in
regular session as provided for by the Constitution, or in
special session by the call of the President.
The term of the President ... shall end at noon the thirtieth
day of December following the expiration four years after
(his) election and the term of (his) successor shall begin
from such time.4
If the ad interim appointments made by the President
during the recess of the Congress are effective only until
disapproval by the Commission on Appointments or until
the next adjournment of the Congress — a limitation on the
power of the President — there is a cogent and strong
reason for holding to be the intent of the framers of the
Constitution that such appointments made by him ceased
to be valid and effective after the term of the Congress
existing at the time of the making of such appointments had
ended or expired. The end or expiration of the of the
Congress existing at the time of the making of the ad
interim appointments by the President is a stronger cause
or reason for the lapse or ineffectuality of such
appointments than "the next adjournment of the Congress."
Since that Congress no longer exists and hence can no
longer convene and then "adjourn." The effectivity and
validity of the appointment of the petitioner as Governor of
the Central Bank ceased, lapsed and expired on thirtieth of
December 1961. He is no longer entitled hold the office to
which he had been appointed. My vote, therefore, is for the
denial of the petition.
Dizon, J., concurs.
I concur with the foregoing concurring opinion of Justice
Padilla, the same being based on an additional ground
justifying denial of the petition under consideration.
BAUTISTA ANGELO, J., concurring: .
In addition to the reasons stated in the resolution adopted
by this Court on January 19, 1962, I wish to express the
following views: .
1. The "midnight appointments" made by President Garcia
were extended by him under Section 10, Paragraph 4,
Article VII of the Constitution which provides: "The
President shall have the power to make appointments
during the recess of the Congress, but such appointments
shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the
Congress." It is clear that these appointments can only be
made during the recess of Congress because they are ad
interim appointments.
The term "recess" has a definite legal meaning. It means the
interval between a session of Congress that has adjourned
and another of the same Congress. It does not refer to the
interval between the session of one Congress and that of
another. In that case the interval is not referred to as a
"recess" but an adjournment sine die. Thus, in the case of
Tipton v. Parker, 71 Ark. 194, the court said: "The 'recess'
here referred to by Judge Cooley means the intermission
between sittings of the same body at its regular or
adjourned session, and not to the interval between the final
adjournment of one body and the convening of another at
the next regular session. When applied to a legislative
body, it means a temporary dismissal, and not an
adjournment sine die." Since the appointments in question
were made after the Fourth Congress has adjourned sine
die and ceased to function on December 30, 1961, they
cannot partake of the nature of ad interim appointments
within the meaning of the Constitution.
2. The Commission on Appointments under our
constitutional set-up is not continuing body but one that
co-exists with the Congress that has created it. This is so
because said Commission is a creation of the Senate and of
the House of Representatives. While the Senate is a
continuing body, the House ceases at the end of its fourth
year. It cannot therefore be continuing it being a creation of
a body half of which is alive and the other half has ceased to
exist. This theory can also be gleaned from the proceedings
of the constitutional convention.
Thus, the preliminary draft of the Philippine Constitution
provides for a permanent Commission and for the holding
of sessions of the Commission even during the recess of
Congress. After mature deliberation the proposal was
defeated and a substitute was adopted which is now
embodied in Article VI, Section 12, of our Constitution. As a
matter of fact, as finally adopted, the Commission on
Appointments has to be organized upon the convening of a
new Congress after the election of the Speaker of the House
of Representatives or of the President of the Senate, as the
case may be, as provided for in Section 13, Article VI of the
Constitution (Article VII, Preliminary Draft of the
Constitution, Vol. 2, Aruego: The Framing of the
Constitution, pp. 982, 987).
An ad interim appointment, to be complete, needs to be
submitted to the Commission on Appointments one the
same is constituted. This is reflected in the Constitution
when it provides that "such appointments shall be effective
only until disapproval by the Commission on Appointments
or until the next adjournment of the Congress" (Section 10,
Paragraph 4, Article VII). This mean that it must be
submitted to the Commission on Appointments of the
Congress that has created it. It cannot be submitted to the
Commission on Appointments of a different Congress. Since
the appointments in question were submitted to the
Commission on Appointments which ceased to function on
December 30, 1961, they lapsed upon the cessation of said
Commission. Consequently, they can be recalled by the new
Chief Executive.
3. An ad interim appointment is not complete until the
appointee takes the oath of office and actually takes
possession of the position or enters upon the discharge of
its duties. The mere taking of the oath of office without
actual assumption of office is not sufficient to constitute the
appointee the actual occupant thereof who may not be
removed therefrom except for cause (McChesney v.
Sampson, 23 S.W. 2d. 584). The case of Summers v. Ozaeta,
81 Phil., 754, cannot be cited as a precedent as to when an
ad interim appointment becomes permanent and binding.
That case involves a cadastral judge who was given an ad
interim appointment as judge at large. After assuming the
office and discharging his duties, his appointment was not
confirmed. He claimed that he could still revert to his
former position as cadastral judge. True, this Court made a
statement therein that an ad interim appointment becomes
permanent after taking the oath of office, but such
statement is merely an obiter dictum because the case
could have been decided on the doctrine that, having
accepted an incompatible office, petitioner was deemed to
have abandoned the position of cadastral judge.
In relying on certain cases for the proposition that once an
appointee has taken the oath of office his appointment
becomes irrevocable petitioner fails to consider that in said
cases there had either been an actual discharge of duty and
actual physical possession or assumption of office following
the oath-taking as to constitute the appointee the occupant
of the position from which he cannot be removed without
cause. Even the case of Marbury v. Madison, 1 Cranch, U.S.
137, 2 L. Ed., 61, 69, cannot be invoked as a precedent, for
there the appointees were merely nominated and their
nominations confirmed by the Commission on
Appointments even if they have later taken their oath of
office. Certainly, they can no longer be deprived of their
appointments for then the executive would be acting in
disregard of the confirming body which is a coordinate and
independent body not subject to his control.
Since the appointments in question were made not in the
light of the views herein expressed, I am of the opinion that
they did not ripen into valid and permanent appointments
and as such were properly recalled by the new Chief
Executive.
CONCEPCION, J., concurring in part and dissenting in part: .
It is well settled that the granting of writs of prohibition
and mandamus is ordinarily within the sound discretion of
the courts, to be exercised on equitable principles, and that
said writs should be issued when the right to the relief is
clear (55 C.J.S. 25, 29, 73 C.J.S. 18). Insofar as the majority
resolution relied upon discretion and the equities of the
case in denying said writs, I concur, therefore, in the
aforementioned resolution.
However, I cannot see my way clear to subscribing the
observations therein made representing the motives
allegedly underlying petitioner's appointment and that of
many others who are not parties in this case, and justifying
the revocation of such appointments. My reasons, among
others, are: .
1. Save where the incumbent has a temporary appointment
or is removable at the will of the appointing power, an
appointment once complete, by the performance of all acts
required by law of the appointing power, is irrevocable.
An appointment to office may be revoked at any time
before the appointment becomes final and complete, but
thereafter unless the appointee is removable at the will of
appointing power. For the purpose of this rule, an
appointment to office is complete when the last act
required of the person or body vested with the appointing
power has been performed. Where by constitutional,
statutory, or other legal provision it is required that certain
steps be taken to make effective appointment, it has been
held that the appointment becomes complete beyond the
possibility of recall when the last of the prescribed steps is
taken, and that, where no method of appointment is
provided, an appointment does not become effective and
beyond recall until the appointing officer by some act or
word evinces a final intent to vest the appointee with title
to the office." (67 C.J.S., pp. 161-162) .
After the act of appointment is complete, the appointing
authority may not revoke its former appointment and
make another. And appointment to office is complete when
the last act required of the person or body vested with the
appointing power has been performed. (56 C., p. 954) .
In all jurisdictions where appointment to office is regarded
as an executive function, as here, an appointment to office
once made is incapable of revocation or cancellation by the
appointing executive in the absence of a statutory or
constitutional power of removal. Barrett v. Duff 114, Kan.
220; 217 P. 918; People v. Mizner, 7 Cal. 519, State v.
Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006;
Draper v. State, 175 Ala. 547, 57 So. 772, Ann. Cas. 1914D,
page 305, Annotation." (McChesney v. Sampson, 23 S.W.
2d., 584) .
May an appointment be revoked by reason of error or
fraud? This question was taken up in Ex rel Coogan vs.
Barbour (22 A 686) and Ex rel Scofield vs. Starr (63 A 512).
The first involved a City Charter providing that its common
council shall, in joint convention, appoint a prosecuting
attorney. In such convention, Coogan obtained a majority of
the votes cast and of the convention. Upon announcement
of this result, a member of the convention offered a
resolution declaring Coogan elected, but the resolution was
defeated. Then, two resolutions were offered and
approved: one declaring that the ballots taken were null
and of no effect by reason of errors in the same and
another declaring Barbour elected prosecuting attorney.
The issue was who had been appointed thereto. The court
held that it was Coogan, he having obtained a clear majority
and there having been no error or fraud in the voting,
although it did not deny the power of the convention to
correct errors and to nullify the effects of fraud in the
voting by invalidating the same and calling another
election, had the proceedings been tainted with such error
or fraud.
The second case referred to a similar provision in a city
charter, to the effect that appointments by the common
council shall be by ballot and that the person receiving a
plurality of ballots shall be elected. The first balloting taken
for the election of the city surveyor of Brigeport resulted in
25 ballots being cast. It was announced that there was one
ballot more than members voting, and that there were 13
ballots for Scofield, 11 for Starr and one blank ballot.
Scofield maintained that this result amounted to his
appointment precluding the council from taking a new
ballot but such pretense was rejected. Inasmuch as the
number of ballots cast exceeded the number of persons
voting, the council was justified in believing that the
proceeding was not free from suspicion of fraud or mistake
in the voting and, accordingly in taking another vote.
In both cases, the fraud or mistake alluded to referred to
the manner of voting or of counting the ballots cast, not to
the intent of the voters in choosing a particular appointee.
2. An ad interim appointment, made during a recess of
Congress, is complete and irrevocable upon the
performance of the last act required by law from the
appointing power, even without previous notice to the
appointee, or acceptance by him, or without subsequent
action of the legislative organ that may terminate its
effectivity.
In the case of appointment made by a single executive such
as a governor, mayor, etc., it is undisputed that the
appointment once made is irrevocable.
xxx     xxx     xxx
Where an appointment subject to confirmation by the
senate is made by a governor during a recess of the
senate, ... the question arises as to whether such an
appointment may be reconsidered and withdrawn by the
governor before it is acted upon by the Senate.
xxx     xxx     xxx
In Barrett v. Duff (1923) 114 Kan. 220, 217 Pac. 918, where
appointments made by the governor during a recess of the
legislature, which appointments could not be confirmed by
the senate as required by law until the next session of that
body, were revoked by the governor's successor, and other
persons were appointed to the offices, such action by him
being taken after the senate had convened and had taken
under advisement the confirmation of the persons first
appointed to the offices, but before the senate had taken
any definite action with regard to such confirmation, and
the senate, confirmed the first appointee, but, despite this
act of the senate, commissions were issued by the governor
to the second appointee, it was held, in reliance upon the
terms of the statutes which provided that the governor
should 'appoint' persons to such offices with the advice and
consent of the senate, as distinguished from the provision
of the Constitution of the United States governing
appointments by the President, which provides that the
President shall 'nominate' and, by and with the advice and
consent of the senate, shall 'appoint' persons to office, that
the act of the governor in making the first appointments
was final and exhausted the power of the governor's office
in that regard unless and until the appointments were
rejected by the senate, and that, therefore, the persons
appointed by the first governor were entitled to the office. In
the words of the court, 'The power of the governor having
been exercised, he had no further power of the governor
having been exercised, he had no further control over the
respective offices unless and until the appointees had been
rejected by the senate.' In reaching this result, the court
emphasized the difference between a nomination and an
appointment, holding that, where the statute relating to
appointments by the governor with the consent of the
senate provides that the governor shall appoint persons to
the office with the consent of the senate, rather than merely
nominate persons for consideration by the senate, the
appointment is final and conclusive without confirmation. ... .
Likewise in McChesney v. Sampson (1930) 232 Ky 395, 23
S.W. (2d.) 584, the act of governor in making a recess
appointment was held to be not merely a nomination
subject to revocation by the governor at any time prior to
action thereon by the senate, but a final and irrevocable
appointment subject only to rejection by the senate. In
support of this result, it was said: 'It is urged that
appointment to the office consists of two separate acts, one
by the governor and one by the senate, and until both have
acted there is no appointment such as to bring the
incumbent within the protection of the law. Even so, the
two powers do not act concurrently, but consecutively, and
action once taken and completed by the executive is not
subject to reconsideration or recall. ... The fact that the title
to the office, and the tenure of the officer, are subject to the
action of the senate, does not render incomplete the act of
the chief executive in making the appointment. The
appointment alone confers upon the appointee for the time
being the right to take and hold the office, and constitutes
the last act respecting the matter to be performed by the
executive power.' .
xxx     xxx     xxx
In People ex rel. Byder v. Mizner (1857) 7 Cal. 519, in
holding that an appointment made by a governor to fill an
office which had expired during a recess of the legislature
was not merely an appointment to fill a vacancy which
would expire at the end of the next session of the
legislature, but was an appointment for a full term, and that
the act of the governor during a subsequent session of the
legislature, in appointing another to the office and asking
his confirmation by the legislature, was unauthorized and
void, it was said that, the power of the executive having been
once exercised, he had no further control over the office until
the appointee has been rejected by the senate." (89 ALR, pp.
138, 139, 140.) .
3. The irrevocability of the ad interim appointment
adverted to above becomes more apparent when we
consider that the House, Commission on Appointments or
other agency of Congress charged with the function of
terminating the effectivity of such appointment, may act
thereon, by approving or disapproving the same, even
though the Executive had not submitted or forwarded it to
said House, Commission or agency of Congress, and even
though either the outgoing or the incoming Executive shall
have submitted for confirmation the name of a subsequent
appointee in lieu of the first one..
This was the situation met in People ex rel, Emerson vs.
Shawver (30 Wyo 366, 222 Pac. 11). The facts therein were:
On July 1, 1919, Governor Carey of Wyoming appointed
Emerson as state engineer, to fill the vacancy caused by the
resignation of its incumbent. Upon the expiration of the
latter's term, Governor Carey reappointed Emerson for a
full term of six (6) years, from and after April 1, 1921. This
last appointment was confirmed by the state legislature at
its next session in 1923. Prior thereto, however, Governor
Carey's term had expired and his successor had appointed
Shawver as state engineer. Thereupon Shawver ousted
Emerson from such office. It was held that Emerson had a
better right thereto; that his appointment in 1921 was a
completed appointment, requiring no action by the Senate
to entitle him to hold said office; that a recess appointment
once made by "the executive is not subject to
reconsideration or recall, "even though not as yet
confirmed by the Senate, inasmuch as," the appointment
alone confers upon the appointee for the time being the
right to take and hold the office, and constitutes the last act
respecting the matter to be performed by the executive
power"; and that, although the term of Governor Carey had
expired and neither he nor his successor had forwarded
Emerson's appointment to the Senate for confirmation or
requested the Senate to act upon said appointment, the
same had been validly confirmed by said body, for .
The provision as to the office here in question found in the
Constitution does not say that the appointment made by
the Governor shall be confirmed by the Senate when
requested by the former, or upon a communication by him
submitting the matter to the Senate. And we perceive no
substantial reason for adding by construction any such
restriction upon the Senate's right to act. (People v.
Shawver, 222 P. 11; see, also, Commonwealth v. Waller, 145
Pa. 235, 23 Atl. 382; State v. Williams, 20 S.C. 13;
Richardson v. Henderson, 4 Wyo. 535, 35 Pac. 517, and
other cases cited in the Shawver case.) .
4. The foregoing goes to show, also, that the question
whether the Commission on Appointments is or is not a
continuing body can not affect the determination of the
case. Besides, the constitutional provision making an ad
interim appointment, if not disapproved by the Commission
on Appointments, effective only until the next adjournment
of Congress, clearly indicates that such Commission must
have an opportunity to approve or disapprove the
appointment and that its inaction, despite such opportunity,
at the session of Congress next following the making of the
appointment — during which it could have met, and,
probably, did meet — must be understood as an expression
of unwillingness to stamp its approval upon the act of the
executive. No such opportunity exists when the outgoing
Congress has not held any session, regular or special after
the making of the appointment and before the expiration of
the term of said Congress, and the new Congress has not, as
yet, organized itself or even met.
5. The American rule concerning irrevocability of
appointments is bolstered up in the Philippines by Section
4 of Article XII of the Constitution, which provides that —
"no officer of employee in the Civil Service shall be
removed except for cause as provided by law." (Article VII,
Section 4.) .
In fact, in his concurring opinion in Eraña vs. Vergel de Dios
(85 Phil., 17), our distinguished Chief Justice pointed out
that the revocation of an appointment, if feasible, "should
be communicated to the appointee before the moment he
qualified," and that "any revocation thereafter, is
tantamount to removal and must be judged according to the
rules applicable to the removal" (emphasis ours). In the
present case, the revocation of petitioner's appointment
was not communicated to him before he qualified by taking
his oath of office. It is not even claimed that any of the
statutory causes for removal of petitioner herein exists, or
that the procedure prescribed for such removal has been
complied with.
6. Once an appointee has qualified, he acquires a legal, not
merely equitable right, which is protected not only by
statute, but, also by the Constitution, for it cannot be taken
away from him, either by revocation of the appointment or
by removal, except for cause, and with previous notice and
hearing, consistently with said Section 4 of Article XII of
our fundamental law, and with the constitutional
requirement of due process (Segovia vs. Noel, 47 Phil., 547;
Sec. 67 C.J.S. 117, 42 Am. Jur. 887). (See also, People ex rel
Ryan v. Green, 58 N. v. 295; People vs. Gardner, 59 Barb
198; II Lewis Sutherland Statutory Construction, pp. 1161
and 1162; Mechem on Public Officers, Sec. 389; 22 R. C. L.
377- 378; 25 Am. Dec. 690-691, 703).
7. The case of Tipton vs. Parker (74 S. W., 298) has been
cited in support of the theory that Congress of the
Philippines was not in "recess" on December 29, 1961, and
that, accordingly, ad interim appointments could not validly
be made in such date. The question involved in said case
was whether a committee of the Senate of Arkansas could
be authorized by the same to function after the
adjournment sine die of the regular session of the state
General Assembly. The State Supreme Court considered as
decisive authority the view expressed by Judge Cooley, to
the effect that a legislative committee "has no authority to
sit during a recess of a House which appointed him,
without its permission to that effect". The issue thus hinged
on the meaning of the term "recess" as used by Judge Cooley.
Resolving this question, said court held that the recess
referred to by Judge Cooley was "only the intermission
between the sittings of the same body at its regular or
adjourned session and not to the interval between the final
adjournment of one body and the convening of another at
the next regular session"..
In this connection, it should be noted that, as an agency of
the Senate, the committee involved in said case could not
operate for its principal beyond the latter's term. Moreover,
under the Constitution of Arkansas, the regular biennial
session of the General Assembly could not exceed 60 days,
unless by a vote of 2/3 of the members of each of the two
Houses of the legislature. Inasmuch as the Senate could not,
without the concurrence of the House, directly extend the
period of its regular session, neither could it, without such
concurrence, indirectly extend said period, by granting its
aforementioned committee the authority to function
beyond said period. As stated by the Court "the committee,
being the mere agency of the body which appointed it, dies
when the body itself dies, unless it is continued by law",
which the Senate may not enact, without the concurrence
of the House..
The decision in said case did not seek to define the meaning
of the term "recess" as used in any constitution or statute.
It did not even refer to the authority to make appointments
during "recess". It has absolutely no bearing, therefore, on
the issue before us.
Upon the other hand, Dr. Jose M. Aruego, a prominent
member of the constitutional convention, says, in his work
on "The Framing of the Philippine Constitution" (Vol I, pp.
434-435), that the draft of the provision on ad interim
appointments by the President, as submitted by the
corresponding committee, followed the principles of the
Jones Law and that the recommendation of the committee
was readily approved on the floor of the convention,
although the committee on style gave said provision its
present phraseology. Pursuant to the Jones Law,
"appointments made while the Senate is not in session shall
be effective either until disapproval or until the next
adjournment of the Senate". Hence, the term "recess"
appearing in Section 10(4) of Article VII of our Constitution
should be construed to mean "while Congress is not in
session" and this is confirmed by the practice consistently
observed in the Philippines for time immemorial, as well as
the ad interim appointment extended by President
Macapagal to respondent Castillo.
8. The case of McChesney vs. Sampson (23 S. W. 2d. 584)
has, also, been invoked in support of the proposition that
"an ad interim appointment is not complete until the
appointee takes the oath of office and actually takes
possession of the position or enters upon the discharge of
its duties" and that, before such actual taking of possession,
though after the oath taking, the appointee may be
removed without cause.
We have not found in said case anything justifying such
claim. The issue in said case was whether a state governor
could recall an unconfirmed appointment of McChesney to
the state textbook commission when there had been no
session of the Senate subsequent to the appointment, and
such issue was decided in the negative.
Although, in addition to accepting the appointment,
McChesney had qualified and exercised the function of the
office, the decision of the Court clearly indicates that it was
not necessary for him either to discharge the duties of the
office or even to take the oath of office, in order to render
his appointment irrevocable. The Court explicitly declared
that the appointment, once "completed by the executive is
not subject to reconsideration or recall;" that the
appointment "is complete when the appointing authority
has performed the acts incumbent upon him to accomplish
the purpose;" and that in the case of recess appointments,
like that of McChesney," the appointment alone confers
upon the appointee for the time being the right to take and
hold the office and constitutes the last act respecting the
matter to be performed by the executive power" completing
the appointment and rendering the same irrevocable.
In short, the McChesney case is authority for the petitioner
herein.
9. Most, if not all appointments made by the President have
two (2) aspects, namely, the legal and the political. The first
refers to his authority to make the appointment. The
second deals with the wisdom in the exercise of such
authority, as well as with its propriety. Whether given
vacancy or number of vacancies should be filled, or who
among several qualified persons shall be chosen, or
whether a given appointment or number of appointment
will favor the political party to whom the power of
appointment belongs and will injure the interest of a rival
political party and to what extent, are, to my mind,
essentially and typically political matters. Hence, I believe
that the question whether certain appointments should be
sanctioned or turned down by reason of the improper,
immoral or malevolent motives with which said matters
were allegedly handled is, likewise, clearly political, and as
such, its determination belongs, not to the courts of justice
(Vera vs. Avelino, 77 Phil., 192, 205; 16 C.J.S 689-690;
Willoughby on the Constitution, Vol. III 1326-1327), but to
the political organ established precisely to check possible
abuses in the exercise of the appointing power — the
Commission on Appointments.
Indeed, I can hardly conceive of any question more patently
and characteristically political than this one, or more
appropriate for determination of said body. Neither the
possible or probable control thereof by members of the
Nacionalista Party nor the number of offices or
appointments involved can affect the nature of the issue.
Surely, its political character is the same whichever
political party may have the largest number of votes in the
Commission on Appointments. The big number of said
appointments merely tend to make more manifest the
political complexion thereof and its non-justifiable nature.
10. In Osmeña vs. Pendatum (L-17144, October 28, 1960),
we refused to disturb the action of the House of
Representatives in suspending a member thereof — who
had made derogatory imputations against the President of
the Philippines — upon the ground that such imputations
constituted a breach of the courtesy due to a coordinate
branch of the Government. Yet, in the present case,
imputations similarly derogatory to the same branch of the
Government are, in effect, made in the majority resolution.
I cannot see how such imputations can be reconciled with
the position taken by this Court in the Osmeña case and in
other cases (Barcelona vs. Baker, 5 Phil., 87; Severino vs.
Governor-General, 16 Phil., 366; Abueva vs. Wood, 45 Phil.,
612; Alejandrino vs. Quezon, 46 Phil., 85; Mabanag vs.
Lopez Vito, 78 Phil., 1; Cabili vs. Francisco, L-4638, May 8,
1951) in which it "fastidiously observed" the theory of
separation of powers (Osmeñ a vs. Pendatum, supra). Thus,
in Santos vs. Yatco (55 Off. Gaz. 8641), in which a
department head was sought to be enjoined from
electioneering, in view of the explicit provision of the Civil
Service Act of 1959 (Republic Act No. 2260, section 29),
prohibiting all officers and employees in the civil service,
"whether in the competitive or classified, or non-
competitive or unclassified service," from engaging directly
or indirectly in partisan political activities or taking part in
any election except to vote, we held that the issue therein
raised was one of "impropriety as distinguished from
illegality," and that, as such, it "is not justiciable by this
Court." In Mabanag vs. Lopez Vito (78 Phil., 1), we refused
to decide, upon the same ground, whether specified
numbers of votes constituted three-fourths of all members
of each House of Congress. In Vera vs. Avelino (77 Phil.,
192), we not only declared that "the judiciary is not the
repository of remedies for all political or social evils," but,
also, quoted with approval the statement, made in
Alejandrino vs. Quezon (46 Phil., 81), to the effect that "the
judicial department has no power to revise even the most
arbitrary and unfair action of the legislative department, or
of either House thereof, taken in pursuance of the power
committed exclusively to that department by the
Constitution." (Emphasis ours.) .
11. In the present case, we have completely reversed our
stand on the principle of separation of powers. We have
inquired into the motives of the Executive department in
making the appointments in question, although it is well
settled, under the aforementioned principle, that: .
Generally courts cannot inquire into the motive, policy,
wisdom, or expediency of legislation.
The justice, wisdom, policy, necessity, or expediency, of a
law which is within its powers are for the legislature, and
are not open to inquiry by the courts, except as an aid to
proper interpretation." (16 C.J.S. 471-478) .
If this is true as regards the legislative branch of the
government, I can see no valid reason, and none has been
pointed out, why the same norm should not govern our
relations, with the executive department. However, we
have not merely disregarded such norm. We are, also, in
effect, restraining the Commission on Appointments — an
organ of a coordinate, co-equal branch of the Government
— from acting on the questioned appointments. What is
more, we are virtually assuming in advance that said body
— which has not been organized as yet and whose
membership is still undetermined — will not act in
harmony with the spirit of our Constitution.
12. It is trite to say that certain moral and political aspects
of the issue before us cannot but produce a strong aversion
towards the case of petitioner herein and the hundreds of
others appointed under the same conditions as he was.
Although members of the bench must always endeavor to
minimize the influence of emotional factors tending to
affect the objectivity essential to a fair and impartial
appraisal of the issues submitted for their determination, it
is only natural — and, I venture to add, fortunate (for,
otherwise, how could they hope to do justice to their
fellowmen?) — that they should basically react as other
members of the human family. This is probably the reason
why Justice Douglas of the Federal Supreme Court of the
U.S., said, in Abel v. U.S. (4 Lawyers Edition, 2d, 668, 688) :
"Cases of notorious criminals — like cases of small,
miserable ones — are apt to make bad law. When guilt
permeates a record, even judges sometimes relax and let
the police take shortcuts not sanctioned by constitutional
procedures. .... The harm in the given case may seem
excusable. But the practices generated by the precedent
have far-reaching consequences that are harmful and
injurious beyond measurement.".
Let us hope that no such consequences will flow from the
precedent established in this case.
BARRERA, J., dissenting:
The instant case started with a simple petition for
prohibition and mandamus with preliminary injunction
instituted by petitioner Aytona who claims to have been
duly appointed ad interim Governor of the Central Bank,
against respondent Castillo who, allegedly accompanied by
his correspondent Colonel Gutierrez and a host of heavily
armed Philippine Constabulary Rangers, interfered with
and prevented the petitioner in the discharge of his duties
and prerogatives as such Governor of the Central Bank.
During the hearing, however, and immediately thereafter, a
great amount of extraneous matter affecting persons not
parties to the proceedings has been introduced into the
case and a veritable avalanche of memoranda after
memoranda and manifestations after manifestations
swelled the records and helped involve the issues. One
among the dozens who asked to be admitted as amici
curiae, even presented an answer in behalf of the people to
support the side of the respondents. Unfortunately, in the
confusion, the case of the immediate parties became
obscured by considerations of circumstances and matters
for and with which petitioner and respondents are not
directly connected..
In my opinion, the fundamental questions which this Court
is called upon to resolve in the present case a specifically: .
(1) Is the ad interim, appointment of petitioner Aytona
valid when extended? .
(2) If so, did it automatically lapse with the ending the term
of office of the twelve Congressmen composing one-half of
the membership of the Commission Appointments? .
(3) May this appointment be legally recalled or withdrawal
after Aytona has qualified? .
Before entering into the discussion of the "propriety,
morality and wisdom" of the appointment, it is necessary, I
believe, that the foregoing legal propositions must first be
cleared out.
I. The Validity of Aytona's Appointment: .
Aytona's ad interim appointment is assailed on the theory
that it was not made during a "recess" of Congress as
provided in paragraph 4, section 10 of Article VII of the
Constitution. It is claimed for the respondents dents that
the word "recess" means "the intermission between
sittings of the same body at its regular or adjourned
session, and not to the interval between the final
adjournment of one body and the convening of another at
the next regular session. When applied to a legislative
body, it means a temporary dismissal, and not adjournment
sine die." In support of this view, counsel cites the case of
Tipton v. Parker, 71 Ark. 193, from which the foregoing
quotation was taken.
An examination of this case, however, discloses that it did
not refer to the power of the President to make ad interim
appointments. The pronouncement was made in
connection with the interpretation of Section 17, Article 5
of the Constitution of the State of Arkansas. The case
involved the validity of the certificate of the auditor with
reference to the legality of the expenses of a committee of
the State Senate authorized by the latter to make certain
investigations beyond the duration of the session of the
General Assembly. The court, in declaring the certificate
without sanction of law, stated: .
"The Senate has no power by resolution of its own to
extend its session, and neither did it have power to such
separate resolution to continue its committee, a mere
agency of the body, beyond the term of the body itself
which created it." .
in view of the provisions of the aforementioned Section 17,
Article 5 of the state Constitution prescribing "that the
regular biennial session of the Legislature shall not exceed
60 days, unless by 2/3 vote of the members elected to each
house, and section 23 requiring a vote of the majority of
each house to enact a law or pass a resolution having the
force and effect of a law". Apparently an opinion of Judge
Cooley seemingly to the contrary was cited to refute this
view of the court, and so the decision went on to say:
Each house, says Judge Cooley, must also be allowed to
proceed in its own way in the collection of such
information may seem important to a proper discharge of
its functions; and whenever it is deemed desirable that
witnesses should be examined, the power and the authority
to do so is very properly referred to a committee, with any
such powers short of final legislative or judicial action as
may seem necessary or expedient in the particular case.
Such a committee has no authority to sit during a recess of
the house which has appointed it, without its permission to
that effect. But the house is at liberty to confer such
authority if it sees fit.
It is in this connection and evidently in a desire to explain
the opinion of Judge Cooley that the court made the
pronouncement relied upon by respondents, thus: .
.... The recess here referred to by Judge Cooley we think
should be construed to mean only the intermission
between sittings of the same body at its regular or
adjourned session, and not to the interval between the final
adjournment of one body and the convening of another at
the next regular session. When applied to a legislative
body, it means a temporary dismissal and not an
adjournment sine die.
The conclusion reached by the court can not be otherwise.
The case refers to the powers of one house of the state
Legislature, with the concurrence of the other, to confer
authority upon its own committee to act beyond the
duration of the session of the General Assembly. Certainly,
Judge Cooley's view that each house has power to confer
authority to its committee to act during a recess must be
understood to exist only during the life of the house
creating the committee. It can not go beyond its own
existence, that is, beyond its adjournment sine die.
But this ruling is no argument that the Executive's power to
make appointments during such adjournment sine die does
not exist just because a house of the legislature lacks power
to authorize its committee to act during the same
adjournment. One refers to the power of a defunct body to
act beyond its life; the other refers to the power of another
authority, the executive, to perform its functions after the
expiration of that other body. Non-existence of the first
does not mean non-existence of the other.
It is to be noted that the different counsel advocating the
cause of the respondents are not even agreed in the
application of their interpretation of the word "recess".
Some of them argue that the interregnum which they
contend is not recess, compromises the entire period
between the adjournment of the 4th Congress in May, 1961
and the opening of the 1st session of the first session of the
5th Congress on January 22, 1962, so that all ad interim
appointments extended during this period are null and
void. Others claim that such interregnum is that period
between December 13, 1961, date of adjournment of the
last session of the 4th Congress, and January 22, 1962. It
seems that President Macapagal is of this same view
because his administrative Order No. 2 specifically refers to
all appointments made after December 13, 1961. Still
others, at least one, advanced the theory during the oral
argument that the banned period is that between the
adjournment of the 4th Congress in May, and December 30,
1961, excluding therefrom the period between this last
date and January 22, 1962. Obviously, this theory was
advanced in an effort to lend validity to the appointments
recently made by President Macapagal, for if the entire
period between May or December, 1961 to January 22,
1962 is held not a recess, but an adjournment sine die, then
all appointments heretofore made by the present Chief
Executive would suffer the same defect as those extended
by former President Garcia. This last argument is
unavailing because it, likewise, is untenable, tested upon
the same authority cited by counsel, i.e., that the term
"recess" means "the intermission between sittings of the
same body." Since the 5th Congress has not as yet even
convened, the period between December 30 and January
22 can not be a recess of the 5th Congress because it,
definitely, is not an intermission between sittings of the
same body.
In the circumstances, it seems it is an over-statement to say
that the term "recess has a definite legal meaning in the
sense attributed to it in the Tipton vs. Parker case. The
confusion in the minds of the several counsels for the
respondents as to the application of the alleged meaning of
the term, indicates a belabored effort on their part to
impute a meaning to satisfy their case. Upon the other
hand, we find in "Hinds Precedents of the House of
Representatives" (Vol. 5, pp. 852-853), a legislative
interpretation by the United States Senate made during the
discussion of the term "recess of the Senate" in connection
with the President's1 power to make appointments, as
follows: .
The word 'recess' is one of ordinary, not technical,
signification, and it is evidently used in the constitutional
provision in its common and popular sense. It means in
Article II, above referred to, precisely what it means in
Article III, in which it is again used. Conferring power upon
the executive of a State to make temporary appointment of
a Senator, it says: .
And if vacancies happen, by resignation or otherwise,
during the recess of the legislature of any State, the
executive thereof may make temporary appointments until
the next meeting of the legislature, which shall then fill
such vacancies.' .
It means just what was meant by it in the Article of
Confederation, in which it is found in the following
provision": .
The United States in Congress assembled shall have
authority to appoint a committee to sit in the recess of
Congress, it be denominated a committee of the States, and
to consist of one delegate from each State.' .
It was evidently intended by the framers of the
Constitution that it should mean something real, not
something imaginary; something actual, not something
fictitious. They used the word as the mass of mankind then
understood it and now understand it. It means, in our
judgment, in this connection the period of time when the
Senate is not sitting in regular or extraordinary session as a
branch of the Congress, or in extraordinary session for the
discharge of executive functions; when its members owe no
duty of attendance; when its Chamber is empty; when,
because of its absence, it cannot receive communications
from the President or participate as body in making
appointments." .
The Attorney General of the United States was also of this
view when he stated: .
The recess of the Senate during which the President shall
have power to fill a vacancy that may happen, means the
period after the final adjournment of Congress for the
session and before the next session begins; while an
adjournment during a session of Congress means a merely
temporary suspension of business from day to day, or for
such brief periods of time as are agreed upon by the joint
action of the two houses. The President is not authorized to
appoint an officer during the current holiday adjournment
of the Senate, which will have the effect of an appointment
made in the recess occurring between two sessions of the
Senate." (President - Appointment Officers - Holiday
Recess, 1901, 23 Op. Atty. Gen. 599, (U.S.C.A. Const. Art. 2,
Sec. 2[2]..
It is worthwhile to note that our Constitution in paragraph
4, Section 10 of Article VII speaks of "recess" without
making any distribution between the sessions one congress
and the sessions of another. And it is trite to say that when
the law makes no distinction, no distinction should be
made, especially if to do so would result in a strained
interpretation thereof and defeat the evident purpose of
the framers of the Constitution - in this instance, to render
it certain that at times there should be, whether the
Congress is in session or not, an officer for every office,
entitled to discharge the duties thereof. (5 Hinds, op. cit., p.
853.) .
II. Lapsing of Aytona's Appointment: .
It is contended for the respondents that since 12 members
of the Commission on Appointments ceased to be such
upon the expiration of their term of office at midnight of
December 29, 1961, the Commission on Appointments
likewise ceased to exist on the theory that creation can not
exist beyond the life of its creator at least with respect to
one-half of its members. This seems to stem from the
wrong notion that the Commission on Appointments is a
creature of the Congress. This confuses the Commission on
Appointments as a constitutional body with its members.
The body continued to exist, but only its membership
changes periodically. When the Constitution provides in
Section 13 of Article 6 thereof that "the Electoral Tribunals
and the Commission on Appointments shall be constituted
within 30 days after the Senate and the House of
Representatives shall have been organized with the
election of their President and Speaker, respectively", it did
not mean that the Senate and the House of Representatives
thereby create said bodies, no more than the President can
be said to create the Supreme Court by appointing the
Justices therein. It simply ordained that the Commission be
constituted or organized by electing the members thereof,
whose positions have already been created in virtue of
Section 12 of the same Constitution. To hold the Electoral
Tribunals and the Commission on Appointments are non-
existing during the period from December 30, 1961 to
January 22, 1962 (and during the corresponding period
every four years thereafter) will result in an absurdity and
a situation destructive of the normal processes provided in
the Constitution. One of such absurd results would be that
no electoral protest against any elected and proclaimed
congressman or senator can be legally filed with the
Electoral Tribunals within the period prescribe by their
rules, that is, within fifteen days following the proclamation
of the results of the election, which period falls within the
time when the Electoral Tribunals (as is the case of
Commission on Appointments) are allegedly non-existent.
The proceedings in the Constitutional Convention are cited
to support the theory that the Commission on
Appointments is not a permanent commission. A review of
the records, however, of that convention reveals that what
was intended in the proposed draft was to authorize the
Commission on Appointments to hold sessions even when
the Congress is not in session. The mere fact that such a
proposal was defeated and, consequently, the word
"permanent" was not adopted in the final text, does not
import that the Constitution meant to give an off and on
existence to the Commission on Appointments lapsing
every four years when the twelve of its members cease to
be such. On the contrary, it seems more logical to hold that
the legal existence of the Commission as well as the
Electoral Tribunals continue irrespective of the vacancies
that may exist in the membership thereof. It is for this
reason that the personnel of these bodies do not cease
periodically, but continue to perform their duties in their
respective offices for which they are legally paid their
salaries by the government. It seems clear, therefore, that
the Commission on Appointments did not lapse on
December 29, 1961. Neither did the appointment of Aytona
lapse on that date because the same could not be acted
upon by the Commission on Appointments during the
recess of the Congress.
III. May the appointment of Aytona be legally recalled or
withdrawn after he has qualified for the position to which he
was appointed? .
Precedents are to the effect that when once an appointment
has been extended by the Chief Executive who, as is
provided in our Constitution, has the sole power of
appointment subject only to the consent of the Commission
on Appointments, and the appointee has accepted the
appointment, the same becomes complete and the
appointing power can not withdraw it except in cases
where the tenure of the appointee is at the Chief
Executive's pleasure or upon grounds justifying removal
and after due process. This is not because the appointment
constitutes a contract (for truly a public office can not be
subject of any contract), but because of the provisions of
the Constitution itself to the effect that "no officer or
employee in the Civil Service shall be removed or
suspended except for cause as provided by law." If,
therefore, the recall or the withdrawal of the appointment
of Aytona was not authorized by law, then his assumption
of the functions of his office on January 2, 1962 was clearly
within his legal right and the interference of Castillo,
aggravated by the assistance or at least the presence of
members of the Armed Forces, was clearly unlawful.
The foregoing disposes, in my opinion, the legal issue and
the rights of the parties in the present case. But against
these, to me, clear mandates of the Constitution and the
legal and judicial precedents, respondents have appealed to
this Court for it to exercise "judicial statesmanship"
invoking the spirit of the Constitution. It is claimed that
there was a manifest abuse of power by the outgoing
President in extending, on the eve of the expiration of his
term, some three hundred and fifty ad interim
appointments to fill an equal number of vacancies in the
different branches of the government; that no proper
consideration was given of the merits of the appointees, it
appearing that in the case of at least some of the appointees
to the judiciary, their assurance of an immediate
assumption of office or the taking of oath was made a
condition precedent to the appointments, and that there
was a wild scramble in Malacañ an among the appointees
on the night of December 29. We are scandalized by this
and expect the Court to apply the remedy. What of the
proceedings in Congress during the last day of session
when bills after bills are passed in a manner not too
dissimilar to the described scene in Malacañ an? Can the
Supreme Court be expected to correct this too by declaring
all such laws as invalid just as we are asked to invalidate
these appointments? .
Be this as it may, whatever may be our personal views on
this matter, I agree with Mr. Justice Concepcion that not all
wrongs or even abuse of power can be corrected by the
exercise of the high prerogatives of the Supreme Court
vested in it by the Constitution. As I take it, the higher and
more delicate is the prerogative, the greater should be the
degree of self-restraint in the exercise thereof, lest the fine
and tested scale of checks and balances set up by the
Constitution be jarred. In the same manner that we expect
circumspection and care, even double care, on the part of
the other two co-equal coordinate departments of the
government, so must we be most cautious and slow in
judging the morality, propriety and good faith involved in
the actuations of the other departments in matters coming
within their competence. The remedy, I believe, under the
circumstances is with the Commission on Appointments to
which the appointments have been submitted. The more
fact that it is expected that the Commission on
Appointments would be controlled by the party of the
outgoing President is immaterial, because legal processes
can not be made to depend upon the fortunes of political
parties, for there is still the ultimate remedy by the people
in all authority. At any rate, as has already been aptly said:
the judiciary is not the repository of remedies for all
political or social evils, and that the judicial department has
no power to revise even arbitrary or unfair action of the
other departments taken in pursuance of the power
committed exclusively to those departments by the
Constitution..
May I add: all the scandalous circumstances brought to the
attention of this Court did not link the petitioner herein,
save for the fact that this appointment was extended on the
same day as those issued under the unusual and irregular
circumstances attending the other appointments. If at all,
there is evidence in favor of Aytona to the effect that
insofar as he is concerned, his appointment to the position
of Governor of the Central Bank has been under
consideration for a long time and that he is qualified for the
position. It can not, therefore be said that with respect to
him there was no mature deliberation and due
consideration of his qualifications and of the need of the
service. he charge was made that the position of Governor
of the Central Bank has been vacant for several months and
that the President should have filled it earlier. Yet, when
the President actually filled it as he did, he is criticized
claiming that there was no immediate need for such action
in view of the fact that there was an Acting Governor. That
it was really necessary to fill the position is evidenced by
the act of President Macapagal himself in making his own
appointment hardly twenty-four hours after he recalled the
appointment of Aytona.
Summarizing, I would say that all the circumstances cited
by the respondents that have surrounded the issuance of
the appointments in question, have to do with the mode or
manner of the exercise of the authority to make the
appointment, quite apart from the existence of the
authority itself. The observance of good faith, morality and
propriety by the other two co-equal coordinate
departments in the performance of their functions must be
secured by their sense of duty and official oath hand not by
any supervisory power of the courts..
The role of courts in our scheme of government is to
interpret the law and render justice under it. This simply
means that whatever may be our own personal feelings as
to the propriety, morality, or wisdom of any official act or
actuation of a public officer or any agency of the
government within their respective competence brought to
the attention of the Court for adjudication, they should not
be permitted to prevail over clear legal considerations, for
ours is a regime under the Rule of Law..
In view of the foregoing, I am constrained to register my
dissent.
Footnotes
BENGZON, C.J.:
1
These positions had been vacant for months.
2
The 4th Congress expired at midnight December 29, 1961..
3
89 A.L.R., 135 Anno.
PADILLA, J., concurring:
1
Section 3, Article VI.
2
Section 6, Article VI.
3 Court of Branch 62, Bago City and of Branch 24,
Section 9, Article VI.
4
Section 4, Article VII.
BARRERA, J., dissenting:
1
The power of the U.S. President to make appointments is
by and with the advice and consent of the Senate..
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
A.M. No. 98-5-01-SC November 9, 1998
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, Cabananatuan City, respectively.
 
NARVASA, C.J.:
The question presented for resolution in the administrative
matter at bar is whether, during the period of the ban on
appointments imposed by Section 15, Article VII of the,
Constitution, the President is nonetheless required to fill
vacancies in the judiciary, in view of Sections 4(1) and 9 of
Article VIII. A corollary question is whether he can make
appointments to the judiciary during the period of the ban
in the interest of public service.
Resolution of the issues is needful; it will preclude a
recurrence of any conflict in the matter of nominations and
appointments to the Judiciary — as that here involved —
between the Chief Executive, on the one hand, and on the
other, the Supreme Court and the Juducial and Bar Council
over which the Court exercises general supervision and
wields specific powers including the assignment to it of
other functions and duties in addition to its principal one of
recommending appointees to the Judiciary, and the
determination of its Members emoluments. 1
I. The Relevant Facts
The Resolution of the Court En Banc, handed down on May
14, 1998, sets out the relevant facts and is for that reason
hereunder reproduced in full.
Referred to the Court En Banc by the Chief Justice are the
appointments signed by His Excellency the President under
date of March 30, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial
Cabanatuan City, respectively. The appointments were
received at the Chief Justice's chambers on May 12, 1998.
The referral was made in view of the serious constitutional
issue concerning said appointments arising from the
pertinent antecedents.
The issue was first ventilated at the meeting of the Judicial
and Bar Council on March 9, 1998. The meeting had been
called, according to the Chief Justice as Ex Officio Chairman,
to discuss the question raised by some sectors about the
"constitutionality of ** appointments" to the Court of
Appeals, specifically, in light of the forthcoming
presidential elections. Attention was drawn to Section 15,
Article VII of the Constitution reading as follows:
Sec. 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.
On the other hand, appointments to fill vacancies in the
Supreme Court during the period mentioned in the
provision just quoted could seemingly be justified by
another provision of the same Constitution Section 4 (1) of
Article VIII which states:
Sec. 4 (1) The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. ** **. Any vacancy
shall be filled within ninety days from the occurrence
thereof.
Also pertinent although not specifically discussed is Section
9 of the same Article VIII which provides that for the lower
courts, the President shall issue the appointments — from
a list of at least three nominees prepared by the Council for
every vacancy — within ninety days from the submission
of the list.
The view was then expressed by Senior Associate Justice
Florenz D. Regalado, Consultant of the Council, who had
been a member of the Committee of the Executive
Department and of the Committee on the Judicial
Department of the 1986 Constitutional Commission, that
on the basis of the commission's records, the election ban
had no application to appointments to the Court of Appeals.
Without any extended discussion or any prior research and
study on the part of the other Members of the JBC, this
hypothesis was accepted, and was then submitted to the
President for consideration, together with the Council's
nominations for eight (8) vacancies in the Court of Appeals.
On April 6, 1998 the Chief Justice received an official
communication from the Executive Secretary transmitting
the appointments of eight (8) Associate Justices of the
Court of Appeals all of which had been duly signed on
March 11, 1998 by His Excellency the President. In view of
the fact that all the appointments had been sign on March
11, 1998 — the day immediately before the
commencement of the ban on appointments imposed by
Section 15, Article VII of the Constitution — who impliedly
but no less clearly indicated that the President's Office did
not agree with the hypothesis that appointments to the
Judiciary were not covered by said ban, the Chief Justice
resolved to defer consideration of nominations for the
vacancy in the Supreme Court created by the retirement of
Associate Justice Ricardo J. Francisco, specially considering
that the Court had scheduled sessions in Baquio City in
April, 1998, that the legislature's representatives to the JBC
were occupied with the forthcoming elections, and that a
member of the Council was going on a trip out of the
country.
On May 4, 1998, the Chief Justice received a letter from the
President, addressed to the JBC, requesting transmission of
the "list of final nominees" for the vacancy "no later than
Wednesday, May 6, 1998" in view of the duty imposed on
him by the Constitution "to fill up the vacancy ** within
ninety (90) days from February 13, 1998, the date the
present vacancy occurred.
On May 5, 1998, Secretary of Justice Silvestre Bello III
requested the Chief Justice for "guidance" respecting the
expressed desire of the "regular members" of the JBC to
hold a meeting immediately to fill up the vacancy in the
Court in line with the President's letter of May 4. The Chief
Justice advised Secretary Bello to await the reply that he
was drafting to the President's communication, a copy of
which he would give the Secreatary the following day.
On May 6, 1998 the Chief Justice sent his reply to the
President. He began by stating that no sessions had been
scheduled for the Council until after the May elections for
the reason that apparently the President's Office did not
share the view posited by the JBC that Section 15, Article
VII of the Constitution had no application to JBC-
recommendend appointments — the appointments to the
Court of Appeals having been all uniformly dated March 11,
1998, before the commencement of the prohibition in said
provision — thus giving rise to the "need to undertake
further study of the matter," prescinding from "the-desire
to avoid any constitutional isssue regarding the
appointment to the mentioned vacancy" and the further
fact that "certain senior members of the Court of Appeals **
(had) asked the Council to reopen the question of their
exclusion on account of age from such (final) list." He
closed with the assurance that the JBC expected to
deliberate on the nominations "forthwith upon the
completion of the coming elections." The letter was
delivered to Malacañ ang at about 5 o'clock in the afternoon
of May 6, 1998 and a copy given to the Office of Justice
Secretary Bello shortly before that hour.
It would appear, however, that the Justice Secretary and
the regular members of the Council had already taken
action without awaiting the Chief Justice's promised
response to the President's letter of May 4, 1998. On that
day, May 6, 1998, they met at some undisclosed place,
deliberated, and came to an agreement on a resolution
which they caused to be reduced to writing and thereafter
signed. In that two-page Resolution they drew attention to
Section 4 (1), Article VIII of the Constitution (omitting any
mention of Section 15, Article VII) as well as to the
President's letter of May 4 in which he "emphatically
requested that the required list of final nominees be
submitted to him;" and pointing out that the "Council
would be remiss in its duties" should it fail to submit said
nominations, closed with an appeal that the Chief Justice
convene the Council for the purpose "on May 7, 1998, at
2:00 o'clock in the afternoon." This Resolution they
transmitted to the Chief Justice together with their letter,
also dated May 6, in which they emphasized that "we are
pressed for time" again drawing attention to Section 4 (1).
Article VIII of the Constitution (and again omitting any
reference to Section 15, Article VII). They ended their letter
with the following intriguing paragraph:
Should the Chief Justice be not disposed to call for the
meeting aforesaid, the undersigned members constituting
the majority will be constrained to convene the Council for
the purpose of complying with its Constitutional mandate:
It seems evident, as just intimated, that the resolution and
the covering letter were deliberated on, prepared and
signed hours before delivery of the Chief Justice's letter to
the President and the Justice Secretary.
Since the Members of the Council appeared determined to
hold a meeting regardless of the Chief Justice's wishes, the
latter convoked the Council to a meeting at 3 o'clock in the
afternoon of May 7, 1998. Present at the meeting were the
Chief Justice, Secretary Bello, ex officio member and the
regular members of the Council: Justice Regino
Hermosisima. Atty. Teresita Cruz Sison, Judge Cesar C.
Peralejo. Also present, on invitation of the Chief Justice,
were Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero,
Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Vicente V.
Mendoza, Artemio V. Panganiban, Antonio M. Martinez,
Leonardo A. Quisumbing and Fidel P. Purisima. The Chief
Justice reviewed the events leading to the session, and after
discussion, the body agreed to give the President time to
answer the Chief Justice's letter of May 6, 1998.
On May 7, 1998, the Chief Justice received a letter from his
Excellency the President in reply to his letter of May 6
(which the President said had been "received early this
morning"). The President expressed the view that "the
election-ban provision (Article VII, Sec. 15) ** applies only
to executive appointments or appointments in the executive
branch of government," the whole article being "entitled
'EXECUTIVE DEPARTMENT."' He also observed that further
proof of his theory "is the fact that appointments to the
judiciary have special, specific provisions applicable to
them" (citing Article VIII, Sec, 4 (1) and Article VIII, Section
9. In view thereof, he "firmly and respectfully reiterate(d)
** (his) request for the Judicial and Bar Council to transmit
** the final list of nominees for the lone Supreme Court
vacancy."
The Chief Justice replied to the letter the following day,
May 8, 1998. Since the Chief Justice's letter explains the
issue quite, plainly, it is here quoted in full.
Thank you for your letter of May 7, 1998, responding to my
own communication of May 6, 1998 which, I would like to
say reflects the collective sentiments of my colleagues in
the Supreme Court. Knowing how busy you are, I will deal
straightaway with the points set out in your letter.
The dating of the latest appointments to the Court of
Appeals was adverted to merely to explain how we in the
Court and the JBC came to have the impression that you did
not share the view expressed in the JBC minutes of March
9, 1998 that there is no election ban with regard to the JBC
appointments. Be this as it may, the Court feels that there is
a serious question concerning the matter in light of the
seemingly inconsistent provision of the Constitution. The
first of these is Section 15, Article VII, which reads:
Sec. 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 second is Section 4 (1) of Article VIII which states:
Sec. 4 (1) The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. ** ** Any vacancy
shall be filled within ninety days from the occurrence
thereof.
As you can see, Your Excellency, Section 15 of Article VII
imposes a direct prohibition on the President: he "shall not
make appointments" within the period mentioned, and
since there is no specification of which appointments are
proscribed, the same may be considered as applying to all
appointments of any kind and nature. This is the general
rule then, the only exception being only as regards
"executive positions" as to which "temporary appointments
may be made within the interdicted period "when
continued vacancies therein will prejudice public service or
endanger public safety." As the exception makes reference
only to "executive" positions, it would seem that "judicial"
positions are covered by the general rule.
On the other hand, Section 4 (1) of Article VIII, requires
that any vacancy in the Supreme Court "shall be filled
within ninety days from the occurrence thereof." Unlike
Section 15 Article VII, the duty of filling the vacancy is not
specifically imposed on the President; hence, it may be
inferred that it is a duty shared by the Judicial and Bar
Council and the President.
Now, in view of the general prohibition in the first-quoted
provision, how is the requirement of filling in the Court
within ninety days to be construed? One interpretation that
immediately suggests itself is that Section 4 (1), Article VIII
is a general provision while Section 15, Article VII is a
particular one; that is to say, normally, when there are no
presidential elections — which after all, occur only every
six years — Section 4 (1), Article VIII shall apply: vacancies
in the Supreme Court shall be filled within 90 days; but
when (as now) there are presidential elections, the
prohibition in Section 15, Article VII comes into play: the
President shall not make any appointments. The reason for
said prohibition, according to Fr. J. Bernas, S.J., an authority
on Constitutional Law and himself a member of the
Constitutional Commission, is "(i)n order not to tie the
hands of the incoming President through midnight
appointments." Another interpretation is that put forth in
the Minutes of the JBC meeting of March 9, 1998.
I must emphasize that the validity of any appointment to
the Supreme Court at this time hinges on the correct
interpretation of the foregoing sections of the Constitution.
On account of the importance of the question, I consulted
the Court about it but, as I stated in my letter of May 6,
1998, "it declined to take any position, since obviously
there had not been enough time to delivarate on the same
** (although it) did agree that further study wass necessary
**.
Since the question has actually come up, and its importance
cannot be gainsaid, and it is the Court that is empowered
under the Constitution to make an authoritative
interpretation of its (provisions) or of those of any other
law. I believe that the Court may now perhaps consider the
issue ripe for determination and come to grips with it, to
avoid any possible polemics concerning the matter.
However the Court resolves the issue, no serious prejudice
will be done. Should the Court rule that the President is
indeed prohibited to make appointments in a presidential
election year, then any appointment Attempted within the
proscribed period would be void anyway. If the Court
should adjudge that the ban has no application to
appointments to the Supreme Court, the JBC may submit
nominations and the President may make the appointment
forthwith upon such adjudgment.
The matter is a delicate one, quite obviously, and must thus
be dealt with with utmost circumspection, to avoid any
question regarding the validity of an appointment to the
Court at this time, or any accusation of "midnight"
appointments or rash hasty action on the part of the JBC or
the President
In view thereof, and upon the advice and consent of the
Members of the Court, I am requesting the regular
Members of the Judicial Bar Council to defer action on the
matter until further device by the Court. I earnestly make
the same request of you, Your Excellency. I assure you,
however that as befits a matter in which the Chief
Executive has evinced much interest, my colleagues and I
will give it preferential and expeditious attention and
consideration. To this end, I intend to convene the Court by
next week, at the latest.
appointments of Hon. Valenzuela and Hon. Vallarta which
in the meantime shall be held in abeyance and not given
any effect and said appointees shall refrain from taking
their oath of office; and that (2) exercising its power of
supervision over the Judicial and Bar Council, said Council
and its ex officio and regular Members herein mentioned be
INSTRUCTED, as they are herby INSTRUCTED, to defer all
action on the matter of nominations to fill up the lone
vacancy in the Supreme Court or any other vacancy until
further orders.

On May 8, 1998, again on the insistence of the regular SO ORDERED.

Members of the JBC, another meeting was held at which
were present the Chief Justice, the Secretary of Justice and II The Relevant Pleadings
the three regular, Members above mentioned, as well as
Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue In compliance with the foregoing Resolution, the following
N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Santiago M. pleadings and other documents were filed; to wit:
Kapunan, Vicente V. Mendoza, Artemio V. Panganiban,
Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P.
1) the manifestation dated May 28, 1998 of Hon. Mateo
Purisima. The meeting closed with a resolution that "the
A.Valenzuela in compliance with the Resolution of May 14,
constitutional provisions ** (in question) be referred to the
1998;
Supreme Court En Banc for appropriate action, together
with the request that the Supreme Court consider that the
ninety-day period stated in Section 4 (1), Article VIII be 2) the letter dated June 1, 1998 of Hon. Placido B. Vallarta
suspended or interrupted in view of the peculiar in compliance with the same Resolution;
circumstances. **.
3) the "Comments" of Hon. Valenzuela dated May 25, 1998;
On May 12, 1998, the Chief Justice received from
Malacañ ang the appointments of two (2) Judges of the 4) his "Addendum to Comments" dated June 8, 1998;
Regional Trial Court mentioned above. This places on the
Chief Justice the obligation of acting thereon: i.e., 5) his "Explanation" dated June 8, 1998;
transmitting the appointments to the appointees so that
they might take their oaths and assume the duties of their 6) the letter of Hon. Vallarta dated June 8, 1998;
office. The trouble is that in doing so, the Chief Justice runs
the risk of acting in a manner inconsistent with the
7) his letter dated June 16, 1998;
Constitution, for these appointments appear prima facie, at
least, to be expressly prohibited by Section 15, Article VII of
the Charter. This circumstance, and the referral of the 8) the "Explanation" of Hon.Valenzuela dated July 17, 1998:
constitutional question to the Court in virtue of the and
Resolution of May 8, 1998, supra operate to raise a
justiciable issue before the Court, an issue of sufficient 9) the "Comment" of the Office of the Solicitor General
importance to warrant consideration and adjudication on dated August 5, 1998.
the merits.
A. Valenzuela's Assumption of Duty
Accordingly, the Court Resolved to (1) CONSIDER the case
at bar an administrative matter and cause it to be as Judge on May 14, 1998
appropriately docketed: (2) to DIRECT the Clerk of Court to
immediately serve copies of this Resolution on (a) the In his Manifestation dated May 28, 1998, Judge Valenzuela
Office of the President, (b) the Office of the Solicitor alleged inter alia :
General. (c) Hon. Mateo A. Valenzuela, and (d) Hon. Placido
B. Vallarta (at their addresses recorded in the Judicial and
** that on May 14, 1998, he took his Oath of Office as Judge,
Bar Council); and (3) to REQUIRE the Office of the
RTC Branch 62, Bago City, before Hon. Anastacio C. Rufon,
President, the Office of the Solicitor General, Hon. Mateo A.
Judge RTC, Branch 52, Bacolod City, pursuant to the
Valenzuela, and Hon. Placido B. Vallarta to file their
Appointment dated March 30, 1998, (and) he also, reported
comments on this Resolution within fifteen (15) days from
for duty as such before said RTC Branch 62, Bago City **
notice thereof.
(and that he did so) "faultless!y," ** without knowledge of
the on-going deliberations on the matter.
The Court further Resolved that (1) pending the foregoing
proceedings and the deliberation by the Court on the
At that time, the originals of the appointments of Messrs.
matter, and until further orders, no action be taken on the
Valenzuela and Vallarta, dated March 30, 1998 —
addressed to them "Thru: the Chief Justice, Supreme Court
of the Philippines, Manila, and which had been sent to and
received by the Chief Justice on May 12, 1998 2 — were still
in the latter's Office, and had not been transmitted to them
precisely because of the serious issue concerning the
validily of their appointments. Indeed, one of the directives
in the Resolution of May 14, 1998 was that "pending **
deliberatibn by the Court on the matter, and until further
orders, no action be taken on the appointments ** which in
the meantime shall be held in abeyance and not given any
effect **." For this reason, by Resolution dated June 23,
1998, the Court required Valenzuela to EXPLAIN by what
authority he had taken his oath on May 14, 1998 as Judge of
Branch 62 of the RTC at Bago City. In his "Explanation"
dated July 17, 1998. Valenzuela stated that he did so
because on May 7, 1998 he "received from Malacañ ang
copy of his appointment **" which contained the following
direction: "By virtue hereof, you may qualify and enter
upon the performance of the duties of the office **."
The Court then deliberated on the pleadings and
documents above mentioned, in relation to the facts and
circumstances on record and thereafter Resolved to
promulgate the following opinion.
III. The Relevant Constitutional Provisions
The provisons of the Constitution material to the inquiry at
bar read as follows: 3
Sec. 15, Article VII:
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.
Sec. 4 (1), Article VIII :
The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its
discretion, in divisions of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the
occurrence thereof.
Sec. 9, Article VIII :
The members of the Supreme Court and judges in 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.
IV. The Court's View
The Court's view is that during the period stated in Section
15. Article VII of the Constitution — "(t)wo months
immediatey before the next presidential elections and up to
the end his term" — the President is neither required to
make appointments to the courts nor allowed to do so; and
that Sections 4(1) and 9 of Article VIII simply mean that the
President is required to fill vacancies in the courts within the
time frames provided therein unless prohibited by Section 15
of Article VII. It is not noteworthy that the prohibition on
appointments comes into effect only once every six years.
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
Court's 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. 4 As it turned
out; however, the Commission ultimately agreed on a fifteen-
member Court. 5 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 "vacany shall be filled within ninety days" (in the
last sentence of Section 4 (1) of Article VIII) contrasts with
the prohibition 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). 6
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. 7
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 of his term" — was approved without discussion.
VI. Analysis of Provisions
Now, it appears that Section 15, Article VI 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 elections offenses in the Omnibus
Election Code, viz.: 8
Sec. 261. Prohibited Acts. — The following shall be guilty of
an election offense:
(a) Vote-buying and vote-selling. — (1) Any person who
gives, offer or promises money or anything of value gives or
promises any office or employment, franchise or grant,
public or private, or makes or offers to make an expenditure,
directly or indirectly, or cause an expenditure to be made to
any person, association, corporation, entity, or community in
order to induce anyone or the public in general to vote for or
against any candidate or withhold his vote in the election, or
to vote for or against any aspirant for the nomination or
choice of a candidate in a convention or similar selection
process of a political party.
xxx xxx xxx
(g) Appointment of new employees, creation of new position,
promotion, or giving salary increases. — During the period
of forty-five days before a regular election and thirty days
before a regular election and thirty days before 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, temporary, or casual, or creates and
fills any new position, except upon prior authority of 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 position shall not be filled in a
manner that may influence the election.
The second type of appointments prohibited by Section 15,
Article VII consist of the so-called "midnight" appointments.
In Aytona v. Castillo, 9 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 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 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 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 proclamations of a 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
appointee's qualifications," 10 can be made by the outgoing
President. Accordingly, several appointments made by
President Garcia, which were shown to have been well
considered, were upheld. 11
Sec. 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 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 respectives reasons for the time frames for
filling vacancies in the courts and the restriction on the
President's power of appointments, it is this Court's 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,
their making is considered an election offense.
To the contention that may perhaps be asserted, that
Sections 4 (1) and 9 of Article VIII should prevail over
Section 15 of Article VII, because they may be considered
later expressions of the people when they adopted the
Constitution, it suffices to point out that the Constitution
must be construed in its entirely as one, single instrument.
To be sure, instances may be conceived of the imperative
need for an appointment, during the period of the ban, not
only in the executive but also in the Supreme Court. This may
be the case should the membership of the Court be so
reduced that it will have no quorum, or should the voting on
a particularly important question requiring expeditious
resolution be evenly divided. Such a case, however, is covered
by neither Section 15 of Article VII nor Sections 4 (1) and 9 of
Article VIII. 12
VII. A Last Word
A final word, concerning Valenzuela's oath-taking and
"reporting for duty" as Presiding Judge of RTC Branch 62,
Bago City, on May 14, 1998. 13 Standing practice is for the
originals of all apointments to the Judiciary — from the
highest to the lowest court — to be sent by the Office of the
President to the Office of the Chief Justice, the appointments
being addressed to the appointee's "Thru: the Chief Justice,
Supreme Court Manila." It is the Clerk of Court of the
Supreme Court in the Chief Justice's behalf, who thereafter
advises the individual appointee's of their appointments and
also of the date of commencement of the pre-requisite
orientation seminar to be conducted by the Philippine
Judicial Academy for new Judges. The rationale of this
procedure is salutary and readily precieved. The procedure
ensures the authenticity of the appointments, enables the
Court, particularly the Office of the Court Administrator, to
enter in the appropriate records all appointments to the
Judiciary as well as other relevant data such as the dates of
qualification, the completion by the appointee's of their pre-
requisite orientation seminars, their assumption of duty, etc.
The procedure also precludes the possibility, however remote
of Judges acting on spurious or otherwise defective
appointments. It is obviously not advisable, to say the least,
for a Judge to take his oath of office and enter upon the
performance of his duties on the basis alone of a document
purporting to be a copy of his appointment coming from
Malacañang, the authenticity of which has not been verified
from the latter or the Office of the Court Administrator; or
otherwise to begin performing his duties as Judge without
the Court Administrator knowing of that fact. The
undesirability of such a situation is illustrated by the case of
Judge Valenzuela who acted, with no little impatience or
rashness, on a mere copy of his supposed appointment
without having received any formal notice from this Court
and without verifying the authenticity of the appointment or
the propriety of taking oath on the basis thereof. Had he
bothered to inquire about his appointment from the Court
Administrator's Office, he would havebeen informed of the
question concerning it and the Court's injunction.
VIII. Conclusion
The appointments of Messrs. Valenzuela and Vallarta on
March 30, 1998 (transmitted to the Office of the Chief Justice
on May 14, 998) were unquestionably made during the
period of the ban. Consequently, they come within the
operation of the first prohibition relating to appointments
which are considered to be for the purpose of buying votes or
influencing the election. While the filling of vacancies in the
judiciary is undoubtedly in the public interest, there is no
showing in this case of any compelling reason to justify the
making of the appointments during the period of the ban. On
the other hand, as already discussed, there is a strong public
policy for the prohibition against appointments made within
the period of the ban.
In view of the foregoing considerations, the Court Resolved
to DECLARE VOID the appointments signed by His Excellency
the President under date of 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 and to order them,
forthwith on being served with notice of this decision, to
forthwith CEASE AND DESIST from discharging the office of
Judge of the Courts to which they were respectively
appointed on March 30, 1998. This without prejudice to their
being considered anew by the Judicial and Bar Council for re-
nomination to the same positons.
IT IS SO ORDERED.
Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza Panganiban, Quisumbing, Purisima and Pardo, JJ.,
concur.
Mendoza, J., is on leave.
Footnotes
1 Section 8, Article VIII, Constitution.
2 N.B. The letter of the JBC dated March 3, 1998, containing
the nominations of Judge Valenzuela and two (2) others to
RTC Branch 62, Bago City, together with nominations of
other persons to four (4) other courts, was received by the
Office of the President on March 20, 1998. The JBC's
nominations of Judge Vallarta and three others to RTC
Branch 24, Cabanatuan City, and of others to MeTC Branch
56, Malabon, are contained in its letter dated February 24,
1998, also received on March 20, 1998 at Malacañang. Of
those thus nominated, only Messrs. Valenzuela and Vallarta
were appointed by the President.
3 Emphasis supplied.
4 RECORD OF THE CONSTITUTIONAL COMMISSION
(hereafter cited as RECORD) pp. 479-482 (Session of July 14,
1986).
5 RECORD, pp. 632-634 (Session of Oct. 8, 1986).
6 1 RECORD, pp. 489-490 (Session of July 14, 1986).
7 Id. at p. 445.
8 Emphasis supplied.
9 114 Phil. vii (1962).

10 Id at x-xi.

11 See Merrera v. Liwag, 18 Phil. 1038 (1963); Jorge v.

Mayor, 119 Phil. 595 (1964); Quimsing v. Tajanglangit, 119
Phil. 729 (1964).

12 See Sec. 9, second paragraph, of R.A. No. 296 (The

Judiciary Act of 1948), in relation to SEC. 47 of B.P. No. 129
(The Judiciary Reorganization Act of 1980): cf: Rilloranza v.
Vargas, 80 Phil. 297 (1948).

13 See footnote 2, supra.