G.R. No. 116183 October 6, 1995
Cerillo
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 Decision2 and Order3 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.
was perpetrated by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cariño 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 Cariño 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 officers/employees of the PSCA were to last only up to December 31, 1992. For a
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 letter7 mandating that temporary appointments of
better perspective, We quote a pertinent portion of the letter:
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.
G.R. No. L-65439 November 13, 1985
PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner
vs.
HON. INTERMEDIATE APPELLATE COURT, HON. FILEM0N
FERNANDEZ, JR., HON. ALBINA MANALODANS as Commissioners of Civil
Service Commission and HERNANI P. ESTEBAN, respondents.
Office of the Legal Officer for petitioner.
GUTIERREZ, JR., J.:
The sole issue raised in this petition is the status of respondent Hernani Esteban's
appointment as Vice-President for Administration of the Pamantasan ng Lungsod ng
Maynila that is, whether or not he holds the position in a permanent capacity as to
guarantee as security of tenure.
Respondent Esteban asserts that his appointment is permanent whereas the petitioner
maintains its temporary and contractual nature such that the respondent may be
dismissed at any time even without cause.
Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in
the government service for twenty five (25) years. Until May 20, 1973, he was
officially connected with the Philippine College of Commerce, a state-owned
educational institution as its Vice-President for Academic Affairs. Shortly before that
date, the Board of Trustees of the College in a bold move to streamline the college
organization resolve to abolish the position of Vice-President for Academic Affairs.
Private respondent was given the option to continue teaching at the Philippine College
of Commerce which he accepted until his transfer to the Pamantasan ng Lungsod ng
Maynila, upon the invitation of its president, Dr. Consuelo Blanco.
At the Pamantasan, Dr. Esteban was initially extended an ad interim temporary
appointment as Vice-President for Administration by Dr. Consuelo Blanco. Dr.
Esteban received from the Secretary of Pamantasan a 'Notification of Confirmation of
Temporary Appointment' dated June 28, 1973. His appointment was 'effective May 21,
1973 until June 30, 1974, unless sooner terminated.' On July 5, 1974, the Secretary of
Pamantasan sent him a 'Notification of Renewal of Temporary Appointment' indicating
that his appointment was renewed 'effective July 1, 1974 until August 31, 1974.'
A month later, on August 30, 1974, he received from the University Secretary another
'notification of renewal of temporary appointment' informing him that the Board of
Regents, on recommendation of the President of the University approved the renewal
of his appointment 'effective September 1, 1974 until June 30, 1975' with an increased
salary of P17,160 per annum.
On October 15, 1974, incident to a further increase of his salary, Dr. Esteban was
notified that his appointment as vice-president for administration at a salary of P17,600
per annum had been renewed effective September 1, 1974 until June 30, 1975.
On June 26, 1975, he received another 'Notification of Renewal of Temporary
Appointment' as Vice-President for Administration with at salary of P21,760 per
annum, 'effective July 1, 1975 until June 30, 1976.'
On July 26, 1975, Dr. E qqqsteban discovered that he was not included in the list of
employees recommended for permanent appointments. He wrote Dr. Consuelo Blanco
requesting the conversion of his temporary appointment to a permanent one,
considering his two and half (2½) years service.
On July 26, 1975, Dr. Esteban received an answer to his request from President Blanco
who indicated various reasons for her not acting favorably on his request.
On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointment
notifying him that the president of the university had approved his appointment as
Professor III with a salary of P15,600 per annum 'effective August 1, 1975'. He was
further designated as Director of the Institute of Continuing Education and Community
Service with an honorarium of P5,676 per annum, likewise effective August 1, 1975.
On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminating
Dr. Esteban's appointment as Vice-President for Administration effective July 31,
1975. His appointment dated June 26, 1975 and effective until June 30, 1976 had been
withdrawn before it could be confirmed by the Pamantasan Board of Regents.
On the same date, August 7, 1975, Dr. Esteban appealed to the Civil Service
Commission for the protection of his tenure in the Pamantasan .
On October 9,1975, the Civil Service Commission ruled that:
The temporary nature of the appointment issued to Dr. Esteban as Vice President for
Administration is conceded. Such being the Case, his services may be terminated at
any time with or without request that he be extended permanent appointment ,or that
his temporary appointment be converted into permanent one, it may be stated that the
issuance of such appointment is addressed to the sound discretion of the appointing
official.
Dr. Esteban flied a motion for the reconsideration of that ruling. On January 14, 1976,
the Civil Service Commission ruled favorably on Dr. Esteban's motion. It stated that
he was fully qualified for the position of Vice-President for Administration and
certified him "for appointment therein under permanent status." The Commission
stated:
In view thereof, and in the absence of any apparent justifiable reason why Dr. Esteban
should remian under temporary status for the length of time prior to the withdrawal of
his appointment as Vice President for Administration in that University, and as it
further appears that he is fully qualified for the position in question in view of his
extensive experience in the fields of public administration and management, this
Commission hereby certifies him for appointment therein under permanent status.
The Pamantasan, in turn, asked for the reconsideration of that ruling.
The Commission, in an undated Resolution No. 75, Series of 1976, came out with a
statement which confused more than it clarified. It stated that its certification should
not be interpreted as directing the reinstatement of Dr. Esteban because 'it was never
intended to be so
On May 28, 1976 Esteban asked the commission to reconsider Resolution No. 75,
Series of 1976. He also asked for the payment of the salaries and allowances due him
as of September 1975, which the Pamantasan had withheld. His request was denied by
the commission in its undated resolution No. 158, Series of 1976.
On September 15, 1976 Esteban reiterated his request for payment of his salaries.
On September 20, 1976, he asked for a review of the Pamantasan's decision to
terminate his appointment as Vice-President for Administration.
On December 1, 1976, his request for payment of his salaries was referred by the
Commission to the treasurer of the Pamantasan.
On July 6, 1977, the Commission again modified its earlier resolution in as case. It
ruled that Dr. Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interim
appointment as Vice President for Administration as only the Board of Regents was
empowered to do that under Article 55 of the University Charter (Rep. Act 4196).
However, it ruled that, as a de facto officer, he was entitled to be paid the salary of that
position.
Dr. Esteban and the Pamantasan filed motions for reconsideration of that ruling
prompting the Commission to order them to submit "all papers and documents
pertinent to that case."
On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits System
Board in the Civil Service Commission to hear and decide cases brought before it on
appeal by officers and employees who feel aggrieved by the determination of officials
on personnel matters.
The Board required the Pamantasan to submit its complete records on the appointment
and termination of Dr. Esteban as vice-president for administration.
While the records officer of the Pamantasan submitted copies of the notices sent to
Esteban regarding his appointment as vice-president for administration, he did not
submit a copy of the Board's Resolution No. 485 passed June 20, 1973 confirming the
ad interim appointments of several academic and non-academic personnel of said
university among which was that of Dr. Hernani Esteban "effective May 21, 1973." He
produced a copy of the memorandum circular dated August 7, 1915 of the President of
the Pamantasan terminating Dr. Esteban's service as of July 31, 1975.
In Resolution No. 597 dated November 11, 1980, the Commissioner directed the
Pamantasan to submit any document or documents directly or actually showing that
Dr. Hernani Esteban was appointed vice-president for administration of the
Pamantasan in a permanent capacity.
On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence of
Board Resolution No. 485, replied that "we cannot find any document showing that
Dr. Esteban was appointed ... in a permanent capacity.
In view of the Pamantasan's failure to produce the minutes of the regular Board of
Regents meeting on June 20, 1973 when Esteban's appointment was approved the
Commission in its Resolution No. 81-279 dated March 5, 1981, concluded that there
is truth to the claim of Dr. Esteban that his appointment as Vice-President for
Administration of the Pamantasan was approved as permanent. It cited Government of
the Philippine Islands vs. Martinez, (44 Phil. 817) that when a party has it in his
possession or power to produce the best evidence of which the case in its nature is
susceptible and withholds it, the fair presumption is that the evidence is withheld for
some sinister motive and that its production would thwart his evil or fraudulent
purpose.
The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President
for Administration of Pamantasan with permanent status and that the temporary
appointment issued to him did not alter his permanent status as he had 'already acquired
a vested right as well as the right to security of tenure', that he cannot unceremoniously
removed therefrom, nor can the status of his appointment be changed without cause,
as provided by law and after due process." The Commission held that the termination
of his services was obviously illegal. It directed his immediate reinstatement to the
position of Vice-President for Administration of Pamantasan and the payment of his
back salaries, allowances and other benefits which he failed to receive from the time
he was separated therefrom.
The Pamantasan filed a motion for reconsideration of that resolution. It also submitted
for the first time a copy of Resolution No. 485.
The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the
Pamantasan for having suppressed said piece of evidence from which "the intention of,
or the accurate action taken by PLM Board of Regents on Dr. Esteban's appointment
in question, may be determined." Following the decision of the Supreme Court in the
case of Summers v. Ozaeta, (81 Phil. 760), the Commission denied the Pamantasan's
motion for reconsideration and ruled that "Upon confirmation of the Board of Regents
of the ad interim appointment of Dr. Esteban the same became permanent."
Upon getting this ruling, the Pamantasan filed a petition for certiorari against Dr.
Esteban and Civil Service Commissionssioners Filemon Fernandez, Jr. and Albina
Manalo Dans. The petition was docketed as Civil Case No. 139840 of the Court of
First Instance of Manila, Branch XIII.
On January 8, 1982, the trial court rendered a decision reversing the Commission's
Resolution No. 81-279 and adopted the earlier Commission Resolution dated July 6,
1977 holding that Private respondent Dr. Esteban's appointment was invalid, though
he may be considered as a de facto vice-president of the University up to October 9,
1975, the date when the Commission ruled that his appointment was temporary and
could be terminated at any time.
The private respondent appealed to the Intermediate Appellate Court.
On September 26, 1983. the respondent Intermediate Appellate Court rendered a
decision reversing the trial court's decision. The dispositive portion of the appellate
decision reads:
Wherefore, the appealed decision is hereby revised and set aside. The Pamantasan's
petition for certiorari is denied. Resolution No 81-279 dated March 5, 1981, as well as
Resolution No. 81-510 dated April 23, 1981, of the respondent Civil Service
Commission, declaring as permanent the appointment of the appellant Dr. Hernani
Esteban as vice- president for administration of the university under the Board of
Regents' Resolution No. 485 dated June 20, 1973, and ordering his immediate
reinstatement to that position with back salaries, allowances and other benefits, is
affirmed, provided he has not yet reached the age of compulsory retirement from the
government service; otherwise, he shall be entitled to back salaries, allowances and
other benefits only up to the time he should handle been reared from the said position.
From the decision of the Intermediate Appellate Court and after its motion for
reconsideration had been denied petitioner Pamantasan ng Lungsod ng Maynila filed
the present petition, now the subject of this review.
We find no error in the pronouncements of the Intermediate Appellate Court. We rule
in favor of the respondents.
From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several "ad-interim"
appointments which petitioner mistakenly understands as appointments temporary in
nature. Perhaps, it is the literal translation of the word "ad interim" which creates such
belief. The term is defined by Black to mean "in the meantime" or for the time being,
Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties
of the office during the absence or temporary incapacity of its regular incumbent
(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. Thus, we held in Summers v. Ozaeta (81 Phil. 760):
... 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.' lt is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by the Commission on Appointments
does not alter its permanent character. An ad interim appointment is disapproved
certainly for a reason other than that its provisional period has expired. Said
appointment is of course distinguishable from an 'acting' appointment which is merely
temporary, good until another permanent appointment is issued.
Not only is the appointment in question an ad interim appointment, but the same is also
a confirmed ad interim appointment. In its Resolution No. 485, dated June 20, 1973,
the Pamantasan Board of Regents verified respondent Esteban's appointment without
condition nor limitation as to tenure. As of that moment, it became a regular and
permanent appointment.In other words, if the Board of Regents is in session, the
Pamantasan President merely nominates while the Board issues the appointment. But
when the Board is not in session, the President is authorized to issue ad interim
appointments. Such appointments are permanent but their terms are only until the
Board disapproves them. If confirmed, the appointee's term is converted into the
regular term inherent in the position.
Petitioner centers its arguments and tries to fix the attention of the court to the fact that
all notices of appointments, renewals, and confirmation thereof all declare the same to
be temporary, carrying fixed commencement and termination dates, "unless sooner
terminated." As expressed by public respondent, "... This stubborn insistence is
anchored on the notifications of temporary appointment sent to private respondent
Esteban by the Secretary of Pamantasan. However, this insistence deliberately ignores
... Resolution No. 485 dated June 20, 1973 of the Board of Regents ...". And correctly
so argued. "In case of conflict between a notification issued by the Secretary of the
University which is supposed to reflect the true content of a Board Resolution and the
Resolution itself of said Board of Regents of said University, the latter is controlling
for obvious reasons. The Secretary of the University has no authority to alter or add
something which is not provided for in the Resolution of the Board of Regents ...".
Thus, respondent Intermediate Appellate Court held:
The permanent nature of appellant's appointment was not altered or diminished by the
misleading 'notifications' which were sent to him by the secretary of the university
president, referring to his appointment as 'temporary', nor by his uninformed
acceptance thereof without knowledge of the true contents of Resolution No. 485
which the university president appears to have studiously suppressed.
There is nothing in the Pamantasan Board of Regents' Resolution No. 485 which
suggests that respondent Esteban's appointment was temporary. The Board's action
was to confirm or reject an existing ad interim appointment. If respondent's
appointment was intended to be temporary, it should have been expressly stated. It
cannot be made to rest on inconclusive evidence, specially because a temporary
appointment divests the temporary appointee of the constitutional security of tenure
against removal without cause even if he is a civil service eligible." (Tolentino v. de
Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA 1).
Further supporting private respondent's stand is the list of permanent personnel which
was submitted to the Commission by the university president herself on March 3, 1975
for recognition of their permanent status by the Commission. The appellant's name was
the first in that list (Exhibit 8-B). The permanent status of private respondent's
appointment as Vice-President for Administration at Pamantasan was recognized by
the Civil Service Commission in its lst Indorsement dated April 18, 1975 upon the
request of petitioner. This fact is borne out by the records and the evidence and found
as such by the Intermediate Appellate Court, the Civil Service Commission as well as
the Court of First Instance.
From the foregoing, there appears an intention to deprive private respondent of his
rights as a permanent appointee. With strained relations and differences in professional
opinion between the private respondent and the Pamantasan President, Dr. Esteban was
led to believe that his services were terminable at pleasure.
The power to appoint is, in essence, discretionary. The appointing power has the right
of choice which he may exercise freely according to his judgment, deciding for himself
who is best qualified among those who have the necessary qualifications and
eligibilities. lt is a prerogative of the appointing power that may be availed of without
liability, provided however, that it is exercised in good faith for the advancement of
the employer's interest and not for the purpose of defeating or circumventing the rights
of the employees under special laws or under valid agreements, and provided further,
that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or
wanton manner, or out of malice or spite (Government Service and Insurance System
v. Ayroso 96 SCRA 213). The general rule is that the power of appointment must
remain unhampered by judicial intervention. However, when the law is violated or
when there is grave abuse of discretion, we have to step in. Otherwise the situation
aptly described by newspaperman Jesus Bigornia would exist as he had written:
... With the sword of Damocles hanging over the heads of faculty members, the
university has spawned a meek, spineless, even subservient corps of professors and
instructors. (Newsman's Notes, Bulletin Today, January 23, 1976).
We cannot also sanction the termination of private respondent's services by petitioner.
With his appointment now settled as permanent., the Civil Service law and the
Constitution guarantee private respondent's security of tenure as 'No officer or employe
in the Civil Service shall be suspended or dismissed except for cause as provided by
law" (Section 3, Article XII, the 1973 Philippine Constitution). Petitioner has failed to
substantiate its allegations of incompetence against respondent Esteban whose record
of government service appears quite impressive. Esteban was not dimissed for cause
after proper proceedings. His appointment was terminated on the ground that it was
temporary.
The intermediate Appellate Court ordered the payment of full back salaries to Dr.
Esteban provided he has not reached the age of compulsory retirement from the
government service. It is not clear from the records as to when Dr. Esteban actually
ceased working for Pamantasan. Under the law, he is entitled to full pay, allowances,
and other benefits during the period that he was actually reporting for work and
rendering services in whatever capacity, whether teaching, research or administration.
As of backwages, the amount is generally based on the equivalent of three years'
earnings (Philippine Airlines, Inc. v. National Labor Relations Commission, 126
SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor Relations Commission,
135 SCRA 697). In line with the policy adopted by this Court to do away with the
attendant delay in awarding backwages because of the extended hearings necessary to
prove the earnings, elsewhere of each and every employee (Philippine Airlines, Inc. v.
National Labor Relations Commission, supra, citing Mercury Drug Co., Inc. v. Court
of Industrial Relations, 56 SCRA 694), the formula for computing the same calls for
fixing the award of backwages to three years. However, in Dy Keh Beng v.
International Labor and Marine Union, 90 SCRA 162, citing Mercury Drug Co., et al.
v. Court of Industrial Relations, 56 SCRA 694, 712), we held the amount of backwages
to be "subject to deduction whre there are mitigating circumstances in favor of the
employer, but subject to increase whree there are aggravating circumstances. (Tupas
Local Chapter No. 979, et al. v. National Labor Relations Commission, et al., G. R.
No. 60532-33, November 5,\1985; Progressive Development Corporation v.
Progressive Employees' Union, 80 SCRA 434.) Considering that in the case at bar,
more than ten (10) years have elpased from the date respondent Esteban as to the true
nature of his appointment and "studiously suppressing" material data to effectively
deprive the latter of his rights as a permanent employee, we find an award of five (5)
years backpay to respondent Dr. Esteban just and equitable under the circumstances,
assuming he has not reached retirement age in the meantime.
WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack of
merit. The decision appealed from is affirmed subject to the modification in the
payment of back salaries as stated above.
SO ORDERED.
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.
GUTIERREZ, JR., J.:
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 Corazon Batara, the other respondent in this case, as Officer-in-
Charge of the OVCAA.
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
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. (Piñero
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)
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;
(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:
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. Cariño
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.
[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.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ
of preliminary injunction and a temporary restraining order under Rule 65 of the 1997
Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag (Petitioner for brevity)
questions the constitutionality of the appointment and the right to hold office of the
following: (1) Alfredo L. Benipayo (Benipayo for brevity) as Chairman of the
Commission on Elections (COMELEC for brevity); and (2) Resurreccion Z. Borra
(Borra for brevity) and Florentino A. Tuason, Jr. (Tuason for brevity) as COMELEC
Commissioners. Petitioner also questions the legality of the appointment of Velma J.
Cinco[1] (Cinco for brevity) as Director IV of the COMELECs Education and
Information Department (EID for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as Acting Director
IV of the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed
the appointment of petitioner as Director IV of EID in a Temporary capacity. On
February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment
of petitioner to the same position in a Temporary capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim,
Benipayo as COMELEC Chairman,[3] and Borra[4] and Tuason[5] as COMELEC
Commissioners, each for a term of seven years and all expiring on February 2, 2008.
Benipayo took his oath of office and assumed the position of COMELEC Chairman.
Borra and Tuason likewise took their oaths of office and assumed their positions as
COMELEC Commissioners. The Office of the President submitted to the Commission
on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra
and Tuason for confirmation.[6] However, the Commission on Appointments did not
act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo,
Borra and Tuason to the same positions and for the same term of seven years, expiring
on February 2, 2008.[7] They took their oaths of office for a second time. The Office
of the President transmitted on June 5, 2001 their appointments to the Commission on
Appointments for confirmation.[8]
Congress adjourned before the Commission on Appointments could act on their
appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again the
ad interim appointments of Benipayo, Borra and Tuason to the same positions.[9] The
Office of the President submitted their appointments for confirmation to the
Commission on Appointments.[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April
11, 2001[11] addressed to petitioner as Director IV of the EID and to Cinco as Director
III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning
petitioner to the Law Department. COMELEC EID Commissioner-in-Charge Mehol
K. Sadain objected to petitioners reassignment in a Memorandum dated April 14,
2001[12] addressed to the COMELEC en banc. Specifically, Commissioner Sadain
questioned Benipayos failure to consult the Commissioner-in-Charge of the EID in the
reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director
IV of the EID and her reassignment to the Law Department.[13] Petitioner cited Civil
Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding
heads of government offices that transfer and detail of employees are prohibited during
the election period beginning January 2 until June 13, 2001. Benipayo denied her
request for reconsideration on April 18, 2001,[14] citing COMELEC Resolution No.
3300 dated November 6, 2000, which states in part:
NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred
upon it by the Constitution, the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED,
to appoint, hire new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due
notice and hearing.
Petitioner appealed the denial of her request for reconsideration to the COMELEC en
banc in a Memorandum dated April 23, 2001.[15] Petitioner also filed an
administrative and criminal complaint[16] with the Law Department[17] against
Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular
No. 07, s. 001, and other pertinent administrative and civil service laws, rules and
regulations.
During the pendency of her complaint before the Law Department, petitioner filed the
instant petition questioning the appointment and the right to remain in office of
Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and
Tuason violate the constitutional provisions on the independence of the COMELEC,
as well as on the prohibitions on temporary appointments and reappointments of its
Chairman and members. Petitioner also assails as illegal her removal as Director IV of
the EID and her reassignment to the Law Department. Simultaneously, petitioner
challenges the designation of Cinco as Officer-in-Charge of the EID. Petitioner,
moreover, questions the legality of the disbursements made by COMELEC Finance
Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and
Tuason by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once
again the ad interim appointments of Benipayo as COMELEC Chairman and Borra
and Tuason as Commissioners, respectively, for a term of seven years expiring on
February 2, 2008.[18] They all took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court
may exercise its power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis
of the ad interim appointments issued by the President amounts to a temporary
appointment prohibited by Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office
by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim
appointments and subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution;
4. Whether or not Benipayos removal of petitioner from her position as Director IV of
the EID and her reassignment to the Law Department is illegal and without authority,
having been done without the approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs Finance Services
Department, in continuing to make disbursements in favor of Benipayo, Borra, Tuason
and Cinco, is acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this
Court may exercise its power of judicial review in constitutional cases. Out of respect
for the acts of the Executive department, which is co-equal with this Court, respondents
urge this Court to refrain from reviewing the constitutionality of the ad interim
appointments issued by the President to Benipayo, Borra and Tuason unless all the four
requisites are present. These are: (1) the existence of an actual and appropriate
controversy; (2) a personal and substantial interest of the party raising the
constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest
opportunity; and (4) the constitutional issue is the lis mota of the case.[19]
Respondents argue that the second, third and fourth requisites are absent in this case.
Respondents maintain that petitioner does not have a personal and substantial interest
in the case because she has not sustained a direct injury as a result of the ad interim
appointments of Benipayo, Borra and Tuason and their assumption of office.
Respondents point out that petitioner does not claim to be lawfully entitled to any of
the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to
be directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the
ad interim appointments at the earliest opportunity. Petitioner filed the petition only on
August 3, 2001 despite the fact that the ad interim appointments of Benipayo, Borra
and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed
after the third time that these three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners
reassignment from the EID to the Law Department. Consequently, the constitutionality
of the ad interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the
Law Department, where she was placed on detail service.[20] Respondents claim that
the reassignment was pursuant to x x x Benipayos authority as Chairman of the
Commission on Elections, and as the Commissions Chief Executive Officer.[21]
Evidently, respondents anchor the legality of petitioners reassignment on Benipayos
authority as Chairman of the COMELEC. The real issue then turns on whether or not
Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an
Acting Director of the EID, her reassignment is without legal basis if Benipayo is not
the lawful COMELEC Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed
office in accordance with the Constitution, then petitioners reassignment is legal and
she has no cause to complain provided the reassignment is in accordance with the Civil
Service Law. Clearly, petitioner has a personal and material stake in the resolution of
the constitutionality of Benipayos assumption of office. Petitioners personal and
substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with
the requisite locus standi to raise the constitutional issue in this petition.
Respondents harp on petitioners belated act of questioning the constitutionality of the
ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant
petition only on August 3, 2001, when the first ad interim appointments were issued as
early as March 22, 2001. However, it is not the date of filing of the petition that
determines whether the constitutional issue was raised at the earliest opportunity. The
earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, if it is not raised in the pleadings,
it cannot be considered at the trial, and, if not considered at the trial, it cannot be
considered on appeal.[22] Petitioner questioned the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason when she filed her petition before this
Court, which is the earliest opportunity for pleading the constitutional issue before a
competent body. Furthermore, this Court may determine, in the exercise of sound
discretion, the time when a constitutional issue may be passed upon.[23] There is no
doubt petitioner raised the constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on the constitutionality of
Benipayos ad interim appointment and assumption of office. Unless the
constitutionality of Benipayos ad interim appointment and assumption of office is
resolved, the legality of petitioners reassignment from the EID to the Law Department
cannot be determined. Clearly, the lis mota of this case is the very constitutional issue
raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public.
The legality of the directives and decisions made by the COMELEC in the conduct of
the May 14, 2001 national elections may be put in doubt if the constitutional issue
raised by petitioner is left unresolved. In keeping with this Courts duty to determine
whether other agencies of government have remained within the limits of the
Constitution and have not abused the discretion given them, this Court may even brush
aside technicalities of procedure and resolve any constitutional issue raised.[24] Here
the petitioner has complied with all the requisite technicalities. Moreover, public
interest requires the resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary
appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution, which
provides as follows:
The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity. (Emphasis supplied) Petitioner posits the view that an ad
interim appointment can be withdrawn or revoked by the President at her pleasure, and
can even be disapproved or simply by-passed by the Commission on Appointments.
For this reason, petitioner claims that an ad interim appointment is temporary in
character and consequently prohibited by the last sentence of Section 1 (2), Article IX-
C of the Constitution.
Based on petitioners theory, there can be no ad interim appointment to the COMELEC
or to the other two constitutional commissions, namely the Civil Service Commission
and the Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the
Constitution is also found in Article IX-B and Article IX-D providing for the creation
of the Civil Service Commission and the Commission on Audit, respectively.
Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the
ad interim appointee cannot assume office until his appointment is confirmed by the
Commission on Appointments for only then does his appointment become permanent
and no longer temporary in character.
The rationale behind petitioners theory is that only an appointee who is confirmed by
the Commission on Appointments can guarantee the independence of the COMELEC.
A confirmed appointee is beyond the influence of the President or members of the
Commission on Appointments since his appointment can no longer be recalled or
disapproved. Prior to his confirmation, the appointee is at the mercy of both the
appointing and confirming powers since his appointment can be terminated at any time
for any cause. In the words of petitioner, a Sword of Damocles hangs over the head of
every appointee whose confirmation is pending with the Commission on
Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect
immediately and can no longer be withdrawn by the President once the appointee has
qualified into office. The fact that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. The Constitution itself makes an
ad interim appointment permanent in character by making it effective until disapproved
by the Commission on Appointments or until the next adjournment of Congress. The
second paragraph of Section 16, Article VII of the Constitution provides as follows:
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next
adjournment, signifying that it can no longer be withdrawn or revoked by the President.
The fear that the President can withdraw or revoke at any time and for any reason an
ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim
appointment is permanent in character. In Summers vs. Ozaeta,[25] decided on
October 25, 1948, we held that:
x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10,
Article VII of the Constitution, which provides that the President shall have the power
to make appointments during the recess of the Congress, but such appointments shall
be effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress. It is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by the Commission on Appointments
does not alter its permanent character. An ad interim appointment is disapproved
certainly for a reason other than that its provisional period has expired. Said
appointment is of course distinguishable from an acting appointment which is merely
temporary, good until another permanent appointment is issued. (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment,
and thus an ad interim appointment takes effect immediately. The appointee can at
once assume office and exercise, as a de jure officer, all the powers pertaining to the
office. In Pacete vs. Secretary of the Commission on Appointments,[26] this Court
elaborated on the nature of an ad interim appointment as follows:
A distinction is thus made between the exercise of such presidential prerogative
requiring confirmation by the Commission on Appointments when Congress is in
session and when it is in recess. In the former, the President nominates, and only upon
the consent of the Commission on Appointments may the person thus named assume
office. It is not so with reference to ad interim appointments. It takes effect at once.
The individual chosen may thus qualify and perform his function without loss of time.
His title to such office is complete. In the language of the Constitution, the appointment
is effective until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in
the meantime or for the time being. Hence, petitioner argues that an ad interim
appointment is undoubtedly temporary in character. This argument is not new and was
answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court,[27] where we explained that:
x x x From the arguments, it is easy to see why the petitioner should experience
difficulty in understanding the situation. Private respondent had been extended several
ad interim appointments which petitioner mistakenly understands as appointments
temporary in nature. Perhaps, it is the literal translation of the word ad interim which
creates such belief. The term is defined by Black to mean in the meantime or for the
time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge
the duties of the office during the absence or temporary incapacity of its regular
incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the
meaning nor the use intended in the context of Philippine law. In referring to Dr.
Estebans appointments, the term is not descriptive of the nature of the appointments
given to him. Rather, it is used to denote the manner in which said appointments were
made, that is, done by the President of the Pamantasan in the meantime, while the
Board of Regents, which is originally vested by the University Charter with the power
of appointment, is unable to act. x x x. (Emphasis supplied)
Thus, the term ad interim appointment, as used in letters of appointment signed by the
President, means a permanent appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary appointment that can be withdrawn
or revoked at any time. The term, although not found in the text of the Constitution,
has acquired a definite legal meaning under Philippine jurisprudence. The Court had
again occasion to explain the nature of an ad interim appointment in the more recent
case of Marohombsar vs. Court of Appeals,[28] where the Court stated:
We have already mentioned that an ad interim appointment is not descriptive of the
nature of the appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission
Regional Office No. 12. Petitioners submission that private respondents ad interim
appointment is synonymous with a temporary appointment which could be validly
terminated at any time is clearly untenable. Ad interim appointments are permanent
but their terms are only until the Board disapproves them. (Emphasis supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment
a government employee and therefore part of the civil service. He enjoys the
constitutional protection that [n]o officer or employee in the civil service shall be
removed or suspended except for cause provided by law.[29] Thus, an ad interim
appointment becomes complete and irrevocable once the appointee has qualified into
office. The withdrawal or revocation of an ad interim appointment is possible only if
it is communicated to the appointee before the moment he qualifies, and any
withdrawal or revocation thereafter is tantamount to removal from office.[30] Once an
appointee has qualified, he acquires a legal right to the office which is protected not
only by statute but also by the Constitution. He can only be removed for cause, after
notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the
Constitution. The first cause is the disapproval of his ad interim appointment by the
Commission on Appointments. The second cause is the adjournment of Congress
without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad
interim appointments. These resolutory conditions constitute, in effect, a Sword of
Damocles over the heads of ad interim appointees. No one, however, can complain
because it is the Constitution itself that places the Sword of Damocles over the heads
of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by
law, an appointment or designation in a temporary or acting capacity can be withdrawn
or revoked at the pleasure of the appointing power.[31] A temporary or acting
appointee does not enjoy any security of tenure, no matter how briefly. This is the kind
of appointment that the Constitution prohibits the President from making to the three
independent constitutional commissions, including the COMELEC. Thus, in Brillantes
vs. Yorac,[32] this Court struck down as unconstitutional the designation by then
President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting
Chairperson of the COMELEC. This Court ruled that:
A designation as Acting Chairman is by its very terms essentially temporary and
therefore revocable at will. No cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of the Philippines at any
time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.
The Constitution provides for many safeguards to the independence of the Commission
on Elections, foremost among which is the security of tenure of its members. That
guarantee is not available to the respondent as Acting Chairman of the Commission on
Elections by designation of the President of the Philippines.
Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935
Constitution, which did not have a provision prohibiting temporary or acting
appointments to the COMELEC, this Court nevertheless declared unconstitutional the
designation of the Solicitor General as acting member of the COMELEC. This Court
ruled that the designation of an acting Commissioner would undermine the
independence of the COMELEC and hence violate the Constitution. We declared then:
It would be more in keeping with the intent, purpose and aim of the framers of the
Constitution to appoint a 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[34] and
Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.[35] The ad interim
appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution
which authorizes the President, during the recess of Congress, to make appointments
that take effect immediately.
While the Constitution mandates that the COMELEC shall be independent[36], this
provision should be harmonized with the Presidents power to extend ad interim
appointments. To hold that the independence of the COMELEC requires the
Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the Presidents power to make ad interim
appointments. This is contrary to the rule on statutory construction to give meaning
and effect to every provision of the law. It will also run counter to the clear intent of
the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of
officers subject to confirmation by the Commission on Appointments - did not provide
for ad interim appointments. The original intention of the framers of the Constitution
was to do away with ad interim appointments because the plan was for Congress to
remain in session throughout the year except for a brief 30-day compulsory recess.
However, because of the need to avoid disruptions in essential government services,
the framers of the Constitution thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. The following discussion during the
deliberations of the Constitutional Commission elucidates this:
FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such
circumstances, is it necessary to provide for ad interim appointments? Perhaps there
should be a little discussion on that.
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.
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.
THE PRESIDENT: Is there any objection to the proposed amendment of
Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of
Section 16? (Silence) The Chair hears none; the amendment is approved.[37]
(Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing
power of the President was for the purpose of avoiding interruptions in vital
government services that otherwise would result from prolonged vacancies in
government offices, including the three constitutional commissions. In his concurring
opinion in Guevara vs. Inocentes,[38] decided under the 1935 Constitution, Justice
Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in this
manner:
Now, why is the lifetime of ad interim appointments so limited? Because, if they
expired before the session of Congress, the evil sought to be avoided interruption in
the discharge of essential 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,[39] promulgated on December 13, 2000, the terms of
office of constitutional officers first appointed under the Constitution would have to be
counted starting February 2, 1987, the date of ratification of the Constitution,
regardless of the date of their actual appointment. By this reckoning, the terms of office
of three Commissioners of the COMELEC, including the Chairman, would end on
February 2, 2001.[40]
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January
11, 2000 to serve, pursuant to her appointment papers, until February 15, 2002,[41] the
original expiry date of the term of her predecessor, Justice Bernardo P. Pardo, who was
elevated to this Court. The original expiry date of the term of Commissioner Teresita
Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F.
Desamito was November 3, 2001.[42] The original expiry dates of the terms of office
of Chairperson Demetriou and Commissioners Flores and Desamito were therefore
supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of
the Gaminde ruling, there were three vacancies in the seven-person COMELEC, with
national elections looming less than three and one-half months away. To their credit,
Chairperson Demetriou and Commissioner Flores vacated their offices on February 2,
2001 and did not question any more before this Court the applicability of the Gaminde
ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in the Gaminde
case, Chairperson Demetriou stated that she was vacating her office on February 2,
2001, as she believed any delay in choosing her successor might create a constitutional
crisis in view of the proximity of the May 2001 national elections. Commissioner
Desamito chose to file a petition for intervention[44] in the Gaminde case but this
Court denied the intervention. Thus, Commissioner Desamito also vacated his office
on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February
and June considering that many of the members of the House of Representatives and
the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January
9, 2001 to June 3, 2001.[45] Concededly, there was no more time for Benipayo, Borra
and Tuason, who were originally extended ad 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,[46] the remaining one division would have been swamped
with election cases. Moreover, since under the Constitution motions for
reconsideration shall be decided by the Commission en banc, the mere absence of one
of the four remaining members would have prevented a quorum, a less than ideal
situation considering that the Commissioners are expected to travel around the country
before, during and after the elections. There was a great probability that disruptions in
the conduct of the May 2001 elections could occur because of the three vacancies in
the COMELEC. The successful conduct of the May 2001 national elections, right after
the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding
and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power
to make ad interim appointments prevented the occurrence of the very evil sought to
be avoided by the second paragraph of Section 16, Article VII of the Constitution. This
power to make ad interim appointments is lodged in the President to be exercised by
her in her sound judgment. Under the second paragraph of Section 16, Article VII of
the Constitution, the President can choose either of two modes in appointing officials
who are subject to confirmation by the Commission on Appointments. First, while
Congress is in session, the President may nominate the prospective appointee, and
pending consent of the Commission on Appointments, the nominee cannot qualify and
assume office. Second, during the recess of Congress, the President may extend an ad
interim appointment which allows the appointee to immediately qualify and assume
office.
Whether the President chooses to nominate the prospective appointee or extend an ad
interim appointment is a matter within the prerogative of the President because the
Constitution grants her that power. This Court cannot inquire into the propriety of the
choice made by the President in the exercise of her constitutional power, absent grave
abuse of discretion amounting to lack or excess of jurisdiction on her part, which has
not been shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-
standing practice. Former President Corazon Aquino issued an ad interim appointment
to Commissioner Alfredo E. Abueg.[47] Former President Fidel V. Ramos extended
ad interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani,
Graduacion A. Reyes-Claravall and Manolo F. Gorospe.[48] Former President Joseph
Estrada also extended ad interim appointments to Commissioners Abdul Gani M.
Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.[49]
The Presidents power to extend ad interim appointments may indeed briefly put the
appointee at the mercy of both the appointing and confirming powers. This situation,
however, is only for a short period - from the time of issuance of the ad interim
appointment until the Commission on Appointments gives or withholds its consent.
The Constitution itself sanctions this situation, as a trade-off against the evil of
disruptions in vital government services. This is also part of the check-and-balance
under the separation of powers, as a trade-off against the evil of granting the President
absolute and sole power to appoint. The Constitution has wisely subjected the
Presidents appointing power to the checking power of the legislature.
This situation, however, does not compromise the independence of the COMELEC as
a constitutional body. The vacancies in the COMELEC are precisely staggered to
insure that the majority of its members hold confirmed appointments, and not one
President will appoint all the COMELEC members.[50] In the instant case, the
Commission on Appointments had long confirmed four[51] of the incumbent
COMELEC members, comprising a majority, who could now be removed from office
only by impeachment. The special constitutional safeguards that insure the
independence of the COMELEC remain in place.[52] The COMELEC enjoys fiscal
autonomy, appoints its own officials and employees, and promulgates its own rules on
pleadings and practice. Moreover, the salaries of COMELEC members cannot be
decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo,
Borra and Tuason, as COMELEC Chairman and Commissioners, respectively, do not
constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C
of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first
assumption of office by Benipayo, Borra and Tuason are constitutional, the renewal of
the their ad interim appointments and their subsequent assumption of office to the same
positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of
the Constitution, which provides as follows:
The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last members for three years, without
reappointment. X x x. (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission
on Appointments, his ad interim appointment can no longer be renewed because this
will violate Section 1 (2), Article IX-C of the Constitution which prohibits
reappointments. Petitioner asserts that this is particularly true to permanent appointees
who have assumed office, which is the situation of Benipayo, Borra and Tuason if their
ad interim appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission on
Appointments can no longer be extended a new appointment. The disapproval is a final
decision of the Commission on Appointments in the exercise of its checking power on
the appointing authority of the President. The disapproval is a decision on the merits,
being a refusal by the Commission on Appointments to give its consent after
deliberating on the qualifications of the appointee. Since the Constitution does not
provide for any appeal from such decision, the disapproval is final and binding on the
appointee as well as on the appointing power. In this instance, the President can no
longer renew the appointment not because of the constitutional prohibition on
reappointment, but because of a final decision by the Commission on Appointments to
withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the
Commission on Appointments to organize is another matter. A by-passed appointment
is one that has not been finally acted upon on the merits by the Commission on
Appointments at the close of the session of Congress. There is no final decision by the
Commission on Appointments to give or withhold its consent to the appointment as
required by the Constitution. Absent such decision, the President is free to renew the
ad interim appointment of a by-passed appointee. This is recognized in Section 17 of
the Rules of the Commission on Appointments, which provides as follows:

Section 17. Unacted Nominations or Appointments Returned to the President.
Nominations or appointments submitted by the President of the Philippines which are
not finally acted upon at the close of the session of Congress shall be returned to the
President and, unless new nominations or appointments are made, shall not again be
considered by the Commission. (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment
can be considered again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim
appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly
explained in his concurring opinion in Guevara vs. Inocentes[53] why by-passed ad
interim appointees could be extended new appointments, thus:
In short, an ad interim appointment ceases to be effective upon disapproval by the
Commission, because the incumbent can not continue holding office over the positive
objection of the Commission. It ceases, also, upon the next adjournment of the
Congress, simply because the President may then issue new appointments - not because
of implied disapproval of the Commission deduced from its inaction during the session
of Congress, for, under the Constitution, the Commission may affect adversely the
interim appointments only by action, never by omission. If the adjournment of
Congress were an implied disapproval of ad interim appointments made prior thereto,
then the President could no longer appoint those so by-passed by the Commission. But,
the fact is that the President may reappoint them, thus clearly indicating that the reason
for said termination of the ad interim appointments is not the disapproval thereof
allegedly inferred from said omission of the Commission, but the circumstance that
upon said adjournment of the Congress, the President is free to make ad interim
appointments or reappointments. (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of
Section 16, Article VII of the present Constitution on ad interim appointments was
lifted verbatim.[54] The jurisprudence under the 1935 Constitution governing ad
interim appointments by the President is doubtless applicable to the present
Constitution. The established practice under the present Constitution is that the
President can renew the appointments of by-passed ad interim appointees. This is a
continuation of the well-recognized practice under the 1935 Constitution, interrupted
only by the 1973 Constitution which did not provide for a Commission on
Appointments but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution
applies neither to disapproved nor by-passed ad interim appointments. A disapproved
ad interim appointment cannot be revived by another ad interim appointment because
the disapproval is final under Section 16, Article VII of the Constitution, and not
because a reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment can be revived by a new ad interim
appointment because there is no final disapproval under Section 16, Article VII of the
Constitution, and such new appointment will not result in the appointee serving beyond
the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the
Commissioners shall be appointed x x x for a term of seven years without
reappointment. (Emphasis supplied) There are four situations where this provision will
apply. The first situation is where an ad interim appointee to the COMELEC, after
confirmation by the Commission on Appointments, serves his full seven-year term.
Such person cannot be reappointed to the COMELEC, whether as a member or as a
chairman, because he will then be actually serving more than seven years. The second
situation is where the appointee, after confirmation, serves a part of his term and then
resigns before his seven-year term of office ends. Such person cannot be reappointed,
whether as a member or as a chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven years. The third
situation is where the appointee is confirmed to serve the unexpired term of someone
who died or resigned, and the appointee completes the unexpired term. Such person
cannot be reappointed, whether as a member or chair, to a vacancy arising from
retirement because a reappointment will result in the appointee also serving more than
seven years.
The fourth situation is where the appointee has previously served a term of less than
seven years, and a vacancy arises from death or resignation. Even if it will not result
in his serving more than seven years, a reappointment of such person to serve an
unexpired term is also prohibited because his situation will be similar to those
appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution.
This provision refers to the first appointees under the Constitution whose terms of
office are less than seven years, but are barred from ever being reappointed under any
situation. Not one of these four situations applies to the case of Benipayo, Borra or
Tuason.
The framers of the Constitution made it quite clear that any person who has served any
term of office as COMELEC member whether for a full term of seven years, a
truncated term of five or three years, or even for an unexpired term of any length of
time can no longer be reappointed to the COMELEC. Commissioner Foz succinctly
explained this intent in this manner:
MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo
Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on
reappointment applies only when the term or tenure is for seven years. But in cases
where the appointee serves only for less than seven years, he would be entitled to
reappointment. Unless we put the qualifying words without reappointment in the case
of those appointed, then it is possible that an interpretation could be made later on their
case, they can still be reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case of
those first appointed under the Constitution, no reappointment can be made.[55]
(Emphasis supplied)
In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring opinion, quoted
Nacionalista vs. De Vera[57] that a [r]eappointment is not prohibited when a
Commissioner has held office only for, say, three or six years, provided his term will
not exceed nine years in all. This was the interpretation despite the express provision
in the 1935 Constitution that a COMELEC member shall hold office for a term of nine
years and may not be reappointed.
To foreclose this interpretation, the phrase without reappointment appears twice in
Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a term of seven years. The
second phrase prohibits reappointment of any person previously appointed for a term
of five or three years pursuant to the first set of appointees under the Constitution. In
either case, it does not matter if the person previously appointed completes his term of
office for the intention is to prohibit any reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on
Appointments does not constitute a term of office. The period from the time the ad
interim appointment is made to the time it lapses is neither a fixed term nor an
unexpired term. To hold otherwise would mean that the President by his unilateral
action could start and complete the running of a term of office in the COMELEC
without the consent of the Commission on Appointments. This interpretation renders
inutile the confirming power of the Commission on Appointments.
The phrase without reappointment applies only to one who has been appointed by the
President and confirmed by the Commission on Appointments, whether or not such
person completes his term of office. There must be a confirmation by the Commission
on Appointments of the previous appointment before the prohibition on reappointment
can apply. To hold otherwise will lead to absurdities and negate the Presidents power
to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act,
for lack of time, on the ad interim appointments first issued to appointees. If such ad
interim appointments can no longer be renewed, the President will certainly hesitate to
make ad interim appointments because most of her appointees will effectively be
disapproved by mere inaction of the Commission on Appointments. This will nullify
the constitutional power of the President to make ad interim appointments, a power
intended to avoid disruptions in vital government services. This Court cannot subscribe
to a proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three constitutional commissions.
The framers of the present Constitution prohibited reappointments for two reasons. The
first is to prevent a second appointment for those who have been previously appointed
and confirmed even if they served for less than seven years. The second is to insure
that the members of the three constitutional commissions do not serve beyond the fixed
term of seven years. As reported in the Journal of the Constitutional Commission,
Commissioner Vicente B. Foz, who sponsored[58]the proposed articles on the three
constitutional commissions, outlined the four important features of the proposed
articles, to wit:
Mr. Foz stated that the Committee had introduced basic changes in the common
provision affecting the three Constitutional Commissions, and which are: 1) fiscal
autonomy which provides (that) appropriations shall be automatically and regularly
released to the Commission in the same manner (as) provided for the Judiciary; 2) fixed
term of office without reappointment on a staggered basis to ensure continuity of
functions and to minimize the opportunity of the President to appoint all the members
during his incumbency; 3) prohibition to decrease salaries of the members of the
Commissions during their term of office; and 4) appointments of members would not
require confirmation.[59] (Emphasis supplied)
There were two important amendments subsequently made by the Constitutional
Commission to these four features. First, as discussed earlier, the framers of the
Constitution decided to require confirmation by the Commission on Appointments of
all appointments to the constitutional commissions. Second, the framers decided to
strengthen further the prohibition on serving beyond the fixed seven-year term, in the
light of a former chair of the Commission on Audit remaining in office for 12 years
despite his fixed term of seven years. The following exchange in the deliberations of
the Constitutional Commission is instructive:
MR. SUAREZ: These are only clarificatory questions, Madam President. May I call
the sponsors attention, first of all, to Section 2 (2) on the Civil Service Commission
wherein it is stated: In no case shall any Member be appointed in a temporary or acting
capacity. I detect in the Committees proposed resolutions a constitutional hangover, if
I may use the term, from the past administration. Am I correct in concluding that the
reason the Committee introduced this particular provision is to avoid an incident
similar to the case of the Honorable Francisco Tantuico who was appointed in an acting
capacity as Chairman of the Commission on Audit for about 5 years from 1975 until
1980, and then in 1980, was appointed as Chairman with a tenure of another 7 years.
So, if we follow that appointment to (its) logical conclusion, he occupied that position
for about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any
member who is appointed to any of the commissions does not serve beyond 7
years.[60] (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in
this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice
that there is no reappointment of any kind and, therefore as a whole there is no way
that somebody can serve for more than seven years. The purpose of the last sentence
is to make sure that this does not happen by including in the appointment both
temporary and acting capacities."[61] (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no
reappointment of any kind. On the other hand, the prohibition on temporary or acting
appointments is intended to prevent any circumvention of the prohibition on
reappointment that may result in an appointees total term of office exceeding seven
years. The evils sought to be avoided by the twin prohibitions are very specific -
reappointment of any kind and exceeding ones term in office beyond the maximum
period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution
tightened even further the screws on those who might wish to extend their terms of
office. Thus, the word designated was inserted to plug any loophole that might be
exploited by violators of the Constitution, as shown in the following discussion in the
Constitutional Commission:
MR. DE LOS REYES: On line 32, between the words appointed and in, I propose to
insert the words OR DESIGNATED so that the whole sentence will read: In no case
shall any Member be appointed OR DESIGNATED in a temporary or acting capacity.
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: In no case
shall any Member be appointed in a temporary or acting capacity.
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that
some lawyers make a distinction between an appointment and a designation. The
Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his
term exceeded the constitutional limit but the Minister of Justice opined that it did not
because he was only designated during the time that he acted as Commissioner on
Audit. So, in order to erase that distinction between appointment and designation, we
should specifically place the word so that there will be no more ambiguity. In no case
shall any Member be appointed OR DESIGNATED in a temporary or acting capacity.
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair
hears none; the amendment is approved.[62]
The ad interim appointments and subsequent renewals of appointments of Benipayo,
Borra and Tuason do not violate the prohibition on reappointments because there were
no previous appointments that were confirmed by the Commission on Appointments.
A reappointment presupposes a previous confirmed appointment. The same ad interim
appointments and renewals of appointments will also not breach the seven-year term
limit because all the appointments and renewals of appointments of Benipayo, Borra
and Tuason are for a fixed term expiring on February 2, 2008.[63] Any delay in their
confirmation will not extend the expiry date of their terms of office. Consequently,
there is no danger whatsoever that the renewal of the ad interim appointments of these
three respondents will result in any of the evils intended to be exorcised by the twin
prohibitions in the Constitution. The continuing renewal of the ad interim appointment
of these three respondents, for so long as their terms of office expire on February 2,
2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-
C of the Constitution.
Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the
EID and reassign her to the Law Department. Petitioner further argues that only the
COMELEC, acting as a collegial body, can authorize such reassignment. Moreover,
petitioner maintains that a reassignment without her consent amounts to removal from
office without due process and therefore illegal.
Petitioners posturing will hold water if Benipayo does not possess any color of title to
the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is
the de jure COMELEC Chairman, and consequently he has full authority to exercise
all the powers of that office for so long as his ad interim appointment remains effective.
Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative
Code, the Chairman of the COMELEC is vested with the following power:
Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who
shall be the Chief Executive Officer of the Commission, shall:
(4) Make temporary assignments, rotate and transfer personnel in accordance with the
provisions of the Civil Service Law. (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on
his own authority to transfer or reassign COMELEC personnel in accordance with the
Civil Service Law. In the exercise of this power, the Chairman is not required by law
to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and
February 15, 2001, attached as Annexes X, Y and Z to her Petition, indisputably show
that she held her Director IV position in the EID only in an acting or temporary
capacity.[64] Petitioner is not a Career Executive Service (CES) officer, and neither
does she hold Career Executive Service Eligibility, which are necessary qualifications
for holding the position of Director IV as prescribed in the Qualifications Standards
(Revised 1987) issued by the Civil Service Commission.[65] Obviously, petitioner
does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas
vs. Atty. Josefina G. Bacal,[66] this Court held that:
As respondent does not have the rank appropriate for the position of Chief Public
Attorney, her appointment to that position cannot be considered permanent, and she
can claim no security of tenure in respect of that position. As held in Achacoso v.
Macaraig:
It is settled that a permanent appointment can be issued only to a person who meets all
the requirements for the position to which he is being appointed, including the
appropriate eligibility prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be withdrawn
at will by the appointing authority and at a moments notice, conformably to established
jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of his appointment, which
in turn depends on his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first place, or as an
exception to the rule, may be appointed to it merely in an acting capacity in the absence
of appropriate eligibles. The appointment extended to him cannot be regarded as
permanent even if it may be so designated x x x.
Having been appointed merely in a temporary or acting capacity, and not possessed of
the necessary qualifications to hold the position of Director IV, petitioner has no legal
basis in claiming that her reassignment was contrary to the Civil Service Law. This
time, the vigorous argument of petitioner that a temporary or acting appointment can
be withdrawn or revoked at the pleasure of the appointing power happens to apply
squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a
prohibited act under Section 261 (h) of the Omnibus Election Code, which provides as
follows:
Section 261. Prohibited Acts. The following shall be guilty of an election offense:
(h) Transfer of officers and employees in the civil service - Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the civil
service including public school teachers, within the election period except upon prior
approval of the Commission.
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc
to effect transfers or reassignments of COMELEC personnel during the election
period.[67] Moreover, petitioner insists that the COMELEC en banc must concur to
every transfer or reassignment of COMELEC personnel during the election period.
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC
Resolution No. 3300 dated November 6, 2000,[68] 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:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
(h) Transfer of officers and employees in the civil service Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the civil
service including public school teachers, within the election period except upon
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,[69] the COMELEC Chairman is
the sole officer specifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the authority to transfer
or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will mean
amending the Revised Administrative Code, an act the COMELEC en banc cannot
legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment
of COMELEC personnel should carry the concurrence of the COMELEC as a collegial
body. Interpreting Resolution No. 3300 to require such concurrence will render the
resolution meaningless since the COMELEC en banc will have to approve every
personnel transfer or reassignment, making the resolution utterly useless. Resolution
No. 3300 should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval from the
COMELEC en banc to actually implement such transfer or reassignment.
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,
Benipayos 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, Benipayos
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. Costs against petitioner.
SO ORDERED.
[G.R. No. 149451. May 8, 2003]
REMEDIOS S. PADILLA, petitioner, vs. THE HONORABLE CIVIL SERVICE
COMMISSION and DEPARTMENT OF LABOR and EMPLOYMENT,
respondents.
CORONA, J.:
Before this Court is a petition for review of the decision[1] dated January 22, 2001 of
the Court of Appeals affirming (1) Resolution No. 980256[2] dated February 5, 1998
of the Civil Service Commission (CSC) dismissing petitioner Remedios Padillas
appeal and (2) Resolution No. 981425[3] 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
CSCs 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 petitioners
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
CSCs ruling by pointing out petitioners 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. [4]
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 petitioners 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 petitioners
appeal, as well as its Resolution No. 981425 dated June 10, 1998, is (sic) AFFIRMED.
SO ORDERED.[5]
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 petitioners 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.[6]
On July 4, 2001, the appellate court issued a resolution[7] denying petitioners motion
for reconsideration.
Hence, this appeal based on the following assignments of error:
I-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.[8]
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 petitioners 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.[9] The factual
findings of the Court of Appeals are generally conclusive and may not be reviewed on
appeal.[10] 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 courts factual disquisitions are
not supported by evidence.[11] 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 courts finding that she voluntarily resigned. Considering that petitioners
submission was premised on an alleged misapprehension of facts, she had the burden
of showing that the CSC and the appellate courts findings of fact were not supported
by evidence.[12] 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
removed from the service. The OSG presented as evidence petitioners own letter in
1990 addressed to Sec. Flerida Ruth Romero,[13] 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.[14] (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 petitioners 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.
[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[1] and June 17, 2003
resolution[2] 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,[3] 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 respondents 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 protestees 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.
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--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.
Under date of December 11, 1997, ATO Director Gilo wrote the CSC-NCR asking for
the suspension of the order recalling respondents 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 Gilos request, for
lack of merit.
Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted
Director Gilos request and affirmed the approval of respondents appointment as Chief
Aviation Safety Regulation Officer. He said:
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.
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 Calambas 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.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[4] dated March 14, 2003, the Court of Appeals granted the petition by
setting aside CSC Resolution Nos. 98-2970 and 99-1451 and approving respondents
appointment as Chief of the Aviation Safety Regulation Office.
Petitioners 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 respondents
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 respondents 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 petitioners contention, respondent has sufficiently complied with the
required experience standards.
First, upon the issuance of respondents appointment on November 28, 1994, the
qualification standards of the DOTC for the position of Chief Aviation Safety
Regulation Officer were as follows:
EDUCATION:
Bachelors 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[5]
As noted by the CSC-NCR,[6] 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.
Petitioners 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.[7] The word or is a disjunctive term signifying
dissociation and independence of one thing from another.[8] 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, 1981
July 16, 1981 to February 5, 1983
Supply Checker
Junior Aeronautical Engineer
February 6, 1983 to February 29, 1984
Air Carrier Safety Inspector
March 1, 1984 to February 28, 1987
March 1, 1987 to November 27, 1994
November 28, 1994 to date
Check Pilot I
Check Pilot II
Chief Aviation Safety Regulation Officer[9]
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,[10] this Court held that the rule that
appointees must possess the prescribed mandatory requirements cannot be so strictly
interpreted as to curtail an agencys 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
respondents 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, respondents promotional appointment was issued in accordance with
petitioners 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 ATOs 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.[11]
Because of respondents 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, respondents multifarious experiences and trainings[12] 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 Pilots License in 1998.[13] 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, respondents 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 respondents commendable performance, he was designated Chief of the
Air Transportation Office Operations Center in 1993 per Office Order No. 178-93,[14]
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.[15]
In Teologo vs. Civil Service Commission,[16] 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.[17]
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.,[18] 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.[19] 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.[20]
Respondent was the uncontested choice of the appointing authority. Then DOTC
Secretary Jesus B. Garcia dismissed the protest against respondents appointment. ATO
Executive Director Gilo also noted respondents full compliance with the qualifications
for the position. CSC-NCR Director Acebedo, who previously recalled respondents
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.[21] 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.[22]
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 petitioners assertion that respondents 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 courts approval of respondents 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 petitioners 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.
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 replaced without just
cause, he is entitled to serve the remaining term of his 12-month term with salaries.
This Court has ruled that where a non-eligible holds a temporary appointment, his
replacement by another non-eligible is not prohibited.7
Moreover, in Achacoso8 cited earlier, this Court held 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 the
expiration of his term upon his replacement, there is no longer any remaining term to
be served. Consequently, he can no longer be reinstated.
As to whether respondent is entitled to back salaries, it is not disputed that he was paid
his salary during the entire twelve-month period in spite of the fact that he served only
from September 25, 2000 to October 31, 2000, or for only one month and six days.
Clearly, he was overpaid.
WHEREFORE, this Court GRANTS the petition and REVERSES the assailed
Resolutions of the Court of Appeals. Considering that respondent’s employment was
validly terminated on October 31, 2000, he is ordered to refund the salaries he received
from that date up to September 24, 2001.
No costs.
SO ORDERED.
[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[1] which reversed
Resolution No. 93-5964 of the Civil Service Commission (CSC),[2] the latter declaring
that petitioners 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 MTRCBs legal Counsel -- Prosecutor
and Investigation Services (Supervising Legal Staff Officer).[3] 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 Moratos memorandum of 11 September 1987.[4]
Sometime in August 1991, the MTRCB passed MTRCB Resolution No. 8-1-91[5]
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.[6] 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,[7] 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[8] 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[9] 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.[10]
However, in Resolution No. 93-5964[11] 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 Boards
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.
Accordingly, he is automatically restored to his position of Atty. V with payment of
back salaries.
The MTRCBs motion for reconsideration was denied by the CSC in Resolution No.
94-2551[12] dated 20 June 1994.
In the meantime, specifically on 22 August 1994, CORPUZ became a permanent
employee of the Ombudsman.[13]
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.[14] 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 Aquino vs. Civil Service Commission, 208 SCRA 240; Mitra 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 respondents
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 petitioners 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[15] 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.[16]
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. 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 legal requirements for an appointment to a civil service position is essential to make it
of Appeals, vests upon the Board itself the power to, inter alia, approve or disapprove fully effective. That the employee involved had, in fact, assumed office and performed
the appointments of its personnel. 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
It is thus clear that there are two stages in the process of appointing MTRCB personnel, consent of another body required by law to complete the appointment. The tolerance,
other than its Secretary, namely: (a) recommendation by the Chairman which is acquiescence or mistake of the proper officials resulting in non-observance of the
accomplished by the signing of the appointment paper, which is among his powers requirements of law or rules to complete the appointment does not render the
under Section 5(d) above; and (b) approval or disapproval by the MTRCB of the requirements ineffective and unenforceable.[23]
appointment. As to the Secretary, it is the MTRCB itself that is empowered to appoint
said official pursuant to Section 16. 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
It is long settled in the law of public offices and officers that where the power of that he assumed office under color of a known appointment which is void by reason of
appointment is absolute, and the appointee has been determined upon, no further some defect or irregularity in its exercise.[24] Undeniably, under the facts here,
consent or approval is necessary, and the formal evidence of the appointment, the CORPUZ was such a de facto officer.
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 WHEREFORE, the instant petition is DENIED and the assailed decision of 13 October
complete only when such assent or confirmation is obtained. In either case, the 1995 of the Court of Appeals in CA-G.R. SP-No.37694 is AFFIRMED.
appointment becomes complete when the last act required of the appointing power is
performed.[17] Until the process is completed, the appointee can claim no vested right Costs against petitioner.
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 SO ORDERED.
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[18] 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[19] and Provincial Board of Cebu v. Presiding Judge of
Cebu Court of First Instance[20] where the appointments of subject employees were
disapproved by the Provincial Boards pursuant to the powers granted them; in Carillo
v. Court of Appeals[21] where the required consent of the municipal council in the
appointment of the chief of police was not obtained; and in Tomali v. Civil Service
Commission,[22] 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
G.R. No. 96298 May 14, 1991
RENATO M. LAPINID, petitioner, vs. CIVIL SERVICE COMMISSION,
PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY, respondents.
CRUZ, J.:
The issue raised in this case has been categorically resolved in a long line of cases that
should have since guided the policies and actions of the respondent Civil Service
Commission. Disregard of our consistent ruling on this matter has needlessly imposed
on the valuable time of the Court and indeed borders on disrespect for the highest
tribunal. We state at the outset that this conduct can no longer be countenanced.
Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the
position of Terminal Supervisor at the Manila International Container Terminal on
October 1, 1988. This appointment was protested on December 15, 1988, by private
respondent Juanito Junsay, who reiterated his earlier representations with the Appeals
Board of the PPA on May 9, 1988, for a review of the decision of the Placement
Committee dated May 3, 1988. He contended that he should be designated terminal
supervisor, or to any other comparable position, in view of his preferential right thereto.
On June 26, 1989, complaining that the PPA had not acted on his protest, Junsay went
to the Civil Service Commission and challenged Lapinid's appointment on the same
grounds he had earlier raised before the PPA. In a resolution dated February 14, 1990,
the Commission disposed as follows:
After a careful review of the records of the case, the Commission finds the appeal
meritorious. In the comparative evaluation sheets, the parties were evaluated according
to the following criteria, namely: eligibility; education; work experience;
productivity/performance/ attendance; integrity; initiative/leadership; and physical
characteristics/personality traits. The results of the evaluation are as follows:
JUNSAY, Juanito — 79.5
VILLEGAS, Benjamin — 79
LAPINID, Renato — 75
DULFO, Antonio — 78
MARIANO, Eleuterio — 79
FLORES, Nestor — 80
DE GUZMAN, Alfonso — 80
VER, Cesar — 80
It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over
that of protestees Lapinid (75) and Dulfo (78).
Foregoing premises considered, it is directed that Appellants Juanito Junsay and
Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees
Renato Lapinid and Antonio Dulfo respectively who may be considered for
appointment to any position commensurate and suitable to their qualifications, and that
the Commission be notified within ten (10) days of the implementation hereof.
SO ORDERED.
Upon learning of the said resolution, Lapinid, 7who claimed he had not been informed
of the appeal and had not been heard thereon, filed a motion for reconsideration on
March 19, 1990. This was denied on May 25, 1990. The Philippine Ports Authority
also filed its own motion for reconsideration on June 19, 1990, which was denied on
August 17, 1990. A second motion for reconsideration filed on September 14, 1990,
based on the re-appreciation of Lapinid's rating from 75% to 84%, was also denied on
October 19, 1990.
When the petitioner came to this Court on December 13, 1990, we resolved to require
Comments from the respondents and in the meantime issued a temporary restraining
order. The Solicitor General took a stand against the Civil Service Commission which,
at his suggestion, was allowed to file its own Comment. The petitioner filed a Reply.
The private respondent's Comment was dispensed with when it was not filed within
the prescribed period.
We see no reason to deviate from our consistent ruling on the issue before us.
In Luego v. Civil Service Commission,1 this Court declared:
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove
a permanent appointment on the ground that another person is better qualified than the
appointee and, on the basis of this finding, order his replacement by the latter?
Appointment is an essentially discretionary power and must 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. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified who
should have been preferred. This is a political question involving considerations of
wisdom which only the appointing authority can decide.
Significantly, the Commission on Civil Service acknowledged that both the petitioner
and the private respondent were qualified for the position in controversy. That
recognition alone rendered it functus officio in the case and prevented it from acting
further thereon except to affirm the validity of the petitioner's appointment. To be sure,
it had no authority to revoke the said appointment simply because it believed that the
private respondent was better qualified for that would have constituted an
encroachment on the discretion vested solely in the city mayor.
The same ruling has been affirmed, in practically the same language as Luego, in
Central Bank v. Civil Service Commission, 171 SCRA 744; Santiago v. Civil Service
Commission, 178 SCRA 733; Pintor v. Tan, G.R. No. 84022 and G.R. No. 85804,
March 9, 1989, En Banc, Minute Resolution; Galura v. Civil Service Commission,
G.R. No. 85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v. Mamangun,
G.R. No. 85941, June 15, 1989, En Banc, Minute Resolution; Remigio v. Chairman,
Civil Service Commission, G.R. No. 86324, July 6, 1989, En Banc, Minute Resolution;
Aurora Macacua v. Civil Service Commission, G.R. No. 91520, July 31, 1990, En
Banc, Minute Resolution; Abdulwahab A. Bayao v. Civil Service Commission, G.R.
No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbos v. Civil Service
Commission, G.R. No. 92561, September 12, 1990; Alicia D. Tagaro v. The Hon. Civil
Service Commission, et al., G.R. No. 90477, September 13, 1990, En Banc, Minute
Resolution; Elenito Lim v. Civil Service Commission, et al., G.R. No. 87145, October
11, 1990, En Banc, Minute Resolution; Teologo v. Civil Service Commission, G.R.
No. 92103, November 8, 1990; Simpao v. Civil Service Commission, G.R. No. 85976,
November 15, 1990.
Only recently, in Gaspar v. Court of Appeals2 this Court said:
The only function of the Civil Service Commission in cases of this nature, according
to Luego, is to review the appointment in the light of the requirements of the Civil
Service Law, and when it finds the appointee to be qualified and all other legal
requirements have been otherwise satisfied, it has no choice but to attest to the
appointment. Luego finally points out that the recognition by the Commission that both
the appointee and the protestant are qualified for the position in controversy renders it
functus officio in the case and prevents it from acting further thereon except to affirm
the validity of the former's appointment; it has no authority to revoke the appointment
simply because it considers another employee to be better qualified for that would
constitute an encroachment on the discretion vested in the appointing authority.
The determination of who among several candidates for a vacant position has the best
qualifications is vested in the sound discretion of the Department Head or appointing
authority and not in the Civil Service Commission. 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 interests, 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. The Civil Service
Commission cannot substitute its judgment for that of the Head of Office in this regard.
It is therefore incomprehensible to the Court why, despite these definitive
pronouncements, the Civil Service Commission has seen fit to ignore, if not defy, the
clear mandate of the Court.
We declare once again, and let us hope for the last time, that the Civil Service
Commission has no power of appointment except over its own personnel. Neither does
it have the authority to review the appointments made by other offices except only to
ascertain if the appointee possesses the required qualifications. The determination of
who among aspirants with the minimum statutory qualifications should be preferred
belongs to the appointing authority and not the Civil Service Commission. It cannot
disallow an appointment because it believes another person is better qualified and
much less can it direct the appointment of its own choice.
Appointment is a highly discretionary act that even this Court cannot compel.1âwphi1
While the act of appointment may in proper cases be the subject of mandamus, the
selection itself of the appointee—taking into account the totality of his qualifications,
including those abstract qualities that define his personality—is the prerogative of the
appointing authority. This is a matter addressed only to the discretion of the appointing
authority. It is a political question that the Civil Service Commission has no power to
review under the Constitution and the applicable laws.
Commenting on the limits of the powers of the public respondent, Luego declared:
It is understandable if one is likely to be misled by the language of Section 9(h) of
Article V of the Civil Service Decree because it says the Commission has the power to
"approve" and "disapprove" appointments. Thus, it is provided therein that the
Commission shall have inter alia the power to:
9(h) Approve all appointments, whether original or promotional, to positions in the
civil service, except those presidential appointees, members of the Armed Forces of
the Philippines, police forces, firemen, and jailguards, and disapprove those where the
appointees do not possess appropriate eligibility or required qualifications. (Emphasis
supplied)
leniently regarded the attitude of the public respondent on this matter as imputable to
a lack of comprehension and not to intentional intransigence. But we are no longer
disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by
the Civil Service Commission after the date of the promulgation of this decision shall
be considered contempt of this Court and shall be dealt with severely, in view
especially of the status of the contemner.
While we appreciate the fact that the Commission is a constitutional body, we must
stress, as a necessary reminder, that every department and office in the Republic must
know its place in the scheme of the Constitution. The Civil Service Commission should
recognize that its acts are subject to reversal by this Court, which expects full
compliance with its decisions even if the Commission may not agree with them.
The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its
peril.

However, a full reading of the provision, especially of the underscored parts, will make
it clear that all the Commission is actually allowed to do is check whether or not the
appointee possesses the appropriate civil service eligibility or the required
qualifications. If he does, his appointment is approved; if not, it is disapproved. No
other criterion is permitted by law to be employed by the Commission when it acts
on—or as the Decree says, "approves" or "disapproves'—an appointment made by the
proper authorities.
WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil
Service Commission dated February 14, 1990, May 25, 1990, August 17, 1990, and
October 19, 1990, are REVERSED and SET ASIDE. The temporary restraining order
dated December 13, 1990, is made PERMANENT. No costs.
SO ORDERED.

The Court believes it has stated the foregoing doctrine clearly enough, and often
enough, for the Civil Service Commission not to understand them. The bench does; the
bar does; and we see no reason why the Civil Service Commission does not. If it will
not, then that is an entirely different matter and shall be treated accordingly.

We note with stern disapproval that the Civil Service Commission has once again
directed the appointment of its own choice in the case at bar. We must therefore make
the following injunctions which the Commission must note well and follow strictly.

Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to
desist from disregarding the doctrine announced in Luego v. Civil Service Commission
and the subsequent decisions reiterating such ruling. Up to this point, the Court has
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and
RAMON ANINO, petitioners, vs. JULIETA MONSERATE, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
This petition for review on certiorari[1] seeks to set aside the Decision dated June 20,
1997 of the Court of Appeals in CA-G.R. No. 39670,[2] declaring null and void the
Resolution No. 952043 dated March 21, 1995 and Resolution No. 956640 dated
October 24, 1995 of the Civil Service Commission (CSC), and ordering the
reinstatement of Julieta G. Monserate as Division Manager II of the Resources
Management Division, Ports Management Office, Philippine Ports Authority (PPA),
Iloilo City.
The facts are:
Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper
II in the Port Management Office, PPA, Iloilo City. Barely a year later, she was
promoted to the position of Cashier II and then as Finance Officer (SG-16) in 1980.[3]
On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA,
appointed[5] respondent to the position of Manager II (Resource Management
Division). On even date, respondent assumed office and discharged the functions
thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director of
the Civil Service Field Office-PPA) approved her appointment.
Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to
respondent per the Comparative Data Sheet earlier quoted, filed an appeal/petition with
the PPA Appeals Board, protesting against respondents appointment. The PPA
Appeals Board, in a Resolution[6] dated August 11, 1988, sustained the protest and
rendered ineffective respondents appointment based on (1) CSC MC No. 5, s. 1988,
Par. 3;[7] (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;[8] and (3) Civil Service
Eligibility. These grounds were not explained or discussed in the Resolution, the
dispositive portion of which reads:
WHEREFORE, premises considered, this Board upholds the appointment of Ramon
A. Anino as Resources Management Division Manager of the Port Management Office
of Iloilo.

In the early part of 1988, when the PPA underwent a reorganization, respondent On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-
applied for the permanent position of Manager II (SG-19) of the Resource Management 88[9] (entitled Creation of the PPA Managers Pool), dated September 28, 1988, issued
Division, same office. The Comparative Data Sheet[4] accomplished by the PPA by the new PPA General Manager, Mr. Rogelio A. Dayan. That Special Order excluded
Reorganization Task Force shows the ranking of the six (6) aspirants to the said the name of respondent from the pool-list and placed instead the name of petitioner as
position, thus: Manager II, Resource Management Division. In effect, the Special Order implemented
COMPARATIVE DATA SHEET the August 11, 1988 Resolution of the PPA Appeals Board.
OFFICE: PMO ILOILO
DIVISION: RES. MANAGEMENT DIVISION Aggrieved, respondent filed with the PPA General Manager an appeal/request for
POSITION: DIVISION MANAGER clarification dated November 2, 1988.[10] She questioned her replacement under PPA
REQUIRED CS ELIG.: CS PROF / RA 1080 Special Order No. 479-88, claiming that the proceedings before the PPA Appeals
CANDIDATES ELIGIBILITY xxx TOTAL Board were irregular because (1) she was not notified of the hearing before it; (2) she
1. MONSERATE, JULIETA CS Prof. xxx 79.5 was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a
2. ANINO, RAMON 1st grade xxx 70 copy of the protest filed by petitioner Anino;[11] (3) she was not informed of the
3. TEODOSIO, APRIL PD 907 (CPA) xxx 67 reasons behind her replacement; and (4) their Port Manager (in Iloilo City), who was
4. MORTOLA, DARIO CS Prof. xxx 67 then an official member of the Board, was not included in the said proceedings.
5. ESPINOSA, AMALIK Bar xxx 63.5 On November 8, 1988, pending resolution of her appeal/request for clarification,
6. PERFECTO, BASCOS RA 1080 xxx 59.5 respondent received a copy of PPA Special Order No. 492-88[12] dated October 21,
1988, also issued by General Manager Dayan. This PPA Order officially reassigned
her to the position of Administrative Officer (SG-15) which was petitioner Anino's
former position and was lower than her previous position as Finance Officer (SG 16)
before she was appointed as Division Manager.
Apparently at a loss with the turn of events, coupled by the inaction of PPA General
Manager Dayan on her earlier appeal/request for clarification, respondent filed on
November 25, 1988 a precautionary appeal[13] with the CSC. She manifested that as
of said date (November 25), she has not yet been furnished a certified copy of the PPA
Appeals Board Resolution.
On January 2, 1989, respondent received a copy of her new appointment as
Administrative Officer dated October 1, 1988.[14] It was also during this time when
she learned that PPA General Manager Dayan had just issued petitioners appointment
dated October 21, 1988 as Manager II in the Resource Management Division effective
February 1, 1988.
On January 16, 1989, respondent filed with the CSC an appeal formally protesting
against petitioner Aninos appointment and at the same time questioning the propriety
of the August 11, 1988 Resolution of the PPA Appeals Board. This appeal remained
pending with the CSC for more than six (6) years despite respondent's requests for
early resolution. In the meantime, she assumed the position of Administrative Officer.
Eventually, the CSC, in its Resolution No. 95-2043[15] dated March 21, 1995,
dismissed respondents appeal, thus:
It is well-established rule that an appointment, although approved by this Commission,
does not become final until the protest filed against it is decided by the agency or by
the Commission. Although Monserate had already assumed the position of RMD
Manager II, the appointing authority may still withdraw the same if a protest is
seasonably filed. This is covered by Section 19, Rule VI of the Omnibus Rules
implementing EO 292 x x x.
Monserates claim that she is more qualified than Anino is not relevant to the issue
before this Commission. In cases of protest filed or appealed to the Commission, the
main question to be resolved is whether or not the appointee meets the qualification
standard. x x x. The Commission will not disturb the choice of the appointing authority
as long as the appointee meets the qualification prescribed for the position in question.
Respondent filed a motion for reconsideration but the same was denied by the CSC in
its Resolution No. 95-6640 dated October 24, 1995.
In due time, respondent filed with the Court of Appeals a petition for review
impleading as respondents the PPA General Manager and petitioner Anino.
On June 20, 1997, the Court of Appeals rendered a Decision[16] nullifying the twin
Resolutions of the CSC. It ruled that the August 11, 1988 Resolution of the PPA
Appeals Board was not supported by evidence and that the same was irregularly issued
due to lack of proper notice to respondent with respect to the Boards proceedings. It
concluded that her reassignment from the position of Manager II, Resource
Management Division (SG-19), to the position of Administrative Officer (SG-15) was
a demotion violative of her constitutional right to security of tenure and due process.
The dispositive portion of the Court of Appeals' Decision reads:
THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null
and void Resolution Nos. 952043 and 95640 (should be 956640) dated March 21 and
October 21, 1988 (should be October 24, 1995), of the Civil service Commission; and
directing the reinstatement of the petitioner to the position of Resource Management
Division Manager II.
SO ORDERED.
Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the
present petition. On November 30, 1997, petitioner Anino retired from the government
service.[17]
Petitioners ascribe to the Court of Appeals the following errors:
I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT
RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES
MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER,
THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.

II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF
WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATES
APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER,
ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE
PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR
BY THE AGENCY OR THE CSC.
III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF
JUDGMENT IN IGNORING THAT IN CASES OF PROTEST FILED OR
APPEALED TO THE CSC, THE MAIN QUESTION TO BE RESOLVED IS
WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION
STANDARD.[18]
The pivotal issue in this case is whether or not there was due process when respondent
was replaced by petitioner Anino from her position as Manager II, Resource
Management Division, and demoted as Administrative Officer.
Petitioners vehemently aver that respondent was never demoted since demotion, being
in the nature of administrative penalty, presupposes a conviction in an administrative
case. Here, respondent was not charged of any administrative case. Rather, she was
displaced from her position as an aftermath of the PPA reorganization, authorized by
law, the implementation of which having been carried out with utmost good faith.
Furthermore, the said displacement was just the necessary effect of the August 11,
1988 Resolution of the PPA Appeals Board which sustained petitioner Aninos timely
protest against respondents appointment. Petitioners theorize that the appointment of
respondent as Resource Management Division Manager did not become final until the
protest filed against her was favorably decided in her favor by the CSC. In support of
this contention, they cited Section 19, Rule VI of the Omnibus Rules Implementing
Book V of Executive Order No. 292 (otherwise known as the Administrative Code of
1987), which provides inter alia:
SEC 19. An appointment, though contested, shall take effect immediately upon its
issuance if the appointee assumes the duties of the position and the appointee is entitled
to receive the salary attached to the position. However, the appointment, together with
the decision of the department head, shall be submitted to the Commission for
appropriate action within 30 days from the date of its issuance, otherwise the
appointment becomes ineffective thereafter. Likewise, such appointment shall become
ineffective in case the protest is finally resolved against the protestee, in which case,
he shall be reverted to his former position.
Petitioners also contend that the head of an agency, being the appointing authority, is
the one most knowledgeable to decide who can best perform the functions of the office.
The appointing authority has a wide latitude of choice subject only to the condition
that the appointee should possess the qualifications required by law. Consequently, the
CSC acted rightly when it did not interfere in the exercise of discretion by the PPA
appointing authority, there being no evidence of grave abuse of discretion thereof or
violation of the Civil Service Law and Rules.
The petition is unmeritorious.
In the first place, the PPA reorganization in 1988 has nothing to do with respondents
demotion from the contested position of Manager II, Resource Management Office
(SG-19), to the lower position of Administrative Officer (SG-15). Antithetically, it was
precisely because of the said reorganization that respondent applied to the higher
position of Division Manager II. In fact, the Comparative Data Sheet accomplished by
the PPA Reorganization Task Force itself shows that respondent ranked No. 1, while
petitioner Anino ranked No. 2, from among the six (6) contenders to the said post.
Respondent was eventually issued a permanent appointment as such Division Manager
on February 1, 1988 by then PPA General Maximo Dumlao, Jr., during which time she
actually assumed office and discharged its functions. This appointment was later
approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva
of the Civil Service Field Office-PPA.
Clearly, it was only after the reorganization and upon the issuance of the August 11,
1988 Resolution of the PPA Appeals Board when respondent was demoted to the lower
position of Administrative Officer. This is further shown by the following orders and
appointments subsequently issued by then PPA General Manager Rogelio Dayan:
1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded
respondent Monserate from the PPA Managers pool-list;
2. Appointment of respondent, dated October 1, 1988, to the position of Administrative
Officer;
3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned
respondent to the position of Administrative Officer; and
4. Appointment of petitioner Anino, dated October 21, 1988, to the position of
Manager II, Resource Management Division, effective February 1, 1988.
Therefore, contrary to petitioners claim, respondent was demoted, not by reason of the
PPA reorganization in 1988, but due to the PPA Appeals Board Resolution dated
August 11, 1988 sustaining petitioner Aninos protest against respondents appointment.
Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988
Resolution of the PPA Appeals Board which upholds the appointment of Ramon A.
Anino as Resource Management Division Manager. But how can it uphold his
appointment when he was not yet appointed then? It bears stressing that he was
appointed on a much later date - October 21, 1988, or more than two (2) months after
August 11, 1998 when the PPA Appeals Board Resolution was issued. Stated
differently, the PPA Appeals Board could not uphold an appointment which was not
yet existing.
Equally questionable are the grounds for respondents demotion stated in the August
11, 1998 Resolution: (1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986,
Par. A, 1.2 and Par. B; and (3) Civil Service Eligibility. These grounds are
incomprehensible for lack of discussion or explanation by the Board to enable
respondent to know the reason for her demotion.
We uphold the Court of Appeals finding that the August 11, 1998 PPA Appeals Board
Resolution was void for lack of evidence and proper notice to respondent. As aptly
held by the Appellate Court:
In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding
the appointment of the private respondent (Ramon Anino) as Division Manager, the
grounds against petitioner's (Julieta Monserate) appointment were: a) the CSC MC No.
5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil
service eligibility.
To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported
by evidence. Of the CSC MC No. 5, the petitioner had no pending administrative or
criminal case at the time of her appointment as Manager. x x x.
With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review,
evaluation and recommendation of her appointment as Manager II, passed several
committees created by the PPA. x x x. Moreover, she had a 1.9 average performance
rating compared to the private respondent who only got 2.03. x x x.
On eligibility, she has a Career Service Professional eligibility while the private
respondent only has a First Grade Civil Service Eligibility.
She added that she was not aware of any proceeding on her demotion as a Division
Manager. As a matter of fact, it was only upon her iniative sometime during the latter
part of November, 1988 that she was able to obtain a copy of the August 11, 1988
Resolution of the Appeals Board. The resolution sustained the private respondents
appointment as Division Manager even if on August 11, 1988, he was not yet extended
any appointment. As a matter of fact, he was appointed only on October 1, 1988
(should be October 21, 1988).
Furthermore, she said that the resolution of the PPA Appeals Board appears irregular,
if not null and void. She was never notified of any proceeding; she was not furnished
either a copy of the resolution. What she received instead was a Special Order dated
September 29, 1988 already ordering her demotion. She was not at all given the
oppurtunity of defending herself before the Appeals Board.
In the case now before us, the petitioner did not receive or was not given a copy of the
August 11, 1988 Resolution of the Appeals Board. She did not even know that she was
demoted until after she received a copy of the of the Special Order No. 479-88.[19]
From all indications, it is indubitable that substantial and procedural irregularities
attended respondents demotion from the position of Manager II, Resource
Management Division, to the lower position of Administrative Officer. Indeed, her
demotion, tantamount to a revocation of her appointment as Manager II, is a patent
violation of her constitutional rights to security of tenure and due process. In Aquino
vs. Civil Service Commission,[20] this Court emphasized that once an appointment is
issued and the moment the appointee assumes a position in the civil service under a
completed appointment, he acquires a legal, not merely equitable, right (to the position)
which is protected not only by statute, but also by the constitution, and cannot be taken
away from him either by revocation of the appointment, or by removal, except for
cause, and with previous notice and hearing.
Concededly, the appointing authority has a wide latitude of discretion in the selection
and appointment of qualified persons to vacant positions in the civil service.[21]
However, the moment the discretionary power of appointment is exercised and the
appointee assumed the duties and functions of the position, such appointment cannot
anymore be revoked by the appointing authority and appoint another in his stead,
except for cause. Here, no iota of evidence was ever established to justify the
revocation of respondent's appointment by demoting her. Respondents security of
tenure guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)]
should not be placed at the mercy of abusive exercise of the appointing power.[22]
Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post
as Manager II in the Resource Management Division, it merely restored her
appointment to the said position to which her right to security of tenure had already
attached. To be sure, her position as Manager II never became vacant since her
demotion was void. In this jurisdiction, "an appointment to a non-vacant position in
the civil service is null and void ab initio."[23]
We now delve on the backwages in favor of respondent.
The challenged Court of Appeals Decision ordered the reinstatement of respondent
without awarding backwages. This matter becomes controversial because respondent
assumed the lower position of Administrative Officer during the pendency of her
protest against petitioner Aninos appointment to the contested position. Also,
petitioner Anino retired from the service on November 30, 1997.
In this respect, while petitioner Aninos appointment to the contested position is void,
as earlier discussed, he is nonetheless considered a de facto officer during the period
of his incumbency.[24] A de facto officer is one who is in possession of an office and
who openly exercises its functions under color of an appointment or election, even
though such appointment or election may be irregular.[25] In Monroy vs. Court of
Appeals,[26] this Court ruled that a rightful incumbent of a public office may recover
from a de facto officer the salary received by the latter during the time of his wrongful
tenure, even though he (the de facto officer) occupied the office in good faith and under
color of title. A de facto officer, not having a good title, takes the salaries at his risk
and must, therefore, account to the de jure officer for whatever salary he received
during the period of his wrongful tenure. In the later case of Civil Liberties Union vs.
Executive Secretary,[27] this Court allowed a de facto officer to receive emoluments
for actual services rendered but only when there is no de jure officer, thus:
x x x in cases where there is no de jure officer, a de facto officer who, in good faith,
has had possession of the office and has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office, and may in appropriate action recover
the salary, fees and other compensations attached to the office.
In fine, the rule is that where there is a de jure officer, a de facto officer, during his
wrongful incumbency, is not entitled to the emoluments attached to the office, even if
he occupied the office in good faith. This rule, however, cannot be applied squarely on
the present case in view of its peculiar circumstances. Respondent had assumed under
protest the position of Administrative Officer sometime in the latter part of 1988, which
position she currently holds. Since then, she has been receiving the emoluments, salary
and other compensation attached to such office. While her assumption to said lower
position and her acceptance of the corresponding emoluments cannot be considered as
an abandonment of her claim to her rightful office (Division Manager), she cannot
recover full backwages for the period when she was unlawfully deprived thereof. She
is entitled only to backpay differentials for the period starting from her assumption as
Administrative Officer up to the time of her actual reinstatement to her rightful position
as Division Manager. Such backpay differentials pertain to the difference between the
salary rates for the positions of Manager II and Administrative Officer. The same must
be paid by petitioner Anino corresponding from the time he wrongfully assumed the
contested position up to the time of his retirement on November 30, 1997.
WHEREFORE, the petition is DENIED. The challenged Decision of the Court of
Appeals dated June 20, 1997 is AFFIRMED with MODIFICATION in the sense that
petitioner Ramon A. Anino is ordered to pay respondent Julieta Monserate backpay
differentials pertaining to the period from the time he wrongfully assumed the
contested position of Manager II up to his retirement on November 30, 1997.
SO ORDERED.
A. Appointment by the President
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 —
(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.
(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.
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.
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 MR. REGALADO: Madam President, the Committee feels that this matter should
amendment is to delete the words "and bureaus" on line 26. be submitted to the body for a vote.

MR. FOZ: That is correct. MR. DE CASTRO: Thank you.

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.
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.
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.

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?
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. FOZ: Yes. MR. DAVIDE: Madam President.

MR. MAAMBONG: Thank you. THE PRESIDENT: Commissioner Davide is recognized.

THE PRESIDENT: Is this clear now? What is the reaction of the Committee?
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.
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:
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.
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
We are furthermore told:
... (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
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.
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:
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.
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 reiterated my dissent and urged a re-examination of the
doctrine stated in Sarmiento v. Mison.
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 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
without confirmation by the Commission on Appointments, another petition is filed
with this Court.
I, therefore, VOTE with the majority to DISMISS the PETITION.
CRUZ, J., dissenting:
I dissent on the basis of my dissent in Sarmiento v. Mison, 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 ground merely of adherence
to judicial precedent, however unsound.
G.R. No. 191002 April 20, 2010
ARTURO M. DE CASTRO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA
MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P.
MENDOZA, Petitioner,
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V.
TAN, JR.; NATIONAL UNION OF PEOPLE’S LAWYERS; MARLOU B.
UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P.
TORREON, and the latter in his own personal capacity as a MEMBER of the
PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG
BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN
SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT
EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN
NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL
GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS;
LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK
TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE
EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;
WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL
LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by
YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP;
TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-
VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and
GUINEVERE DE LEON; AQUILINO Q. PIMENTEL, JR.; Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x

x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191342

G.R. No. 191149 ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and
ATTY. ROLAND B. INTING (IBP Governor-Eastern Visayas), Petitioners,
JOHN G. PERALTA, Petitioner, vs.
vs. JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA
MACAPAGAL-ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
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:
(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.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), 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.1avvphi1
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.1awph!1
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.
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.1
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. 2
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.3 In a hierarchical judicial system like
ours, the decisions of the higher courts bind the lower courts, but the courts of co-
ordinate 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.4
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.5 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.6
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 modify
or reverse a doctrine or principle of law laid down in any decision rendered en banc or
in division.7
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,"8 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.9 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.10
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 refer to the Members
of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended
point in order to suit the purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we are
resolving that because all the Members of the present Court were appointed by the
incumbent President, a majority of them are now granting to her the authority to
appoint the successor of the retiring Chief Justice.
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 the contrary proceeds from malice and condescension. Neither
the outgoing President nor the present Members of 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 vacancies created by such inexorable retirements within 90
days from their occurrence. Her official duty she must comply with. So must we ours
who are tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
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. 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
temporary physical or legal impossibility of compliance, as 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 appointments ban; when there is already
a quorum in the 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 position of Chief Justice (or Justice of this Court) on or before the
occurrence of the vacancy.
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."
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 which case the JBC could never anticipate the death of a
Justice, and could never submit a list to the President on or before the occurrence of
vacancy.
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 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 is provided for by law, confirmed by tradition, and settled by
jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions for Reconsideration,
failed to rebut the foregoing crucial matters.
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.
CONCHITA CARPIO MORALES
Associate Justice
The Lawphil Project - Arellano Law Foundation
CONCURRING AND DISSENTING OPINION
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 Valenzuela1 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.
I have addressed most, if not all, of these issues and I submit my Separate Opinion2 as
my basic response to the motions for reconsideration, supplemented by the discussions
below.
As I reflected in my Separate Opinion (which three other Justices joined),3 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.
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.
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. 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 why the De Castro4 and Peralta5 petitions
should be 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 functions and, for this
reason, cannot be the subject of a 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.6 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. They
claim that the Court cannot exercise the power of 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.7
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,8 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.9 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.10
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.11 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."12
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.13 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.14 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."15
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 2010.16 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.17
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,18 not on the basis of
the power of judicial review.19 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.
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.20 In Social Justice Society v. Atienza,21 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 or what standards to use to determine 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,22 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.23 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,24 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.25
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.
Section 15 on its face disallows any appointment in clear negative terms ("shall not
make") without specifying the appointments covered by the prohibition.26 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.27 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.28 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 Constitution must be read and understood as a whole,
reconciling and harmonizing apparently conflicting provisions so that all of them can
be given full force and effect,29 unless the Constitution itself expressly states
otherwise.30
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 departments31 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. 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,32 or unless this Court, in its role as interpreter of
the Constitution, has spoken on the appropriate interpretation that should be made.33
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 President’s
appointing authority. This harmonization will 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).
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 integrity of the
election; a full Court is ideal during this 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 pejorative meaning in contemporary society.
As I intimated in my Separate Opinion, the imputation of distrust can be made against
any appointing authority, whether outgoing or incoming. The incoming President
himself will be before this Court if an election contest arises; any President, past or
future, would also naturally wish favorable outcomes in legal problems that the Court
would resolve. These possibilities and the 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 measure, the record of past Chief Justices and of this Court speaks for itself with
respect to the Justices’ relationship with, and deferral to, the appointing authority in
their decisions.
What should not be forgotten in examining the records of the Court, from the prism of
problems an electoral exercise may bring, is the Court’s unique and proven capacity to
intervene and diffuse situations that are potentially explosive for the nation. EDSA II
particularly comes to mind in this regard (although it was an event that was not rooted
in election problems) as it is a perfect example of the potential for damage to the nation
that the Court can address and has addressed. When acting in this role, a vacancy in
the Court is not only a vote less, but a significant contribution less in the Court’s
deliberations and capacity for action, especially if the missing voice is the voice of the
Chief Justice.
Be it remembered that if any EDSA-type situation arises in the coming elections, it
will be compounded by the lack of leaders because of the lapse of the President’s term
by June 30, 2010; by a possible failure of succession if for 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.34 In this scenario,
only the Judiciary of the three great departments of government stands unaffected by
the election and should at least therefore be complete to enable it to discharge its
constitutional role to its fullest potential and capacity. To state the obvious, leaving the
Judiciary without any permanent leader in this scenario may immeasurably complicate
the problem, as all three departments of government will then be leaderless.
To stress what I mentioned on this point in my Separate Opinion, the absence of a
Chief Justice will make a lot of difference in the effectiveness of the Court as he or she
heads the Judiciary, sits as Chair of the JBC and of the 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 from the past when the weightiest of issues were tackled
and promptly resolved by the Court. Unseen by the general public in all these was the
leadership that was there to ensure that the Court would act as one, in the spirit of
harmony and stability although divergent in their individual views, as the Justices
individually make their contributions to the collegial result. To some, this leadership
may only be symbolic, as the Court has fully functioned in the past even with an
incomplete membership or under an Acting Chief Justice. But as I said before, an
incomplete Court "is not a whole Supreme Court; it will only be a Court with 14
members who would act and vote on all matters before it." To fully recall what I have
said on this matter:
The importance of the presence of one Member of 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. On an issue of the constitutionality of a
law, treaty or statute, a tie vote – which is possible in a 14 member court – means that
the constitutionality is upheld. This was our 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, or a
cautionary word less for the Court. One voice can be a big difference if the missing
voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the ascendancy
in the Court of a permanent sitting Chief Justice cannot be equaled. He is the first
among equals – a primus inter pares – who sets the tone for the Court and the Judiciary,
and who is looked up to on all matters, whether administrative or judicial. To the world
outside the Judiciary, he is the personification of the Court and the whole Judiciary.
And this is not surprising since, as Chief Justice, he not only chairs the Court en banc,
but chairs as well the Presidential Electoral Tribunal that sits in judgment over election
disputes affecting the President and the Vice-President. Outside of his immediate Court
duties, he sits as Chair of the Judicial and Bar Council, 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 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. 35
Given these views, I see no point in re-discussing the finer points of technical
interpretation and their supporting latin maxims that I have addressed in my Separate
Opinion and now feel need no further elaboration; maxims can be found to serve a
pleader’s every need and in any case are the last interpretative tools in constitutional
interpretation. Nor do I see any point in discussing arguments based on the intent of
the framers of the Constitution now cited by the parties in the contexts that would serve
their own ends. As may be evident in these discussions, other than the texts of the
disputed provisions, I prefer to examine their purposes and the consequences of their
application, understood within the context of democratic values. Past precedents are
equally invaluable for the lead, order, and stability they contribute, but only if they are
in point, certain, and still alive to current realities, while the history of provisions,
including the intents behind them, are primarily important to ascertain the purposes the
provisions serve.
From these perspectives and without denigrating the framers’ historical contributions,
I say that it is the Constitution that now primarily speaks to us in this case and what we
hear are its direct words, not merely the recorded isolated debates reflecting the
personal intents of the constitutional commissioners as cited by the parties to fit their
respective theories. The voice speaking the words of the Constitution is our best guide,
as these words will unalterably be there for us to read in the context of their purposes
and the nation’s needs and circumstances. This Concurring and Dissenting Opinion
hears and listens to that voice.
The Valenzuela Decision
The ponencia’s ruling reversing Valenzuela, in my view, is out of place in the present
case, since at issue here is the appointment of the Chief Justice during the period of the
election ban, not the appointment of lower court judges that Valenzuela resolved. To
be perfectly clear, the conflict in the constitutional provisions is not confined to Article
VII, Section 15 and Article VIII, Section 4(1) with respect to the appointment of
Members of the Supreme Court; even before the Valenzuela ruling, the conflict already
existed between Article VII, Section 15 and Article VIII, Section 9 – the provision on
the appointment of the justices and judges of courts lower than the Supreme Court.
After this Court’s ruling in Valenzuela, no amount of hairsplitting can result in the
conclusion that Article VII, Section 15 applied the election ban over the whole
Judiciary, including the Supreme Court, as the facts and the fallo of Valenzuela plainly
spoke of the objectionable appointment of two Regional Trial 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.
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 appointment 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 Aytona36 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
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 Malacañan 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 Malacañan'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, Malacañan
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 positions1 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.
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.
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.' .
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 (Osmeña 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?
. seemingly to the contrary was cited to refute this view of the court, and so the decision
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
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 Malacañan 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
Malacañan? 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.
B. Appointment under Civil Service Qualification Standard
[G.R. No. 98107. August 18, 1997]
BENJAMIN C. JUCO, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and NATIONAL HOUSING CORPORATION, respondents.
DECISION
HERMOSISIMA, JR., J.:
This is a petition for certiorari to set aside the Decision of the National Labor Relations
Commission (NLRC) dated March 14, 1991, which reversed the Decision dated May
21, 1990 of Labor Arbiter Manuel R. Caday, on the ground of lack of jurisdiction.
Petitioner Benjamin C. Juco was hired as a project engineer of respondent National
Housing Corporation (NHC) from November 16, 1970 to May 14, 1975. On May 14,
1975, he was separated from the service for having been implicated in a crime of theft
and/or malversation of public funds.
On March 25, 1977, petitioner filed a complaint for illegal dismissal against the NHC
with the Department of Labor.
On September 17, 1977, the Labor Arbiter rendered a decision dismissing the
complaint on the ground that the NLRC had no jurisdiction over the case.[1]
Petitioner then elevated the case to the NLRC which rendered a decision on December
28, 1982, reversing the decision of the Labor Arbiter.[2]
Dissatisfied with the decision of the NLRC, respondent NHC appealed before this
Court and on January 17, 1985, we rendered a decision, the dispositive portion thereof
reads as follows:
WHEREFORE, the petition is hereby GRANTED. The questioned decision of the
respondent National Labor Relations Commission is SET ASIDE. The decision of the
Labor Arbiter dismissing the case before it for lack of jurisdiction is REINSTATED.[3]
On January 6, 1989, petitioner filed with the Civil Service Commission a complaint
for illegal dismissal, with preliminary mandatory injunction.[4]
On February 6, 1989, respondent NHC moved for the dismissal of the complaint on
the ground that the Civil Service Commission has no jurisdiction over the case.[5]
On April 11, 1989, the Civil Service Commission issued an order dismissing the
complaint for lack of jurisdiction. It ratiocinated that:
The Board finds the comment and/or motion to dismiss meritorious. It was not disputed
that NHC is a government corporation without an original charter but
organized/created under the Corporate Code.
Article IX, Section 2 (1) of the 1987 Constitution provides:
The civil service embraces all branches, subdivisions, instrumentalities and agencies
of the government, including government owned and controlled corporations with
original charters. (underscoring supplied)
From the aforequoted constitutional provision, it is clear that respondent NHC is not
within the scope of the civil service and is therefore beyond the jurisdiction of this
board. Moreover, it is pertinent to state that the 1987 Constitution was ratified and
became effective on February 2, 1987.
WHEREFORE, for lack of jurisdiction, the instant complaint is hereby dismissed.[6]
On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal
dismissal with preliminary mandatory injunction against respondent NHC.[7]
On May 21, 1990, respondent NLRC thru Labor Arbiter Manuel R. Caday ruled that
petitioner was illegally dismissed from his employment by respondent as there was
evidence in the record that the criminal case against him was purely fabricated,
prompting the trial court to dismiss the charges against him. Hence, he concluded that
the dismissal was illegal as it was devoid of basis, legal or factual.
He further ruled that the complaint is not barred by prescription considering that the
period from which to reckon the reglementary period of four years should be from the
date of the receipt of the decision of the Civil Service Commission promulgated on
April 11, 1989. He also ratiocinated that:
It appears x x x complainant filed the complaint for illegal dismissal with the Civil
Service Commission on January 6, 1989 and the same was dismissed on April 11, 1989
after which on April 28, 1989, this case was filed by the complainant. Prior to that, this
case was ruled upon by the Supreme Court on January 17, 1985 which enjoined the
complainant to go to the Civil Service Commission which in fact, complainant did.
Under the circumstances, there is merit on the contention that the running of the
reglementary period of four (4) years was suspended with the filing of the complaint
with the said Commission. Verily, it was not the fault of the respondent for failing to
file the complaint as alleged by the respondent but due to, in the words of the
complainant, a legal knot that has to be untangled.[8]
Thereafter, the Labor Arbiter rendered a decision, the dispositive portion of which
reads:
"Premises considered, judgment is hereby rendered declaring the dismissal of the
complainant as illegal and ordering the respondent to immediately reinstate him to his
former position without loss of seniority rights with full back wages inclusive of
allowance and to his other benefits or equivalent computed from the time it is withheld
from him when he was dismissed on March 27, 1977, until actually reinstated.[9]
On June 1, 1990, respondent NHC filed its appeal before the NLRC and on March 14,
1991, the NLRC promulgated a decision which reversed the decision of Labor Arbiter
Manuel R. Caday on the ground of lack of jurisdiction.[10]
The primordial issue that confronts us is whether or not public respondent committed
grave abuse of discretion in holding that petitioner is not governed by the Labor Code.
Under the laws then in force, employees of government-owned and /or controlled
corporations were governed by the Civil Service Law and not by the Labor Code.
Hence,
Article 277 of the Labor Code (PD 442) then provided:
"The terms and conditions of employment of all government employees, including
employees of government-owned and controlled corporations shall be governed by the
Civil Service Law, rules and regulations x x x.
The 1973 Constitution, Article II-B, Section 1(1), on the other hand provided:
The Civil Service embraces every branch, agency, subdivision and instrumentality of
the government, including government-owned or controlled corporations.
Although we had earlier ruled in National Housing Corporation v. Juco,[11] that
employees of government-owned and/or controlled corporations, whether created by
special law or formed as subsidiaries under the general Corporation Law, are governed
by the Civil Service Law and not by the Labor Code, this ruling has been supplanted
by the 1987 Constitution. Thus, the said Constitution now provides:
The civil service embraces all branches, subdivision, instrumentalities, and agencies of
the Government, including government owned or controlled corporations with original
charter. (Article IX-B, Section 2[1])
In National Service Corporation (NASECO) v. National Labor Relations
Commission,[12] we had the occasion to apply the present Constitution in deciding
whether or not the employees of NASECO are covered by the Civil Service Law or the
Labor Code notwithstanding that the case arose at the time when the 1973 Constitution
was still in effect. We ruled that the NLRC has jurisdiction over the employees of
NASECO on the ground that it is the 1987 Constitution that governs because it is the
Constitution in place at the time of the decision. Furthermore, we ruled that the new
phrase with original charter means that government-owned and controlled corporations
refer to corporations chartered by special law as distinguished from corporations
organized under the Corporation Code. Thus, NASECO which had been organized
under the general incorporation stature and a subsidiary of the National Investment
Development Corporation, which in turn was a subsidiary of the Philippine National
Bank, is excluded from the purview of the Civil Service Commission.
We see no cogent reason to depart from the ruling in the aforesaid case.
In the case at bench, the National Housing Corporation is a government owned
corporation organized in 1959 in accordance with Executive Order No. 399, otherwise
known as the Uniform Charter of Government Corporation, dated January 1, 1959. Its
shares of stock are and have been one hundred percent (100%) owned by the
Government from its incorporation under Act 1459, the former corporation law. The
government entities that own its shares of stock are the Government Service Insurance
System, the Social Security System, the Development Bank of the Philippines, the
National Investment and Development Corporation and the Peoples Homesite and
Housing Corporation.[13] Considering the fact that the NHA had been incorporated
under act 1459, the former corporation law, it is but correct to say that it is a
government-owned or controlled corporation whose employees are subject to the
provisions of the Labor Code. This observation is reiterated in recent case of Trade
Union of the Philippines and Allied Services (TUPAS) v. National Housing
Corporation,[14] where we held that the NHA is now within the jurisdiction of the
Department of Labor and Employment, it being a government-owned and/or controlled
corporation without an original charter. Furthermore, we also held that the workers or
employees of the NHC (now NHA) undoubtedly have the right to form unions or
employees organization and that there is no impediment to the holding of a certification
election among them as they are covered by the Labor Code.
Thus, the NLRC erred in dismissing petitioners complaint for lack of jurisdiction
because the rule now is that the Civil Service now covers only government-owned or
controlled corporations with original charters.[15] Having been incorporated under the
Corporation Law, its relations with its personnel are governed by the Labor Code and
come under the jurisdiction of the National Labor Relations Commission.
One final point. Petitioners have been tossed from one forum to another for a simple
illegal dismissal case. It is but apt that we put an end to his dilemma in the interest of
justice.
WHEREFORE, the decision of the NLRC in NLRC NCR-04-02036089 dated March
14, 1991 is hereby REVERSED and the Decision of the Labor Arbiter dated May 21,
1990 is REINSTATED.
SO ORDERED.
[G.R. No. 129133. November 25, 1998]
ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU, petitioner,
vs. HON. COURT OF APPEALS and CIVIL SERVICE COMMISSION,
respondents.
DECISION
PURISIMA, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Revised
Rules of Court to review and set aside the 7 November 1996 Decision[1] and 18 March
1997 Resolution[2] of the Court of Appeals[3] in CA - G.R. SP No. 37720.
As culled by the Court of Appeals, the antecedent facts that matter are, as follows:
In a letter dated October 13, 1988, respondent CSC through Chairman Patricia A. Sto.
Tomas required the Secretary of Finance to submit to the CSC all appointments in the
Economic Intelligence and Investigation Bureau (EIIB).
Instead of complying with the said letter, petitioner Jose T. Almonte, as Commissioner
of EIIB, wrote a letter dated March 29, 1989, to respondent CSC, requesting for
confirmation of EIIBs exemption from CSC rules and regulations with respect to
appointments and other personnel actions invoking as basis for such exemption PD No.
1458 and LOI No. 71.
On June 21, 1989, respondent CSC issued the subject Resolution No. 89-400, denying
petitioner Almontes request for exemption of the EIIB from the coverage of the civil
service rules and regulations and reiterating its order that petitioner EIIB submit to the
CSC all appointments to career or non-career positions in the Bureau.
Not having received any compliance from petitioners, respondent CSC, in its Order of
December 7, 1990, directed petitioner Jose T. Almonte to immediately implement
Resolution No. 89-400, with a warning that any EIIB official who shall fail or refuse
to comply with the said order shall be held liable for indirect contempt.
On June 4, 1991, respondent CSC issued another order, requiring petitioner Almonte
to show cause why he should not be cited for indirect contempt for his continued refusal
to implement or comply with CSC Resolution No. 89-400 and the Order of December
7, 1990.
In a letter, dated June 13, 1991, petitioner Almonte explained to the respondent CSC
the reasons of the EIIB for its inability to comply with Resolution No. 89-400. He
invoked PD No. 1458 and LOI No. 71 exempting the EIIB from the coverage of civil
service rules and regulations on appointments and other personnel actions. Petitioner
Almonte prayed that Resolution No. 89-400, the Order of June 4, 1991, and the
subsequent orders be set aside.
On August 22, 1991, respondent CSC issued an order, finding petitioner Almonte
guilty of indirect contempt of the Commission, the dispositive portion of which reads
as follows:
WHEREFORE, foregoing premises considered, the Commission hereby resolves to
find and adjudge Jose T. Almonte, Commissioner, EIIB, guilty of indirect contempt of
the Commission pursuant to Section 12 (11), Book V, Subtitle A of Executive Order
No. 292 and Memorandum Circular No. 42, series of 1990. He is thus meted the penalty
of fine P1,000.00 each day from the date of receipt of this Order dated December 7,
1990. Accordingly, the Cashier of the EIIB is hereby directed to deduct from the salary
of Commissioner Almonte the amount of P1,000.00 each day of his failure to comply
with the above CSC Order. Let copies of this Order be furnished the Resident Auditor
of the EIIB as well as the COA, the Secretary of the Department of Finance and the
CSFO-DND, for their information and guidance.
SO ORDERED.
Dissatisfied therewith, petitioner went to the Court of Appeals on a Petition for
Certiorari. However, on November 7, 1996, the Court of Appeals dismissed the
petition; ratiocinating thus:
The 1987 Constitution is so clear and categorical in its mandate that:
Article IX (B), Section 2 (1). - The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or
controlled corporations with original charters.
The civil service contemplated in the constitutional provision is very comprehensive
in its scope, that it includes every category of officer or employee of the government,
its branches, subdivisions and instrumentalities, and even employees of private
corporations, if such corporations are controlled or owned by the government with
original charters.
In the light of this constitutional mandate, petitioner EIIB, being a government agency,
is necessarily embraced by the civil service. The fact that positions in the EIIB are
primarily confidential did not place it outside the domain of civil servants, since it is
conceded that one holding in the Government a primarily confidential position is in the
Civil Service (Ingles v. Mutuc, 26 SCRA 171). That fact merely exempts confidential
positions in the EIIB from the constitutional rule that appointments in the civil service
shall be made only according to merit and fitness to be determined, as far as practicable
... by competitive examination [Art. IX (B), Sec. 2 (2) ]. And it is in this sense that the
provisions of PD 1458, particularly Section 5 and LOI 71 relied upon by the petitioners
should be interpreted.
Neither does petitioners contention that if EIIBs positions and personnel actions will
be opened, one may know its operations, movements, targets, strategies, and tactics
and the whole of its being deserve merit, as the same is pure speculation and conjecture.
EIIB officials and personnel remain civil servants and as correctly argued by the
Solicitor General, EIIB officials occupying confidential positions, remain accountable
to the people and are subject to the same state policies on morale, efficiency, integrity,
responsiveness and courtesy in the civil service. Thus, We hold that the personnel in
the EEIB are covered by the civil service.
WHEREFORE, the Court upholds Resolution No. 89-400 but declares CSC Orders of
December 7, 1990, June 4, 1991, and of August 22, 1991, as NULL AND VOID, the
Civil Service Commission not having jurisdiction to cite and punish Commissioner
Jose T. Almonte of the Economic Intelligence and Investigation Bureau for indirect
contempt of the Commission.
With the denial of its motion for reconsideration by Resolution, dated March 18, 1997,
of the Court of Appeals, petitioner found its way to this Court via the present Petition;
contending, that:
IN HOLDING THAT PETITIONER IS COVERED BY CIVIL SERVICE,
RESPONDENT COURT VIOLATED P.D. No. 1458 AND LOI No. 71 WHICH
EXPRESSLY EXEMPT IT FROM CIVIL SERVICE COVERAGE.
The pivotal issue here is: whether or not the petitioner, Economic Intelligence
Investigation Bureau (EIIB), is embraced by the Civil Service.
Section 2, subparagraph (1), Article IX, paragraph (B) of the 1987 Constitution
provides:
The civil service embraces all branches, subdivisions, instrumentalities, agencies of
the Government, including government-owned or controlled corporations with original
charter.
Succinct and clear is the provision of the Constitution in point that all government
agencies, without exception, are covered by the civil service.
Petitioner EIIB is a government agency under the Department of Finance as provided
by Section 17, Chapter 4, Title II, Book IV of the 1987 Administrative Code.[4]
Therefore, EIIB is within the ambit of the Civil Service Law.
The civil service within the contemplation of the aforecited constitutional provision is
comprehensive in scope. It embraces all officers and employees of the government, its
branches, subdivisions and instrumentalities. Even employees of corporations owned
or controlled by the government, with original charters, are covered thereby.
Petitioner contends that EIIB is expressly exempted from civil service coverage, under
Section 5 of P.D. No. 1458, which provides :
Application of WAPCO and Civil Service Rules - Personnel of the FDIIB shall be
exempted from WAPCO and Civil Service Rules and Regulations relative to
appointments and other personnel actions: Provided, That they shall be entitled to the
benefits and privileges accorded to government employees ...
On the other hand, LOI No. 71, the Implementing Rules of P.D. No. 1458, reads:
10. It is further directed that personnel of the BII shall be exempt from OCPC and Civil
Service Rules and Regulations relative to appointments and other personnel actions;
Provided, That they shall be entitled to the benefits accorded to government employees
... "
Petitioners submission is barren of merit.
The aforecited provisions of law provide for the exemption of petitioner EIIB only
from Civil Service Rules and Regulations relative to appointments and other personnel
actions, but not from the Civil Service Law or Civil Service Rules and Regulations
relative to any other matter.
Neither can we uphold petitioners reliance on Section 26 of Executive Order No.
127.[5] Petitioner, in gist, asserts exemption from Civil Service coverage since the
Bureau forms part of the intelligence community created under the said Executive
Order.
There is merit in the disquisition by the Court of Appeals that membership of petitioner
EIIB in the intelligence community is of no moment, insofar as application of the Civil
Service Law is concerned. The National Bureau of Investigation (NBI), also a member
of the intelligence community which performs functions similar to those of EIIB, e.g.,
intelligence gathering, investigation, research, etc., submits to the Civil Service
Commission the appointments of all NBI personnel, whether belonging to the career
or non-career service. Besides, in Ingles vs. Mutuc, 26 SCRA 171, this Court ruled that
one holding in the Government a primarily confidential position is in the Civil Service.
Equally untenable is petitioners contention that because the personnel of EIIB are
occupying jobs highly confidential in nature, the EIIB should not be required to submit
the names of its personnel to the Civil Service Commission.
In Almonte vs. Vasquez, 244 SCRA 286 [1995], EIIB was ordered by the Ombudsman
to produce documents relating to personnel services and salary vouchers of EIIB
employees. The Bureau pleaded that such documents are classified, and knowledge of
EIIBs documents relative to its Personnel Services Funds and its plantilla will
inevitably lead to knowledge of its operations, movements, targets and strategies,
which could destroy the Bureau itself. The Court ruled that the required documents can
be examined by the Ombudsman, explaining that:
... [T]here is no claim that military or diplomatic secrets will be disclosed by the
production of records pertaining to the personnel of the EIIB. Indeed, EIIBs function
is the gathering and evaluation of intelligence reports and information regarding illegal
activities affecting the national economy, such as, but not limited to, economic
sabotage, smuggling, tax evasion, dollar salting. Consequently, while in cases which
involve state secrets it may be sufficient to determine from the circumstances of the
case that there is reasonable danger that compulsion of the evidence will expose
military matters without compelling production, no similar excuse can be made for a
privilege resting on other considerations.
Nor has our attention been called to any law or regulation which considers personnel
records of the EIIB as classified information ...
All things viewed in proper perspective, we are of the opinion, and so hold, that the
Court of Appeals erred not in holding that:
... [R]espondent CSCs act of requiring petitioner EIIB to submit to it all appointments
in the Bureau, for appropriate action, is part of its administrative function as the central
personnel agency of the government.
WHEREFORE, the petition is hereby DENIED; and the Decision of the Court of
Appeals in CA-GR SP No. 37720 AFFIRMED, without any pronouncement as to
costs.
SO ORDERED.
G.R. No. 88979 February 7, 1992
LYDIA O. CHUA, petitioner, vs. THE CIVIL SERVICE COMMISSION, THE
NATIONAL IRRIGATION ADMINISTRATION and THE DEPARTMENT OF
BUDGET AND MANAGEMENT, respondents.
PADILLA, J.:
Pursuant to the policy of streamlining and trimming the bureaucracy, Republic Act No.
6683 was approved on 2 December 1988 providing for benefits for early retirement
and voluntary separation from the government service as well as for involuntary
separation due to reorganization. Deemed qualified to avail of its benefits are those
enumerated in Sec. 2 of the Act, as follows:
Sec. 2. Coverage. — This Act shall cover all appointive officials and employees of
the National Government, including government-owned or controlled corporations
with original charters, as well as the personnel of all local government units. The
benefits authorized under this Act shall apply to all regular, temporary, casual and
emergency employees, regardless of age, who have rendered at least a total of two (2)
consecutive years of government service as of the date of separation. Uniformed
personnel of the Armed Forces of the Philippines including those of the PC-INP are
excluded from the coverage of this Act.
Petitioner Lydia Chua believing that she is qualified to avail of the benefits of the
program, filed an application on 30 January 1989 with respondent National Irrigation
Administration (NIA) which, however, denied the same; instead, she was offered
separation benefits equivalent to one half (1/2) month basic pay for every year of
service commencing from 1980. A recourse by petitioner to the Civil Service
Commission yielded negative results. 1 Her letter for reconsideration dated 25 April
1989 pleaded thus:
With due respect, I think the interpretation of the Honorable Commissioner of RA 6683
does not conform with the beneficent purpose of the law. The law merely requires that
a government employee whether regular, temporary, emergency, or casual, should
have two consecutive years of government service in order to be entitled to its benefits.
I more than meet the requirement. Persons who are not entitled are consultants, experts
and contractual(s). As to the budget needed, the law provides that the Department of
Budget and Management will shoulder a certain portion of the benefits to be allotted
to government corporations. Moreover, personnel of these NIA special projects art
entitled to the regular benefits, such (sic) leaves, compulsory retirement and the like.
There is no reason why we should not be entitled to RA 6683.
Denying the plea for reconsideration, the Civil Service Commission (CSC)
emphasized:
We regret to inform you that your request cannot be granted. The provision of Section
3.1 of Joint DBM-CSC Circular Letter No. 89-1 does not only require an applicant to
have two years of satisfactory service on the date of separation/retirement but further
requires said applicant to be on a casual, emergency, temporary or regular employment
status as of December 2, 1988, the date of enactment of R.A. 6683. The law does not
contemplate contractual employees in the coverage.
Inasmuch as your employment as of December 31, 1988, the date of your separation
from the service, is co-terminous with the NIA project which is contractual in nature,
this Commission shall sustain its original decision.
In view of such denial, petitioner is before this Court by way of a special civil action
for certiorari, insisting that she is entitled to the benefits granted under Republic Act
No. 6683. Her arguments:
It is submitted that R.A. 6683, as well as Section 3.1 of the Joint DBM-CSC Circular
Letter No. 89-1 requires an applicant to be on a casual, emergency, temporary or
regular employment status. Likewise, the provisions of Section 23 (sic) of the Joint
DBM-CSC Circular Letter No. 88-1, implementing guidelines of R.A. No. 6683,
provides:
"2.3 Excluded from the benefits under R.A. No. 6683 are the following:
a) Experts and Consultants hired by agencies for a limited period to perform
specific activities or services with a definite expected output: i.e. membership in Task
Force, Part-Time, Consultant/Employees.
b) Uniformed personnel of the Armed Forces of the Philippines including those
of the Philippine Constabulary and Integrated National Police (PC-INP).
c) Appointive officials and employees who retire or elect to be separated from
the service for optional retirement with gratuity under R.A. No. 1616, 4968 or with
pension under R.A. No. 186, as amended by R.A. No. 6680 or P.D. No. 1146, an
amended, or vice- versa.
d) Officials and employees who retired voluntarily prior to the enactment of this
law and have received the corresponding benefits of that retirement/separation.
e) Officials and employees with pending cases punishable by mandatory
separation from the service under existing civil service laws, rules and regulations;
provided that if such officials and employees apply in writing within the prescriptive
period for the availment of the benefits herein authorized, shall be allowed only if
acquitted or cleared of all charges and their application accepted and approved by the
head of office concerned."
Based on the above exclusions, herein petitioner does not belong to any one of them.
Ms. Chua is a full time employee of NIA entitled to all the regular benefits provided
for by the Civil Service Commission. She held a permanent status as Personnel
Assistant A, a position which belongs to the Administrative Service. . . . If casuals and
emergency employees were given the benefit of R.A. 6683 with more reason that this
petitioner who was holding a permanent status as Personnel Assistant A and has
rendered almost 15 years of faithful, continuous service in the government should be
similarly rewarded by the beneficient (sic) purpose of the law. 4
The NIA and the Civil Service Commission reiterate in their comment petitioner's
exclusion from the benefits of Republic Act No. 6683, because:
1. Petitioner's employment is co-terminous with the project per appointment
papers kept by the Administrative Service in the head office of NIA (the service record
was issued by the Watershed Management and Erosion Control Project (WMECP),
Pantabangan, Nueva Ecija). The project, funded by the World Bank, was completed as
of 31 December 1988, after which petitioner's position became functus officio.
2. Petitioner is not a regular and career employee of NIA — her position is not
included in its regular plantilla. She belongs to the non-career service (Sec. 6, P.D. No.
807) which is inherently short-lived, temporary and transient; on the other hand,
retirement presupposes employment for a long period. The most that a non-career
personnel can expect upon the expiration of his employment is financial assistance.
Petitioner is not even qualified to retire under the GSIS law.
3. Assuming arguendo that petitioner's appointment is permanent, security of
tenure is available only for the term of office (i.e., duration of project).
4. The objective of Republic Act No. 6683 is not really to grant separation or
retirement benefits but reorganization 5 to streamline government functions. The
application of the law must be made consistent with the purpose for which it was
enacted. Thus, as the expressed purpose of the law is to reorganize the government, it
will not have any application to special projects such as the WMECP which exists only
for a short and definite period. This being the nature of special projects, there is no
necessity for offering its personnel early retirement benefits just to induce voluntary
separation as a step to reorganization. In fact, there is even no need of reorganizing the
WMECP considering its short and limited life-span. 6
5. The law applies only to employees of the national government, government-
owned or controlled corporations with original charters and local government units.
Due to the impossibility of reconciling the conflicting interpretations of the parties, the
Court is called upon to define the different classes of employees in the public sector
(i.e. government civil servants).
Who are regular employees? The Labor Code in Art. 280 (P.D. No. 492, as amended)
deems an employment regular where the employee has been engaged to perform
activities which are usually necessary or desirable in the usual business or trade of the
employer. No equivalent definition can be found in P.D.No. 807 (promulgated on 6
October 1975, which superseded the Civil Service Act of 1965 — R.A. No. 2260) or
in the Administrative Code of 1987 (Executive Order No. 292 promulgated on 25 July
1987). The Early Retirement Law itself (Rep. Act No. 6683) merely includes such class
of employees (regular employees) in its coverage, unmindful that no such specie is
employed in the public sector.
The appointment status of government employees in the career service is classified as
follows:
1. permanent — one issued to a person who has met the requirements of the
position to which appointment is made, in accordance with the provisions of the Civil
Service Act and the Rules and Standards promulgated in pursuance thereof; 7
2. temporary — In the absence of appropriate eligibles and it becomes necessary
in the public interest to fill a vacancy, a temporary appointment should 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. 8
The Administrative Code of 1987 characterizes the Career Service as:
(1) Open Career positions for appointment to which prior qualification in an
appropriate examination is required;
(2) Closed Career positions which are scientific, or highly technical in nature;
these include the faculty and academic staff of state colleges and universities, and
scientific and technical positions in scientific or research institutions which shall
establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other officers of equivalent rank
as may be identified by the Career Executive Service Board, all of whom are appointed
by the President.
(4) Career officers, other than those in the Career Executive Service, who are
appointed by the President, such as the Foreign Service Officers in the Department of
Foreign Affairs;
(5) Commission officers and enlisted men of the Armed Forces which shall
maintain a separate merit system;
(6) Personnel of government-owned or controlled corporations, whether
performing governmental or proprietary functions, who do not fall under the non-
career service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled. 9
The Non-Career Service, on the other hand, is characterized by:
. . . (1) entrance on bases other than those of the usual tests of merit and fitness utilized
for the career service; and (2) tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing authority or subject to his pleasure,
or which is limited to the duration of a particular project for which purpose
employment was made.
Included in the non-career service are:
1. elective officials and their personal or confidential staff;
2. secretaries and other officials of Cabinet rank who hold their positions at the
pleasure of the President and their personal confidential staff(s);
3. Chairman and Members of Commissions and boards with fixed terms of office
and their personal or confidential staff;
4. contractual personnel or those whose employment in the government is in
accordance with a special contract to undertake a specific work or job requiring special
or technical skills not available in the employing agency, to be accomplished within a
specific period, which in no case shall exceed one year and performs or accomplishes
the specific work or job, under his own responsibility with a minimum of direction and
supervision from the hiring agency.
5. emergency and seasonal personnel. 10
There is another type of non-career employee:
Casual — where and when employment is not permanent but occasional,
unpredictable, sporadic and brief in nature (Caro v. Rilloroza, 102 Phil. 70; Manuel v.
P.P. Gocheco Lumber Co., 96 Phil. 945)
Consider petitioner's record of service:
Service with the government commenced on 2 December 1974 designated as a laborer
holding emergency status with the NIA — Upper Pampanga River Project, R & R
Division. 11 From 24 March 1975 to 31 August 1975, she was a research aide with
temporary status on the same project. On 1 September 1975 to 31 December 1976, she
was with the NIA-FES III; R & R Division, then on 1 January 1977 to 31 May 1980,
she was with NIA — UPR IIS (Upper Pampanga River Integrated Irrigation Systems)
DRD. On 1 June 1980, she went to NIA — W.M.E.C.P. (Watershed Management &
Erosion Control Project) retaining the status of temporary employee. While with this
project, her designation was changed to personnel assistant on 5 November 1981;
starting 9 July 1982, the status became permanent until the completion of the project
on 31 December 1988. The appointment paper 12 attached to the OSG's comment lists
her status as co-terminus with the Project.
The employment status of personnel hired under foreign — assisted projects is
considered co-terminous, that is, they are considered employees for the duration of the
project or until the completion or cessation of said project (CSC Memorandum Circular
No. 39, S. 1990, 27 June 1990).
Republic Act No. 6683 seeks to cover and benefits regular, temporary, casual and
emergency employees who have rendered at least a total of two (2) consecutive years
government service.
Resolution No. 87-104 of the CSC, 21 April 1987, provides:
WHEREAS, pursuant to Executive Order No. 966 dated June 22, 1984, the Civil
Service Commission is charged with the function of determining creditable services
for retiring officers and employees of the national government;
WHEREAS, Section 4 (b) of the same Executive Order No. 966 provides that all
previous services by an officer/employee pursuant to a duly approved appointment to
a position in the Civil Service are considered creditable services, while Section 6 (a)
thereof states that services rendered on contractual, emergency or casual status are non-
creditable services;
WHEREAS, there is a need to clarify the aforesaid provisions inasmuch as some
contractual, emergency or casual employment are covered by contracts or
appointments duly approved by the Commission.
NOW, therefore, the Commission resolved that services rendered on contractual,
emergency or casual status, irrespective of the mode or manner of payment therefor
shall be considered as creditable for retirement purposes subject to the following
conditions: (emphasis provided)
1. These services are supported by approved appointments, official records
and/or other competent evidence. Parties/agencies concerned shall submit the
necessary proof of said services;
2. Said services are on full time basis and rendered prior to June 22, 1984, the
effectivity date of Executive Order No. 966; and
3. The services for the three (3) years period prior to retirement are continuous
and fulfill the service requirement for retirement.
What substantial differences exist, if any, between casual, emergency, seasonal,
project, co-terminous or contractual personnel? All are tenurial employees with no
fixed term, non-career, and temporary. The 12 May 1989 CSC letter of denial 13
characterized herein petitioner's employment as co-terminous with the NIA project
which in turn was contractual in nature. The OSG says petitioner's status is co-
terminous with the Project. CSC Memorandum Circular No. 11, series of 1991 (5 April
1991) characterizes the status of a co-terminous employee —
(3) Co-terminous status shall be issued to a person whose entrance in the service
is characterized by confidentiality by the appointing authority or that which is subject
to his pleasure or co-existent with his tenure.
The foregoing status (co-terminous) may be further classified into the following:
a) co-terminous with the project — When the appointment is co-existent with the
duration of a particular project for which purpose employment was made or subject to
the availability of funds for the same;
b) co-terminous with the appointing authority — when appointment is co-existent
with the tenure of the appointing authority.
c) co-terminous with the incumbent — when appointment is co-existent with the
appointee, in that after the resignation, separation or termination of the services of the
incumbent the position shall be deemed automatically abolished; and
d) co-terminous with a specific period, e.g. "co-terminous for a period of 3 years"
— the appointment is for a specific period and upon expiration thereof, the position is
deemed abolished.
It is stressed, however, that in the last two classifications (c) and (d), what is termed
co-terminous is the position, and not the appointee-employee. Further, in (c) the
security of tenure of the appointee is guaranteed during his incumbency; in (d) the
security of tenure is limited to a specific period.
A co-terminous employee is a non-career civil servant, like casual and emergency
employees. We see no solid reason why the latter are extended benefits under the Early
Retirement Law but the former are not. It will be noted that Rep. Act No. 6683
expressly extends its benefits for early retirement to regular, temporary, casual and
emergency employees. But specifically excluded from the benefits are uniformed
personnel of the AFP including those of the PC-INP. It can be argued that, expressio
unius est exclusio alterius. The legislature would not have made a specific enumeration
in a statute had not the intention been to restrict its meaning and confine its terms and
benefits to those expressly mentioned 14 or casus omissus pro omisso habendus est —
A person, object or thing omitted from an enumeration must be held to have been
omitted intentionally. 15 Yet adherence to these legal maxims can result in
incongruities and in a violation of the equal protection clause of the Constitution.
The case of Fegurin, et al. v. NLRC, et al., 16 comes to mind where, workers belonging
to a work pool, hired and re-hired continuously from one project to another were
considered non-project-regular and permanent employees.
Petitioner Lydia Chua was hired and re-hired in four (4) successive projects during a
span of fifteen (15) years. Although no proof of the existence of a work pool can be
assumed, her service record cannot be disregarded.
Art. III, Sec. 1 of the 1987 Constitution guarantees: "No person shall be deprived of
life, liberty, or property without due process of law, nor shall any person be denied the
equal protection of the laws."
. . . In Felwa vs. Salas, L-26511, Oct. 29, 1966, We ruled that the equal protection
clause applies only to persons or things identically situated and does not bar a
reasonable classification of the subject of legislation, and a classification is reasonable
where (1) it is based on substantial distinctions which make real differences; (2) these
are germane to the purpose of the law; (3) the classification applies not only to present
conditions but also to future conditions which are substantially identical to those of the
present; (4) the classification applies only to those who belong to the same class. 17
Applying the criteria set forth above, the Early Retirement Law would violate the equal
protection clause were we to sustain respondents' submission that the benefits of said
law are to be denied a class of government employees who are similarly situated as
those covered by said law. The maxim of Expressio unius est exclusio alterius should
not be the applicable maxim in this case but the doctrine of necessary implication
which holds that:
No statute can be enacted that can provide all the details involved in its application.
There is always an omission that may not meet a particular situation. What is thought,
at the time of enactment, to be an all-embracing legislation may be inadequate to
provide for the unfolding events of the future. So-called gaps in the law develop as the
law is enforced. One of the rules of statutory construction used to fill in the gap is the
doctrine of necessary implication. The doctrine states that what is implied in a statute
is as much a part thereof as that which is expressed. Every statute is understood, by
implication, to contain all such provisions as may be necessary to effectuate its object
and purpose, or to make effective rights, powers, privileges or jurisdiction which it
grants, including all such collateral and subsidiary consequences as may be fairly and
logically inferred from its terms. Ex necessitate legis. And every statutory grant of
power, right or privilege is deemed to include all incidental power, right or privilege.
This is so because the greater includes the lesser, expressed in the Maxim, in eo plus
sit, simper inest et minus. 18
During the sponsorship speech of Congressman Dragon (re: Early Retirement Law), in
response to Congressman Dimaporo's interpellation on coverage of state university
employees who are extended appointments for one (1) year, renewable for two (2) or
three (3) years, 19 he explained:
This Bill covers only those who would like to go on early retirement and voluntary
separation. It is irrespective of the actual status or nature of the appointment one
received, but if he opts to retire under this, then he is covered.
It will be noted that, presently Pending in Congress, is House Bill No. 33399 (a
proposal to extend the scope of the Early Retirement Law). Its wording supports the
submission that Rep. Act No. 6683 indeed overlooked a qualified group of civil
servants. Sec. 3 of said House bill, on coverage of early retirement, would provide:
Sec. 3. Coverage. — It will cover all employees of the national government, including
government-owned or controlled corporations, as well as the personnel of all local
government units. The benefits authorized under this Act shall apply to all regular,
temporary, casual, emergency and contractual employees, regardless of age, who have
rendered at least a total of two (2) consecutive years government service as of the date
of separation. The term "contractual employees" as used in this Act does not include
experts and consultants hired by agencies for a limited period to perform specific
activities or services with definite expected output.
Uniformed personnel of the Armed Forces of the Philippines, including those of the
PC-INP are excluded from the coverage of this Act. (emphasis supplied)
The objective of the Early Retirement or Voluntary Separation Law is to trim the
bureaucracy, hence, vacated positions are deemed abolished upon early/voluntary
retirement of their occupants. Will the inclusion of co-terminous personnel (like the
petitioner) defeat such objective? In their case, upon termination of the project and
separation of the project personnel from the service, the term of employment is
considered expired, the office functus officio. Casual, temporary and contractual
personnel serve for shorter periods, and yet, they only have to establish two (2) years
of continuous service to qualify. This, incidentally, negates the OSG's argument that
co-terminous or project employment is inherently short-lived, temporary and transient,
whereas, retirement presupposes employment for a long period. Here, violation of the
equal protection clause of the Constitution becomes glaring because casuals are not
even in the plantilla, and yet, they are entitled to the benefits of early retirement. How
can the objective of the Early Retirement Law of trimming the bureaucracy be achieved
by granting early retirement benefits to a group of employees (casual) without plantilla
positions? There would, in such a case, be no abolition of permanent positions or
streamlining of functions; it would merely be a removal of excess personnel; but the
positions remain, and future appointments can be made thereto.
Co-terminous or project personnel, on the other hand, who have rendered years of
continuous service should be included in the coverage of the Early Retirement Law, as
long as they file their application prior to the expiration of their term, and as long as
they comply with CSC regulations promulgated for such purpose. In this connection,
Memorandum Circular No. 14, Series of 1990 (5 March 1990) implementing Rep. Act
No. 6850, 20 requires, as a condition to qualify for the grant of eligibility, an aggregate
or total of seven (7) years of government service which need not be continuous, in the
career or non-career service, whether appointive, elective, casual, emergency,
seasonal, contractual or co-terminous including military and police service, as
evaluated and confirmed by the Civil Service Commission. 21 A similar regulation
should be promulgated for the inclusion in Rep. Act No. 6683 of co-terminous
personnel who survive the test of time. This would be in keeping with the coverage of
"all social legislations enacted to promote the physical and mental well-being of public
servants"22 After all, co-terminous personnel, are also obligated to the government for
GSIS contributions, medicare and income tax payments, with the general disadvantage
of transience.
In fine, the Court believes, and so holds, that the denial by the respondents NIA and
CSC of petitioner's application for early retirement benefits under Rep. Act No. 6683
is unreasonable, unjustified, and oppressive, as petitioner had filed an application for
voluntary retirement within a reasonable period and she is entitled to the benefits of
said law. While the application was filed after expiration of her term, we can give
allowance for the fact that she originally filed the application on her own without the
assistance of counsel. In the interest of substantial justice, her application must be
granted; after all she served the government not only for two (2) years — the minimum
requirement under the law but for almost fifteen (15) years in four (4) successive
governmental projects.
WHEREFORE, the petition is GRANTED.
Let this case be remanded to the CSC-NIA for a favorable disposition of petitioner's
application for early retirement benefits under Rep. Act No. 6683, in accordance with
the pronouncements in this decision.
SO ORDERED.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur but only insofar as our rulings are applied to RA 6683 applicants.
[G.R. No. 139382. December 6, 2000]
THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS, EXECUTIVE
SECRETARY RONALDO B. ZAMORA, and ATTY. CARINA J. DEMAISIP,
petitioners, vs. ATTY. JOSEFINA G. BACAL, respondent.
DECISION
MENDOZA, J.:
This case involves the appointment and transfer of career executive service officers
(CESOs). More specifically, it concerns the appointment of respondent Josefina G.
Bacal, who holds the rank of CESO III, to the position of Chief Public Attorney in the
Public Attorneys Office, which has a CES Rank Level I, and her subsequent transfer,
made without her consent, to the Office of the Regional Director of the PAO.
In its decision[1] rendered on March 25, 1999, the Court of Appeals declared
respondent Josefina G. Bacal entitled to the position of Chief Public Attorney in the
Public Attorneys Office. Petitioners moved for a reconsideration, but their motion was
denied by the appeals court in its resolution dated July 22, 1999. Hence this petition
for review on certiorari. Petitioners contend that the transfer of respondent to the Office
of the Regional Director of the PAO is appropriate considering her rank as CESO III.
The background of this case is as follows:
Respondent Josefina G. Bacal passed the Career Executive Service Examinations in
1989. On July 28, 1994, she was conferred CES eligibility and appointed Regional
Director of the Public Attorneys Office. On January 5, 1995, she was appointed by
then President Fidel V. Ramos to the rank of CESO III. On November 5, 1997, she
was designated by the Secretary of Justice as Acting Chief Public Attorney. On
February 5, 1998, her appointment was confirmed by President Ramos so that, on
February 20, 1998, she took her oath and assumed office.
On July 1, 1998, petitioner Carina J. Demaisip was appointed chief public defender by
President Joseph Estrada. Apparently because the position was held by respondent,
another appointment paper was issued by the President on July 6, 1998 designating
petitioner Demaisip as chief public defender (formerly chief public attorney), PUBLIC
DEFENDER'S OFFICE, DEPARTMENT OF JUSTICE vice ATTY. JOSEFINA G.
BACAL, effective July 1, 1998.[2] On the other hand, respondent was appointed
Regional Director, Public Defenders Office by the President.
On July 7, 1998, petitioner Demaisip took her oath of office. President Estrada then
issued a memorandum, dated July 10, 1998, to the personnel of the Public Defenders
Office announcing the appointment of petitioner Demaisip as CHIEF PUBLIC
DEFENDER. Petitioner Secretary of Justice was notified of the appointments of
petitioner Demaisip and respondent Bacal on July 15, 1998.
On July 17, 1998, respondent filed a petition for quo warranto questioning her
replacement as Chief Public Attorney. The petition, which was filed directly with this
Court, was dismissed without prejudice to its refiling in the Court of Appeals.
Accordingly, respondent brought her case in the Court of Appeals which, on March
25, 1999, ruled in her favor, finding her to be lawfully entitled to the Office of Chief
Public Attorney.
Petitioners seek the reversal of the decision of the Court of Appeals on the following
grounds
I. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT
JOSEFINA G. BACAL, A CAREER EXECUTIVE SERVICE OFFICER, HAS A
VALID AND VESTED RIGHT TO THE POSITION OF CHIEF PUBLIC
ATTORNEY AND, AS SUCH, CANNOT BE REASSIGNED OR TRANSFERRED
TO THE POSITION OF REGIONAL DIRECTOR, PUBLIC ATTORNEYS OFFICE,
DEPARTMENT OF JUSTICE.
II. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT
BACAL, WHO HOLDS A CES RANK LEVEL III, WAS REASSIGNED OR
TRANSFERRED TO A POSITION WHICH DOES NOT CORRESPOND TO HER
PRESENT RANK LEVEL INASMUCH AS THE POSITION OF BUREAU
REGIONAL DIRECTOR CARRIES A CES RANK LEVEL V ONLY. CONTRARY
TO THE CONCLUSIONS OF THE COURT OF APPEALS, SAID POSITION OF
REGIONAL DIRECTOR, PUBLIC ATTORNEYS OFFICE, THE POSITION TO
WHICH RESPONDENT BACAL WAS REASSIGNED OR TRANSFERRED,
CARRIES A CES RANK LEVEL III WHICH CORRESPONDS TO HER CES
RANK III LEVEL. AS AN OFFICER WITH A RANK III LEVEL, RESPONDENT
BACAL IS NOT THEREFORE ELIGIBLE FOR THE POSITION OF CHIEF
PUBLIC ATTORNEY WHICH CARRIES A CES RANK LEVEL I.
III. UPON HER REASSIGNMENT OR TRANSFER TO THE POSITION OF
REGIONAL DIRECTOR, RESPONDENT BACAL DID NOT LOSE HER CES
RANK III AND HER RIGHT TO RECEIVE THE SALARY CORRES-PONDING
TO HER PRESENT RANK.
IV. RESPONDENT BACAL FAILED TO SHOW THAT SHE HAS A CLEAR
RIGHT TO THE POSITION OF CHIEF PUBLIC ATTORNEY.
V. RESPONDENT BACAL FAILED TO FULLY EXHAUST THE
ADMINISTRATIVE REMEDIES AVAILABLE TO HER BEFORE FILING THE
PETITION FOR QUO WARRANTO WITH THE COURT OF APPEALS.[3]
I. Exhaustion of Administrative Remedies
We first consider petitioners contention that respondents quo warranto suit should have
been dismissed for failure of respondent to exhaust administrative remedies by
appealing to the Office of the President.
The contention has no merit. If, as has been held, no appeal need be taken to the Office
of the President from the decision of a department head because the latter is in theory
the alter ego of the former,[4] there is greater reason for not requiring prior resort to
the Office of the President in this case since the administrative decision sought to be
reviewed is that of the President himself. Indeed, we have granted review in other cases
involving the removal of the Administrator of the Philippine Overseas Employment
Administration[5] and the Executive Director of the Land Transportation Office[6]
without requiring the petitioners to exhaust administrative remedies considering that
the administrative actions in question were those of the President.
In any event, the doctrine of exhaustion of administrative remedies does not apply
when the question raised is purely legal.[7] In this case, the question is whether
respondents transfer to the position of Regional Director of the Public Attorneys
Office, which was made without her consent, amounts to a removal without cause. This
brings us to the main issue in this appeal.
II. Merits of the Case
In holding that respondents transfer amounted to a removal without cause, the Court
of Appeals said:
. . . Her appointment as Regional Director was in effect a removal in the guise of
transfer, to repeat, without her consent. Having been validly appointed Chief Public
Defender by the President on February 8, 1998, would naturally entitle her to security
of tenure since on the basis of the appointment, she was appointed, not merely
assigned, to a particular station. Her involuntary transfer, through appointment, to that
of a mere Regional Director, did not either conform to the rules on the constitutional
protection of security of tenure. Above all, her supposed appointment as a Regional
Director is not only temporary but is on the other hand permanent wherein she lost her
position as Chief Public Attorney, or her connection with the previous position being
severed.
....
In the case of the petitioner, there is certainly a diminution in duties and responsibilities
when she was downgraded through the July 6, 1998 appointment, involuntarily made,
from that of Chief Public Attorney to a mere Regional Director. To repeat, the rank
equivalent to a Bureau Director is Rank III while that of a mere Bureau Regional
Director is Rank V. Diminution in duties and responsibilities, certainly becomes
apparent and then in the matter of salary, the basic salary of a Chief Public Attorney
together with all the perks, would amount to P575,199.00. In the case of a Regional
Director, his basic salary together with all the perks, would only amount to
P341,479.96. Admittedly, when a CESO is assigned or made to occupy a position with
a lower salary grade, he shall supposedly continue to be paid his salary that attaches to
his CES rank. It cannot, on the other hand, be denied that the moment a non-CESO is
appointed to a CES position, he shall receive, at the same time, the salary of his CES
position. There is merit in the petitioners argument that allowing the Regional Director
to receive continuously the salary rate of Chief Public Attorney in effect would amount
to an illegal consequence since the disbursement of public funds, as budgeted, provides
funding for only one Chief Public Attorney. The dilemma arises when both the
petitioner and respondent Demaisip would be claiming the salary of a Chief Public
Attorney. There is no pretension either in the Brief of the public respondents that there
has been a supplemental budget for the petitioner, now downgraded to a mere Regional
Director, to be receiving continuously the salary scale of a Chief Public Attorney.
Changing a CESO, Rank III, with a non-CESO eligible nor a CESO defies the
recruitment, selection and appointment process of the Career Executive Service. As a
matter of fact, as a rule (1997 Revised Edition, Handbook, Career Executive Service),
the appointment to most positions in the CES is supposed to be made by the President
only from the list of CES eligibles, but recommended by the CES Board. Admittedly,
an incumbent of a CES position may qualify for appointment to a CES rank, only upon
the confirming of a CES Eligibility and compliance with the other requirements being
prescribed by the Board (Ibid. p. 5). Precisely, the CES was created pursuant to PD
No. 1 (adopting the Integrated Reorganizational Plan, dated September 24, 1972), if
only to form a continuing pool of well-selected and development-oriented career
administrators who shall provide competent and faithful service (Ibid. p. 2). We cannot
see this from that of the petitioner then being replaced by a non-CESO.[8]
The appealed decision will not bear analysis.
First. What should be emphasized in this case is that respondent Josefina G. Bacal is a
CESO III and that the position of Regional Director of the PAO, to which she was
transferred, corresponds to her CES Rank Level III and Salary Grade 28. This was her
position before her appointment on February 5, 1998 to the position of Chief Public
Attorney of the PAO, which requires a CES Rank Level I for appointment thereto.
Respondent Bacal therefore has no ground to complain. She may have been considered
for promotion to Rank I to make her appointment as Chief Public Attorney permanent.
The fact, however, is that this did not materialize as petitioner Carina J. Demaisip was
appointed in her place. If respondent was paid a salary equivalent to Salary Grade 30
while she was holding that office, it was only because, under the law, if a CESO is
assigned to a position with a higher salary grade than that corresponding to his/her
rank, he/she will be allowed the salary of the CES position.
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:[9]
It is settled that a permanent appointment can be issued only to a person who meets all
the requirements for the position to which he is being appointed, including the
appropriate eligibility prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be withdrawn
at will by the appointing authority and at a moments notice, conformably to established
jurisprudence. . . .
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, only 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. . . .
It is contended, however, that respondent is qualified for the position of Chief Public
Attorney because this position has a CES Rank Level III, while that of Regional
Director, Public Attorneys Office, has a CES Rank Level V. This is not so. The position
of Chief Public Attorney has a CES Rank Level I and a Salary Grade 30, while that of
Regional Director of the PAO has a CES Rank Level III and a Salary Grade 28. This
is shown by the following:[10]
1. Certification, dated April 6, 1999, issued by the Secretary of the Department of
Budget and Management (DBM), which states that the position of the head of Public
Attorneys Office (PAO) is classified as Chief Public Attorney at Salary Grade 30
(Annex A of Annex M, Petition).
2. Certification, dated April 15, 1999, issued by Elmor D. Juridico, then Executive
Director of the CES Board, which states that the Rank equivalent to the position of
Chief Public Attorney and Regional Public Attorney are CESO Rank I and CESO Rank
III respectively (Annex B of Annex M, Petition); and
3. Certification, dated July 8, 1998, previously issued to respondent Bacal by then
Executive Director Juridico of the CES Board, stating that the position of Chief Public
Attorney has a CES rank equivalent of Rank I. (vide Annex C of Annex M, Petition).
The certification reads:
This is to certify that Atty. JOSEFINA G. BACAL, Chief Public Attorney, Public
Attorneys Office was conferred CES Eligibility on July 28, 1994 per Board Resolution
No. 94-4620 and was appointed Career Executive Service Officer (CESO) Rank III by
then President Fidel V. Ramos on January 5, 1995. She is yet to fulfill the requirements
for an adjustment of her CES rank (from CES Rank III to Rank I) to a level equivalent
to her present position.
This certification is issued upon the request of Atty. Bacal for whatever purpose it may
serve best.
Second. The Court of Appeals held that respondent Bacal had acquired security of
tenure as Chief Public Attorney by the mere fact of her appointment to that position.
This is likewise the point of the dissent of Justice Gonzaga-Reyes who contends that a
CES eligibility is all that a person needs in order to acquire security of tenure in any
position embraced in the Career Executive service; that a CESO rank is only necessary
to differentiate a CESOs general managerial duties/responsibilities, personal
qualifications, and demonstrated competence; and that no other CES examination is
required for appointment to a higher rank.
Appointments, assignments, reassignments, and transfers in the Career Executive
Service are based on rank. On this point, the Integrated Reorganization Plan cannot be
any clearer. It provides:[11]
c. Appointment. Appointment to appropriate classes in the Career Executive Service
shall be made by the President from a list of career executive eligibles recommended
by the Board. Such appointments shall be made on the basis of rank; provided that
appointments to the higher ranks which qualify the incumbents to assignments as
undersecretary and heads of bureaus and offices and equivalent positions shall be with
the confirmation of the Commission on Appointments. The President may, however,
in exceptional cases, appoint any person who is not a Career Executive Service eligible;
provided that such appointee shall subsequently take the required Career Executive
Service examination and that he shall not be promoted to a higher class until he
qualifies in such examination.
At the initial implementation of this Plan, an incumbent who holds a permanent
appointment to a position embraced in the Career Executive Service shall continue to
hold his position, but may not advance to a higher class of position in the Career
Executive Service unless or until he qualifies for membership in the Career Executive
Service.
....
e. Assignments, Reassignments and Transfers. Depending upon their ranks, members
of the Service shall be assigned to occupy positions of Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other officers of equivalent rank
as may be identified by the Board on the basis of the members functional expertise. . .
.
The rules and regulations promulgated by the CES Board[12] to implement the
Integrated Reorganization Plan are equally clear in providing that
Career Executive Service Eligibility
Passing the CES examination entitles the examinee to a conferment of a CES eligibility
and the inclusion of his name in the roster of CES eligibles. Conferment of CES
eligibility is done by the Board through a formal Board Resolution after an evaluation
of the examinees performance in the four stages of the CES eligibility examinations.
Appointment to CES Rank
Upon conferment of a CES eligibility and compliance with the other requirements
prescribed by the Board, an incumbent of a CES position may qualify for appointment
to a CES rank. Appointment to a CES rank is made by the President upon the
recommendation of the Board. This process completes the officials membership in the
CES and most importantly, confers on him security of tenure in the CES.
There are six (6) ranks in the CES ranking structure. The highest rank is that of a Career
Executive Service Officer I (CESO I), while the lowest is that of CESO VI.
The appropriate CESO rank to which a CES eligible may be appointed depends on two
major qualification criteria, namely: (1) level of managerial responsibility; and, (2)
performance.
Performance is determined by the officials performance rating obtained in the annual
CESPES. On the other hand, managerial responsibility is based on the level of the
general duties and responsibilities which an eligible is performing, as follows:
Levels of Duties and Rank Equivalent
Responsibilities
if level of managerial responsibilities I
are comparable to that of an Under-
secretary
if comparable to that of an Assistant II
Secretary
if comparable to that of a Bureau III
Director or a Department Regional
Director
if comparable to that of an Assistant IV
Bureau Director, Department
Assistant Regional Director or
Department Service Chief
if comparable to that of a Bureau V
Regional Director
if comparable to that of a Bureau VI
Assistant Regional Director
As a general rule, a CES eligible will be recommended for appointment to the rank
equivalent of the level of his managerial responsibility if his performance rating is
Satisfactory or higher. If the performance rating is Outstanding, he will be
recommended one rank higher than his level of managerial responsibility.
Security of tenure in the career executive service is thus acquired with respect to rank
and not to position. The guarantee of security of tenure to members of the CES does
not extend to the particular positions to which they may be appointed a concept which
is applicable only to first and second-level employees in the civil service but to the
rank to which they are appointed by the President. Accordingly, respondent did not
acquire security of tenure by the mere fact that she was appointed to the higher position
of Chief Public Attorney since she was not subsequently appointed to the rank of CESO
I based on her performance in that position as required by the rules of the CES Board.
Indeed, to contend, as does the dissent of Justice Gonzaga-Reyes, that a CES eligibility
was all that was required to make her appointment to the position of Chief Public
Attorney permanent would give rise to an anomalous situation. Following such theory,
even if respondent is not appointed CESO I because her performance as Chief Public
Attorney does not warrant her appointment to such higher rank, she cannot be
transferred to any other office to which her rank (CESO III) qualifies her. This theory
of the dissent, i.e., that a CES eligibility gives the appointee security of tenure - not the
ruling in this case that it is appointment to the appropriate rank that confers security of
tenure - is what will undermine the Career Executive Service.
Third. Within the Career Executive Service, personnel can be shifted from one office
or position to another without violation of their right to security of tenure because their
status and salaries are based on their ranks and not on their jobs. To understand this, it
is necessary to consider the reason for the creation of the Career Executive Service.
R.A. No. 5435,[13] as amended by R.A. Nos. 6076, 6172, and 6175, created a
commission charged with the specific function of reorganizing the government to
promote simplicity, economy, and efficiency in its operations. The result was the
preparation of the Integrated Reorganization Plan which was adopted and declared part
of the law of the land by P.D. No. 1 on September 24, 1972. A major feature of the
Integrated Reorganization Plan was the creation of the Career Executive Service whose
justification was explained by the Commission on Reorganization, thus:
The present Civil Service system is not geared to meet the executive manpower needs
of the government. The filling of higher administrative positions is often based on
considerations other than merit and demonstrated competence. The area of promotion
is currently confined to the person or persons next-in-rank in the agency. Moreover,
personnel classification and compensation are uniformly based on concepts and
procedures which are suited to positions in the lower levels but not to managerial posts
in the higher levels. To fill this crucial gap, it is recommended that a Career Executive
Service be established. This group of senior administrators shall be carefully selected
on the basis of high qualifications and competence. Skilled in both techniques and
processes of management, these career executives will act as catalysts for
administrative efficiency and as agents of administrative innovation.
The status and salary of the career executives will be based on their rank, and not on
the job that they occupy at any given time . . . . In this sense, the rank status of the
Career Executive Service is similar to that of the commissioned officers in the Armed
Forces or members of the Foreign Service. Unlike these latter organizations, however,
entrance to the Career Executive Service will not be generally at an early age in a
relatively junior level but at a senior management level.
....
The rank classification in the Service will allow for mobility or flexibility of
assignments such that the government could utilize the services or special talents of
these career executives wherever they are most needed or will likely create the greatest
impact. This feature is especially relevant in a developing country which cannot afford
to have its scarce executive manpower pegged to particular positions.
Mobility and flexibility in the assignment of personnel, the better to cope with the
exigencies of public service, is thus the distinguishing feature of the Career Executive
Service. To attain this objective, the Integrated Reorganization Plan provides:[14]
e. Assignments, Reassignments and Transferees. . . .
Any provision of law to the contrary notwithstanding, members of the Career
Executive Service may be reassigned or transferred from one position to another and
from one department, bureau or office to another; provided that such reassignment or
transfer is made in the interest of public service and involves no reduction in rank or
salary; provided, further, that no member shall be reassigned or transferred oftener than
every two years; and provided, furthermore, that if the officer concerned believes that
his reassignment or transfer is not justified, he may appeal his case to the President.
The implementing rules and regulations of the CES Board provide:
Salary of Career Executive Service Officers. A CESO is compensated according to his
CES rank and not on the basis of the CES position he occupies. However, if a CESO
is assigned to a CES position with a higher salary grade than that of his CES rank, he
is allowed to receive the salary of the CES position.
Should he be assigned or made to occupy a CES position with a lower salary grade, he
shall continue to be paid the salary attached to his CES rank.[15]
Petitioners are, therefore, right in arguing that respondent, as a CESO, can be
reassigned from one CES position to another and from one department, bureau or office
to another. Further, respondent, as a CESO, can even be assigned or made to occupy a
CES position with a lower salary grade. In the instant case, respondent, who holds a
CES Rank III, was correctly and properly appointed by the appointing authority to the
position of Regional Director, a position which has a corresponding CES Rank Level
III.[16]
Indeed, even in the other branches of the civil service, the rule is that, unless an
employee is appointed to a particular office or station, he can claim no security of
tenure in respect of any office. This rule has been applied to such appointments as
Director III or Director IV or Attorney IV or V in the Civil Service Commission since
the appointments are not to specified offices but to particular ranks;[17] Election
Registrars;[18] Election Officers, also in the Commission on Elections;[19] and
Revenue District Officers in the Bureau of Internal Revenue.[20] Reiterating the
principle in Sta. Maria v. Lopez,[21] this Court said:
. . . [T]he rule that outlaws unconsented transfers as anathema to security of tenure
applies only to an officer who is appointed - not merely assigned - to a particular
station. Such a rule does not proscribe a transfer carried out under a specific statute
that empowers the head of an agency to periodically reassign the employees and
officers in order to improve the service of the agency. The use of approved techniques
or methods in personnel management to harness the abilities of employees to promote
optimum public service cannot be objected to. . . .
For the foregoing reasons, we hold that respondents appointment to the position of
Chief Public Attorney was merely temporary and that, consequently, her subsequent
transfer to the position of Regional Director of the same office, which corresponds to
her CESO rank, cannot be considered a demotion, much less a violation of the security
of tenure guarantee of the Constitution.
Fourth. On the other hand, Justice Puno makes much of the fact that petitioner Carina
J. Demaisip is not a CES eligible. Suffice it to say the law allows in exceptional cases
the appointment of non-CES eligibles provided that the appointees subsequently pass
the CES Examinations. Thus Part III, Chap. I, Art. IV, par. 5(c) of the Integrated
Reorganization Plan provides that the President may, in exceptional cases, appoint any
person who is not a Career Executive Service eligible; provided that such appointee
shall subsequently take the required Career Executive Service examination and that he
shall not be promoted to a higher class until he qualified in such examination.
For the same reason that the temporary appointment of respondent Josefina G. Bacal
as Chief Public Attorney is valid under this provision of the law despite the fact that
she does not hold the rank of CESO I, so is the appointment to the same position of
petitioner Carina J. Demaisip. The question in this case is not the validity of the
appointment to such position but whether the appointee acquires security of tenure
even if he does not possess the requisite rank. There is no claim that petitioner
Demaisip has a right to remain in the position of Chief Public Attorney permanently.
On the other hand, as respondent herself does not have the requisite qualification for
the position of Chief Public Attorney, she cannot raise the lack of qualification of
petitioner. As held in Carillo v. Court of Appeals,[22] in a quo warranto proceeding
the person suing must show that he has a clear right to the office allegedly held
unlawfully by another. Absent that right, the lack of qualification or eligibility of the
supposed usurper is immaterial.[23] Indeed, this has been the exacting rule[24] since
it was first announced, 95 years ago, in Acosta v. Flor.[25] As at present embodied in
Rule 66, 5 of the Rules of Civil Procedure, the rule is that a person claiming to be
entitled to a public office or position usurped or unlawfully held or exercised by
another may bring an action therefor in his own name.
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petition
for quo warranto filed by respondent is DISMISSED.
SO ORDERED.
G.R. No. 141141 June 25, 2001
PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR),
petitioner, vs.CARLOS P. RILLORAZA, respondent.
DE LEON, JR., J.:
Before us is a petition for review on certiorari praying for the reversal of the Decision
dated August 31, 19991 as well as the Resolution dated November 29, 1999, rendered
by the Court of Appeals in CA-G.R. SP No. 51803.
The facts are undisputed:
On November 5, 1997, administrative charges for dishonesty, grave misconduct,
conduct prejudicial to the best interest of the service, and loss of confidence, were
brought against respondent Carlos P. Rilloraza, a casino operations manager of
petitioner PHILIPPINE AMUSEMENT AND GAMING CORPORATION
(PAGCOR). Respondent allegedly committed the following acts:
Summary description of charge(s):
Failure to prevent an irregularity and violations of casino and regulations committed
by co-officers during his shift on October 9, 1997.
1. During his shift of 6:00 a.m.–2:00 p.m. on October 9, 1997, four (4) personal checks
with a total value of Pesos: Five Million (P5,000,000) were issued by a small-time
financier/player and were facilitated by a COM with the Treasury Division which
enabled the small-time financier/player to withdraw and receive said amount. The
facilitation of the checks was not authorized by the Senior Branch Manager (SBM) or
the Branch Manager for Operations (BMO) and the COM who facilitated the checks
was not on duty then.
2. He even facilitated one (1) of the personal checks with a value of Pesos: Five
Hundred Thousand (P500,000.00).
3. He failed to stop a top-ranking officer from placing bets over and above the
allowable limit of P5,000.00 per deal, he failed to stop the same officer from playing
in the big tables and lastly, he allowed the same officer to play beyond the allowable
time limit of 6:00 a.m.
Respondent duly filed his answer during an investigation conducted by petitioner’s
Corporate Investigation Unit. He narrated the events that transpired:
"When I reported for my 6:00 a.m. to 2:00 p.m. shift, on October 9, that morning I saw
BM RICHARD SYHONGPAN beside TABLE #22 (BB) sitting at a coffee table inside
Area 3. While inside the Area 3, GAM RENE QUITO approached me with a check
worth P500,000.00 requested by a customer for endorsement to the Treasury. Since
I’ve been out of Manila branch for 2 years and I’ve just been recalled to this branch for
only more than 3 weeks, I’m not quite familiar with the systems and I don’t know this
customer. I immediately approached COM CARLOS GONZALES, who at that time
was still around, to verify regarding the said check and his immediate reply was "IT’S
OKAY AND GOOD AND IT WAS GUARANTEED BY BM SYHONGPAN’. In
fact, I reconfirmed it again with COM GONZALES since he is more familiar with the
systems and customers, he answered me the same. So I gave the approval to GAM
QUITO for endorsement. When I went in the office, I instructed OOS GILBERT
CABANA to beep SBM VIC ADVINCULA and BMO DARIO CORDERO to call
office "ASAP" because I wanted to relay this matter to them and there were no reply
from both of them. I instructed OOS CABANA to send messages again to SBM &
BMO, but still I received no reply. It was until after noontime that BMO CORDERO
returned my call and I reported the incident to him. When I was at home at around 3:30
p.m. SBM ADVINCULA returned my call and I reported the incident. I also relayed
the incident to SBM REYES.
While during my rounds, I went down to the New VIP area and there I saw BM
SYHONGPAN sitting at TABLE #3(BB) and he was holding house cards at that time.
I approached and stopped him but he reacted that the bet was not his but to a
CUSTOMER’S. I took his words because as a subordinate, I respected him as one of
our superior who very well know all our company’s policy esp. that an officer is not
allowed to play at BIG table and are only allowed to bet with a maximum of P5,000.00
only. So I believe it was not his bet but the said customer. At that time there was no
way for me to stop the game because I saw the said customer, named MS. CORAZON
CASTILLO, whom I don’t know her [sic] since I was out of Manila Branch 2 years,
and whom BM SYHONGPAN was referring to as the player, has a lot of chips worth
about P7 Million in front of her and was betting P1.5M on the banker side which was
over the maximum table limit by P500,000.00. I know we are allowed to authorize
approval by raising the betting limits as per request of the playing customers.
After the game, the chips were encashed and I instructed GAM J. EUGENIO to
accompany BM SYHONGPAN to his room because he was too drunk. When I was
doing my rounds again, that’s how I found out from rumors within the gaming areas
that this MS. CASTILLO was used by BM SYHONGPAN and COM GONZALES to
played [sic] in behalf of them the whole time. And I also learned that there were four
checks endorsed during my shift which I facilitated only one check worth P500,000.00
after I verified and confirmed it with COM GONZALES. With regards to the other 3
checks, I have no knowledge about it since they, BM SYHONGPAN and COM
GONZALES, kept it a secret from me. When GAM EUGENIO returned from the room
of BM SYHONGPAN he handed me some cash, which according to him, was given
by BM SYHONGPAN as ‘BALATO’. I did not accept the money because at that
moment I was so mad that they involved me beyond my innocence since I am new in
the branch. I then instructed GAM EUGENIO to return the money to BM
SYHONGPAN. (sic)
Finding Rilloraza’s explanation unsatisfactory, the PAGCOR Board handed down a
Resolution on December 2, 1997 dismissing respondent and several others from
PAGCOR, on the grounds of dishonesty, grave misconduct and/or conduct prejudicial
to the best interest of the service and loss of confidence, effective December 5, 1997.
The Board also denied respondent’s motion for reconsideration in a Resolution dated
December 16, 1997.
Respondent appealed to the Civil Service Commission. On November 20, 1998, the
Commission issued Resolution No. 983033,2 the dispositive portion of which
provides, to wit:
WHEREFORE, the appeal of Carlos P. Rilloraza is hereby dismissed. However, the
Commission finds appellant guilty only of Simple Neglect of Duty and metes out upon
him the penalty of one month and one day suspension. The assailed Resolution of
PAGCOR Board of Directors is thus modified.
The Commission denied petitioner’s motion for reconsideration in Resolution No.
990465 dated February 16, 1999.3
On appeal, the Court of Appeals affirmed the resolution of the Commission.4 The
appellate court ordered petitioner to reinstate private respondent with payment of full
backwages plus all tips, bonuses and other benefits accruing to his position and those
received by other casino operations managers for the period starting January 5, 1998
until his actual reinstatement. Petitioner filed a motion for reconsideration,5 which was
denied by the appellate court in the assailed resolution of November 29, 1999.6
Hence, the instant petition.

PAGCOR avers that:
I-THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND
REFUSED TO CONSIDER THAT RESPONDENT WAS A CONFIDENTIAL
APPOINTEE OR EMPLOYEE WHOSE TERM HAD EXPIRED BY REASON OF
LOSS OF CONFIDENCE.
II-THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE
CSC RESOLUTIONS MODIFYING THE PENALTY METED OUT ON
RESPONDENT FROM DISMISSAL TO SUSPENSION, DESPITE THE GRAVITY
OR SERIOUSNESS OF THE OFFENSES COMMITTED BY THE LATTER ON
ACCOUNT OF THE EXTRAORDINARY RESPONSIBILITIES AND DUTIES
REPOSED IN THE RESPONDENT BY VIRTUE OF HIS POSITION.
The wellspring of stability in government service is the constitutional guarantee of
entrance according to merit and fitness and security of tenure, viz:
(2) Appointments in the civil service shall be made only according to merit and fitness
to be determined, as far as practicable, and, except to positions which are policy-
determining, primarily confidential, or highly technical, by competitive examination.
(3) No officer or employee of the civil service shall be removed or suspended except
for cause provided by law.7
In the case at bar, we are basically asked to determine if there is sufficient cause to
warrant the dismissal, not merely the suspension, of respondent who, petitioner
maintains, occupies a primarily confidential position. In this connection, Section 16 of
Presidential Decree No. 18698 provides:
Exemption.—All positions in the Corporation, whether technical, administrative,
professional or managerial are exempt from the provisions of the Civil Service Law,
rules and regulations, and shall be governed only by the personnel management
policies set by the Board of Directors. All employees of the casinos and related services
shall be classified as "Confidential" appointee.
Petitioner argues that pursuant to the aforequoted provision, respondent is a primarily
confidential employee. Hence, he holds office at the pleasure of the appointing power
and may be removed upon the cessation of confidence in him by the latter. Such would
not amount to a removal but only the expiration of his term. However, there should be
no lingering doubt as to the true import of said Section 16 of P.D. No. 1869. We have
already definitively settled the same issue in Civil Service Commission v. Salas,9 to
wit:
In reversing the decision of the CSC, the Court of Appeals opined that the provisions
of Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at
bar because the same is deemed to have been repealed in its entirety by Section 2(1),
Article IX-B of the 1987 Constitution. This is not completely correct. On this point,
we approve the more logical interpretation advanced by the CSC to the effect that
"Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions
of Civil Service Law and Rules has been amended, modified or deemed repealed by
the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987).
However, the same cannot be said with respect to the last portion of Section 16 which
provides that "all employees of the casino and related services shall be classified as
‘confidential’ appointees." While such executive declaration emanated merely from
the provisions of Section 2, Rule XX of the Implementing Rules of the Civil Service
Act of 1959, the power to declare a position as policy-determining, primarily
confidential or highly technical as defined therein has subsequently been codified and
incorporated in Section 12(9), Book V of Executive Order No. 292 or the
Administrative Code of 1987. This later enactment only serves to bolster the validity
of the categorization made under Section 16 of Presidential Decree No. 1869. Be that
as it may, such classification is not absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two
recognized instances when a position may be considered primarily confidential:
Firstly, when the President, upon recommendation of the Commissioner of Civil
Service, has declared the position to be primarily confidential; and, secondly, in the
absence of such declaration, when by the nature of the functions of the office there
exists "close intimacy" between the appointee and appointing power which insures
freedom of intercourse without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of state.
At first glance, it would seem that the instant case falls under the first category by
virtue of the express mandate under Section 16 of Presidential Decree No. 1869. An
in-depth analysis, however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof
provided that "the non-competitive or unclassified service shall be composed of
positions expressly declared by law to be in the non-competitive or unclassified service
or those which are policy-determining, primarily confidential, or highly technical in
nature." In the case of Piñero, et al. vs. Hechanova, et al., the Court obliged with a short
discourse there on how the phrase "in nature" came to find its way into the law, thus:
"The change from the original wording of the bill (expressly declared by law x x x to
be policy-determining, etc.) to that finally approved and enacted (‘or which are policy
determining, etc. in nature’) came about because of the observations of Senator
Tañada, that as originally worded the proposed bill gave Congress power to declare by
fiat of law a certain position as primarily confidential or policy-determining, which
should not be the case. The Senator urged that since the Constitution speaks of
positions which are ‘primarily confidential, policy-determining or highly technical in
nature,’ it is not within the power of Congress to declare what positions are primarily
confidential or policy-determining. ‘It is the nature alone of the position that
determines whether it is policy-determining or primarily confidential.’ Hence, the
Senator further observed, the matter should be left to the ‘proper implementation of the
laws, depending upon the nature of the position to be filled,’ and if the position is
‘highly confidential’ then the President and the Civil Service Commissioner must
implement the law.
To a question of Senator Tolentino, ‘But in positions that involved both confidential
matters and matters which are routine, x x x who is going to determine whether it is
primarily confidential?’ Senator Tañada replied:
‘SENATOR TAÑADA: Well, at the first instance, it is the appointing power that
determines that: the nature of the position. In case of conflict then it is the Court that
determines whether the position is primarily confidential or not." xxx
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it
is the nature of the position which finally determines whether a position is primarily
confidential, policy-determining or highly technical. And the Court in the aforecited
case explicitly decreed that executive pronouncements, such as Presidential Decree
No. 1869, can be no more than initial determinations that are not conclusive in case of
conflict. It must be so, or else it would then lie within the discretion of the Chief
Executive to deny to any officer, by executive fiat, the protection of Section 4, Article
XII (now Section 2[3], Article IX-B) of the Constitution. In other words, Section 16 of
Presidential Decree No. 1869 cannot be given a literally stringent application without
compromising the constitutionally protected right of an employee to security of tenure.
[italics supplied]
The doctrinal ruling enunciated in Piñero finds support in the 1935 Constitution and
was reaffirmed in the 1973 Constitution, as well as in the implementing rules of
Presidential Decree No. 807, or the Civil Service Decree of the Philippines. It may well
be observed that both the 1935 and 1973 Constitutions contain the provision, in Section
2, Article XII-B thereof, that "appointments in the Civil Service, except as to those
which are policy-determining, primarily confidential, or highly technical in nature,
shall be made only according to merit and fitness, to be determined as far as practicable
by competitive examination." Corollarily, Section 5 of Republic Act No. 2260 states
that "the non-competitive or unclassified service shall be composed of positions
expressly declared by law to be in the non-competitive or unclassified service or those
which are policy-determining, primarily confidential, or highly technical in nature."
Likewise, Section 1 of the General Rules in the implementing rules of Presidential
Decree No. 807 states that "appointments in the Civil Service, except as to those which
are policy-determining, primarily confidential, or highly technical in nature, shall be
made only according to merit and fitness to be determined as far as practicable by
competitive examination." Let it be here emphasized, as we have accordingly italicized
them, that these fundamental laws and legislative or executive enactments all utilized
the phrase "in nature" to describe the character of the positions being
classified.1âwphi1.nêt
The question that may now be asked is whether the Piñero doctrine—to the effect that
notwithstanding any statutory classification to the contrary, it is still the nature of the
position, as may be ascertained by the court in case of conflict, which finally
determines whether a position is primarily confidential, policy-determining or highly
technical—is still controlling with the advent of the 1987 Constitution and the
Administrative Code of 1987, Book V of which deals specifically with the Civil
Service Commission, considering that from these later enactments, in defining
positions which are policy-determining, primarily confidential or highly technical, the
phrase "in nature" was deleted.
We rule in the affirmative. The matter was clarified and extensively discussed during
the deliberations in the plenary session of the 1986 Constitutional Commission on the
Civil Service provisions, to wit:
"MR. FOZ: Which department of government has the power or authority to determine
whether a position is policy-determining or primarily confidential or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive
department, but the final decision is done by the court. The Supreme Court has
constantly held that whether or not a position is policy-determining, primarily
confidential or highly technical, it is determined not by the title but by the nature of the
task that is entrusted to it. For instance, we might have a case where a position is created
requiring that the holder of that position should be a member of the Bar and the law
classifies this position as highly technical. However, the Supreme Court has said before
that a position which requires mere membership in the Bar is not a highly technical
position. Since the term ‘highly technical’ means something beyond the ordinary
requirements of the profession, it is always a question of fact.
MR. FOZ: Does not Commissioner Bernas agree that the general rule should be that
the merit system or the competitive system should be upheld?
FR. BERNAS: I agree that that should be the general rule; that is why we are putting
this as an exception.
MR. FOZ: The declaration that certain positions are policy-determining, primarily
confidential or highly technical has been the source of practices which amount to the
spoils system.
FR. BERNAS: The Supreme Court has always said that, but if the law of the
administrative agency says that a position is primarily confidential when in fact it is
not, we can always challenge that in court. It is not enough that the law calls it primarily
confidential to make it such; it is the nature of the duties which makes a position
primarily confidential.
MR. FOZ: The effect of a declaration that a position is policy-determining, primarily
confidential or highly technical—as an exception—is to take it away from the usual
rules and provisions of the Civil Service Law and to place it in a class by itself so that
it can avail itself of certain privileges not available to the ordinary run of government
employees and officers.
FR. BERNAS: As I have already said, this classification does not do away with the
requirement of merit and fitness. All it says is that there are certain positions which
should not be determined by competitive examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall
we require a physicist to undergo a competitive examination before appointment? Or
a confidential secretary or any position in policy-determining administrative bodies,
for that matter? There are other ways of determining merit and fitness than competitive
examination. This is not a denial of the requirement of merit and fitness."
It is thus clearly deducible, if not altogether apparent, that the primary purpose of the
framers of the 1987 Constitution in providing for the declaration of a position as policy-
determining, primarily confidential or highly technical is to exempt these categories
from competitive examination as a means for determining merit and fitness. It must be
stressed further that these positions are covered by security of tenure, although they are
considered non-competitive only in the sense that appointees thereto do not have to
undergo competitive examinations for purposes of determining merit and fitness.
[italics supplied]
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned
resolution wherein it stated that "the declaration of a position as primarily confidential
if at all, merely exempts the position from the civil service eligibility requirement."
Accordingly, the Piñero doctrine continues to be applicable up to the present and is
hereby maintained. Such being the case, the submission that PAGCOR employees have
been declared confidential appointees by operation of law under the bare authority of
CSC Resolution No. 91-830 must be rejected.
Justice Regalado’s incisive discourse yields three (3) important points: first, the
classification of a particular position as primarily confidential, policy-determining or
highly technical amounts to no more than an executive or legislative declaration that is
not conclusive upon the courts, the true test being the nature of the position. Second,
whether primarily confidential, policy-determining or highly technical, the exemption
provided in the Charter pertains to exemption from competitive examination to
determine merit and fitness to enter the civil service. Such employees are still protected
by the mantle of security of tenure. Last, and more to the point, Section 16 of P.D.
1869, insofar as it declares all positions within PAGCOR as primarily confidential, is
not absolutely binding on the courts.
Considerations vary so as to make a position primarily confidential. Private secretaries
are indisputably primarily confidential employees.10 Those tasked to provide personal
security to certain public officials have also been deemed to hold primarily confidential
positions11 for obvious reasons: the former literally are responsible for the life and
well-being of the latter. Similar treatment was accorded to those occupying the posts
of city legal officer12 and provincial attorney,13 inasmuch as the highly privileged
nature of the lawyer-client relationship mandates that complete trust and confidence
must exist betwixt them. National interest has also been adjudged a factor, such that
the country’s permanent representative to the United Nations was deemed to hold her
post at the pleasure of the Chief Executive.14
As casino operations manager, Rilloraza’s duties and responsibilities are:
JOB SUMMARY: The Casino Operations Manager directs, controls and supervises
the Operations Division of the branch. He reports directly to the Branch Manager or to
the Branch Manager for Operations in Metro Manila branches.
DUTIES AND RESPONSIBILITIES:
1. Formulates marketing programs and plans of action for branch gaming operations
in order to optimize revenue.
2. Institutes and maintains a healthy, organized, mentally alert, and highly motivated
human resource for effective and efficient branch gaming operations performance.
3. Takes measures to maintain and uphold the integrity of the casino games.
4. Reviews, analyzes, and evaluates gaming table and slot machine operations reports,
including income performance.
5. Submits periodic reports to the Branch Manager.
6. Directs the opening and closing of gaming table and slot machine areas.
7. Directs the setting-up, closure or suspension of operations of gaming tables and slot
machine units when deemed necessary.
8. Controls the requisition, storage, and issuance of playing cards, gaming equipment
and paraphernalia, operations keys, and accountable receipts and slips.
9. Ensures that gaming operations personnel adhere to the established House Rules,
company policies and procedures.
10. Ensures that quality and efficient service is extended to casino patrons in
accordance with the established House Rules, company policies and procedures.
11. Directs and controls all activities of the Card Shuffling Center and the Card
Distribution Room.
12. Issues directives, memoranda, and other official communications on branch
gaming operations matters.
13. Directs the daily and periodic performance evaluation of operations personnel.
14. Requires written statements from operations personnel regarding disputes, reported
irregularities and violations of House Rules, company policies and procedures.
15. Issues or recommends disciplinary sanctions against delinquent operations
personnel, as well as commendations to deserving ones.
16. Upon the Branch Manager’s approval, issues preventive suspension to erring
employees pending investigation.
17. Effects immediate changes in House Rules when deemed necessary, subject to
management review.
18. Approves table refill, chip yield, and dropbox yield transactions, as well as the
payment for progressive link super jackpot awards.
19. Directs the cancellation of progressive link super jackpot combinations.
20. Signs chip checks in behalf of the Branch Manager.
21. Approves complimentary food and beverages to deserving players and evaluates
the same for the possible extension of other amenities.
22. Settles disputes arising from gaming operations that have not been effectively
settled by gaming managers and supervisors, and enforces decisions on the
interpretation of House Rules, company policies, and procedures.
23. Recommends to the Branch Manager the banning of undesirable players.
24. Orders the removal of customers or employees from the table gaming (sic) and slot
machine area for justifiable reasons.
25. Implements contingency plans in case of emergencies to ensure the security and
safety of customers and staff.
26. Acts on customer complaints, suggestions, and observations.
27. Chairs the Branch Infractions Committee, the Variance Committee, and other ad
hoc committees of the Operations Division.
28. Represents the Operations Division in Branch Management panel meetings.
29. Apprises the Branch Manager of any incident of doubtful nature and of
developments that require his immediate attention.
30. Performs other duties as may be designated by the Branch Manager.
Undoubtedly, respondent’s duties and responsibilities call for a great measure of both
ability and dependability. They can hardly be characterized as routinary, for he is
required to exercise supervisory, recommendatory and disciplinary powers with a wide
latitude of authority. His duties differ markedly from those we previously ruled as not
primarily confidential: for instance, PAGCOR’s Internal Security Staff;15
Management and Audit Analyst I of the Economic Intelligence and Investigation
Bureau;16 a Special Assistant to the Governor of the Central Bank;17 the Legal Staff
of the Provincial Attorney;18 members of the Customs Police;19 the Senior Executive
Assistant, Clerk I, Supervising Clerk I and Stenographer;20 and a Provincial
Administrator.21 In this sense, he is a tier above the ordinary rank-and-file in that his
appointment to the position entails faith and confidence in his competence to perform
his assigned tasks. Lacking, therefore, is that amplitude of confidence reposed in him
by the appointing power so as to qualify his position as primarily confidential. Verily,
we have observed that:
[i]ndeed, physicians handle confidential matters. Judges, fiscals and court
stenographers generally handle matters of similar nature. The Presiding and Associate
Justices of the Court of Appeals sometimes investigate, by designation of the Supreme
Court, administrative complaints against judges of first instance, which are
confidential in nature. Officers of the Department of Justice, likewise, investigate
charges against municipal judges. Assistant Solicitors in the Office of the Solicitor
General often investigate malpractice charges against members of the Bar. All of these
are "confidential" matters, but such fact does not warrant the conclusion that the office
or position of all government physicians and all Judges, as well as the aforementioned
assistant solicitors and officers of the Department of Justice are primarily confidential
in character.22
We further note that a casino operations manager reports directly to the Branch
Manager or, in Metro Manila branches, to the Branch Manager for Operations. It does
not appear from the record to whom the Branch Manager (or the Branch Manager for
Operations, as the case may be) reports. It becomes unmistakable, though, that the
stratum separating the casino operations manager from reporting directly to the higher
echelons renders remote the proposition of proximity between respondent and the
appointing power. There is no showing of that element of trust indicative of a primarily
confidential position, as we defined it in De los Santos v. Mallare,23 to wit:
Every appointment implies confidence, but much more than ordinary confidence is
reposed in the occupant of a position that is primarily confidential. The latter phrase
denotes not only confidence in the aptitude of the appointee for the duties of the office
but primarily close intimacy which insures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state.
Necessarily, the point of contention now is whether there was cause for the
respondent’s separation from the service. On this point, having analyzed both parties’
arguments, we find that the Civil Service Commission did not err in declaring that
Rilloraza was liable only for simple neglect of duty. In the first place, there is no
evidence to sustain a charge of dishonesty. As the latter term is understood, it implies
a:
Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity. Lack
of honesty, probity or integrity in principle; lack of fairness and straightforwardness;
disposition to defraud, deceive or betray.24
In the case at bar, respondent’s explanation fails to evince an inclination to lie or
deceive, or that he is entirely lacking the trait of straightforwardness. We concur with
the appellate court’s finding, thus:
Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing at
Table No. 3BB, respondent Rilloraza at once, told him to stop. However, Syhongpan
explained that he was merely playing for a customer, Ms. Corazon Castillo who was
seated also at the table. After observing the large number of chips in front of Ms.
Castillo estimated at around P7M, respondent became convinced of the clarification
given by Branch Manager Syhongpan and he must have relied also on the word of said
top ranking PAGCOR official whose representation must ordinarily be accepted and
accorded respect and credence by a subordinate like him. xxx
More importantly, the PAGCOR Adjudication Committee concluded that respondent
actually attempted to stop the game where Syhongpan was playing which was even
utilized as basis by the PAGCOR Board in dismissing respondent. xxx
The allegation that respondent Rilloraza allowed Syhongpan to place bets over and
above the allowable limit of P5,000.00 per deal is not anchored on a correct premise.
Respondent Rilloraza has steadfastly maintained that he is of the belief that BM
Syhongpan is not playing for himself but for Ms. Castillo. Thus, if Syhongpan is
merely acting for the real casino player, then the policy of not allowing any PAGCOR
official to bet beyond P5,000.00 has no application. Respondent Rilloraza believed in
good faith that the bet was not BM Syhongpan’s but of Ms. Castillo and should not be
unduly punished for his honest belief. The same reason exists for the claim that
respondent allowed BM Syhongpan to play beyond 6:00 a.m. This is non sequitur since
Rilloraza never entertained the idea that Syhongpan was the gambler.
Lastly, if only to consummate respondent’s alleged dishonesty and grave misconduct
by corruptly profiting from said incident, he could have easily pocketed the ‘balato’
given by Syhongpan, but he never did, and in fact, returned the money. xxx
On the facilitation of the swap of a P500,000.00 personal check for chips, this Court,
after considering the parties involved and the circumstances of the case, believes that
respondent Rilloraza has judiciously performed all the acts necessary to protect the
interests of PAGCOR and has acted as a prudent and reasonable man. It is evident that
respondent had the authority to approve the exchange of checks for gambling chips. In
the exercise of such discretion, We find that the approval by Rilloraza of the exchange
was done with caution and circumspect [sic]. When he was approached by GAM Quito
for endorsement of said personal checks per request of a customer, he immediately
approached COM Gonzales to verify the check who assured him that the check was
good and in fact guaranteed by Mr. Syhongpan, Davao City Branch Manager of
PAGCOR. To be sure, he even reconfirmed the same with Gonzales as he is more
familiar with the systems and the customers since he has been recalled to the branch
for only three (3) weeks. After approving the endorsement, he immediately tried to
contact SBM Advincula and BMO Cordero, to notify them of his action but none of
them called back. In the afternoon, both returned the call and were informed by
respondent of the exchange of the chips for the check and presumably, the former
ratified or acquiesced to the action of respondent since there was no objection or
complaint about the matter. xxx
These same findings negate the conclusion that respondent is guilty of misconduct or
conduct prejudicial to the best interest of the service. In Manuel v. Calimag, Jr.,25 we
defined misconduct, thus:
Section 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. – In
the determination of the penalties to be imposed, mitigating, aggravating and
alternative circumstances attendant to the commission of the offense shall be
considered.1âwphi1.nêt
The following circumstances shall be appreciated:

Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. a. Physical illness
Lopez in these words: "Misconduct in office has a definite and well-understood legal
meaning. By uniform legal definition, it is a misconduct such as affects his b. Good faith
performance of his duties as an officer and not such only as affects his character as a
private individual. In such cases, it has been said at all times, it is necessary to separate c. Taking undue advantage of official position
the character of the man from the character of the officer x x x. It is settled that
misconduct, misfeasance, or malfeasance warranting removal from office of an officer, d. Taking undue advantage of subordinate
must have direct relation to and be connected with the performance of official duties
amounting either to maladministration or willful, intentional neglect and failure to e. Undue disclosure of confidential information
discharge the duties of the office x x x.
f. Use of government property in the commission of the offense
Differently propounded in Canson v. Garchitorena, et al.,26 misconduct is "any
unlawful conduct on the part of a person concerned in the administration of justice g. Habituality
prejudicial to the rights of parties or to the right determination of the cause. It generally
means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate h. Offense is committed during office hours and within the premises of the office or
or intentional purpose. The term, however, does not necessarily imply corruption or building
criminal intent. On the other hand, the term ‘gross’ connotes something ‘out of all
measure; beyond allowance; not to be excused; flagrant; shameful’." From the facts i. Employment of fraudulent means to commit or conceal the offense
given, absent is that element of intent to do wrong against petitioner.
j. Length of service in the government
CSC Resolution No. 991936 dated August 31, 1999 classifies simple neglect of duty
as a less grave offense punishable as a first offense by suspension of one (1) month and k. Education, or
one (1) day to six (6) months.27 In the imposition of the proper penalty, Section 54
thereof provides, as follows: (a) the minimum of the penalty shall be imposed where l. Other analogous circumstances
only mitigating and no aggravating circumstances are present; (b) the medium of the
penalty shall be imposed where no mitigating and aggravating circumstances are Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the
present; and (c) the maximum of the penalty shall be imposed where only aggravating proper party, otherwise, said circumstances shall not be considered in the imposition
and no mitigating circumstances are present. In turn, the circumstances that may be of the proper penalty. The Commission, however, in the interest of substantial justice
properly considered are: may take and consider these circumstances.
We find that the Civil Service Commission, as affirmed by the Court of Appeals,
correctly attributed good faith on the part of respondent. Accordingly, the modified
penalty imposed by the Civil Service Commission on the respondent which was
affirmed by the Court of Appeals, was proper under the premises.
WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated
August 31, 1999 as well as the Resolution dated November 29, 1999, rendered by the
Court of Appeals in CA-G.R. SP No. 51803 are hereby AFFIRMED. No costs.
SO ORDERED.
G.R. NO. L-69137 August 5, 1986
FELIMON LUEGO, petitioner-appellant, vs. CIVIL SERVICE COMMISSION
and FELICULA TUOZO, respondents-appellees. Jose Batiquin for petitioner-
appellant.
Fausto F. Tugade for private respondent-appellee.
CRUZ, J.:
Stripped of irrelevant details and impertinent incidents that have cluttered the
voluminous record, the facts of this case may be briefly narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor,
Cebu City, by Mayor Florentino Solon on February 18, 1983. 1 The appointment was
described as permanent" but the Civil Service Commission approved it as "temporary,"
subject to the final action taken in the protest filed by the private respondent and
another employee, and provided "there (was) no pending administrative case against
the appointee, no pending protest against the appointment nor any decision by
competent authority that will adversely affect the approval of the appointment." 2 On
March 22, 1984, after protracted hearings the legality of which does not have to be
decided here, the Civil Service Commission found the private respondent better
qualified than the petitioner for the contested position and, accordingly, directed "that
Felicula Tuozo be appointed to the position of Administrative Officer 11 in the
Administrative Division, Cebu City, in place of Felimon Luego whose appointment as
Administrative Officer II is hereby revoked."3 The private respondent was so
appointed on June 28, 1984, by the new mayor, Mayor Ronald Duterte. 4 The
petitioner, invoking his earlier permanent appointment, is now before us to question
that order and the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove
a permanent appointment on the ground that another person is better qualified than the
appointee and, on the basis of this finding, order his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could
be validly replaced in the instant case because his appointment was temporary and
therefore could be withdrawn at will, with or without cause. Having accepted such an
appointment, it is argued, the petitioner waived his security of tenure and consequently
ran the risk of an abrupt separation from his office without violation of the
Constitution.5
While the principle is correct, and we have applied it many times,6 it is not correctly
applied in this case. The argument begs the question. The appointment of the petitioner
was not temporary but permanent and was therefore protected by Constitution. The
appointing authority indicated that it was permanent, as he had the right to do so, and
it was not for the respondent Civil Service Commission to reverse him and call it
temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the
character of the appointment, which was clearly described as "Permanent" in the space
provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was
temporary was the approval of the appointment, not the appointment it sell And what
made the approval temporary was the fact that it was made to depend on the condition
specified therein and on the verification of the qualifications of the appointee to the
position.
The Civil Service Commission is not empowered to determine the kind or nature of
the appointment extended by the appointing officer, its authority being limited to
approving or reviewing the appointment in the light of the requirements of the Civil
Service Law. When the appointee is qualified and authorizing the other legal
requirements are satisfied, the Commission has no choice but to attest to the
appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies
in the official vested by law with the appointing power and not the Civil Service
Commission. The Commissioner of Civil Service is not empowered to determine the
kind or nature of the appointment extended by the appointing officer. When the
appointee is qualified, as in this case, the Commissioner of Civil Service has no choice
but to attest to the appointment. Under the Civil Service Law, Presidential Decree No.
807, the Commissioner is not authorized to curtail the discretion of the appointing
official on the nature or kind of the appointment to be extended. 8
Indeed, the approval is more appropriately called an attestation, that is, of the fact that
the appointee is qualified for the position to which he has been named. As we have
repeatedly held, such attestation is required of the Commissioner of Civil Service
merely as a check to assure compliance with Civil Service Laws.9
Appointment is an essentially discretionary power and must 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. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified who
should have been preferred. This is a political question involving considerations of
wisdom which only the appointing authority can decide.
It is different where the Constitution or the law subjects the appointment to the
approval of another officer or body, like the Commission on Appointments under 1935
Constitution. 10 Appointments made by the President of the Philippines had to be
confirmed by that body and could not be issued or were invalidated without such
confirmation. In fact, confirmation by the Commission on Appointments was then
considered part of the appointing process, which was held complete only after such
confirmation. 11
Moreover, the Commission on Appointments could review the wisdom of the
appointment and had the power to refuse to concur with it even if the President's choice
possessed all the qualifications prescribed by law. No similar arrangement is provided
for in the Civil Service Decree. On the contrary, the Civil Service Commission is
limited only to the non-discretionary authority of determining whether or not the
person appointed meets all the required conditions laid down by the law.
It is understandable if one is likely to be misled by the language of Section 9(h) of
Article V of the Civil Service Decree because it says the Commission has the power to
"approve" and "disapprove" appointments. Thus, it is provided therein that the
Commission shag have inter alia the power to:
9(h) Approve all appointments, whether original or promotional to positions in the
civil service, except those presidential appointees, members of the Armed Forces of
the Philippines, police forces, firemen, and jailguards, and disapprove those where the
appointees do not possess appropriate eligibility or required qualifications. (emphasis
supplied)
However, a full reading of the provision, especially of the underscored parts, will make
it clear that all the Commission is actually allowed to do is check whether or not the
appointee possesses the appropriate civil service eligibility or the required
qualifications. If he does, his appointment is approved; if not, it is disapproved. No
other criterion is permitted by law to be employed by the Commission when it acts on-
-or as the Decree says, "approves" or "disapproves" an appointment made by the proper
authorities.
Significantly, the Commission on Civil Service acknowledged that both the petitioner
and the private respondent were qualified for the position in controversy. 12 That
recognition alone rendered it functus officio in the case and prevented it from acting
further thereon except to affirm the validity of the petitioner's appointment. To be sure,
it had no authority to revoke the said appointment simply because it believed that the
private respondent was better qualified for that would have constituted an
encroachment on the discretion vested solely in the city mayor.
In preferring the private respondent to the petitioner, the Commission was probably
applying its own Rule V, Section 9, of Civil Service Rules on Personnel Actions and
Policies, which provides that "whenever there are two or more employees who are
next-in-rank, preference shall be given to the employee who is most competent and
qualified and who has the appropriate civil service eligibility." This rule is
inapplicable, however, because neither of the claimants is next in rank. Moreover, the
next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be
filled by transfer of present employees, reinstatement, re-employment, or appointment
of outsiders who have the appropriate eligibility. 13
There are apparently no political overtones in this case, which looks to be an honest
contention between two public functionaries who each sincerely claims to be entitled
to the position in dispute. This is gratifying for politics should never be permitted to
interfere in the apolitical organization of the Civil Service, which is supposed to serve
all the people regardless of partisan considerations. This political detachment will be
impaired if the security of tenure clause in the Constitution is emasculated and
appointments in the Civil Service are revoked and changed at will to suit the
motivations and even the fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated
March 22, 1984, is set aside, and the petitioner is hereby declared to be entitled to the
office in dispute by virtue of his permanent appointment thereto dated February 18,
1983. No costs.
SO ORDERED.
G.R. No. 92403 April 22, 1992
VICTOR A. AQUINO, petitioner, vs. CIVIL SERVICE COMMISSION and
LEONARDA D. DE LA PAZ, respondents.
MEDIALDEA, J.:
This petition for certiorari with prayer for the issuance of a restraining order seeks to
nullify the resolutions issued by the respondent Civil Service Commission, namely: (1)
Resolution No. 88-820 dated November 7, 1988 reversing the decision of the Merit
Systems Protection Board dated February 5, 1988 which sustained the decision of the
Secretary of Education, Culture and Sports dated May 4, 1987 upholding the
appointment of Mr. Victor A. Aquino as Supply Officer I in the DECS, Division of
San Pablo City; and (2) Resolution No. 90-224 dated February 27, 1990 denying the
motion for reconsideration with prayer for issuance of temporary restraining order for
lack of merit.
The antecedent facts are as follows:
Petitioner Victor A. Aquino, then holding the position of Clerk II, Division of City
Schools of San Pablo City, was designated on July 20, 1984 as Officer-in-Charge of
the Division Supply Office by the DECS Regional Director Saturnino R. Magturo
(Annex "H", petition, p. 55, Rollo) in view of the retirement of the Supply Officer I,
Mr. Jose I. Aviquivil.
Prior to such designation, or from the period February 16, 1984 to June 16, 1984,
petitioner was designated as Property Inspector and In-Charge of the Supply Office
performing the duties and responsibilities of the Supply Officer I (p. 55, Rollo).
Two (2) years thereafter, or on September 19, 1986, the Division Superintendent of
City Schools of San Pablo City, Milagros Tagle, issued a promotional appointment to
private respondent Leonarda D. de la Paz as Supply Officer I in the DECS Division of
San Pablo City. She assumed and performed the duties and functions of the position
and received the compensation and benefits therefor.
At the time of her appointment, private respondent was then holding the position of
Clerk II, Division of City Schools of San Pablo City. From August 25, 1976 to
September 1983, she was designated as Assistant to the Supply Officer (DECS
decision, p. 31, Rollo). The Civil Service Regional Office IV approved her
appointment as permanent "provided that there is no pending administrative case
against the appointee, no pending protest against the appointment, nor any decision by
competent authority that will adversely affect the approval of (the) appointment"
(Annex "A", Comment of CSC, p 164, Rollo).
One (1) month after, or on October 20, 1986 petitioner filed a protest with the DECS
Secretary questioning the qualification and competence of private respondent for the
position of Supply Officer I.
In a decision dated May 4, 1987, DECS Secretary Lourdes R. Quisumbing sustained
the protest of petitioner and revoked the appointment of private respondent as Supply
Officer I thus:
From the foregoing comparative statement of the qualifications of Mr. Aquino and
Mrs. de la Paz, apparently the former has a decided advantage over the latter in terms
of education, experience and training. Further examination of the comparative
statement shows that Mrs. de la Paz has had no relevant in-service training course
attended and completed. Accordingly, therefore, Mr. Aquino is preferred to Mrs. de la
Paz for appointment as Supply Officer I.
Based on all the foregoing and as records further show that Mr. Aquino is competent
and qualified to hold the subject position and possesses the eligibility requirement, this
Office finds the instant protest meritorious and hereby rules and so rules that Mr.
Aquino be appointed Supply Officer I in place of Mrs. de la Paz, whose appointment
thereto is deemed revoked. (p. Annex "C", pp. 30-31, Rollo)
Private respondent then filed her petition for reconsideration of the aforequoted DECS
decision but the same was denied by Secretary Quisumbing in a Resolution dated
August 11, 1967.
On the bases of the aforementioned rulings of the DECS Secretary, petitioner Aquino
was issued a permanent appointment dated August 11, 1987 as Supply Officer I by the
DECS Regional Director Pedro San Vicente effective October 26, 1987. On the date
of effectivity of his appointment, petitioner assumed the duties and functions of the
position. The said appointment was approved by the Civil Service Regional Office IV
on October 27, 1987.
For her part, private respondent de la Paz filed on October 16, 1987 a notice of appeal
with motion to maintain status quo to the Merit Systems Protection Board (MSPB)
which, on February 5, 1988, rendered a decision upholding the appointment of Aquino
as Supply Officer I (Annex "D", petition pp. 33-35, Rollo).
From the decision of the MSPB, private respondent appealed to public respondent Civil
Service Commission (CSC).
In Resolution No, 88-820 dated November 7, 1988, public respondent CSC found the
appeal of private respondent meritorious, thus revoking the appointment of petitioner
Aquino and restoring private respondent de la Paz to her position as Supply Officer I,
DECS, Division of San Pablo City under her previously approved appointment (Annex
"B", petition, pp. 26-29, Rollo).
From said decision, petitioner filed a motion for reconsideration with prayer for
issuance of a temporary restraining order. Finding no merit to the motion for
reconsideration filed by petitioner, public respondent CSC issued Resolution No. 90-
224 dated February 27, 1990 denying said motion (Annex "A", petition, pp. 21- 24,
Rollo).
Hence, this petition seeking the reversal of public respondent Commission's action on
petitioner's appointment.
Two (2) interrelated issues on the extent of authority of the Civil Service Commission
to pass upon the contested appointments were raised by petitioner which could be
simplified into whether or not public respondent Civil Service Commission committed
grave abuse of discretion in revoking the appointment of petitioner Victor A. Aquino
as Supply Officer I in the DECS Division of San Pablo City as it found private
respondent Leonarda de la Paz better qualified.
In assailing the two (2) CSC Resolutions revoking his appointment, petitioner invokes
the ruling of this Court in the case of Santiago v. Civil Service Commission, G.R. No.
81467, October 27, 1989, 178 SCRA 733 and Galura v. Civil Service Commission,
G.R. 85812, June 1, 1989 (En Banc resolution) that the Civil Service Commission has
no authority to revoke an appointment on the ground that another person is more
qualified for a particular position for that would have constituted an encroachment on
the discretion vested solely in the appointing authority. The Civil Service Commission
cannot exceed its power by substituting its will for that of the appointing authority.
In support of petitioner's cause, the Solicitor General stresses the wide latitude of
discretion given to the appointing authority in the selection and appointment of
qualified persons to vacant positions in the civil service which was emphasized by the
Court as rationale for the rule laid down in Luego v. Civil Service Commission, G.R.
No. 69137, August 5, 1986, 143 SCRA 327, Central Bank v. CSC, G.R. No. 80455-
56, April 10, 1989, 171 SCRA 744, Patagoc v. CSC, G.R. No. 90229, May 14, 1990,
185 SCRA 411, that public respondent CSC, not being the "appointing power" in
contemplation of law, has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position and that the Commission has
no authority to direct the appointment of a substitute of its choice.
We have consistently applied the above doctrine in many cases with similar factual
circumstances, but we see no compelling reason to apply the same in the instant case.
In the cases cited above, We ruled that the Civil Service Commission has no authority
to revoke an appointment simply because it (CSC) believed that another person is
better qualified than the appointee for it would constitute an encroachment on the
discretion solely vested on the appointing authority. The situation is different as in the
instant case, where the Civil Service Commission revoked the appointment of the
successful protestant, petitioner herein, principally because the right to security of
tenure of the prior appointee, private respondent herein, to the contested position had
already attached (see CSC decision, pp. 28-29, Rollo). It must be noted that public
respondent CSC did not direct the appointment of a substitute of its choice. It merely
restored the appointment of private respondent who was first appointed to the contested
position.
The records show that private respondent was issued a permanent appointment on
September 19, 1986 as Supply Officer I in the DECS Division of San Pablo City
effective September 30, 1986. On the basis of the of said appointment which was
approved by the Civil Service Regional Office No. IV, private respondent assumed and
performed the duties and functions of the position as Supply Officer I and received the
compensation and benefits of the said position in accordance with the mandate of
Section 9 par.(h) of the Civil Service Law (P.D. 807, as amended). In consonance with
the doctrine laid down in Villanueva v. Balallo, G.R. No. L-17745, October 31, 1963,
9 SCRA 407, that an appointment is complete when the last act required of the
appointing power has been performed, but later qualified in Favis v. Rupisan, G.R. No.
L-22823, May 19, 1966, 17 SCRA 190, that the acts of the head of a department or
office making the appointment and the Commissioner of Civil Service acting together,
though not concurrently, but consecutively, are necessary to make an appointment
complete, the permanent appointment extended to private respondent, under the
circumstances of the case, is deemed complete. As such, she is entitled to the protection
of the law against unjust removal.
The conclusion of respondent Commission in the questioned decision that private
respondent is more qualified than petitioner merely supports the validity of the
restoration of private respondent to her previously approved appointment considering
that she meets the prescribed qualification standards required of the position of Supply
Officer I and the appropriate civil service eligibility, to wit:
EDUCATION: Bachelor's degree with training in Supply Management
EXPERIENCE: None required
ELIGIBILITY: Supply Officer; Career Service (Professional)
It is well-settled that once an appointment is issued and the moment the appointee
assumes a position in the civil service under a completed appointment, he acquires a
legal, not merely equitable right (to the position), which is protected not only by statute,
but also by the Constitution, and cannot be taken away from him either by revocation
of the appointment, or by removal, except for cause, and with previous notice and
hearing (Mitra v. Subido, G.R No. L-21691, September 15, 1967, 21 SCRA 127.
There is also authority for the rule that when the appointing power has once acted and
the appointee has accepted the office and done what is required of him upon its
acceptance, his title to the office becomes complete, and he can then be removed only
in the regular way (Mechem, Law of Public Offices and Officers, Sec. 461, p. 294,
citing Marbury v. Madison, 1 Cranch (U.S.) 137). The appointing power can not effect
his removal indirectly by rescinding or revoking his appointment after it is complete.
There is thus reasonable ground for the rule that the moment the discretionary power
of appointment has been exercised and the appointee assumed the duties and functions
of the position, the said appointment cannot be revoked by the appointing authority on
the ground merely that the protestant is more qualified than the first appointee, subject
however to the condition that the first appointee should possess the minimum
qualifications required by law. Otherwise, the security of tenure guaranteed by Article
IX-B, Section 2 par. (3) of the 1987 Constitution would be rendered meaningless if the
appointing authority is allowed to flip-flop in exercising its discretionary power of
appointment.
While a protest is a made of action that may be availed of by the aggrieved party to
contest the appointment made, the protest must be "for cause" or predicated on those
grounds provided for under Section 19 par. (6) of the Civil Service Law (P.D. 807),
namely: (1) that the appointee is not qualified; (2) that the appointee is not the next-in-
rank; and (3) in case of appointment by transfer, reinstatement, or by original
appointment, that the protestant is not satisfied with the written special reason or
reasons given by the appointing authority.
We have defined the concept of "for cause" in connection with removal of public
officers in the case of De los Santos v. Mallare, G.R. No. L-3881, August 31, 1950, 87
Phil. 289, as follows: "It means for reasons which the law and sound public policy
recognized as sufficient warrant for removal, that is legal cause, and not merely causes
which the appointing power in the exercise of discretion may deem sufficient. It is
implied that officers may not be removed at the mere will of those vested with the
power of removal, or without any cause. Moreover, the cause must relate to and affect
the administration of the office, and must be restricted to something of a substantial
nature directly affecting the rights and interests of the public."
The ground relied upon by petitioner in his protest that he is more qualified than private
respondent in terms of education, experience and training does not fall within the
meaning of "for cause" contemplated by Article IX-B, Section 2 par. (3) of the 1987
Constitution which would warrant the revocation, if not removal, of the appointment
of private respondent. Neither does it fall under the grounds of appeal contemplated
under Section 19 par. (6) of the Civil Service Law (P.D. 807). Therefore, the protest of
petitioner did not adversely affect the approval of the appointment of private
respondent.
Even on the assumption that the revocation of private respondent's appointment was
validly exercised by DECS Secretary Quisumbing, still the appointment extended to
petitioner was tainted with irregularity as it was issued before the finality of the
decision on the protest in violation of CSC Resolution No. 83-343 which prohibits the
issuance of an appointment to protestant (petitioner) if the protest case is not yet finally
resolved, since there is no vacancy in the position pending resolution of the protest
case. There can be no appointment to a non-vacant position. The incumbent must first
be legally removed or his appointment validly terminated (Costin v. Quimbo, G.R. No.
L-32271, January 27, 1983, 120 SCRA 159). An appointment to an office which is not
vacant is null and void ab initio (Morata v. Court of Appeals, G.R. No. L-18975, May
25, 1964, 11 SCRA 42).
CSC Resolution No. 83-343 provides, thus:
An appointment though contested shall take effect immediately upon issuance if the
appointee assumes the duties of the position and (the) appointee is entitled to receive
the salary attached to the position. Likewise such appointment shall become ineffective
in case the protest is finally resolved in favor of the protestant, in which case the
protestee shall be reverted to his former position. (p. 223, Rollo)
Records reveal that the decision of the DECS Secretary revoking the appointment of
private respondent was rendered on May 4, 1987 and the motion for reconsideration
filed by private respondent was denied on August 11, 1987. The appointment issued to
petitioner as Supply Officer I was dated August 11, 1987 and he assumed the position
on October 26, 1987 (date of effectivity of his appointment) as reported by the Schools
Division Superintendent of San Pablo City (pp. 77-78, Rollo). From all indications, the
appointment of petitioner dated August 11, 1987 was issued with undue haste before
the finality of the denial of the motion for reconsideration.
While it is true that the appointing authority has a wide latitude of discretion in making
his choice in the selection and appointment of qualified persons to vacant positions in
the civil service, we cannot, however, give a stamp of approval to such a procedural
irregularity in extending appointments, as in the instant case, to the prejudice of the
right to security of tenure of the incumbent to the position.
ACCORDINGLY, the petition is DENIED. The decision dated May 4, 1987 and the
resolution dated August 11, 1987 of the respondent Civil Service Commission are
hereby AFFIRMED. The Secretary of the Department of Education, Culture and Sports
is hereby directed to restore private respondent Leonarda de la Paz to her previously
approved appointment as Supply Officer I, DECS, Division of San Pablo City.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Griño-Aquino, Regalado,
Davide, Jr., Romero and Nocon, JJ., concur.
Bellosillo, J., took no part
Separate Opinions
MELENCIO-HERRERA, J., dissenting:
I am constrained to take exception to the conclusion of the majority that the right to
security of tenure of private respondent to the contested position had already attached.
It should be noted that private respondent's appointment on 19 September 1986 was
approved as permanent by the Civil Service Regional Office IV subject to certain
conditions, namely, "(1) that there is no pending administrative case against the
appointee; (2) no pending protest against the appointment, (3) nor any decision by
competent authority that will adversely affect the approval of (the) appointment"
(numbering supplied).
In this case, a protest against the appointment was timely filed by petitioner on 20
October 1986 questioning the qualification and competence of private respondent. The
protest was sustained by the Secretary of the Department of Education, Culture and
Sports (DECS) on 4 May 1987 on the ground that petitioner had a "decided advantage
over private respondent in terms of education, experience and training." Petitioner was
thus appointed in place of private respondent whose appointment was deemed revoked.
That was a decision by competent authority adversely affecting the approval of private
respondent's appointment. Conditions Nos. 2 and 3 having supervened, private
respondent could not have assumed the contested position under a completed
appointment. Consequently, private respondent had acquired no legal right to security
of tenure that would have entitled her to removal only "for cause."
On the contrary, it was petitioner who was issued a permanent appointment by the
DECS Regional Director on 11 August 1987, effective on 26 October 1987 when
petitioner assumed the duties and functions of the position. That appointment was
approved by the Civil Service Regional Office IV on 27 October 1987, without any
qualifications or conditions.
Private respondent's Motion for Reconsideration of the DECS decision on petitioner's
protest was denied by that department on 11 August 1987. A notice of appeal was filed
by private respondent to the Merit Systems Protection Board (MSPB) on 16 October
1987. On 5 February 1988, the MSPB upheld petitioner's appointment.
On appeal, however, by private respondent to the Civil Service Commission, the latter
body, on 7 November 1988, found the appeal meritorious, revoked petitioner's
appointment "under the previously approved appointment, " on the ground that private
respondent was "better qualified" (Decision, p. 5). The CSC denied the reconsideration
sought by petitioner on 27 February 1990.
Under the circumstances, it can not be denied that, in resolving private respondent's
appeal to it, the CSC had substituted its own choice for that of the appointing authority.
The general rule, therefore, must apply: the discretion exercised by the appointing
power, in extending an appointment to a given position to one of two employees
possessing the requisite minimum qualifications for the position, will not generally be
interfered with and must be sustained. The Civil Service Commission has no authority
to revoke the said appointment simply because it believes that another employee is
better qualified for that would constitute an encroachment on the discretion vested
solely in the appointing authority (Dr. Mariquita Mantala v. Hon. Ignacio Salvador,
G.R. No. 101646, February 13, 1992, citing Luego v. Civil Service Commission, 143
SCRA 327; Central Bank v. Civil Service Commission, 171 SCRA 744; and Santiago,
Jr. v. Civil Service Commission, 178 SCRA 733).
To state that respondent CSC "did not direct the appointment of a substitute of its
choice but merely restored the appointment of private respondent who was first
appointed to the contested position" (p. 7, Decision) is misleading and inaccurate.
There could have been no "restoration" as private respondent's appointment never
attained permanency by reason of the conditions that effectively hindered it from
acquiring that status, namely, the timely protest and the decision by competent
authority adversely affecting it. By reason thereof, there was no completed
appointment much less any security of tenure to speak of that would have entitled
private respondent to the protection of the law against unjust removal (pp. 7-8,
Decision).
Upon the foregoing considerations, I vote to grant the Petition. It is petitioner Aquino
who should be appointed to the contested position, not private respondent De la Paz,
following our consistent pronouncements on the matter, espoused in the strongest
terms in some instances, that the CSC exceeds its power when it substitutes its will for
that of the appointing authority.
GR No. L-3881, Aug 31, 1950
EDUARDO DE LOS SANTOS v. GIL R. MALLARE +
87 Phil. 289
TUASON, J.:
This is an original action of quo warranto questioning the legality of the appointment
of respondent Gil R. Mallare to the office of city engineer for the City of Baguio which
the petitioner occupied and claims to be still occupying. The real issue however is the
legality of the petitioner's removal from the same office which would be the effect of
Mallare's appointment if the same be allowed to stand. It is the petitioner's contention
that under the, Constitution he can not be removed.against his will and without cause.
The complaint against the other respondents has to do merely with their recognition of
Mallare as the lawful holder of the disputed office and is entirely dependent upon the
result of the basic action against the last-mentioned respondent (Mallare).
Stripped of details unessential to the solution of the case, the facts are that Eduardo de
los Santos, the petitioner, was appointed City Engineer of Baguio on July 16, 1946, by
the President, appointment which was confirmed by the Commission on Appointments
on August 6, and on the 23rd of that month, he qualified for and began to exercise the
duties and functions of the position. On June 1, 1950, Gil R. Mallare was extended an
ad interim appointment by the President to the same position, after which, on June 3,
the Undersecretary of the Department of Public Works and Communication directed
Santos to report to the Bureau of Public Works for another assignment. Santos refused
to vacate the office, and when the City Mayor and the other officials named as Mallare's
co-defendants ignored him and paid Mallare the salary corresponding to the position,
he commenced these proceedings.
The petitioner rests his case on Article XII of the Constitution, Section 4 of which
reads: "No officer or employee in the Civil Service shall be removed or suspended
except for cause as provided by law."
It is admitted in respondents' answer that the City Engineer of Baguio "belongs to the
unclassified service." An d this Court, in an exhaustive opinion by Mr. Justice
Montemayor in the case of Lacson vs. Romero, 47 Off. Gaz., 1778, involving the office
of provincial fiscal, ruled that officers or employees in the unclassified as well as those
in the classified service are protected by the above-cited provision of the organic law.
But there is this difference between the Lacsott case and the case at bar: Section 2545
of the Revised Administrative Code, which falls under Chapter 61 entitled "City of
Baguio," authorizes the Governor General (now the President) to remove at pleasure
any of the officers enumerated therein, one of whom is the city engineer. The first
question that presents itself is",' is this provision still in force?
Section 2 of Article XVI of the Constitution declares that all laws of the Philippine
Islands shall continue in force until the inauguration of the Commonwealth of the
Philippines; thereafter, such laws shall remain operative, unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the Congress of the
Philippines, * * *."
It seems plain beyond doubt that the provision of Section 2545 of the Revised
Administrative Code, "he (Governor-General now President) may remove at pleasure
any of the said appointive officers," is incompatible with the constitutional inhibition
that "No officer or employee in the Civil Service shall be removed or suspended except
for cause as provided by law." The two provisions are mutually repugnant and
absolutely irreconcilable. One in express terms permits what the other in similar terms
prohibits.
The Constitution leaves it to the Congress to provide for the cause of removal, and it
is suggested that the President's pleasure is itself a cause. The phrase "for cause" in
connection with removals of public officers has acquired a well-defined concept. "It
means for reasons which the law land sound public policy recognized as sufficient
warrant for removal, that is', legal cause', and not merely causes which the appointing
power in the exercise of discretion ' may deem sufficient. It is implied that officers may
not be removed at the mere will of those vested with the power of removal, or without
any cause. Moreover, the cause must relate to and affect the administration of the
office, and must be restricted to something of a substantial nature directly affecting the
rights and interests of the public." (43 Am. Jur. 47, 48.)
Reconsideration of the decision in Lacson vs. Romero as far as officers in the
unclassified service are concerned is urged. It is contended that only officers and
employees in the classified service should be brought within the purview of Article XII
of the Constitution.
Section 1 of this Article ordains: "A Civil Service embracing all branches and
subdivisions of the Government shall be provided by law. Appointments in the Civil
Service, except as to those which are policy-determining, primarily confidential or
highly technical in nature, shall be made only according to merit and fitness, to be
determined as far as practicable by competitive examination." The first clause is a
definition of the scope of Civil Service, the men and women which Section 4 protects.
It seems obvious from that definition that the entire Civil Service is contemplated,
except positions "which are policy-determining, primarily confidential or highly
technical in nature." This theory is confirmed by the enactment of Commonwealth Act
No. 177 on November 30, 1936, to implement Article XII of the Constitution.
Commonwealth Act No. 177 explains Civil Service almost in the identical words of
that Article of the organic law. As a contemporaneous construction, this Act affords an
index to the meaning of Civil Service as conceived by the framers of the Constitution.
"The principle of contemporaneous construction may be applied to the construction
given by the legislature to the constitutional provisions dealing with legislative powers
and procedure. Though not conclusive, such interpretation is generally conceded as
being entitled to great weight." (U. S. vs. Sprague, 282 U. S. 716, 75 L. Ed. 640, 51 S.
Ct. 220, 71 A. L. R. 1381; Den ex dem. Murray vs. Hoboken Land & Improv. Co. 18
How. [U. S.] 272, 15 L. ed. 372; Clark vs. Boyce, 20 Ariz. 544, 135 P., 136, citing R.
C. L.; 11 Am. Jur. 699.) The principle of express mention and implied exclusion may
be made use of also to drive home this point.
We are led to the same conclusion by the existing provisions at the time of the adoption
of the Constitution. Civil Service as embracing both classes of officers and employees
possessed definite legal and statutory meaning when the Constitution was approved.
Section 670 of the Revised Administrative Code already provided that "Persons in the
Philippine civil service pertain either to the classified or unclassified service." and went
on to say that "The classified service embraces all not expressly declared to be in the
unclassified service." Then Section 671 described persons in the unclassified service
as "officers, other than the provincial treasurers and assistant directors of bureaus or
offices, appointed by the President of the Philippines, with the consent of the
Commission on Appointments of the National Assembly, and all other officers of the
government whose appointments are by law vested in the President of the Philippines
alone."
The rules of construction inform us that the words used in the constitution are to be
given the sense they have in common use. (Okanogan Indians vs. United States, 279,
U. S. 665; 64 A. L. R. 1434; 73 Law ed. 894.) It has been said that we must look to the
history of the times, examine the state of things existing when the Constitution was
framed and adopted, (Rhode Islands vs. Massachusetts, 12 Pet. 657, 9 Law ed. 1233),
and interprets it in the light of the law then in operation. (Mattox vs. United States,
156, U. S. 237, 39 Law ed. 409.)
Attention is drawn to supposed inconveniences of tying the hands of the appointing
power in changing and shifting officers in the unclassified service. "If it is argued all
important officers and employees of the government falling within the unclassified
service as enumerated in Section 671 of the Revised Administrative Code as amended
by Commonwealth Act No. 177, may not be removed by the President except for cause
as provided by law, * * * the President would be seriously crippled in the discharge of
the grave duty and responsibility laid upon him by the Constitution to take care that
the laws be faithfully executed."
Questions of expediency are, of course, beyond the province of the courts to take into
account in the interpretation of laws or the Constitution where the language is
otherwise clear. But the argument is, we think, unsound even if, the case be approached
from this angle. It contains its own refutation. The Constitution and the law
implementing it afford adequate safeguards against such consequences as have been
painted.
The argument proceeds, contrary to its context, on the assumption that removals of
civil service officers and employees are absolutely prohibited, which is not the case.
The Constitution authorizes removals and only requires that they be for cause. And the
occasions for removal would be greatly diminished if the injunction of Section 1 of
Article XII of the Constitution that appointments in the civil service shall be made only
according to merit and fitness, to be determined as far as practicable by competitive
examination - would be adhered to meticulously in the first place.
By far greater mischiefs would be fomented by an unbridled authority to remove. Such
license would thwart the very aims of the Constitution which are expounded by Dean
Aruego, himself a member of the Constitution Convention, in the following remarks
copied with approval in Lacson vs. Romero, supra:
"The adoption of the 'merit system' in government service has secured efficiency and
social justice. It eliminates the political factor in the selection of civil employees which
is the first essential to an efficient personnel system. It insures equality of opportunity
to all deserving applicants desirous of a career in the public service. It advocates a new
concept of the public office as a career open to all and not the exclusive patrimony of
any party or faction to be doled out as a reward for party service."
"The 'merit system,' was adopted only after the nations of the world took cognizance
of its merits. Political patronage in the government service was sanctioned in 1789 by
the Constitutional right of president of the United States to act alone in the matter of
removals. From the time of Andrew Jackson, the principle of the 'To the victor belongs
the spoils' dominated the Federal Government. The system undermined moral values
and destroyed administrative efficiency.
"Since the establishment of the American Regime in the Philippines we have enjoyed
the benefits of the 'merit system.' The Schumann Commission advocated in its report
that 'the greatest care should be taken in the selection of the officials for administration.
They should be men of the highest character and fitness, and partisan politics should
be entirely separated from the government.' The fifth act passed by the Philippine
Commission created a Board of Civil Service. It- instituted a system here that was far
more radical and thorough than that in the United States. The Governor-General after
William Taft adopted, the policy of appointing Filipinos in the government regardless
of their party affiliation. As the result of these the personnel of the Civil Service had
gradually come to be one of which the people of the United States could feel justly
proud.
"Necessity for Constitutional provision. The inclusion in the constitution of provisions
regarding the 'merit system' is a necessity of modern times. As its establishment secures
good government the citizens have a right to except its guarantee as a permanent
institution."
"Separation, suspension, demotions and Transfers. The 'merit system' will be
ineffective if no safeguards are placed a round the separation and removal of public
employees. The Committee's report requires that removals shall be made only 'causes
and in the manner provided by law.' This means that there should be bona fide reasons
and.action may be taken only after the employee shall have been given a fair hearing.
This affords to public employees reasonable security of tenure." (Maruego's Framing
of the Constitution 886, 887, 890.)
As has been seen, three specified classes of positions policy-determining, primarily
confidential and highly technical are excluded from the merit system and dismissal at
pleasure of officers and employees appointed therein is allowed by the Constitution.
These- positions involve the highest degree of confidence, or are closely bound up with
and dependent on other positions to which they are subordinate, or are temporary in
nature. It may truly be said that the good of the service itself demands that
appointments coming under this category be terminable at the will of the officer that
makes them.
The office of city engineer is neither primarily confidential, policy-determining, nor
highly technical.
Every appointment implies confidence, but much more than ordinary confidence is
reposed in the occupant of a position that is primarily confidential. The latter phrase
denotes not only confidence in the aptitude of the appointee for the duties of the office
but primarily close intimacy which insures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state. Nor is. the position of city engineer policy-determining.
A city engineer does not formulate a method of action for the government or any of its
subdivisions. His job is to execute policy, not to make it. With specific reference to the
City Engineer of Baguio, his powers and duties are carefully laid down for him by
Section 2557 of the Revised Administrative Code and are essentially ministerial in
character. Finally, the position of city engineer is technical but not highly so. A city
engineer is not required nor is he supposed to possess a technical skill or training in
the supreme or superior degree, which is the sense in which "highly technical" is, we
believe, employed in the Constitution. There are hundreds of technical men in the
classified civil service whose technical competence is not lower than that of a city
engineer. As a matter of fact, the duties of a city engineer are eminently administrative
in character and could very well be discharged by non- technical men possessing
executive ability.
Section 10 of Article VIII of the Constitution requires that "All cases involving the
constitutionality of a treaty or law shall be heard and decided by the Supreme Court in
banc," and warns that "no treaty or law may be declared unconstitutional without the
concurrence of two-thirds of all the members of the Court." The question arises as to
whether this judgment operates as invalidation of Section 2545 of the Revised
Administrative Code or a part of it so as to need at least eight votes to make it effective.
The answer should be in the negative.
We are not declaring any part of Section 2545 of, the Revised Administrative Code
unconstitutional. What we declare is that the particular provision thereof which gave
the Chief Executive power to remove officers at pleasure has been repealed by the
Constitution and ceased to be operative from the time that instrument went into effect.
Unconstitutionality, as we understand it, denotes life and vigor, and unconstitutional
legislation presupposes posteriority in point of time to the Constitution. It is a statute
that "attempts to validate and legalize a course of conduct the effect of which the
Constitution specifically forbids." (State exirel. Mack vs. Guckenberger, 139 Ohio St.
273, 39 NE [2d] 340.) A law that has been repealed is as good as if it had never been
enacted, and can not, in the nature of things, contravene or pretend to contravene
constitutional inhibitions. So, unlike legislation that is passed in defiance of the
Constitution, assertive and menacing, the questioned part of Section 2545 of the
Revised Administrative Code does not need a positive declaration of nullity by the
court to put it out of the tray. To all intents and purposes, it is non-existent, outlawed
and eliminated from the statute book by the Constitution itself by express mandate
before the petitioner was appointed.
Incidentally, the last discussion answers and disposes of the proposition that in
accepting appointment under Section 2545 of the Revised Administrative Code, the
petitioner must be deemed to have accepted the conditions and limitations attached to
the appointment. If the clause of Section 2545 which authorized the President to
remove officers of the City of Baguio at pleasure had been abrogated when petitioner's
appointment was issued, the appointee can not be presumed to have abided by this
condition.
We therefore hold that the petitioner is entitled to remain in office as City Engineer of
Baguio with all the emoluments, rights and privileges appurtenant thereto, until he
resigns or is removed for cause, and that respondent Mallare's appointment is
ineffective in so far as it may adversely affect those emoluments, rights and privileges.
Without costs.
Moran, C. J., Ozaeta, Paras, Pablo, and Montemayor, JJ., concur.
BENGZON, J., concurring:
I concur in the result solely upon the ground that Section 2545 of the Baguio Charter
(Administrative Code) empowering the President to remove the City Engineer at
pleasure has been impliedly repealed by Section 22 of Commonwealth Act No. 177
which expressly provides for the first time (following the mandate of the Constitution)
, that "no officer or employee in the civil service shall be removed or suspended except
for cause as provided by law."
I must decline to go into the matter of alleged conflict with the Constitution, first,
because plaintiff is precluded from raising that question (Zandueta vs. de la Costa, 66
Phil., 615); second, because every law is presumed to be constitutional unless eight
Justices of this Court are clearly of a contrary opinion,[1] and third, because that
subject need not be inquired into, except when absolutely necessary for the disposition
of the controversy .
REYES, J.:
I concur in this opinion of Mr. Justtice Bengzon.
G.R. No. 85670 July 31, 1991
ROGELIO A. TRIA petitioner, vs. CHAIRMAN PATRICIA A. STO. TOMAS,
CIVIL SERVICE COMMISSION, RET. BRIG. GEN. JOSE T. ALMONTE,
RET. COL. ERNESTO P. RAVINA and RET. GEN. MIGUEL M. VILLAMOR,
respondents. Florosco P. Fronda for petitioner.
FELICIANO, J.:
Petitioner Rogelio A. Tria had been employed with the Bureau of Intelligence and
Investigation later renamed Finance Ministry Intelligence Bureau (FMIB) now known
as the Economic Intelligence and Investigation Bureau (EIIB) of the Department of
Finance, Region 5, Legaspi City, as a Management and Audit Analyst I, a position
expressly described in the letter of appointment as "confidential."1 The appointment
was signed by Pelagio A. Cruz, Lieutenant General, AFP (Ret) Commissioner,
FMIBI."2
On 27 September 1984, petitioner wrote a confidential report to the FMIB Deputy
Commissioner detailing the nonfeasance of a FMIB lawyer assigned to Region 5.
Petitioner's report recommended the lawyer's replacement "With a competent and able
lawyer to handle the cases brought to his attention."3 On 14 October 1986, petitioner
submitted another confidential report, addressed to the Deputy Executive Secretary,
Office of the President, this time concerning Col. Jackson P. Alparce (Ret.). FMIB
Region 5 Director.
On 20 October 1986, petitioner filed an application for vacation leave for 100 working
days, covering the period 1 November 1986 to 30 April 1987. Petitioner sought to take
advantage of a Civil Service circular which allows employees who propose to seek
interim employment abroad, to go on prolonged leave of absence without pay without
being considered separated from the service.4 The application was approved by his
immediate supervisor and Chief, Intelligence and Investigation Service, Col. Ruperto
Amistoso (Ret.), and the personnel officer, Col. Domingo Rodriguez (Ret.), both based
in the Region 5 office of the FMIB.
On 23 October 1986, when petitioner was already in Manila attending to the processing
of his travel papers, a Memorandum was sent to him in Legaspi City from the FMIB
Central Office in Quezon City by respondent Assistant FMIB Commissioner Brig.
Gen. Miguel Villamor (Ret.), referring to the confidential report sent out to the Office
of the President. The Memorandum in part stated:
Be reminded that as an agent of FMIB, it is inherent in your duties to report to the
Commissioner or other authorities of FMIB of any irregularity committed by
employees/officials in that Region [5] to enable them to take appropriate
action/investigation and/or disciplinary action.
However, it appears that you opted to submit said report directly to the Office of the
President, Malacañang which adversely affected the Bureau's image and placed the
Commissioner in an embarrasing position.
In view thereof, you are required to submit your explanation in writing within five (5)
working days from receipt hereof why no disciplinary action should be taken against
you for non-compliance with office rules and regulations.5
Since petitioner had failed to receive and hence to respond to the above Memorandum,
another Memorandum from Quezon City dated 17 November 1986 was issued, this
time by respondent Col. Ernesto Rabina (Ret.), Chief, Administrative Service, FMIB,
reminding petitioner of his duty to submit the required written explanation. That
Memorandum went on to state:
Be informed further that your application for sick [should have been vacation] leave
dated October 22, 1986 . . . has been disapproved pursuant to Sec. 16 of Civil Service
Rule No. XVI which reads thus: "Leave of absence for any reason other than serious
illness must be contingent upon the needs of the service."
Inasmuch as your services in that Region [5] is (sic) needed, you are directed to report
for work thereat within ten (10) working days from the date of this Memorandum
otherwise, this office will be constrained to drop you from the rolls of FMIB for
prolonged/unauthorized absence and non-compliance with office rules and
regulations.6
Petitioner, however, had already left the country on 26 October 1986, and was unable
to comply with the express directives of the second Memorandum. He was therefore
considered to be on absence without official leave (AWOL). This prolonged absence,
as well as his failure to explain his sending out the confidential report to Malacañang,
prompted respondent EIIB Commissioner Brig Gen. Jose Almonte (Ret.) to issue
Letter-Order No. 06-87 dated 12 January 1987 informing petitioner of the termination
of his services retroactive to "1 November 1986 for continuous absence without official
leave and for loss of confidence."7
It was upon his return to the country sometime in May 1987 that petitioner came to
know of the abovementioned Letter-Order and of the two Memoranda. In a letter dated
20 May 1987 to respondent Almonte, petitioner asked for reinstatement, stating that
his application for vacation leave had been approved by his immediate chief and the
personnel officer. With respect to the confidential report he had addressed to the
Deputy Executive Secretary, petitioner explained:
. . . I would like to state that the reason why I submitted my report to the Office of the
President is precisely to protect the image of the bureau. Earlier, I handed a report to
the then Deputy Commissioner Mendoza regarding said irregularities committed
sometime in 1984-85, particularly by Atty. Geronga, R-5 and Director Col. Alfarce No
investigation was undertaken inspite of my report. In the meanwhile, the FMIB-R-5
always appeared in the local newspaper regarding the unscrupulous behavior of the
director which not only affects the good image of our organization but also of the
subordinates of the office. Thus, I felt in goodfaith that the matter should be brought
to the attention of the Deputy Executive Secretary of Malacañang so that appropriate
action can be taken for the good of the service. I submit that I did this in my honest
belief that it is my duty to do so as a public servant and a loyal member of this
organization.
. . . I reiterate that the same was done in good faith and not for any selfish motive.8
Reinstatement was, however, denied by respondent Rabina in a letter dated 11 August
1987, which in part read:
Be informed that Commissioner, EIIB has directed the Investigation & Prosecution
Office this bureau to conduct a brief investigation on your case and the established
facts show that this office committed no injustice. Your violation of office rules and
regulations were the grounds for your termination for loss of confidence. 9
Petitioner's request for payment of the cash equivalent of his accrued leave credits
corresponding to a total of 179 days was also denied by respondent Villamor on the
ground that:
. . . Section 6 of the Civil Service rules and laws provides that IX . . . the removal for
cause of an official or employee shall carry with it forfeiture of . . . other benefits
arising from his employment.10
Petitioner then filed a petition for review with prayer for reinstatement and backwages
before respondent Civil Service Commission ("Commission") which the Commission
denied. Respondent Commission held that the grant of petitioner's application for
vacation leave, notwithstanding the accumulation of sufficient leave credits, was
discretionary on the part of respondent Rabina, the approving official, citing In re:
Nicolasura Victor (CSC Res. No. 88-251) dated 25 May 1988 and Section 20 of the
Revised Civil Service Rules which read:
Leave of absence for any reason other than the serious illness of an officer or employee
. . . must be contingent upon the needs of the service.11
Having failed to get reconsideration, petitioner came to this Court on the present
Petition for Certiorari.
Petitioner challenges his dismissal as being arbitrary. The propriety of petitioner's
alleged unlawful removal boils down to the question of whether or not an employee
holding a position considered as "primarily confidential" may be dismissed on grounds
of "loss of confidence" by the appointing authority on the basis of the employee's
having gone on unauthorized leave of absence and of his having filed a confidential
report on one of his superiors directly with the Office of the President.
We begin with the proposition that the effects of characterizing a position as "primarily
confidential" are two-fold: firstly, such characterization renders inapplicable the
ordinary requirement of filling up a position in the Civil Service on the basis of merit
and fitness as determined by competitive examinations; and secondly, while the 1987
Constitution does not exempt such positions from the operation of the principle set out
in Article IX (B), Section 2 (3) of the same Constitution that "no officer or employee
of the Civil Service shall be removed or suspended except for cause provided by law,"
the "cause provided by law" includes "loss of confidence."12 It is said to be a settled
rule that those holding primarily confidential positions "continue for so long as
confidence in them endures. Their termination can be justified on the ground of loss of
confidence because in that case their cessation from office involves no removal but the
expiration of their term of office.13 Notwithstanding the refined distinction between
removal from office and expiration of the term of a public officer, the net result is loss
of tenure upon loss of confidence on the part of the appointing power.
A position in the Civil Service may be considered primarily confidential: (1) when the
President of the Philippines, upon recommendation of the Civil Service Commission,
has declared that position to be primarily confidential; or (2) when the position, given
the character of the duties and functions attached to it, is primarily confidential in
nature.14 All positions in the EIIB were apparently declared as "highly confidential"
by former President Marcos in Letter of Implementation No. 71, dated 4 September
1978, which reads in part as follows:
Pursuant to Presidential Decree No. 1458, dated June 11, 1978, and letter dated August
18, 1978 of the President/Prime Minister creating the Bureau of Intelligence and
Investigation (BII) [now the EIIB], the following directives are hereby issued for
immediate implementation by the new Bureau:
4. The Commissioner of the BII with the approval of the Ministry of Finance, is
hereby instructed to organize and appoint his staff . . . All positions in the BII are highly
confidential in nature and incumbents thereof may be removed for loss of confidence
by appropriate authority. 15
When one examines, however, the actual duties and functions of petitioner as a
"Management and Audit Analyst I" in the FMIB, as set out in the job description of
that position, one is struck by the ordinary and day to day character of such duties and
functions:
Prepares required survey materials, work plans and schedules; gathers data and makes
investigations and analyzes (sic) of administrative problems relating to organization,
personnel and procedure; supplements data gathered by interviewing heads of office
or private individuals or by observing actual operations; examines and analyzes
reorganization proposals in the light gathered and facts observed; analyzes causes of
inefficiency or lack of economy, undertakes required study and research; prepares
survey reports and write (sic) drafts of tentative organization plans, discusses and
justifies such plans to supervisor and appropriate bodies; maintains close liaison work
with head of offices or organizations studies operational methods and procedures of
the organization to simplify the work and improve efficiency; studies and recommends
measures to insure industrial safety and prevention of accidents; supervises the
installation of management control devices; assists in the compilation, analysis and
interpretation of important statistics for use of management. 16 (Emphasis Supplied)
It is thus useful to recall that in Piñero v. Hechanova, 17 the Court, speaking through
J.B.L. Reyes, J., said:
It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260),
it is the nature of the position which finally determines whether a position is primarily
confidential, policy determining or highly technical. Executive pronouncements can
be no more than initial determinations that are not conclusive in case of conflict. And
it must be so, or else it would then lie within the discretion of the Chief Executive to
deny to any officer, by executive fiat the protection of section 4, Article XII, of the
Constitution.18 (Citation omitted; emphasis partly in the original and partly supplied)
The above doctrine was reiterated and relied upon in Borres v. Court of Appeals.19 It
is also important to note that the concept constitutive of "primarily confidential"
positions has been narrowly drawn by this Court. Thus, in De los Santos v. Mallare,
20 the Court said, through Mr. Justice Pedro Tuason:
. . . [T]hree specified classes of positions — policy determining, primarily confidential
and highly technical — are excluded from the merit system and dismissal at pleasure
of officers and employees appointed therein is allowed by the Constitution. These
positions involve the highest degree of confidence, or are closely bound up with and
dependent on other positions to which they are subordinate, or are temporary in nature.
It may truly be said that the good of the service itself demands that appointments
coming under this category be terminable at the will of the officer that makes them.
Every appointment implies confidence, but much more than ordinary confidence is
reposed in the occupant of a position that is primarily confidential. The latter phrase
denotes not only confidence in the aptitude of the appointee for the duties of the office
but primarily close intimacy which insures freedom of [discussion and delegation and
reporting] without embarrassment or freedom from misgivings of betrayals of personal
trust or confidential matters of state. . . . .21
The positions which this Court has in the past characterized as "primarily confidential"
include: private secretaries of public functionaries;22 a security officer assigned as
bodyguard of the person of a public officer and responsible for taking security
measures for the safety of such official,23 City Legal Officer of Davao City vis-a-vis
the Davao City Mayor;24 Provincial Attorney of Iloilo Province vis-a-vis the Governor
of Iloilo Province.25 It is also instructive to refer to some of the positions which the
Court has refused to designate as "primarily confidential:" e.g., members of the
Customs Police Force or Port Patrol;26 Special Assistant to the Governor of the Central
Bank, in charge of the Export Department;27 Senior Executive Assistant, Clerk I and
Supervising Clerk I and stenographer in the Office of the President.28
It is evident that the duties of petitioner related to the study and analysis of
organizational structures and procedures, with the end in view of making
recommendations designed to increase the levels of efficiency and coordination within
the organization so analyzed. Moreover, the modest rank and fungible nature of the
position occupied by petitioner, is underscored by the fact that the salary attached to it
was no more than P1,500.00 a month at the time he went on leave (October, 1986).
There thus appears nothing to suggest that petitioner's position was "highly" or even
"primarily confidential" in nature. The fact that petitioner may, sometimes, handle
"confidential matters" or papers which are confidential in nature, does not suffice to
characterize their positions as primarily confidential.29
Accordingly, we believe and so hold that petitioner Tria's particular position of
"Management and Audit Analyst I" is not a "primarily confidential" position so as to
render him removable upon, or the expiration of his term of office concurrent with,
"loss of confidence" on the part of the appointing power who, as already noted, was
the then Commissioner of the FMIB.
If petitioner Tria was not legally removable upon "loss of confidence" on the part of
the FMIB Commissioner, was there nonetheless legal cause provided by law for his
dismissal from the service?
We believe that the constitutional prohibition against suspension or dismissal of an
officer or employee of the Civil Service "except for cause provided by law" is a
guaranty of both procedural and substantive due process. Procedural due process
requires that suspension or dismissal come, as a general rule, only after notice and
hearing.30 In the case at bar, as already noted, the EIIB issued a Memorandum to
petitioner, after he was already in Manila, requiring him to explain why no disciplinary
action should be taken against him for having submitted a report directly to the Office
of the President, Malacañang, 'which adversely affected the bureau's image and placed
the Commissioner in an embarrassing position," which Memorandum was not received
by petitioner. However, after his return from abroad and upon request of petitioner,
another investigation was conducted by the EIIB where petitioner had an opportunity
to explain his side of the matter. The Court considers that, under the circumstances of
this case the subsequent investigation constituted substantial compliance with the
demands of procedural due process.
Substantive due process requires, among other things, that an officer or employee of
the Civil Service be suspended or dismissed only "for cause," a phrase which, so far as
concerns dismissals of public officers not holding positions which are "policy
determining, highly technical or primarily confidential," has acquired, according to this
Court, the following "well-defined concept."
It means for reasons which the law and sound policy recognize as sufficient warrant
for removal, that is, legal cause, and not merely causes which the appointing power in
the exercise of discretion may deem sufficient. It is implied that officers may not be
removed at the mere will of those vested with the power of removal or without cause.
Moreover, the cause must relate to and effect the administration of the office, and must
be restricted to something of a substantial nature directly affecting the rights and
interests of the public.31
In the instant case, we have noted earlier that petitioner was charged with violation of
official rules and regulations consisting more specifically, of:. (1) having gone on an
extended unauthorized leave of absence; (2) having bypassed official channels in
transmitting a report concerning alleged misfeasance or non-feasance on the part of a
superior officer of the EIIB directly to the Office of the President through the Deputy
Executive Secretary, rather than through the respondent EIIB Commissioner.
It is true that petitioner was probably precipitate in taking off for abroad before his
application for vacation leave was formally approved by the FMIB Central Office in
Quezon City. We must, however, take into account the circumstance that his
application for leave without pay had been approved or indorsed for approval by his
immediate superior in the FMIB, Region 5 Office, where petitioner was assigned, and
so petitioner was not completely without basis in believing that the formal approval of
his application in the FMIB Central Office would follow as a matter of course. It is
pertinent to point out that his immediate superiors in the Region 5, FMIB Office were
the persons in the best position to ascertain whether his presence in the Regional office
during the period covered by his application for leave without pay was really demanded
by imperious exigencies of the service. The record is bare of any indication what those
exigencies were, at that particular time. There is also no showing that the FMIB
actually suffered any prejudice by reason of the non-availability of the services of
petitioner during his leave without pay. Petitioner was, it should be recalled, a
"Management and Audit Analyst," a humble rank separated by many ranks from the
appointing power, the FMIB Commissioner. It thus appears to the Court that, on
balance, the extreme penalty of dismissal from the service was unduly harsh in the case
of petitioner; that suspension for thirty (30) days would have been more than adequate
punishment for precipitately going on leave without pay prior to formal approval of his
leave by the Central Office of the FMIB; and that the real and efficient cause of his
dismissal from the service was the fact that he had bypassed official channels in
rendering the confidential report addressed to the Deputy Executive Secretary, Office
of the President, concerning the then Regional Director of FMIB, Region 5.
After careful consideration, we believe and so hold that, in the circumstances of this
case, that act of petitioner did not constitute lawful cause for his dismissal from the
service. We believe, on the contrary, that petitioner's case is covered by the rule in
Gray v. De Vera.32 Benjamin A. Gray was Secretary of the Board of Directors of the
People's Homesite and Housing Corporation ("PHHC"). He sent a telegram to
President Carlos P. Garcia reading as follows:
Aye suggest complete revamp PHHC Board's top members should not usurp
management functions (comma) should willingly attend meetings (comma) should not
grab as quotas dwelling awards despite applicants of long standing (comma) should
not divide among themselves emergency positions (comma) should create positions
only in case of necessity and not because they want to accommodate their useless men
(comma) and should respect civil service law.33
On the following day, the PHHC Board of Directors terminated Gray's services "on
account of loss of confidence due to treachery or disloyalty to the Board." In holding
that Gray had been unlawfully dismissed and in ordering his reinstatement with
backwages, this Court held:
The removal of Board Secretary Gray from the primarily confidential position to which
he had been permanently appointed was illegal in view of the following considerations:
(1) There was no lawful cause for removal. The sending of the telegram of January
12, 1959 to President Carlos P. Garcia suggesting a complete revamp of the Board of
Directors of the PHHC due to the Board's acts of management and misconduct, the
most serious of which was that the Directors were grabbing as 'quotas dwelling awards
despite applicants of long standing,' was an act of civic duty. The telegram was a
privileged communication presumably made in good faith and capable of being
substantiated by evidence.
According to the testimony of Director Manuel T. Leelin the act of Board Secretary
Gray in sending the telegram of January 12,1959 to the President of the Philippines
was an act of treachery or disloyalty to the Board. . . .
We cannot agree, for the following reasons:
First. As pointed out, the sending of the telegram to the President of the Philippines
was an act of civic duty. The telegram was a privileged communication presumably
sent in good faith and capable of being proved by evidence.
Second. The position of secretary to the board of a government corporation was
declared by the President in Executive Order No. 399 primarily confidential in nature
with the obvious intent that the position be filled by an appointee of unquestioned
honesty and integrity. Hence, the act of Board Secretary Gray in reporting to the
President the Board's act of mismanagement and misconduct was in consonance with
the honesty and integrity required for the position.
Assuming that Gray owed loyalty to the Board, that loyalty was in the interest of good
government and not in the personal interest of the Directors to the extent of concealing
the shenanigans of the Board. . . .34
In the case at bar, we note that petitioner sent his confidential (and presumably sealed)
report to an office having overall administrative supervision and control over the FMIB
(i.e., the Office of the President); the report was not, in other words, sent either to the
media or to an office or agency having no administrative jurisdiction over the public
official or office complained of. That report was a privileged communication and the
author thereof enjoys the benefit of the presumption that he acted in good faith.1âwphi1
The respondents have not alleged that petitioner acted with malice in fact. We do not
believe that petitioner's act constituted serious misconduct but rather, on the contrary,
was an act of personal and civic courage by which petitioner exhibited his loyalty to
the FMIB as an institution and ultimately to the Government of the Republic of the
Philippines.
Considerations of fundamental public policy thus compel us to hold that petitioner was
dismissed without lawful cause and must, therefore, be reinstated to the position he
previously held or, If that position is no longer available, to some other position in the
EIIB of equivalent rank and emoluments. In addition, petitioner is entitled to payment
of his backwages (basic salary plus allowances, if any computed from the time of his
return from his leave of absence, minus an amount equivalent to one-month's
backwages representing the appropriate penalty for petitioner's infraction of ordinary
office rules.
WHEREFORE, the Petition for Certiorari is hereby GRANTED DUE COURSE, the
Comments filed by respondents are hereby CONSIDERED as their Answers to the
Petition and Resolutions Nos. 88-150 and 88-787 of public respondent Civil Service
Commission as well as Letter-Order No. 06-87 of public respondent EIIB
Commissioner, are hereby ANNULLED and SET ASIDE. Public respondents are
hereby ORDERED to reinstate forthwith petitioner to his former position, or to a
position of equivalent rank and compensation, and to pay him the backwages,
allowances and other benefits lawfully due him counted from May 1987, when he
returned to the country from his leave of absence, until actual reinstatement, less one
month's backwages. No costs.
SO ORDERED.
G.R. No. 71562 October 28, 1991
JOSE P. LAUREL V, in his official capacity as Provincial Governor of Batangas,
petitioner, vs. CIVIL SERVICE COMMISSION and LORENZO SANGALANG,
respondents. Provincial Attorney for respondent.
RESOLUTION
DAVIDE, JR., J.:
Is the position of Provincial Administrator primarily confidential?
Does the rule on nepotism apply to designation?
May a private citizen who does not claim any better right to a position file a verified
complaint with the Civil Service Commission to denounce a violation by an appointing
authority of the Civil Service Law and rules?
These are the issues raised in this petition.
The antecedent facts are not disputed.
Petitioner, the duly elected Governor of the Province of Batangas, upon assuming
office on 3 March 1980, appointed his brother, Benjamin Laurel, as Senior Executive
Assistant in the Office of the Governor, a non-career service position which belongs to
the personal and confidential staff of an elective official. 1
On 31 December 1980, the position of Provincial Administrator of Batangas became
vacant due to the resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of
qualified applicants and so as not to prejudice the operation of the Provincial
Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial
Administrator effective 2 January 1981 and to continue until the appointment of a
regular Provincial Administrator, unless the designation is earlier revoked. 2
On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil
Security Officer, a position which the Civil Service Commission classifies as
"primarily confidential" pursuant to P.D. No. 868. 3
On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service
Commission 4 to bring to its attention the "appointment" of Benjamin Laurel as
Provincial Administrator of Batangas by the Governor, his brother. He alleges therein
that: (1) the position in question is a career position, (2) the appointment violates civil
service rules, and (3) since the Governor authorized said appointee to receive
representation allowance, he violated the Anti-Graft and Corrupt Practices Act. He
then asks that the matter be investigated.
In his letter to the Chairman of the Civil Service Commission dated 18 January 1983,
5 Jose A. Oliveros, Acting Provincial Attorney of Batangas, for and in behalf of herein
petitioner, asserts that the latter did not violate the provision prohibiting nepotism
under Section 49 of P.D. No. 807 because, with respect to the positions of Senior
Executive Assistant and Civil Security Officer, both are primarily confidential in
nature; and, with respect to the position of Provincial Administrator:
. . . what is prohibited under Section 49 of P.D. 807 is the appointment of a relative to
a career Civil Service position, like that of a provincial administrator. Governor Laurel
did not appoint his brother, Benjamin, as Provincial Administrator. He merely
designated him "Acting Provincial Administrator." And "appointment" and
"designation" are two entirely different things. Appointment implies original
establishment of official relation. Designation is the imposition of new or additional
duties upon an officer to be performed by him in a special manner. It presupposes a
previous appointment of the officer in whom the new or additional duties are imposed.
Appointment is generally permanent, hence the officer appointed cannot be removed
except for cause; designation is merely temporary and the new or additional powers
may be withdrawn with or without cause.
Benjamin C. Laurel had already been appointed Senior Executive Assistant in the
Office of the Governor when Governor Laurel designated him Acting Provincial
Administrator.
It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices
Act because:
As Acting Provincial Administrator, Benjamin is entitled under Office of the President
Memorandum-Circular No. 437, series of 1971, to a monthly representation allowance
of P350.00. And said allowance is "strictly on reimbursement basis." 6
On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution
No. 83-358 7 which, inter alia, revokes the designation of Benjamin as Acting
Provincial Administrator on the ground that it is "nepotic", or in violation of Section
49, P.D. No. 807 on nepotism. The relevant portion of said section reads as follows:
SECTION 49. Nepotism. — (a) All appointments in the national, provincial, city and
municipal governments or in any branch or instrumentality thereof, including
government-owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the bureau or office, or of the
persons exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word "relative" and members of the family referred to are
those related within the third degree either of consanguinity or affinity.
(b) The following are exempted from the operation of the rules on nepotism: (1)
persons employed in a confidential capacity, (2) teachers, (3) physicians, and (4)
members of the Armed Forces of the Philippines: Provided, however, That in each
particular instance full report of such appointment shall be made to the Commission.
Although what was extended to Benjamin was merely a designation and not an
appointment, the Civil Service Commission ruled that "the prohibitive mantle on
nepotism would include designation, because what cannot be done directly cannot be
done indirectly." It further held that Section 24(f) of Republic Act No. 2260 provides
that no person appointed to a position in the non-competitive service (now non-career)
shall perform the duties properly belonging to any position in the competitive service
(now career service). The petitioner, therefore, could not legally and validly designate
Benjamin, who successively occupied the non-career positions of Senior Executive
Assistant and Civil Security Officer, to the position of Provincial Administrator, a
career position under Section 4 of R.A. No. 5185.
Petitioner's motion to reconsider said Resolution, 8 based on the claim that the
questioned position is primarily confidential in nature, having been denied in
Resolution No. 85-271 of 3 July 1985 9 wherein the respondent Civil Service
Commission maintains that said position is not primarily-confidential in nature since
it neither belongs to the personal staff of the Governor nor are the duties thereof
confidential in nature considering that its principal functions involve general planning,
directive and control of administrative and personnel service in the Provincial Office,
petitioner filed the instant petition invoking the following grounds:
A. Respondent Commission has committed a (sic) grave abuse of discretion
amounting to lack or excess of jurisdiction when it held that the position of provincial
administrator is not a primarily-confidential position because said ruling is
diametrically opposed to, and in utter disregard of rulings of this Honorable Court as
to what is a primarily-confidential position under Article XII-B, Sec. 2 of the
Constitution.
B. Respondent Commission gravely abused its discretion and acted without
jurisdiction when it arrogated unto itself the power to review a designation made by
petitioner by virtue of the powers in him vested under Section 2077 of the Revised
Administrative Code.
C. Respondent Commission exceeded its jurisdiction when it gave due course to
the complaint of private respondent and thereafter promulgated the resolutions under
question in this petition.
D. There is no appeal, nor any other plain, speedy and adequate remedy in the
ordinary course of law available to petitioner to have the questioned resolutions of
respondent Commission reviewed and thereafter nullified, revoked and set aside, other
than this recourse to a petition for certiorari under Rule 65 of the Rules of Court.
In the Comment filed for the respondent Commission on 7 October 1985, the Solicitor
General sustains the challenged resolutions and contends that the position of Provincial
Administrator is intended to be part of the career system and since it requires a specific
civil service eligibility, it belongs to the career service under Section 5(1) of P.D. No.
807 and has not been declared primarily confidential by the President pursuant to
Section 1 of P.D. No. 868; that the Commission has the authority to review, disapprove,
and set aside even mere designations, as distinguished from appointments, for Section
2 of P.D. No. 807 vests in it the power to enforce the laws and rules governing the
selection, utilization, training and discipline of civil servants; and that it can act on
Sangalang's complaint pursuant to Section 37 of P.D. No. 807, for what he filed was
not an action for quo warranto, but an administrative complaint to correct a violation
of the Civil Service law and rules which involved public service and the public interest.
Per Benitez vs. Paredes, 10 reiterated in Tañada vs.
Tuvera, 11 where the question is one of public right, the people are regarded as the real
parties in interest, and the relator at whose instigation the proceedings are instituted
need only show that he is a citizen and as such interested in the execution of the laws.
On 11 December 1985, petitioner filed his Reply to the Comment insisting therein that
the duties, functions and responsibilities of the Provincial Administrator render said
position primarily confidential in nature; the requirement of a specific service
eligibility and absence of a presidential declaration that the position is primarily
confidential do not place the said position in the career service; the position of
Provincial Administrator is in the non-career service; and that the Benitez vs. Paredes
and Tañada vs. Tuvera cases are not applicable in this case. Petitioner insists that the
controlling doctrines are those enunciated in Salazar vs. Mathay, 12 where this Court
held that there are two instances when a position may be considered primarily
confidential, to wit: (a) when the President, upon recommendation of the
Commissioner of Civil Service (now Civil Service Commission) has declared a
position to be primarily confidential; and (2) in the absence of such declaration, when
by the very nature of the functions of the office, there exists close intimacy between
the appointee and the appointing power which insures freedom of intercourse without
embarrassment or freedom from misgiving or betrayals of personal trust or confidential
matters of state and Piñero vs. Hechanova, 13 where this Court ruled that at least, since
the enactment of the 1959 Civil Service Act (R.A. No. 2260), it is the nature of the
position that finally determines whether a position is primarily confidential, policy
determining, or highly technical and that executive pronouncements can be no more
than initial determinations that are not conclusive in case of conflict, which must be
so, or else "it would then lie within the discretion of the Chief Executive to deny to any
officer, by executive fiat, the protection of section 4, Article XII of the Constitution."
In his Rejoinder filed on 16 December 1986, the Solicitor General states that the rulings
in the Salazar and Piñero cases have been modified and superseded by Section 6 of
P.D. No. 807, and by the third paragraph of Section 1 of P.D. No. 868, which provides:
Any provision of law authorizing any official, other than the President, to declare
positions policy-determining, primarily confidential or highly technical which are
exempt from the Civil Service Law and rules is hereby repealed, and only the President
may declare a position-determining, highly technical or primarily confidential, upon
recommendation of the Civil Service Commission, the Budget Commission and the
Presidential Reorganization Commission.
The Solicitor General further asseverates that the Commissions' giving due course to
the complaint of Sangalang is manifestly valid and legal for it is also in accordance
with the declared policies of the State provided for in Section 2 of P.D. No. 807.
In the Resolution of 9 February 1987, this Court gave due course to the petition and Education : Bachelor's degree preferably in Law/Public or Business
required the parties to submit simultaneous memoranda. Administration.

We shall take up the issues in the order they are presented above.
1. The first issue becomes important because if the questioned position is
primarily confidential, Section 49 of P.D. No. 807 on nepotism would not apply in the
instant case. Interestingly, however, petitioner did not raise it in the letter to the
Chairman of the Civil Service Commission dated 18 January 1983. 14
On the contrary, he submits, or otherwise admits therein, that said position is not
primarily confidential for it belongs to the career service. He even emphasized this fact
with an air of absolute certainty, thus:
Experience : Six years of progressively responsible experience in planning,
directing and administration of provincial government operations. Experience in
private agencies considered are those that have been more or less familiar level of
administrative proficiency.
Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service
(Professional)/First Grade/Supervisor).
It may be added that the definition of its functions and its distinguishing characteristics
as laid down in the Manual, thus:

At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is
the appointment of a relative to a career Civil Service position, LIKE THAT OF
PROVINCIAL ADMINISTRATOR . . . (capitalization supplied for emphasis).
The sole ground invoked by him for exemption from the rule on nepotism is, as above
indicated: the rule does not apply to designation — only to appointment. He changed
his mind only after the public respondent, in its Resolution No. 83-358, ruled that the
"prohibitive mantle on nepotism would include designation, because what cannot be
done directly cannot be done indirectly" and, more specifically, only when he filed his
motion to reconsider said resolution. Strictly speaking, estoppel has bound petitioner
to his prior admission. Per Article 1431 of the Civil Code, through estoppel an
admission or representation is rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person relying thereon. 15
2. DEFINITION:
Under the direction of the Provincial Governor, responsible for the overall coordination
of the activities of the various national and local agencies in the province; and general
planning, direction and control of the personnel functions and the administrative
services of the Governor's Office.
3. DISTINGUISHING CHARACTERISTICS:
This is the class for top professional level management, administrative and
organizational work in the operation of provincial government with highly complex,
involved relationships with considerable delegation of authority and responsibility and
a high degree of public contact.

But even if estoppel were not to operate against him, or regardless thereof, his claim
that the position of Provincial Administrator is primarily confidential, is without merit.
As correctly maintained by the public respondent and the Solicitor General, the
position of Provincial Administrator is embraced within the Career Service under
Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the
Manual of Position Descriptions, 16 to wit:
render indisputable the above conclusion that the subject position is in the career
service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on
merit and fitness to be determined as far as practicable by competitive examinations,
or based on highly technical qualifications, (b) opportunity for advancement to higher
career positions, and (c) security of tenure. More specifically, it is an open career
position, for appointment to it requires prior qualification in an appropriate
examination. 17 It falls within the second major level of positions in the career service,
per Section 7 of P.D. No. 807, which reads:
Sec. 7. Classes of Positions in the Career Service. — (a) Classes of positions in the
career service appointment to which requires examinations shall be grouped into three
major levels as follows:
(2) The second level shall include professional, technical, and scientific positions
which involve professional, technical, or scientific work in a non-supervisory or
supervisory capacity requiring at least four years of college work up to Division Chief
level; . . .
In Piñero, et al. vs. Hechanova, et al., 18 this Court had the occasion to rule that:
It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260),
it is the nature of the position which finally determines whether a position is primarily
confidential, policy determining or highly technical. Executive pronouncements can
be no more than initial determinations that are not conclusive in case of conflict. And
it must be so or else it would then lie within the discretion of the Chief Executive to
deny to any officer, by executive fiat, the protection of Section 4, Article XII 19 of the
Constitution.
This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which
pertinently reads:
. . . and only the President may declare a position policy-determining, highly technical
or primarily confidential, upon recommendation of the Civil Service Commission, the
Budget Commission and the Presidential Reorganization Commission.
for the reason that the latter may be considered merely as the initial determination of
the Executive, which in no case forecloses judicial review. A rule that exclusively vests
upon the Executive the power to declare what position may be considered policy-
determining, primarily confidential, or highly technical would subvert the provision on
the civil service under the 1973 Constitution which was then in force at the time the
decree was promulgated. Specifically, Section 2 of Article XII of said Constitution
makes reference to positions which are policy-determining, primarily confidential, or
highly technical in nature," thereby leaving no room for doubt that, indeed, it is the
nature of the position which finally determines whether it falls within the above
mentioned classification. The 1987 Constitution retains this rule when in Section 2 of
Article IX-C, it clearly makes reference to "positions which are policy-determining,
primarily confidential, or highly technical."
In the light of the foregoing, We cannot accept the view of the Solicitor General in his
Rejoinder 20 that Salazar vs. Mathay 21 and Piñero, et al. vs. Hechanova, et al., 22
have already been modified by Section 6 of P.D. No. 807 and the third paragraph of
Section 1 of P.D. No. 868.
Not being primarily confidential, appointment thereto must, inter alia, be subject to the
rule on nepotism.
We likewise agree with the public respondent that there is one further obstacle to the
occupation by Benjamin Laurel of the position of Provincial Administrator. At the time
he was designated as Acting Provincial Administrator, he was holding the position of
Senior Executive Assistant in the Office of the Governor, a primarily confidential
position. He was thereafter promoted as Civil Security Officer, also a primarily
confidential position. Both positions belong to the non-career service under Section 6
of P.D. No. 807. As correctly ruled by the public respondent, petitioner cannot legally
and validly designate Benjamin Laurel as Acting Provincial Administrator, a career
position, because Section 24(f) of R.A. No. 2260 provides that no person appointed to
a position in the non-competitive service (now non-career) shall perform the duties
properly belonging to any position in the competitive service (now career service).
2. Being embraced in the career service, the position of Provincial Administrator
must, as mandated by Section 25 of P.D. No. 807, be filled up by permanent or
temporary appointment. The first shall be issued to a person who meets all the
requirements for the position to which he is appointed, including the appropriate
eligibility prescribed. 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 except the appropriate civil
service eligibility, provided, however, that such temporary appointment shall not
exceed twelve months, but the appointee may be replaced sooner if a qualified civil
service eligible becomes available. 23
Petitioner could not legally and validly appoint his brother Benjamin Laurel to said
position because of the prohibition on nepotism under Section 49 of P.D. No. 807.
They are related within the third degree of consanguinity and the case does not fall
within any of the exemptions provided therein.
Petitioner, however, contends that since what he extended to his brother is not an
appointment, but a DESIGNATION, he is not covered by the prohibition. Public
respondent disagrees, for:
By legal contemplation, the prohibitive mantle on nepotism would include designation,
because what cannot be done directly cannot be done indirectly. 24
We cannot accept petitioner's view. His specious and tenuous distinction between
appointment and designation is nothing more than either a ploy ingeniously conceived
to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact
of its violation. The rule admits of no distinction between appointment and designation.
Designation is also defined as "an appointment or assignment to a particular office";
and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty.
25
In Borromeo vs. Mariano, 26 this Court said:
. . . All the authorities unite in saying that the term "appoint" is well-known in law and
whether regarded in its legal or in its ordinary acceptation, is applied to the nomination
or designation of an individual . . . (emphasis supplied).
In Binamira vs. Garrucho, 27 this Court, per Mr. Justice Isagani M. Cruz, stated:
Designation may also be loosely defined as an appointment because it likewise
involves the naming of a particular person to a specified public office. That is the
common understanding of the term. However, where the person is merely designated
and not appointed, the implication is that he shall hold the office only in a temporary
capacity and may be replaced at will by the appointing authority. In this sense, the
designation is considered only an acting or temporary appointment, which does not
confer security of tenure on the person named.
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation
should be differentiated from appointment. Reading this section with Section 25 of said
decree, career service positions may be filled up only by appointment, either permanent
or temporary; hence a designation of a person to fill it up because it is vacant, is
necessarily included in the term appointment, for it precisely accomplishes the same
purpose. Moreover, if a designation is not to be deemed included in the term
appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would
be meaningless and toothless. Any appointing authority may circumvent it by merely
designating, and not appointing, a relative within the prohibited degree to a vacant
position in the career service. Indeed, as correctly stated by public respondent, "what
cannot be done directly cannot be done indirectly." 28
3. As regards the last issue, We rule that the letter-complaint of Sangalang was
validly given due course by public respondent. Undoubtedly, as shown above, there
was a violation of law committed by petitioner in designating his brother as Acting
Provincial Administrator. Any citizen of the Philippines may bring that matter to the
attention of the Civil Service Commission for appropriate action conformably with its
role as the central personnel agency to set standards and to enforce the laws and rules
governing the selection, utilization, training and discipline of civil servants, 29 with
the power and function to administer and enforce the Constitutional and statutory
provisions on the merit system. 30 Moreover, Section 37 of the decree expressly allows
a private citizen to directly file with the Civil Service Commission a complaint against
a government official or employee, in which case it may hear and decide the case or
may deputize any department or agency or official or group of officials to conduct an
investigation. The results of the investigation shall be submitted to the Commission
with recommendation as to the penalty to be imposed or other action to be taken. This
provision gives teeth to the Constitutional exhortation that a public office is a public
trust and public officers and employees must at all times be, inter alia, accountable to
the people. 31 An ordinary citizen who brings to the attention of the appropriate office
any act or conduct of a government official or employee which betrays the public
interest deserves nothing less than the praises, support and encouragement of society.
The vigilance of the citizenry is vital in a democracy.
WHEREFORE, this petition is DENIED for lack of merit, and the challenged
Resolutions of the Civil Service Commission are AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 91602 February 26, 1991
HONORABLE SIMPLICIO C. GRIÑO, SIXTO P. DEMAISIP, SANTOS B.
AGUADERA, MANUEL B. TRAVIÑA and MANUEL M. CASUMPANG,
petitioners, vs. CIVIL SERVICE COMMISSION, TEOTIMO ARANDELA,
CIRILO GELVEZON, TEODULFO DATO-ON, and NELSON GEDUSPAN,
respondents.
GANCAYCO, J.:
The main issue in this petition is whether or not the position of a provincial attorney
and those of his legal subordinates are primarily confidential in nature so that the
services of those holding the said items can be terminated upon loss of confidence.
The facts of this case are simple.
Petitioner Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He held
this position from April 3, 1973 up to June 2, 1986 when he offered to resign and his
resignation was accepted by the then Acting Governor. In his resignation letter,
petitioner Demaisip recommended the elevation of respondent Teotimo Arandela from
Senior Legal Officer to Provincial Attorney. OIC Governor Licurgo Tirador later on
decided to appoint respondent Arandela as the Provincial Attorney. Respondent Cirilo
Gelvezon, on the other hand, was promoted from Legal Officer II to Senior Legal
Officer. Respondents Teodolfo Dato-on and Nelson Geduspan were appointed to the
position of Legal Officer II.
On February 2, 1988, petitioner Simplicio Griño assumed office as the newly elected
governor of Iloilo. One month later, he informed respondent Arandela and all the legal
officers at the Provincial Attorney's Office about his decision to terminate their
services. In his letter, petitioner Griño made mention of an article pertaining to the
Iloilo office of the Provincial Attorney which appeared in the Panay News and which
"undermined that trust and confidence" that he reposed on them. Petitioner Demaisip
was reappointed by Governor Griño as the Provincial Attorney, The latter, on the other
hand, arranged the replacements of the other legal officers. Respondent Cirilo
Gelvezon was replaced by petitioner Santos Aguadera, respondent Nelson Geduspan
was replaced by petitioner Manuel Casumpang and petitioner Manuel Traviña took the
place of respondent Teodolfo Dato-on.
On March 15, 1988, petitioner Governor Griño formally terminated the services of the
respondents herein on the ground of loss of trust and confidence. This action taken by
the governor was appealed by respondents to the Merit Systems Protection Board of
the Civil Service Commission.
On March 9, 1989, the Merit Systems Board issued an Order declaring the respondents'
termination illegal and ordering that they be immediately restored to their positions
with back salaries and other emoluments due them. This was appealed by petitioner
Griño to the Civil Service Commission.
In Resolution No. 89-736 dated October 9, 1989, the Civil Service Commission
affirmed the Order of the Merit Systems Protection Board, and directed that the
respondents be restored to their former legal positions and be paid back salaries and
other benefits.
Petitioners filed a Motion for Reconsideration of the above-mentioned Decision of the
Civil Service Commission. The motion was denied on December 7, 1989 in Resolution
No. 89-920.
Hence, this petition for review whereby petitioners seek the reversal of Resolution No.
89-736 of the Civil Service Commission and Resolution No. 89-920 which denied the
Motion for Reconsideration.
We shall first discuss whether the position of a provincial attorney is primarily
confidential so that the holder thereof may be terminated upon loss of confidence.
In Cadiente vs. Santos,1 this Court ruled that the position of a city legal officer is
undeniably one which is primarily confidential in this manner:
In resolving the merits of the instant case, We find as an undeniable fact that the
position of a City Legal Officer is one which is "primarily confidential." This Court
held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that
the position of a City Legal Officer is one requiring that utmost confidence on the part
of the mayor be extended to said officer. The relationship existing between a lawyer
and his client, whether a private individual or a public officer, is one that depends on
the highest degree of trust that the latter entertains for the counsel selected. As stated
in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 417 (citing
De los Santos vs. Mallare, 87 Phil. 289), the phrase "primarily confidential" "denotes
not only confidence in the aptitude of the appointee for the duties of the office but
primarily close intimacy which insures freedom of intercourse, without embarrassment
or freedom from misgivings of betrayals of personal trust on confidential matters of
state. (Emphasis supplied.)
The tenure of officials holding primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as long as confidence in them
endure; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-23721,
March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the officer
holding such position is separated from the service, such cessation entails no removal
but an expiration of his term. In the case of Hernandez vs. Villegas, L-17287, June 30,
1965, 14 SCRA 548, it was held —
It is to be understood of course that officials and employees holding primarily
confidential positions continue only for so long as confidence in them endures. The
termination of their official relation can be justified on the ground of loss of confidence
because in that case their cessation from office involves no removal but merely the
expiration of the term of office — two different causes for the termination of official
relations recognized in the Law of Public Officers.
In the case at bar, when the respondent City Mayor of Davao terminated the services
of the petitioner, he was not removed or dismissed. There being no removal or
dismissal it could not, therefore, be said that there was a violation of the constitutional
provision that "no officer or employee in the civil service shall be suspended or
dismissed except for cause as provided by law" (Article XII-B, Section 1 (3), 1973
Constitution).
The matter of expiration of a term of an officer holding a primarily confidential
position, as distinguished from a removal or dismissal, was further explained by this
Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171,
in this wise:
When an incumbent of a primarily confidential position holds office at the pleasure of
the appointing power, and the pleasure turns into a displeasure, the incumbent is not
removed or dismissed from office — his term merely expires, in much the same way
as an officer, whose right thereto ceases upon expiration of the fixed term for which he
had been appointed or elected, is not and cannot be deemed removed or dismissed
therefrom, upon expiration of said term.
The main difference between the former — the primary confidential officer — and the
latter is that the latter's term is fixed or definite, whereas that of the former is not pre-
fixed, but indefinite, at the time of his appointment or election, and becomes fixed and
determined when the appointing power expresses its decision to put an end to the
services of the incumbent. When this event takes place, the latter is not removed or
dismissed from office — his term merely expired.
The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes,
stressed in the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In
said case We stated that:
The tenure of officials holding primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as long as confidence in them
endures, and thus their cessation involves no removal.2
In Besa vs. Philippine National Bank,3 where petitioner, who was the Chief Legal
Counsel with the rank of Vice President of the respondent Philippine National Bank,
questioned his being transferred to the position of Consultant on Legal Matters in the
Office of President, this Court, considering said position to be primarily confidential
held —
It cannot be denied of course that the work of the Chief Legal Counsel of respondent
Bank, as of any lawyer for that matter, is impressed with a highly technical aspect. As
had been pointed out, however, it does not mean that thereby a client is precluded from
substituting in his stead another practitioner. That is his right; Ms decision to terminate
the relationship once made is impressed with the attribute of finality. The lawyer
cannot be heard to complain; it is enough that his right to compensation earned be duly
respected.
In that sense, it is equally clear that where the position partakes of the attributes of
being both technical and confidential, there can be no insistence of a fixed or a definite
term if the latter aspect predominates. To paraphrase the language of the Chief Justice
in the opinion previously cited, the incumbent of a primarily confidential position, as
was the case of petitioner, should realize that at any time the appointing power may
decide that his services are no longer needed. As thus correctly viewed, Corpus v.
Cuaderno cannot be read as lending support to petitioner's efforts to retain his position
as Chief Legal Counsel of respondent Bank, contrary to its wishes as so explicitly
declared in its Resolution No. 1053.
The question now is — should the ruling in Cadiente be made applicable to a provincial
attorney? According to the petitioners, Cadiente must be applied because by the nature
of the functions of a provincial attorney and a city legal officer, their positions are both
primarily confidential. Respondents, on the other hand, maintain that since the Civil
Service Commission has already classified the position of private respondent Arandela
as a career position and certified the same as permanent, he is removable only for cause,
and therefore Cadiente is not applicable.
We agree with the petitioners and answer the question earlier propounded in the
affirmative. A city legal officer appointed by a city mayor to work for and in behalf of
the city has for its counterpart in the province a provincial attorney appointed by the
provincial governor. In the same vein, a municipality may have a municipal attorney
who is to be named by the appointing power. The positions of city legal officer and
provincial attorney were created under Republic Act No. 5185 which categorized them
together as positions of "trust", to wit:
Sec. 19. Creation of positions of Provincial Attorney and City Legal officer. — To
enable the provincial and city governments to avail themselves of the full time and
trusted services of legal officers, the positions of provincial attorney and city legal
officer may be created and such officials shall be appointed in such manner as is
provided for under Section four of this Act. For this purpose the functions hitherto
performed by the provincial and city fiscals in serving as legal adviser and legal officer
for civil cases of the province and city shall be transferred to the provincial attorney
and city legal officer, respectively. (Emphasis supplied.)4
By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer
serve as the legal adviser and legal officer for the civil cases of the province and the
city that they work for. Their services are precisely categorized by law to be "trusted
services."
A comparison of the functions, powers and duties of a city legal officer as provided in
the Local Government Code with those of the provincial attorney of Iloilo would reveal
the close similarity of the two positions. Said functions clearly reflect the highly
confidential nature of the two offices and the need for a relationship based on trust
between the officer and the head of the local government unit he serves. The "trusted
services" to be rendered by the officer would mean such trusted services of a lawyer to
his client which is of the highest degree of trust.5
The fact that the position of respondent Arandela as provincial attorney has already
been classified as one under the career service and certified as permanent by the Civil
Service Commission cannot conceal or alter its highly confidential nature. As in
Cadiente where the position of the city legal officer was duly attested as permanent by
the Civil Service Commission before this Court declared that the same was primarily
confidential, this Court holds that the position of respondent Arandela as the provincial
attorney of Iloilo is also a primarily confidential position. To rule otherwise would be
tantamount to classifying two positions with the same nature and functions in two
incompatible categories. This being the case, and following the principle that the tenure
of an official holding a primarily confidential position ends upon loss of confidence,6
the Court finds that private respondent Arandela was not dismissed or removed from
office when his services were terminated. His term merely expired.
The attorney-client relationship is strictly personal because it involves mutual trust and
confidence of the highest degree, irrespective of whether the client is a private person
or a government functionary.7 The personal character of the relationship prohibits its
delegation in favor of another attorney without the client's consent.8
However, the legal work involved, as distinguished from the relationship, can be
delegated.9 The practice of delegating work of a counsel to his subordinates is apparent
in the Office of the Provincial Attorney wherein it can be gleaned from the power
granted to such officer to exercise administrative supervision and control over the acts
and decision of his subordinates.10
It is therefore possible to distinguish positions in the civil service where lawyers act as
counsel in confidential and non-confidential positions by simply looking at the
proximity of the position in question in relation to that of the appointing authority.
Occupants of such positions would be considered confidential employees if the
predominant reason they were chosen by the appointing authority is the latter's belief
that he can share a close intimate relationship with the occupant which measures
freedom of discussion, without fear of embarrassment or misgivings of possible
betrayal of personal trust on confidential matters of state.11
This implies that positions in the civil service of such nature would be limited to those
not separated from the position of the appointing authority by an intervening public
officer, or series of public officers, in the bureaucratic hierarchy. This is an additional
reason why the positions of "City Legal Officer" and "Private Secretary to the
President" were considered primarily confidential by the Court.12 On the other hand,
a customs policeman serving in the Harbor Patrol, in relation to the Commissioner of
Customs, and an executive assistant, stenographer, or clerk in the Office of the
President, were not considered so by the Court.13
There is no need to extend the professional relationship to the legal staff which assists
the confidential employer above described. Since the positions occupied by these
subordinates are remote from that of the appointing authority, the element of trust
between them is no longer predominant. The importance of these subordinates to the
appointing authority now lies in the contribution of their legal skills to facilitate the
work of the confidential employee. At this level of the bureaucracy, any impairment of
the appointing authority's interest as a client, which may be caused through the breach
of residual trust by any of these lower-ranked lawyers, can be anticipated and prevented
by the confidential employee, as a reasonably competent office head, through the
exercise of his power to "review, approve, reverse, or modify" their acts and
decisions.14 At this level, the client can be protected without need of imposing upon
the lower-ranked lawyers the fiduciary duties inherent in the attorney-client
relationship. Hence, there is now no obstacle to giving full effect to the security of
tenure principle to these members of the civil service.
Thus, with respect to the legal assistants or subordinates of the provincial attorney
namely, Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan, the Cadiente and
Besa rulings cannot apply. To recall, said cases specifically dealt with the positions of
city legal officer of the city and chief legal counsel of the PNB. There was no reference
to their legal staff or subordinates. As head of their respective departments, the city
legal officer, the provincial attorney or the PNB chief legal counsel cannot be likened
to their subordinates. The latter have been employed due to their technical
qualifications. Their positions are highly technical in character and not confidential, so
they are permanent employees, and they belong to the category of classified employees
under the Civil Service Law. Thus, the items of Senior Legal Officer and Legal Officer
II remain permanent as classified by the Civil Service Commission. Consequently, the
holders of the said items, being permanent employees, enjoy security of tenure as
guaranteed under the Constitution.
This notwithstanding, petitioners contend that respondents are estopped from
protesting the termination of their services because of their actions which, if taken
together, would allegedly reveal that they have accepted their termination, such as:
applying for clearances, not remaining in office and signing their payroll for March 15,
1988 acknowledging therein that their appointment "terminated/expired."
We cannot agree with petitioners in this regard. The respondents did the above-
mentioned acts because their services were actually dispensed with by petitioner
Governor Griño. As a consequence of their termination, they could not remain in office
and as required of any government employee who is separated from the government
service, they had to apply for clearances. However, this did not mean that they believed
in principle that they were validly terminated. The same should not prevent them from
later on questioning the validity of said termination.
The facts clearly show that respondents protested their termination with the Civil
Service Commission within a month from the time of their termination. The Court
holds that the said protest was filed within a reasonable period of time.
WHEREFORE, and in view of the foregoing, the petition is GRANTED with respect
to the position of provincial attorney of Iloilo. Respondent Teotimo Arandela is hereby
ordered to vacate said position upon the finality of this Decision. The Decision of the
respondent Civil Service Commission pertaining to respondents Cirilo Gelvezon,
Teodolfo Dato-on and Nelson Geduspan is hereby AFFIRMED.
SO ORDERED.
Separate Opinions
PADILLA, J., concurring and dissenting:
I concur with the majority opinion in its classification of the positions of legal assistants
or subordinates of the Provincial Attorney as highly technical in character, falling
under the category of permanent employees, with security of tenure under the civil
service system. I dissent, however, from the majority opinion in its treatment of the
position of Provincial Attorney, for the following reasons:
The position of Provincial Attorney was created under Sec. 19 of RA 5185 to enable
the provincial government to avail of the legal advice and services of its own counsel
in civil cases affecting the province. Although the power to appoint the Provincial
Attorney is vested in the Governor, however, the said local public officer is an
employee of the provincial government to which he owes his loyalty, and not to the
elected Governor, for he is not part of the latter's personal or confidential staff. As a
provincial public officer, the Provincial Attorney's suspension, removal or transfer is
subject to the provisions of the civil service law, rules and regulations. In other words,
he may not be removed or suspended except for cause provided by law. More
specifically, he may be removed from office for incompetence, dishonesty, or other
misconduct but not for the Governor's loss of confidence in him, which by its very
nature, can be as broad as anything imaginable.
In its resolution, the Civil Service Commission has classified the position of Provincial
Attorney as a career service position and a permanent one. It is but proper that a career
position be developed for the Provincial Attorney to minimize the "spoils system",
whereby everytime a new Governor is elected, he can appoint his own man by
terminating the services of the one holding the position, regardless of his competence
and performance, on the basis (in reality, pretext) of an alleged "loss of confidence",
leaving the appointees to said position at the mercy of the Governor's whims and
caprices. To clothe the Governor with an unlimited or blanket authority to dismiss the
Provincial Attorney on the ground of such generality as "loss of confidence" only
aggravates the problem which has for too long plagued this country and that is the
undue dominance of partisan politics in the appointment and retention of government
officers and/or employees. Such practice only hinders the growth of trained-career
personnel in the government service resulting in the demoralization of those officers
and/or employees who would prefer to stake their fate in the government service on
the basis of merit.
The Office of Provincial Attorney is composed of a Provincial Attorney, one (1) Senior
Legal Officer, five (5) Legal Officers and its administrative staff. Private respondent
Teotimo Arandela rose from the ranks, wherein he started as Legal Officer III, to
Senior Legal Officer and finally to Provincial Attorney, under the terms of three (3)
Governors, before Gov. Griño was elected to office.1 To unceremoniously terminate
private respondent Arandela, who has risen from the ranks and who has been in
government service for many years, at the pleasure or fancy of an incumbent Governor,
is, to my mind, contrary to the constitutional provision that "no officer or employee of
the civil service shall be removed or suspended except for cause provided by law."
Abuse of power in the termination and/or suspension of an appointee to the position of
Provincial Attorney or of a similar position on the basis of "loss of confidence" which
is not duly substantiated should not be allowed. The reason stated by the Governor for
his alleged loss of trust and confidence in private respondent was that " . . . an article
pertaining to your office which appeared yesterday in Panay News undermined that
trust and confidence which should otherwise prevail." Whatever the content of said
article which allegedly triggered the loss of confidence on the part of the Governor in
the private respondent was not specifically stated in his letter dated 1 March 1988
dispensing with the services of the private respondent.2 The reason given by the
Governor in terminating private respondent's services does not only appear
unsubstantiated but is vague and uncertain.
The presence of Cadiente vs. Santos, 142 SCRA 280 (1980), upon which the majority
opinion relies in support of its thesis that the Provincial Attorney may be terminated at
any time by the Provincial Governor upon loss of confidence, should be the last thing
to bother one in attempting to establish a wholesome doctrine in the law of public
officers.
ACCORDINGLY, I vote to DISMISS the Petition and to AFFIRM the questioned
Civil Service Commission rulings in favor of private respondents.
SARMIENTO, J., concurring & dissenting:
I concur with the first part of the ponencia holding that the position of a provincial
attorney appointed by the provincial governor being akin to that of a city legal officer
appointed by the city mayor, is primarily confidential and hence, the termination from
office of the provincial attorney follows as a consequence of the loss of confidence
upon him by the provincial governor.
However, I can not agree with the second part of the decision when it refused to apply
the same aforementioned ruling to the case of legal assistants or subordinate lawyers
on the justification that the earlier cases of Cadiente and Besa only specifically dealt
with the positions of city legal officer and PNB chief legal counsel, respectively, and
that the positions of legal assistants or subordinate lawyers are highly technical in
character and not confidential.
While it is true that Cadiente and Besa only involved a city legal officer and the PNB
chief legal counsel, the same cases do not by any means preclude the application of the
said precedents to legal assistants or subordinate lawyers in appropriate cases when
such issue is squarely raised as presently.
Anent the claim that the positions of assistant legal officers or subordinate lawyers is
highly technical and not confidential, this contention is not supported by any evidence
on record or any basis in law. On the contrary, the function of an assistant or a
subordinate legal officer, as can be gleaned from the Local Government Code, is to
"assist the chief officer and perform such duties as the latter may assign him." I can not
see how such a function can be any less confidential than that of the chief legal officer.
Absent any showing of substantial distinctions between the nature of the work or
function of the provincial attorney and that of the legal assistants or subordinate
lawyers, it is logical to presume that both public officers handle confidential matters
relating to the legal aspect of provincial administration and that their relationship with
their appointing power is that of a lawyer and his client requiring utmost confidence
and the highest degree of trust. Hence, both positions being primarily confidential, the
termination from office of the legal assistants or subordinate lawyers must likewise
follow as a consequence of the loss of confidence upon them by the provincial
governor.
G.R. No. 110598 December 1, 1994
MONA A. TOMALI petitioner, vs. CIVIL SERVICE COMMISSION, OFFICE
ON MUSLIM AFFAIRS (OMA) and ROCAINA M. LUCMA, respondents.
VITUG, J.:
In this special civil action for certiorari, petitioner questions her "replacement" by
private respondent in a contested position in the Office on Muslim Affairs.
On 01 July 1990, petitioner Mona A. Tomali was appointed Development Management
Officer II ("DMO II") in the Office on Muslim Affairs ("OMA"). The appointment was
extended by then OMA Executive Director Dimasangcay A. Pundato. She assumed the
duties and functions of the office four months later, or on 01 November 1990, at which
time, the appointment had not yet been transmitted to the Civil Service Commission
("CSC") for approval.
Prior to her assumption to the new position, petitioner had worked in different
capacities with the Mindanao State University starting as Records Clerk (01 June 1983
to 31 December 1986), Clerk Typist (02 January 1987 to 30 June 1989), and, finally,
as "Budget Assistant" (01 July 1989 to 31 October 1990).1
On 16 July 1991, the new Director of the OMA, Dr. Ali Basir Lucman, revoking the
previous incomplete appointment of petitioner, appointed private respondent Rocaina
M. Lucman to the position in question (DMO II). Petitioner, on 29 July 1991, sent
public respondent OMA a letter protesting her replacement. On 01 August 1991, the
Chief of the Human Resources Management Division of the OMA communicated to
petitioner the disapproval/expiration of her appointment.2 Forthwith, private
respondent took her oath of office and assumed the duties and functions of DMO II.
On 12 August 1991, petitioner reiterated her protest.3 The Merit Systems Protection
Board ("MSPB"), acting thereon, rendered a decision, dated 23 July 1992, dismissing
the protest/complaint for lack of merit. MSPB held:
Glaring is the fact that protestant's appointment to the contested position was not
approved by the Civil Service Commission, hence, incomplete. In this regard, Section
11, Rule V, of the Omnibus Rules Implementing Book V of Executive Order No. 292,
Administrative Code of 1987 is clear and explicit. Said provision reads, thus:
Sec. 11. An appointment not submitted to the Commission, within thirty (30) days from
the date of issuance, which shall be the date appearing on the face of the instrument,
shall be ineffective.
As applied to the case of the herein protestant, it appears that the latter has no basis in
law to cling to the contested position. Her prior continuous stay in office was at most
by mere tolerance of the appointing authority. As her appointment is incomplete for
lack of the requisite approval of the Civil Service Commission or its proper Regional
or Field Office, no right to security of tenure as guaranteed by law and the Constitution
attaches thereto or for incumbent to invoke. . . . .
That being so, the proper appointing authority, in this case, the OMA Executive
Director may, in the exercise of sound discretion, cancel or revoke the said incomplete
appointment and appoint another person.
The circumstance showing that the non-approval of protestant's appointment was due
to the belated transmittal thereof to this Commission is of no consequence nor improve
her lot as a holder of an incomplete appointment. There is no showing that the non-
submission was motivated by bad faith, spite or malice or at least attributable to the
fault of the
newly-installed OMA Executive Director.4
Her request for reconsideration having been denied on 27 November 1992, petitioner
appealed to the CSC. In its Resolution No. 93-945, dated 12 March 1993, the
Commission dismissed the appeal for lack of merit.5
Hence, the instant recourse to this Court.
We fail to see any merit in the petition.
An appointment to a position in the civil service is required to be submitted to the CSC
for approval in order to determine, in main, whether the proposed appointee is qualified
to hold the position and whether or not the rules pertinent to the process of appointment
are followed; thus:
Sec. 9. Powers and Functions of the Commission. — The Commission shall
administer the Civil Service and shall have the following powers and functions:
(h) Approve all appointments, whether original or promotional, to positions in the
civil service, except those of presidential appointees, members of the Armed Forces of
the Philippines, police forces, firemen, and jailguards, and disapprove those where the
appointees do not possess the appropriate eligibility or required qualifications. An
appointment shall take effect immediately upon issue by the appointing authority if the
appointee assumes his duties immediately and shall remain effective until it is
disapproved by the Commission, if this should take place, without prejudice to the
liability of the appointing authority for appointments issued in violation of existing
laws or rules: Provided, finally, That the Commission shall keep a record of
appointments of all officers and employees in the civil service. All appointments
requiring the approval of the Commission as herein provided, shall be submitted to it
by the appointing authority within thirty days from issuance, otherwise the
appointment becomes ineffective thirty days thereafter.6
The Omnibus Rules Implementing Book V of Executive Order No. 292, also known
as the Administrative Code of 1987, among other things, provides:
Sec. 11. An appointment not submitted to the Commission within thirty (30) days from
the date of issuance which shall be the date appearing to the face of the appointment,
shall be ineffective. . . . .7
Compliance with the legal requirements for an appointment to a civil service position
is essential in order to make it fully effective.8 Without the favorable certification or
approval of the Commission, in cases when such approval is required, no title to the
office can yet be deemed to be permanently vested in favor of the appointee, and the
appointment can still be recalled or withdrawn by the appointing authority. 9 Until an
appointment has become a completed act, it would likewise be precipitate to invoke
the rule on security of tenure. 10
Petitioner faults public respondents for their failure to have her appointment properly
attended to and timely acted upon and for, in effect, allowing her in the meanwhile to
assume the office in question. In Favis vs. Rupisan, 11 this Court has said:
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 approval of the Commissioner of Civil Service of appointments,
ineffective and unenforceable. The employee, whose appointment was not approved,
may only be considered as a de facto officer.
Petitioner herself would not appear to be all that blameless. She assumed the position
four months after her appointment was issued or months after that appointment had
already lapsed or had become ineffective by operation of law. Petitioner's appointment
was issued on 01 July 1990, but it was only on 31 May 1991 that it was submitted to
the CSC, a fact which she knew, should have known or should have at least verified
considering the relatively long interval of time between the date of her appointment
and the date of her assumption to office. The CSC, such as to be expected, disapproved
the appointment 12 in consonance with Presidential Decree No. 807.
When private respondent Lucman was thus appointed DMO II on 16 July 1991,
petitioner could not be said to have theretofore earned a valid tenure to the same
position. In its resolution of 12 March 1993, the CSC, which dismissed petitioner's
appeal, said:
Further, a motion for reconsideration was denied in CSC Resolution No. 91-1463,
dated December 3, 1991.
Considering that Tomali had already been separated from the service upon recall of
her appointment, her protest against the appointment of Rocaina Lucman has no merit.
She has no more personality to file a protest. 13
It was well within the authority and discretion of the new OMA Director, therefore, to
appoint private respondent, and such prerogative could not be questioned even on a
showing that petitioner might have been better qualified for the position.
The rule has always been that an appointment is essentially a discretionary act,
performed by an officer in whom it is vested according to his best judgment, the only
condition being that the appointee should possess all the qualifications required
therefor. 14 There is nothing on record to convince us that the new OMA Director has
unjustly favored private respondent nor has exercised his power of appointment in an
arbitrary, whimsical or despotic manner.
In sum, we see no grave abuse of discretion on the part of public respondents in their
questioned dismissal of petitioner's protest.
WHEREFORE, the petition for certiorari is DISMISSED. No special pronouncement
on costs.

The instant case is about the recall of Tomali's appointment as Development SO ORDERED.
Management Officer II, Office on Muslim Affairs in favor of Rocaina Lucman prior
to the approval by the Commission. Subsequently, Tomali filed a protest against the
appointment of Rocaina Lucman.

It may be noted that the issue on the said recall of Tomali's appointment had already
been the subject matter in CSC Resolution No.
91-1237, wherein the Commission ruled as follows:

WHEREFORE, foregoing premises considered, this Commission upholds the power

of the appointing authority to recall an appointment. Accordingly, the separation of
Mona Tomali is declared to be in order. (Emphasis supplied.)