EN BANC

[G.R. No. 149451.  May 8, 2003]

REMEDIOS S. PADILLA, petitioner, vs. THE HONORABLE CIVIL SERVICE COMMISSION and DEPARTMENT OF LABOR and EMPLOYMENT, respondents.

D E C I S I O NCORONA, 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 Padilla’s 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 CSC’s approval of her appointment, she assumed her new position.

On March 4, 1985, CSC-NCR Regional Director Aurora de Leon sent a 1st Indorsement to the Minister of Labor and Employment disapproving petitioner’s appointment as Labor Development Assistant on the ground that she failed to meet the eligibility requirement for the position. Maria Esther Manigque, Officer-In-Charge of the Institute of Labor and Manpower Studies, sought reconsideration of respondent CSC’s ruling by pointing out petitioner’s satisfactory performance. It was denied.  In May 1985, petitioner resigned from the service citing “personal reasons.”

On July 28, 1985, petitioner took the Career Service Examination (Professional Level). After passing the same in August, 1985, she re-applied at the respondent Department of Labor and Employment (DOLE). She was appointed as Casual Research Assistant on October 17, 1988, effective until November 30, 1988. Upon expiration of her appointment, the same was extended to December 31, 1988. From January 1989 until December 1989, petitioner occupied the position of Casual Technical.

Due to the implementation of RA 6758, otherwise known as the Salary Standardization Act of 1989, casual items such as Casual Research Assistant and Casual Technical were abolished. Petitioner was offered the position of Clerk II (the only available permanent position then) for which the Selection Board deemed her qualified. However, she declined the offer.

On January 2, 1990, petitioner was appointed Casual Clerk III, effective till the end of June 1990. After the expiration of her appointment as a casual employee, petitioner was no longer given any position. She then requested the monetary conversion of her unused sick and vacation leaves which respondent DOLE granted.

Nevertheless, petitioner appealed her alleged termination as casual employee to the CSC but this was dismissed for having been filed out of time. [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 petitioner’s claim. Her motion for reconsideration was likewise denied in CSC Resolution No. 981425 dated June 10, 1998.

Petitioner appealed the CSC resolutions to the Court of Appeals. On January 22, 2001, the appellate court rendered a decision, the dispositive portion of which read:

WHEREFORE, in view of the foregoing, the petition is DENIED and accordingly DISMISSED for lack of merit. Accordingly, the assailed  Resolution No. 98-0256 dated February 5, 1998 issued by the Civil Service Commission dismissing the petitioner’s appeal, as well as its Resolution No. 981425 dated June 10, 1998, is (sic) AFFIRMED.

SO ORDERED.[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 petitioner’s contention that respondent DOLE was obliged to give her a permanent position upon becoming eligible, the appellate court ruled that, although the petitioner was a civil service eligible, her acceptance of a temporary appointment as a casual vested her no right to security of tenure. Her appointment depended exclusively on the pleasure of the appointing authority. [6]

On July 4, 2001, the appellate court issued a resolution [7] denying petitioner’s 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 petitioner’s purported right to security of tenure?  We do not think so.

The jurisdiction of this Court over cases brought to it from the Court of Appeals via Rule 45 of the Rules of Court is limited to reviewing errors of law. [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 court’s 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 court’s finding that she voluntarily resigned. Considering that petitioner’s submission was premised on an alleged misapprehension of facts, she had the burden of showing that the CSC and the appellate court’s findings of fact were not supported by evidence. [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 petitioner’s 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 petitioner’s right to due process was not violated.  In fact, there was no need to furnish her a notice of termination since, as a casual employee, petitioner was aware of the date of expiration of her temporary appointment.

WHEREFORE, the petition is hereby DENIED. No costs.

SO ORDERED.Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-

Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., andAzcuna, JJ., concur.

EN BANC

[G.R. No. 158737.  August 31, 2004]

CIVIL SERVICE COMMISSION, petitioner, vs. SATURNINO DE LA CRUZ, respondent.

D E C I S I O NCORONA, 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 respondent’s appointment as Chief Aviation Safety Regulation Officer.  Said the CSC-NCR:

“After an initial evaluation of the protest, we find that the only issue to be resolved is whether or not the protestee meets the minimum experience requirements as of the date of the protestee’s appointment to the contested position.  The contested position requires four years of work experience in position/s involving management per Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of experience in planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools per ATO Qualification Standards xxx.

xxx         xxx       xxx

Taking into account his previous positions, Mr. dela Cruz could not have exercised managerial or supervisory functions for the required number of years. x x x.  Moreover, vis-à-vis the experience requirements of the approved ATO Qualification Standards, Mr. dela Cruz’ work experience prior to his appointment to the contested position did not concur therewith.

We are of the view therefore, that experience-wise, Mr. dela Cruz did not meet the requirements of the contested position as of the date of his appointment thereto.

xxx    xxx       xxx.”

Under date of December 11, 1997, ATO Director Gilo wrote the CSC-NCR asking for the suspension of the order recalling respondent’s appointment, citing several reasons in support thereof.

Subsequently, a Manifestation with Motion to Admit Addendum dated December 22, 1997 was filed by Director Gilo with the CSC-NCR.  Director Gilo argued that Calamba had no legal personality to file a protest because she is not a qualified next-in-rank and that the protest was filed out of time.  He likewise asserted that respondent had fully met the qualifications required of the position.

On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no cogent reason to disturb earlier rulings on the matter.  He also denied ATO Director Gilo’s request, for lack of merit.

Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted Director Gilo’s request and affirmed the approval of respondent’s appointment as Chief Aviation Safety Regulation Officer.  He said:

“xxx        xxx      xxx.

We reviewed again the documents including the Office Orders designating protestant dela Cruz to supervisory position which were obviously issued during the latter part of 1993.  A liberal consideration thereof would come up with a little over one year of supervisory and managerial experience.  Certainly, he was short of the required number of years of work experience for the contested position as of the date of the issue of his appointment. Nevertheless, considering that Mr. dela Cruz has already in his favor at least four years of continuous supervisory/managerial experience from his designation as Acting Chief of the Aviation Safety Regulation Division, supervened by his permanent appointment thereto as Chief thereof in November 28, 1994, up to present, he has substantially satisfied the four years experience required for appointment to the contested position.

xxx    xxx       xxx.”

In a letter dated January 26, 1998, Calamba requested the CSC to implement the January 5, 1998 ruling of the CSC-NCR.

When asked by the CSC to clarify the conflicting rulings, CSC-NCR Director Acebedo explained that the January 5, 1998 ruling is unofficial and inexistent.

The CSC treated Calamba’s request as an appeal. On November 13, 1998, the CSC rendered its Resolution No. 98-2970, the decretal portion of which reads:

“WHEREFORE, the appeal of Annabella A. Calamba is hereby granted. The appointment of Saturnino De la Cruz as Chief Aviation Regulation Officer is disapproved. De la Cruz is hereby reverted to his former position.

xxx    xxx       xxx.”

Acting on the request for reconsideration filed by respondent, the CSC rendered its Resolution No. 99-1451 on July 6, 1999, the dispositive portion of which reads:

“WHEREFORE, the instant motion for reconsideration of Saturnino dela Cruz is hereby denied.  Accordingly, CSC Resolution No. 98-2970 dated November 13, 1998 stands.”

On August 11, 1999, respondent filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No. 54088, seeking to nullify CSC Resolution Nos. 98-2970 and 99-1451.

In a decision[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 respondent’s appointment as Chief of the Aviation Safety Regulation Office.

Petitioner’s motion for reconsideration was subsequently denied in a resolution issued on June 17, 2003.

Hence, the instant petition for review.

Petitioner contends that the appellate court erred in approving respondent’s appointment as Chief Aviation Safety Regulation Officer despite his failure to meet the minimum four-year managerial and supervisory qualification for the position. It further contends that respondent’s completion of the required experience during the pendency of the present casecannot be counted in his favor because

compliance with the prescribed mandatory requirements should be as of the date of issuance of the appointment and not the date of approval by the CSC or the resolution of the protest against the appointment.

The petition lacks merit.

Contrary to petitioner’s contention, respondent has sufficiently complied with the required experience standards.

First, upon the issuance of respondent’s appointment on November 28, 1994, the qualification standards of the DOTC for the position of Chief Aviation Safety Regulation Officer were as follows:

EDUCATION: Bachelor’s Degree related to AviationEXPERIENCE: 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.

Petitioner’s insistence that respondent failed to meet the four-year managerial and supervisory experience requirement is misplaced.  It is a well-settled rule in statutory construction that the use of the term “and/or” means that the word “and” and the word “or” are to be used interchangeably. [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 EngineerFebruary 6, 1983 to February 29, 1984 Air Carrier Safety InspectorMarch 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 agency’s discretionary power to appoint, as long as the appointee possesses other qualifications required by law.  The appellate court was therefore correct in setting aside the assailed CSC resolutions and considering the respondent’s total work experience as sufficient to meet the supervisory standards under the second clause, thereby finding respondent qualified for appointment to the contested position.

Second, respondent’s promotional appointment was issued in accordance with petitioner’s selection process. Respondent passed the rigid screening of the ATO Personnel Selection/Promotion Board as well as the oral and written examinations of the DOTC Selection Board.

DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:

1.  Capt. dela Cruz has been with the Air Transportation Office for more than 13 years already and during such period, he faithfully and efficiently (served in) four of the five sections of the Aviation Safety Division of which the position under consideration is the head, thereby gaining more varied experience and working knowledge of the most important and sensitive functions of the Division over other applicants;

2.  The recommendee always performs his assigned tasks promptly with dedication, integrity, high sense of responsibility and professionalism which he had demonstrated when he established and developed the Airport Crash Rescue Organization (ACRO) procedure to various national airports of the country, and when he organized the Air Transportation Office (ATO) Operations Center which is now on a 24-hour operation and serving as the nerve center of this Office;

3.  He is a dedicated public servant and is always willing to respond to call of duty even beyond office hours like when he is flying the ATO’s aircraft for navigation aide check during holidays and weekends, aside from conducting checkride to airmen prior to issuance of the pilot license;

4.  Capt. dela Cruz is an outstanding team worker as well as a leader and promotes enthusiasm among co-workers. He handles all areas of job with minimal supervision and accomplishes objectives efficiently. He accepts stress situations and performs extremely well.[11]

Because of respondent’s excellent credentials, DOTC Assistant Secretary for Administrative and Legal Affairs Wilfredo M. Trinidad, chair of the Personnel Selection Board, strongly recommended his promotional appointment to the contested position.

Third, respondent’s multifarious experiences and trainings[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 Pilot’s 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, respondent’s dedication to the service was demonstrated by his conceptualization and establishment of the Airport Crash Rescue Organization (ACRO) procedure in various national airports in the country to ensure the security of both airport personnel and passengers. Respondent also organized the Air Transportation Office Operations Center which now provides air service assistance on a 24-hour basis.

Because of respondent’s commendable performance, he was designated Chief of the Air Transportation Office Operations Center in 1993 per Office Order No. 178-93, [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 respondent’s appointment. ATO Executive Director Gilo also noted respondent’s full compliance with the qualifications for the position. CSC-NCR Director Acebedo, who previously recalled respondent’s appointment, later affirmed it after a re-evaluation of the case and declared his previous ruling unofficial and inexistent.

Clearly then, there is no reason to disapprove the appointment of respondent as Chief of the Aviation Safety Regulation Office considering that he is fully qualified and evidently the choice of the appointing authority. Between the Commission and the appointing authority, we sustain the latter.[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 petitioner’s assertion that respondent’s subsequent compliance with the experience standards during the pendency of the case should not be counted in his favor since respondent was anyway qualified for the position at the time of his appointment.

But even assuming for the sake of argument that respondent failed to meet the experience requirement to qualify for the contested position, we are still inclined to uphold the appellate court’s approval of respondent’s appointment. Petitioner itself has, on several occasions, allowed the appointment of personnel who were initially lacking in experience but subsequently obtained the same.

In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997, it ruled thus:

“A careful evaluation of the qualifications of Josue reveals that he meets the education, training and eligibility requirements of the position.  Considering that Josue has already in his favor three (3) years and eight (8) months experience as Senior Inspector up to the present, he has substantially satisfied the four (4) years experience required for the appointment as Chief Inspector.”

Following petitioner’s line of reasoning, respondent is deemed to have satisfactorily complied with the experience requirement for the contested position when he was designated Chief of the ATO Operations Center and Acting Chief of the ATO Aviation Safety Division. Having held said positions from 1993 to the present, respondent may be considered to have acquired the necessary experience for the position.

WHEREFORE, the instant petition is hereby DENIED.  The decision of the Court of Appeals setting aside CSC Resolution No. 98-2970 and CSC Resolution No. 99-1451 is AFFIRMED.  The appointment of Saturnino de la Cruz as Chief Aviation Safety Regulation Officer is APPROVED.

SO ORDERED.Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Carpio-Morales, Callejo, Sr.,

Azcuna, Tinga, and Chico-Nazario, JJ., concur.Puno, Panganiban, Sandoval-Gutierrez, and Carpio, JJ., on official leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 167472             January 31, 2007

CIVIL SERVICE COMMISSION, Petitioner, vs.ENGR. ALI P. DARANGINA, Respondent.

D E C I S I O N

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.

FIRST DIVISION

[G.R. No. 123989.  January 26, 1998]

ATTY. DAVID B. CORPUZ, petitioner, vs. COURT OF APPEALS, and MOVIE AND TELEVISION REVIEW ANDCLASSIFICATION BOARD,respondents.

D E C I S I O NDAVIDE, 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 petitioner’s separation from the service as Attorney V in the Movie Television Review Board (MTRCB) was not in order and directed that he be automatically restored to his position.

The pleadings of the parties, the decision of the Court of Appeals and the Resolution of the CSC disclose the following facts:

On 18 July 1986, CORPUZ was appointed as the MTRCB’s legal Counsel -- Prosecutor and Investigation Services (Supervising Legal Staff Officer).[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 Morato’s 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 Board’s disapproval of the said appointment to produce any effect.  Atty. Corpuz can no longer be separated from the service except for cause and after observing the requirements of due process.

WHEREFORE, foregoing premises considered, the Commission hereby resolves to rule that the separation of Mr. David Corpuz from the service is not in order.  Accordingly, he is automatically restored to his position of Atty. V with payment of back salaries.

The MTRCB’s motion for reconsideration was denied by the CSC in Resolution No. 94-2551[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 respondent’s appointment constitute as a [sic] consent or confirmation.  In the aforecited case, the Supreme Court restated the existing jurisprudence on the matter, thus:

“The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance of the pertinent rules on the matter does not render the legal requirement, on the necessity of the approval of the Commissioner on Civil Service of appointments, ineffective and unenforceable.  The employee, whose appointment was not approved, may only be considered as a de facto officer.” (Tomali vs. Civil Service Commission, supra citing Favis vs. Rupisan, 17 SCRA 190, 191)

Thus, We find merit in petitioner’s contention that respondent Atty. David Corpuz did not acquire a vested right nor does he presently enjoy a [sic] security of tenure to the subject position in the MTRCB for failure to comply with the legal requirements needed for a valid appointment.  Hence, he cannot be reinstated.  Not being a permanent employee of the Movie and Television Review and Classification Board, the tenure of respondent Atty. Corpuz ceased when he was not properly appointed under present law.

His motion for reconsideration having been denied  in the Resolution[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 of Appeals, vests upon the Board itself the power to, inter alia, approve or disapprove the appointments of its personnel.

It is thus clear that there are two stages in the process of appointing MTRCB personnel, other than its Secretary, namely:  (a) recommendation by the Chairman which is accomplished by the signing of the appointment paper, which is among his powers under Section 5(d) above; and (b) approval or disapproval by the MTRCB of the appointment.  As to the Secretary, it is the MTRCB itself that is empowered to appoint said official pursuant to Section 16.

It is long settled in the law of public offices and officers that where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once.  Where, however, the assent or confirmation of some other officer or body is required, the commission can issue or the appointment may be complete only when such assent or confirmation is obtained.  In either case, the appointment becomes complete when the last act required of the appointing power is performed.[17] Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure.  Hence, in the case of CORPUZ, since the last act required for the completion of his appointment, viz., approval by the MTRCB itself, was not obtained, as a matter of fact, the MTRCB ultimately disapproved it, his appointment ceased to have effect, if at all, and his services were properly terminated.  This Court so declared in Favis v. Rupisan[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 legal requirements for an appointment to a civil service position is essential to make it fully effective.  That the employee involved had, in fact, assumed office and performed the functions and duties thereof is of no moment, for it matters not that the appointee had served for several years.  Those years of service cannot substitute for the want of consent of another body required by law to complete the appointment.  The tolerance, acquiescence or mistake of the proper officials resulting in non-observance of the requirements of law or rules to complete the appointment does not render the requirements ineffective and unenforceable.[23]

A public official or employee who assumed office under an incomplete appointment is merely a de facto officer for the duration of his occupancy of the office for the reason that he assumed office under color of a known appointment which is void by reason of some defect or irregularity in its exercise.[24] Undeniably, under the facts here, CORPUZ was such a de facto officer.

WHEREFORE, the instant petition is DENIED and the assailed decision of 13 October 1995 of the Court of Appeals in CA-G.R. SP-No.37694 is AFFIRMED.

Costs against petitioner.

SO ORDERED.Bellosillo, Vitug and Kapunan, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 96298 May 14, 1991

RENATO M. LAPINID, petitioner, vs.CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY, respondents.

Brillantes, Nachura, Navarro & Arcilla Law Offices for petitioner.

Adolpho M. Guerzon for J. Junsay, Jr.

Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for Civil Service Commission.

 

CRUZ, J.:p

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?

xxx xxx xxx

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.

xxx xxx xxx

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 Appeals 2 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.

xxx xxx xxx

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. 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)

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.

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 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.

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.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

THIRD DIVISION

[G.R. No. 129616.  April 17, 2002]

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners, vs. JULIETA MONSERATE, respondent.

D E C I S I O NSANDOVAL-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]

In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the permanent position of Manager II (SG-19) of the Resource Management Division, same office.   The Comparative Data Sheet[4] accomplished by the PPA Reorganization Task Force shows the ranking of  the six (6) aspirants to the said position, thus:

“COMPARATIVE DATA SHEET

OFFICE:                                       PMO ILOILODIVISION:                                               RES. MANAGEMENT DIVISIONPOSITION:                                               DIVISION MANAGER

REQUIRED CS ELIG.:                 CS PROF / RA 1080

                 CANDIDATES                                ELIGIBILITY              xxx               TOTAL

1.       MONSERATE, JULIETA                 CS Prof.                       xxx                  79.52.       ANINO, RAMON                              1st grade                       xxx                  703.       TEODOSIO, APRIL                             PD 907 (CPA)              xxx                   674.       MORTOLA, DARIO                            CS Prof.                       xxx                   675.       ESPINOSA, AMALIK                         Bar                               xxx                   63.5

6.       PERFECTO, BASCOS                         RA 1080                       xxx                   59.5”

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 respondent’s appointment.   The PPA Appeals Board, in a Resolution [6] dated August 11, 1988, sustained the protest and rendered ineffective respondent’s 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.”

On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-88[9] (entitled “Creation of the PPA Manager’s Pool”), dated September 28, 1988, issued by the new PPA General Manager, Mr. Rogelio A. Dayan.   That Special Order excluded the name of respondent from the pool-list and placed instead the name of petitioner as Manager II, Resource Management Division.  In effect, the Special Order implemented the August 11, 1988 Resolution of the PPA Appeals Board.

Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated November 2, 1988.[10] She questioned her replacement under PPA Special Order No. 479-88, claiming that the proceedings before the PPA Appeals Board were irregular because  (1) she was not notified of the hearing before it;  (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner Anino; [11] (3) she was not

informed of the reasons behind her replacement; and (4) their Port Manager (in Iloilo City), who was then an official member of the Board, was not included in the said proceedings.

On November 8, 1988, pending resolution of her appeal/request for clarification, 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 petitioner’s 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 Anino’s 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 respondent’s 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.

“Monserate’s 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 Board’s 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 MONSERATE’S 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 Anino’s timely protest against respondent’s 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 respondent’s 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 Anino’s protest against respondent’s 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, ormore 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 respondent’s 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.

"x x x

“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 respondent’s 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.

“x x x.

“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 respondent’s 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.  Respondent’s 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 Anino’s appointment to the contested position.  Also, petitioner Anino retired from the service on November 30, 1997.

In this respect, while petitioner Anino’s 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.Vitug (Acting Chairman), Panganiban, and Carpio, JJ., concur.Melo, J. (Chairman), on official leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 79974 December 17, 1987

ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs.SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor.

 

PADILLA, J.:

Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on Appointments.

Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this suit.

By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and file a petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987.

This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution.

The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated inGold Creek Mining Corp. vs. Rodriguez, 1 that:

The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves.

The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide.

Section 16, Article VII of the 1987 Constitution says:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this

Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 2

Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone.

The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. 5

The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes others not enumerated, it would follow that only those appointments to positions expressly stated in the first group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:

In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that —

xxx xxx xxx

(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments.

(4) The President shall havethe power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.

xxx xxx xxx

(7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers and consuls ...

Upon the other hand, the 1973 Constitution provides that-

Section 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of the Philippines from the rank of Brigadier General or Commodore, and all other officers of The government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint. However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet, the Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior officers in their respective offices.

Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading" and similar malpractices.

On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and remolded by successive amendments, placed the absolute power of appointment in the President with hardly any check on the part of the legislature.

Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank.

The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows:

Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments 7 [Emphasis supplied].

The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly expressed to make the power of the Commission on Appointments over presidential appointments more limited than that held by the Commission in the 1935 Constitution. Thus-

Mr. Rama: ... May I ask that Commissioner Monsod be recognized

The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some of the amendments that I would like to propose to the Committee this morning.

xxx xxx xxx

On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels.

xxx xxx xxx 8 (Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence 9 of the section from the same requirement. The records of the deliberations of the Constitutional Commission show the following:

MR. ROMULO: I ask that Commissioner Foz be recognized

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words "and bureaus," and on line 28 of the same page, to change the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO APPOINT, et cetera.

MR. REGALADO: May we have the amendments one by one. The first proposed amendment is to delete the words "and bureaus" on line 26.

MR. FOZ: That is correct.

MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent for such a deletion?

MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require further confirmation of presidential appointment of heads of bureaus would subject them to political influence.

MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as distinguished from merely staff directors, because the regional directors have quite a plenitude of powers within the regions as distinguished from staff directors who only stay in the office.

MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau directors.

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MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint the bureau directors if it is not the President?

MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to confirmation by the Commission on Appointments.

MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro?

MR. FOZ: Yes.

MR. MAAMBONG: Thank you.

THE PRESIDENT: Is this clear now? What is the reaction of the Committee?

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MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a vote.

MR. DE CASTRO: Thank you.

MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus on line 26, such that appointments of bureau directors no longer need confirmation by the Commission on Appointment.

Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on Appointments, shall appoint the heads of the executive departments, ambassadors. . . .

THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears none; the amendments is approved.

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MR. ROMULO: Madam President.

THE PRESIDENT: The Acting Floor Leader is recognized.

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.

MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.

MR. DAVIDE: Madam President.

THE PRESIDENT: Commissioner Davide is recognized.

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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.

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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, 7and 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." 22Parenthetically, 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:

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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.

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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

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We are furthermore told:

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... (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

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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 ofexpressio unius est exclusio alterius. If that be so, the first sentence would have been sufficient by itself to convey the Idea that all other appointees of the President would not need confirmation.

One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was still felt necessary to provide in the third sentence that the appointment of the other officers lower in rank will also not need confirmation as long as their appointment is vested by law in the President alone. The third sentence would appear to be superfluous, too, again in view of the first sentence.

More to the point, what will follow if Congress does not see fit to vest in the President alone the appointment of those other officers lower in rank mentioned in the third sentence? Conformably to the language thereof, these lower officers will need the confirmation of the Commission on Appointments while, by contrast, the higher officers mentioned in the second sentence will not.

Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than the bureau director, will have to be confirmed if the Congress does not vest their appointment in the President alone under the third sentence. On the other hand, their superior, the bureau director himself, will not need to be confirmed because, according to the majority opinion, he falls not under the first sentence but the second. This is carefulness in reverse, like checking the bridesmaids but forgetting the bride.

It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the powers of the Presidency and so prevent the recurrence of another dictatorship. Among the many measures taken was the restoration of the Commission on Appointments to check the appointing power which had been much abused by President Marcos. We are now told that even as this body was revived to limit appointments, the scope of its original authority has itself been limited in the new Constitution. I have to disagree.

My own reading is that the second sentence is but a continuation of the Idea expressed in the first sentence and simply mentions the other officers appointed by the President who are also subject to confirmation. The second sentence is the later expression of the will of the framers and so must be interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the original intention to exempt bureau directors from confirmation. I repeat that there were no debates on this matter as far as I know, which simply means that my humble conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely on the same records. At any rate, this view is more consistent with the general purpose of Article VII, which, to repeat, was to reduce the powers of the Presidency.

The respondent cites the following exchange reported in page 520, Volume II, of the Record of the Constitutional Convention:

Mr. Foz: Madam President, this is the third proposed amendment on page 7, line 28, 1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.

Mr. Regalado: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.

However, the records do not show what particular part of Section 16 the committee chairman was referring to, and a reading in its entirety of this particular debate will suggest that the body was considering the first sentence of the said section, which I reiterate is not the controversial provision. In any case, although the excerpt shows that the proposed amendment of Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the final version of Section 16 as a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by the style committee or otherwise replaced for whatever reason will need another surmise on this rather confused Constitution.

I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed that the Congress is not prevented from adding to the list of officers subject to confirmation by the Commission on Appointments and cite the debates on this matter in support of this supposition. It is true enough that there was such a consensus, but it is equally true that this thinking is not at all expressed, or even only implied, in the language of Section 16 of Article VII. Which should prevail then the provision as worded or the debates?

It is not disputed that the power of appointment is executive in nature, but there is no question either that it is not absolute or unlimited. The rule re- established by the new Constitution is that the power requires confirmation by the Commission on Appointments as a restraint on presidential excesses, in line with the system of checks and balances. I submit it is the exception to this rule, and not the rule, that should be strictly construed.

In my view, the only officers appointed by the President who are not subject to confirmation by the Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is vested by law in the President alone. It is clear that this enumeration does not include the respondent Commissioner of Customs who, while not covered by the first sentence of Section 16, comes under the second sentence thereof as I would interpret it and so is also subject to confirmation.

I vote to grant the petition.

 

 

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate promptly the issue at bar and to rule that the direct appointment of respondent Salvador Mison as Commissioner of the Bureau of Customs (without need of submitting a prior nomination to the Commission on Appointments and securing its confirmation) is valid and in accordance with the President's constitutional authority to so appoint officers of the Government as defined in Article VII, section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public service demand that any doubts over the validity of such appointments be resolved expeditiously in the test case at bar.

It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the Confirmation By the Commission on Appointments of All Nominations and Appointments Made by the President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the House of Representatives. " This omission has been deliberate. The Court has resolved the case at bar on the basis of the issues joined by the parties. The contingency of approval of the bill mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the direct appointment of respondent Mison and other appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the abstract and without the same being properly raised before it in a justiciable case and after thorough discussion of the various points of view that would enable it to render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any discussion of the reported bill and its validity or invalidity is premature and irrelevant and outside the scope of the issues resolved in the case at bar.

MELENCIO-HERRERA, J., concurring:

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to add my own reading of the Constitutional provision involved.

Section 16, Article VII, of the 1987 Constitution provides:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or

naval captain, and other officers whose appointments are vested in him in this Constitution.

He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint.

The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress (Emphasis and 1st three paragraphings, supplied).

The difference in language used is significant. Under the first sentence it is clear that the President "nominates" and with the consent of the Commission on Appointments "appoints" the officials enumerated. The second sentence, however, significantly uses only the term "appoint" all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. Deliberately eliminated was any reference to nomination.

Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the fact that the term "appoint" used in said sentence was not meant to include the three distinct acts in the appointing process, namely, nomination, appointment, and commission. For if that were the intent, the same terminologies in the first sentence could have been easily employed.

There should be no question either that the participation of the Commission on Appointments in the appointment process has been deliberately decreased in the 1987 Constitution compared to that in the 1935 Constitution, which required that all presidential appointments be with the consent of the Commission on Appointments.

The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of constitutional construction is to ascertain the intent of the framers of the Constitution and thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary source from which to ascertain constitutional intent is the language of the Constitution itself.

SARMIENTO, J., concurring:

I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior Congressional confirmation, thus:

Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during recess of the Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 1

By its plain language, the Constitution has intended that only those grouped under the first sentence are required to undergo a consenting process. This is a significant departure from the procedure set forth in the 1935 Charter:

(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank

of captain to commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. 2

under which, as noted by the majority, "almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to require all Presidential appointments clearance from the Commission on Appointments, they could have simply reenacted the Constitution's 1935 counterpart. 4

I agree that the present Constitution classifies four types of appointments that the President may make: (1) appointments of heads of executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those of other officers whose appointments are vested in him under the Constitution, including the regular members of the Judicial and Bar Council, 5 the Chairman and Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the Commission on Elections, 7and 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." 22Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered in a subsequent case, 24 where it was held that the President may remove only "purely executive officers, 25 that is, officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court held that the President may remove incumbents of offices confidential in nature, but we likewise made clear that in such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his term merely expires.

It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987 Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the appointments preferred before it within the prescribed period results in a de facto confirmation thereof

Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred by the predominance of checks and counterchecks, yet amid such a rubble of competing powers emerges a structure whose parts are at times jealous of each other, but which are ultimately necessary in assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly articulated:

xxx xxx xxx

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. ... When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on.

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. 28

xxx xxx xxx

We are furthermore told:

xxx xxx xxx

... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton might readily have recognized as suggestive of the mechanism of the heavens," (W. Wilson, Constitutional Government in the United States 56 (1908)] can represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The Constitution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life.") The great difficulty of any theory less rich, Woodrow Wilson once warned, "is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is . . . shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and five." (Id. at 56.) Yet because no complex society can have its centers of power not "offset against each other as checks," and resist tyranny, the Model of Separated and Divided Powers offers continuing testimony to the undying dilemmas of progress and justice. 29

xxx xxx xxx

As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the legislature (the National Assembly under the 1971 draft Constitution) the power to check executive appointments, and hence, granted the President absolute appointing power. 30 As a delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as the presiding officer of most of its plenary session, I am aware that the Convention did not provide for a commission on appointments on the theory that the Prime Minister, the head of the Government and the sole appointing power, was himself a member of parliament. For this reason, there was no necessity for a separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by the Prime Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately, supervening events forestalled our parliamentary experiment, and beginning with the 1976 amendments and some 140 or so amendments thereafter, we had reverted to the presidential form, 32 without provisions for a commission on appointments.

In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere safeguard against abuse with respect to those appointments. It does not accord Congress any more than the power to check, but not to deny, the Chief Executive's appointing power or to supplant his appointees with its own. It is but an exception to the rule. In limiting the Commission's scope of authority, compared to that under the 1935 Constitution, I believe that the 1987 Constitution has simply recognized the reality of that exception.

GUTIERREZ, JR., J., dissenting:

I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land, should never have any of its provisions interpreted in a manner that results in absurd or irrational consequences.

The Commission on Appointments is an important constitutional body which helps give fuller expression to the principles inherent in our presidential system of government. Its functions cannot be made innocuous or unreasonably diminished to the confirmation of a limited number of appointees. In the same manner that the President shares in the enactment of laws which govern the nation, the legislature, through its Commission on Appointments, gives assurance that only those who can pass the scrutiny of both the President and Congress will help run the country as officers holding high appointive positions. The third sentence of the first paragraph — " ... The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards." — specifies only "officers lower in rank" as those who may, by law, be appointed by the President alone. If as expounded in the majority opinion, only the limited number of officers in the first sentence of Section 16 require confirmation, the clear intent of the third sentence is lost. In fact both the second and third sentences become meaningless or superfluous. Superfluity is not to be read into such an important part of the Constitution.

I agree with the intervenor that all provisions of the Constitution on appointments must be read together. In providing for the appointment of members of the Supreme Court and judges of lower courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of cabinet (Section 3, Article VII) and, of course, those who by law the President alone may appoint, the Constitution clearly provides no need for confirmation. This can only mean that all other appointments need confirmation. Where there is no need for confirmation or where there is an alternative process to confirmation, the Constitution expressly so declares. Without such a declaration, there must be confirmation.

The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the government it set up was supposed to be a parliamentary one. The Prime Minister, as head of government, was constantly accountable to the legislature. In our presidential system, the interpretation which Justice Cruz and myself espouse, is more democratic and more in keeping with the system of government organized under the Constitution.

I, therefore vote to grant the petition.

CRUZ, J., dissenting:

The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the armed forces from the rank of colonel or naval captain; and (4) other officers whose appointments are vested

in the President in the Constitution. No confirmation is required under the second sentence for (1) all other officers whose appointments are not otherwise provided for by law, and (2) those whom the President may be authorized by law to appoint. Neither is confirmation required by the third sentence for those other officers lower in rank whose appointment is vested by law in the President alone.

Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department, does not have to be confirmed by the Commission on Appointments, but the ordinary consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank than the Chairman of the Commission on Human Rights, which was created by the Constitution; yet the former is subject to confirmation but the latter is not because he does not come under the first sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in the President, is not subject to confirmation under the first sentence, and neither are the Governor of the Central Bank and the members of the Monetary Board because they fall under the second sentence as interpreted by the majority opinion. Yet in the case of the multi-sectoral members of the regional consultative commission, whose appointment is vested by the Constitution in the President under Article X, Section 18, their confirmation is required although their rank is decidedly lower.

I do not think these discrepancies were intended by the framers as they would lead to the absurd consequences we should avoid in interpreting the Constitution.

There is no question that bureau directors are not required to be confirmed under the first sentence of Section 16, but that is not the provision we ought to interpret. It is the second sentence we must understand for a proper resolution of the issues now before us. Significantly, although there was a long discussion of the first sentence in the Constitutional Commission, there is none cited on the second sentence either in the Solicitor-General's comment or in the majority opinion. We can therefore only speculate on the correct interpretation of this provision in the light of the first and third sentences of Section 16 or by reading this section in its totality.

The majority opinion says that the second sentence is the exception to the first sentence and holds that the two sets of officers specified therein may be appointed by the President without the concurrence of the Commission on Appointments. This interpretation is pregnant with mischievous if not also ridiculous results that presumably were not envisioned by the framers.

One may wonder why it was felt necessary to include the second sentence at all, considering the majority opinion that the enumeration in the first sentence of the officers subject to confirmation is exclusive on the basis ofexpressio 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.

Sarmiento III vs Mison Case Digest

Here are some digested cases from the Jurisprudence regarding issues related to the Executive Department. I know, I digested it differently but this is how I remember things easily. You still have to read the whole Jurisprudence. You will never understand the things I wrote below, maybe some but perhaps most of the things I jot down are only the important ones and I might even forgot some important key factors, unless you have read the original text. Do not rely too much ion this. These digested cases will just help you remember things out during oral recitations. God bless future lawyers!

Sarmiento III vs MisonGR No. 79974December 17, 1987This is a petition for prohibition of Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and Guillermo Carague, as Secretary of the Department of Budget from effecting disbursements in payments of Mison’s compensation.Sarmiento’s Arguments:

1.    Mison not been confirmed by the Commission of AppointmentsMison’s Arguments:

1.    Section 16 Article VII; Congress may by law vest their appointment in the President, in the courts or in heads of various dept, agencies, commissions, or boards in the government. No reason for the word alone.Rules of Court:

1.    Section 16, Article VII2.    Four groups of officers;

First group

heads of executive depts, ambassadors, other public ministers and consuls, officers of AFP from the rank colonel or naval captain and other officers whose appointments are vested in him in this Constitution

Second group

all other officers of the Gov't whose appointments are otherwise provided by law

Third group whom President may be authorized by law to appointFourth group

officers lower in rank whose appointments the Congress may by law vest in the Pres alone

3.    Section 10, Article VII of 1935 differentiated with 1987 – limitation of consent from Commission on Appointments due to 1935’s horse-trading, absolute power of appointment by the President in 1987 Constitution,

4.    Two major changes proposed and approved by 1986 Commission; (1) exclusion of the appointments of heads of bureaus from requirement of consent (2) exclusion of appointments made under 2nd sentence of Article VIIReasons:

1.    Position of bureau director is quite low2.    Confirmation of head of bureau would lead to political influence5.    Section 16, Article VII; the word “also” means 1st sentence needs consent and 2ndsentence does not

need consent6.    Power to appoint is fundamentally executive or presidential in character.7.    The word “alone” is a lapse of draftmanship. The word alone meant without consent.

RA No. 1937 Sec 601 and PD No. 34 (enacted during 1935 constitution) – harmonized with the new constitution

Calderon vs Carale Case Digest

Here are some digested cases from the Jurisprudence regarding issues related to the Executive Department. I know, I digested it differently but this is how I remember things easily. You still have to read the whole Jurisprudence. You will never understand the things I wrote below, maybe some but perhaps most of the things I jot down are only the important ones and I might even forgot some important key factors, unless you have read the original text. Do not rely too much ion this. These digested cases will just help you remember things out during oral recitations. God bless future lawyers!

Calderon vs CaraleGR No. 91636April 23, 1992This is a petition for prohibition questions the constitutionality and legality of permanent appointments extended by President to Chairman and Members of NLRC without submitting the same to the Commission on Appointments for confirmation pursuant to Art 215 of the Labor Code as amended by RA 6715.Arguments of Calderon:

1.    Mandatory compliance of RA 67152.    Mison and Bautista rulings are not decisive to the issue because President issued permanent

appointments.Arguments of Carale:

1.    If confirmation is required, three stage process of nomination, confirmation and appointment operates (Sub section 3 Section 10 of Article VII). The word nominate does not any more appear in 2nd and 3rd sentences of Section 16 Article VII.Argument of Solicitor General:

1.    RA 6715 transgresses Sec 16 Art VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis.Rules of Court:

1.    Four groups of officers whom the President shall appoint (Mison Doctrine)2.    2 major changes (Mison Doctrine)3.    NLRC Chairman falls in the third group.4.    RA 6715 requires confirmation by the Commission on Appointments is unconstitutional becausea.    It amends by legislation in 1st and 2nd sentence of Sec 16 Art VII5.    The court respects the laudible intention of legislative intent. Sec 13 RA 6715 amending Art 215 of

the Labor Code requires consent is beyond redemption. Follow Judicial decisions, Mison, Bautista, Salonga jurisprudenceSeparation of Powers

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 91636 April 23, 1992

PETER JOHN D. CALDERON, petitioner, vs.BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations Commission, EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN and OSCAR N. ABELLA, in their capacity as Commissioners of the National Labor Relations Commission, and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

 

PADILLA, J.:

Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:

Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 1

The power of the Commission on Appointments (CA for brevity) to confirm appointments, contained in the aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento III vs. Mison 2 as follows:

. . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution, on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments.

. . . Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. . . .

. . . In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Art. VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the president) may be authorized by law to appoint is already

vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII." (emphasis supplied)

Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the Chairman of the Commission on Human Rights. Adhering to the doctrine in Mison, the Court explained:

. . . Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the CHR is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the president with the consent of the Commission on Appointments. The president appoints the Chairman and Members of The Commission on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the Commission on Human Rights.

Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The Commission on Constitutional Commissions, et al., 4 the power of confirmation of the Commission on Appointments over appointments by the President of sectoral representatives in Congress was upheld because:

. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is indubitable that sectoral representatives to the House of Representatives are among the "other officers whose appointments are vested in the President in this Constitution," referred to in the first sentence of Section 16, Art. VII whose appointments are subject to confirmation by the Commission on Appointments.

From the three (3) cases above-mentioned, these doctrines are deducible:

1. Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in the first sentence of Section 16, Article VII, including, those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and Election).

2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments, the officers are considered as among those whose appointments are not otherwise provided for by law.

Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved. It provides in Section 13 thereof as follows:

xxx xxx xxx

The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the President, subject to confirmation by the Commission on Appointments. Appointments to any vacancy shall come from the nominees of the sector which nominated the predecessor. The Executive Labor Arbiters and Labor Arbiters shall also be appointed by the President, upon recommendation of the Secretary of Labor and Employment, and shall be subject to the Civil Service Law, rules and regulations. 5

Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners of the NLRC representing the public, workers and employers sectors. The appointments stated that the

appointees may qualify and enter upon the performance of the duties of the office. After said appointments, then Labor Secretary Franklin Drilon issued Administrative Order No. 161, series of 1989, designating the places of assignment of the newly appointed commissioners.

This petition for prohibition questions the constitutionality and legality of the permanent appointments extended by the President of the Philippines to the respondents Chairman and Members of the National Labor Relations Commission (NLRC), without submitting the same to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as amended by said RA 6715.

Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity. RA 6715 is not, according to petitioner, an encroachment on the appointing power of the executive contained in Section 16, Art. VII, of the Constitution, as Congress may, by law, require confirmation by the Commission on Appointments of other officers appointed by the President additional to those mentioned in the first sentence of Section 16 of Article VII of the Constitution. Petitioner claims that the Mison and Bautista rulings are not decisive of the issue in this case for in the case at bar, the President issued permanent appointments to the respondents without submitting them to the CA for confirmation despite passage of a law (RA 6715) which requires the confirmation by the Commission on Appointments of such appointments.

The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code transgressesSection 16, Article VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis. Mison and Bautista laid the issue to rest, says the Solicitor General, with the following exposition:

As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on Appointments is required exclusively for the heads of executive departments, ambassadors, public ministers, consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution, such as the members of the various Constitutional Commissions. With respect to the other officers whose appointments are not otherwise provided for by the law and to those whom the President may be authorized by law to appoint, no confirmation by the Commission on Appointments is required.

Had it been the intention to allow Congress to expand the list of officers whose appointments must be confirmed by the Commission on Appointments, the Constitution would have said so by adding the phrase "and other officers required by law" at the end of the first sentence, or the phrase, "with the consent of the Commission on Appointments" at the end of the second sentence. Evidently, our Constitution has significantly omitted to provide for such additions.

The original text of Section 16 of Article VII of the present Constitution as embodied in Resolution No. 517 of the Constitutional Commission reads as follows:

"The President shall nominate and, with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts or in the heads of the department."

Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the 1935 Constitution and in the original text of Section 16 of Article VII of the present Constitution as proposed in Resolution No. 517.

First, in both of them, the appointments of heads of bureaus were required to be confirmed by the Commission on Appointments.

Second, in both of them, the appointments of other officers, "whose appointments are not otherwise provided for by law to appoint" are expressly made subject to confirmation by the Commission on Appointments. However, in the final version of Resolution No. 517, as embodied in Section 16 of Article VII of the present Constitution, the appointment of the above mentioned officers (heads of bureaus; other officers whose appointments are not provided for by law; and those whom he may be authorized by law to appoint) are excluded from the list of those officers whose appointments are to be confirmed by the Commission on Appointments. This amendment, reflected in Section

16 of Article VII of the Constitution, clearly shows the intent of the framers to exclude such appointments from the requirement of confirmation by the Commission on Appointments.

Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of Section 10 of Article VII thereof.

Respondent reiterates that if confirmation is required, the three (3) stage process of nomination, confirmation and appointment operates. This is only true of the first group enumerated in Section 16, but the word nominate does not any more appear in the 2nd and 3rd sentences. Therefore, the president's appointment pursuant to the 2nd and 3rd sentences needs no confirmation. 6

The only issue to be resolved by the Court in the present case is whether or not Congress may, by law, require confirmation by the Commission on Appointments of appointments extended by the president to government officers additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution whose appointments require confirmation by the Commission on Appointments.

To resolve the issue, we go back to Mison where the Court stated:

. . . there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by law;

Third, those whom the president may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. 7

Mison also opined:

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence of the section from the same requirement. . . .

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointments are not otherwise provided for by law and those whom the President may be authorized by law to appoint.

Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments. To the extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is unconstitutional because:

1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the Commission on Appointments; and

2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the President.

Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The Court respects the laudable intention of the legislature. Regretfully, however, the

constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments over appointments of the Chairman and Member of the National Labor Relations Commission (NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.

Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the Philippines. 8 No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc. 9

. . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law was originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of the legal maxim "legis interpretado legis vim obtinent" — the interpretation placed upon the written law by a competent court has the force of law.10

The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently in one manner. Can legislation expand a constitutional provision after the Supreme Court has interpreted it?

In Endencia and Jugo vs. David, 11 the Court held:

By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress says that taxing the salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the meaning of the phrase "which shall not be diminished during their continuance in office," found in Section 9, Article VIII of the Constitution, referring to the salaries of judicial officers.

xxx xxx xxx

The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied).

The legislature cannot, upon passing law which violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional inhibition. (11 Am., Jur., 919, emphasis supplied).

We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department that would be neither wise nor desirable, being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers. 14(Emphasis supplied)

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

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

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

The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former" and to "announce its considered judgment upon the question." 17

It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the Commission on Appointments exercised the power of confirmation over almost all presidential appointments, leading to many cases of abuse of such power of confirmation. Subsection 3, Section 10, Art. VII of the 1935 Constitution provided:

3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; . . .

The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure and disapproval of members of Congress. The solution to the apparent problem, if indeed a problem, is not judicial or legislative but constitutional. A future constitutional convention or Congress sitting as a constituent (constitutional) assembly may then consider either a return to the 1935 Constitutional provisions or the adoption of a hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the duty of the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the legislature or the executive would want it interpreted.

WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715 insofar as it requires the confirmation of the Commission on Appointments of appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

Bellosillo, J., took no part.

 

 

 

Separate Opinions

 

GUTIERREZ, JR., concurring:

When the issues in this petition were first raised in Sarmiento III v. Mison (156 SCRA 549 [1987]), I joined Justice Cruz in a dissent because I felt that the interpretation of Section 16, Article VII by the majority of the Court results in absurd or irrational consequences. The framers could not have intended what the majority ruled to be the meaning of the provision. When the question was again raised in Bautista v. Salonga (172 SCRA 160 [1989]), I 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 andBautista 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.

Separate Opinion

GUTIERREZ, JR., J., 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 andBautista 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.

Peter John Calderon vs Bartolome Carale

In 1989, Republic Act No. 6715 was passed. This law amended PD 442 or the Labor Code. RA 6715 provides that the Chairman, the Division Presiding Commissioners and other Commissioners [of the NLRC] shall all be appointed by the President, subject to confirmation by the Commission on Appointments (COA).

Pursuant to the said law, President Corazon Aquino appointed Bartolome Carale et al as the Chairman and the Commissioners respectively of the NLRC. The appointments were however not submitted to the CoA for its confirmation. Peter John Calderon questioned the appointment saying that without the confirmation by the CoA, such an appointment is in violation of RA 6715. Calderon insisted that RA 6715 should be followed as he asserted that RA 6715 is not an encroachment on the appointing power of the executive contained in Sec. 16, Art. 7, of the Constitution, as Congress may, by law, require confirmation by the Commission on Appointments of other officers appointed by the President in addition to those mentioned in the first sentence of Sec. 16 of Article 7 of the Constitution.

ISSUE: Whether or not Congress may, by law, expand the list of public officers required to be confirmed by the Commission on Appointment as listed in the Constitution.

HELD: No. Under the provisions of the 1987 Constitution, there are  four (4) groups of officers whom the President shall appoint. These four (4) groups 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.

The Supreme Court agreed with the Solicitor General: confirmation by the CoA 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 (first group). With respect to the other officers (second to fourth group) 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.

This jurisprudence established the following in interpreting Sec 16, Art 7 of the Constitution

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.

Republic of the PhilippinesSupreme Court

Manila                                                              

EN BANC  

D E C I S I O N 

BERSAMIN, J.:           The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of nominees to the incumbent President even during the period of the prohibition under Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC? 

Precís of the Consolidated Cases Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No.

191002[1] and G.R. No. 191149[2] as special civil actions for certiorariand mandamus, praying that the JBC be compelled to submit to the incumbent President the list of at least three nominees for the position of the next Chief Justice.

 In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to prevent the

JBC from conducting its search, selection and nomination proceedings for the position of Chief Justice.

 In G.R. No. 191057, a special civil action for mandamus,[4]  the Philippine Constitution

Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the prohibition that applies only to appointments in the Executive Department.                  In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary.           In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII. 

          All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any President’s most important appointment. 

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),[7] by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed. 

In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal luminaries – one side holds that the incumbent President is prohibited from making appointments within two months immediately before the coming presidential elections and until the end of her term of office as President on June 30, 2010, while the other insists that the prohibition applies only to appointments to executive positions that may influence the election and, anyway, paramount national interest justifies the appointment of a Chief Justice during the election ban  – has impelled the JBC to defer the decision to whom to send its list of at least three nominees, whether to the incumbent President or to her successor. [8] He opines that the JBC is thereby arrogating unto itself “the judicial function that is not conferred upon it by the Constitution,” which has limited it to the task of recommending appointees to the Judiciary, but has not empowered it to “finally resolve constitutional questions, which is the power vested only in the Supreme Court under the Constitution.” As such, he contends that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the President; and that a “final and definitive resolution of the constitutional questions raised above would diffuse (sic) the tension in the legal community that would go a long way to keep and maintain stability in the judiciary and the political system.”[9]

 In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of

discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief Justice is the Supreme Court itself, the President’s authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.[10]

  For its part, PHILCONSA observes in its petition in G.R. No. 191057 that “unorthodox and

exceptional circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution” have bred “a frenzied inflammatory legal debate on the constitutional provisions mentioned that has divided the bench and the bar and the general public as well, because of its dimensional impact to the nation and the people,” thereby fashioning “transcendental questions or issues affecting the JBC’s proper exercise of its “principal function of recommending appointees to the Judiciary” by submitting only to the President (not to the next President) “a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy” from which the members of the Supreme Court and judges of the lower courts may be appointed.” [11] PHILCONSA further believes and submits that now is the time to revisit and review Valenzuela, the “strange and exotic Decision of the Court en banc.”[12]

 Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC “to

immediately transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the Constitution” in the event that the Court resolves that the President can

appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution.[13]

 The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that

the “JBC has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the evaluation process for the applications to the position,” and “is perilously near completing the nomination process and coming up with a list of nominees for submission to the President, entering into the period of the ban on midnight appointments on March 10, 2010,” which “only highlights the pressing and compelling need for a writ of prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the period of the ban on midnight appointments.”[14]

         Antecedents

 These cases trace their genesis to the controversy that has arisen from the forthcoming

compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that “vacancy shall be filled within ninety days from the occurrence thereof” from a “list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.”

 On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC,

addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately.

 In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,[15] which

reads: 

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno.

 It will publish the opening of the position for applications or recommendations;

deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates.

 As to the time to submit this shortlist to the proper appointing authority, in the light

of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter.

 18 January 2010.  

                                                                      (sgd.)                                                MA. LUISA D. VILLARAMA                                                Clerk of Court &                                                Ex-Officio Secretary                                                Judicial and Bar Council

            As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement dated January 20, 2010,[16] viz: 

 The Judicial and Bar Council (JBC) announces the opening for application or

recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.

 Applications or recommendations for this position must be submitted not later

than 4 February 2010 (Thursday) to the JBC Secretariat xxx:         

The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The Philippine Star.[17]

           Conformably with its existing practice, the JBC “automatically considered” for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.[18]

           Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied, but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.[19]  Declining their nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of the JBC on February 8, 2010).[20]

           The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).[21]

           In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out in thePhilippine Daily Inquirer and The Philippine Star issues of February 13, 2010.[22]

 Issues

 Although it has already begun the process for the filling of the position of Chief Justice Puno in

accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno.

 The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but

also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter “to avoid any possible polemics concerning the matter,” but he opines that the polemics leading to Valenzuela “would be miniscule [sic] compared to the “polemics” that have now erupted in regard to the current controversy,” and that unless “put to a halt, and this may only be achieved by a ruling from the Court, the integrity of the

process and the credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired.”[23]

           Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their petitions.

   

G.R. No. 191002  a.   Does the JBC have the power and authority to resolve the constitutional question of

whether the incumbent President can appoint a Chief Justice during the election ban period?

 b.   Does the incumbent President have the power and authority to appoint during the

election ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010?

  

G.R. No. 191032 a.  Is the power to appoint the Chief Justice vested in the Supreme Court en banc? 

G.R. No. 191057 a.   Is the constitutional prohibition against appointment under Section 15, Article VII of

the Constitution applicable only to positions in the Executive Department? b.  Assuming that the prohibition under Section 15, Article VII of the Constitution also

applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition?

 c. Does the JBC have the authority to decide whether or not to include and submit the

names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010?

 A. M. No. 10-2-5-SC

 a.  Does Section 15, Article VII of the Constitution apply to appointments to positions in

the Judiciary under Section 9, Article VIII of the Constitution? b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary

after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?

 G.R. No. 191149

 a.  Does the JBC have the discretion to withhold the submission of the short list to

President Gloria Macapagal-Arroyo? 

G.R. No. 191342 a.     Does the JBC have the authority to submit the list of nominees to the incumbent

President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term?

 b.     Is any act performed by the JBC, including the vetting of the candidates for the

position of Chief Justice, constitutionally invalid in view of the JBC’s illegal composition allowing each member from the Senate and the House of Representatives to have one vote each?

  

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to comment on the consolidated petitions, except that filed inG.R. No. 191342.

 On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of

the process for the selection of the nominees for the position of Chief Justice would be the public interview of the candidates and the preparation of the short list of candidates, “including the interview of the constitutional experts, as may be needed.”[24] It stated:[25]

  Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments “two (2) months immediately before the next presidential elections and up to the end of his term” and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines.

 12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the

JBC will be guided by its decision in these consolidated Petitions and Administrative Matter.

  On February 26, 2010, the OSG also submitted its comment, essentially stating that the

incumbent President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010.

 The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing

its principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBC’s function to recommend is a “continuing process,” which does not begin with each vacancy or end with each nomination, because the goal is “to submit the list of nominees to Malacañang on the very day the vacancy arises”;[26] the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno;[27] (c) petitioner Soriano’s theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase “members of the Supreme Court” found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President;  [29] and (e) a writ of mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBC’s determination of who it nominates to the President is an exercise of a discretionary duty.[30]

 The OSG contends that the incumbent President may appoint the next Chief Justice, because

the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution;  [31] that in their deliberations on the mandatory period for the appointment of Supreme Court Justices, the framers neither mentioned

nor referred to the ban against midnight appointments, or its effects on such period, or vice versa;[32] that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court to ensure its independence from “political vicissitudes” and its “insulation from political pressures,”[33]such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.

 The OSG posits that although Valenzuela involved the appointment of RTC Judges, the

situation now refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any rate, Valenzuela even recognized that there might be “the imperative need for an appointment during the period of the ban,” like when the membership of the Supreme Court should be “so reduced that it will have no quorum, or should the voting on a particular important question requiring expeditious resolution be divided”;[34] and that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most especially if there is any compelling reason to justify the making of the appointments during the period of the prohibition. [35]

 Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent

President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is “quite expected”;[36] (b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President and, as such, has “the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC)”; [37] (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice Puno; [38] and (d) should the next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy in accordance with the constitutional mandate. [39]

 

On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:

 

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);[40]

 (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S.

Lim (Lim); (c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr.

(Tan); (d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union

of People’s Lawyers (NUPL); (e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano

(Ubano); (f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the

Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur);

 

(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser);

 (h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of

BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

 (i)    The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta

Ann P. Rosales (Bello et al.); and (j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the

Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

            Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De Castro’s petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition. 

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castro’s fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political situation.

 ice is imperative for the stability of the judicial system and the political situation in the country when the election-related questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that a temporaryor an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief

Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition.

 Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election

Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any increase in salary or remuneration or privilege to any government official or employee during the period of 45 days before a regular election; that the provision covers all appointing heads, officials, and officers of a government office, agency or instrumentality, including the President; that for the incumbent President to appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election Code,constitutes an election offense; that even an appointment of the next Chief Justice prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.  

Intervenor Boiser adds that De Castro’s prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy.           All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in  Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void. 

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments.

         Intervenor WTLOP further posits that petitioner Soriano’s contention that the power to appoint

the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term “members” was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSA’s prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSA’s petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law,  that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired.

 Oppositor IBP Davao del Sur opines that the JBC – because it is neither a judicial nor a quasi-

judicial body – has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article

VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception.

 Oppositors NUPL, Corvera, Lim and BAYAN et al.  state that the JBC’s act of nominating

appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law.

 The main question presented in all the filings herein – because it involves two seemingly

conflicting provisions of the Constitution – imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the ever-present need,first, to safeguard the independence, reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing President’s power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary.

 Thus, we resolve.

 Ruling of the Court

 Locus Standi of Petitioners

 The preliminary issue to be settled is whether or not the petitioners have locus standi. Black defines locus standi as “a right of appearance in a court of justice on a given

question.”[41] In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]

 

The question on legal standing is whether such parties have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”[43] Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[44]

 It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct injury

test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.” Vera was followed in Custodio v. President of the Senate,[46] Manila Race Horse Trainers’ Association v. De la Fuente,[47] Anti-Chinese League of the Philippines v. Felix,[48] and Pascual v. Secretary of Public Works.[49]

 Yet, the Court has also held that the requirement of locus standi, being a mere procedural

technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the approach when the cases had “transcendental importance.” Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.[51]  In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to resolve the issues raised by the petition due to their “far-reaching implications,” even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several  notable  cases, permitting  ordinary  citizens,  legislators,  and  civicorganizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.[53]

 However, the assertion of a public right as a predicate for challenging a supposedly illegal or

unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right.

 Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus

standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,[54] the Court aptly explains why:

 Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in

public actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[56] “In matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied.” With respect to taxpayer’s suits, Terr v. Jordan[57] held that “the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.”[58]

  

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the continuing proceedings in the JBC, which involve “unnecessary, if not, illegal disbursement of public funds.” [59]

 PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for

the purpose of defending, protecting, and preserving the Constitution and promoting its growth and

flowering. It also alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.[60]

 In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the

Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the University of the Philippines.

 The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines

(IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to the President, for “[a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with regard to respondent JBC’s function in submitting the list of nominees is well within the concern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution.” They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision and authority over them and other members of the legal profession.[61]

         The Court rules that the petitioners have each demonstrated adequate interest in the outcome

of the controversy as to vest them with the requisite locus standi.The issues before us are of transcendental importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of one’s personal interest in life, because they concern that great doubt about the authority of the incumbent President to appoint not only the successor of the retiring incumbent Chief Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of vacancies in the ranks of trial judges throughout the country.

 In any event, the Court retains the broad discretion to waive the requirement of legal standing

in favor of any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the requirement.[62]

 Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in

order to remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. InAgan, Jr. v. Philippine International Air Terminals Co., Inc.,[63] we pointed out: “Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest.” But even if, strictly speaking, the petitioners “are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.”[64]

 Justiciability

 Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or

ripe for adjudication, considering that although the selection process commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President.

 Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial

determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review.

 Intervenors Corvera and Lim separately opine that De Castro’s petition rests on an overbroad

and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review.

 Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on

what the JBC and the President should do, and are not invoking any issues that are justiciable in nature.

 Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of

opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are “matters of paramount and transcendental importance to the bench, bar and general public”; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court should “rule for the guidance of” the JBC; that the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then, may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence of an actual case or controversy.

 We hold that the petitions set forth an actual case or controversy that is ripe for judicial

determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the “interview of constitutional experts, as may be needed.”

 A part of the question to be reviewed by the Court is whether the JBC properly initiated the

process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.

 

The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the incumbent President on the ground that said list should be submitted instead to the next President; the strong position that the incumbent President is already prohibited under Section 15, Article VII from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so prohibited are only some of the real issues for determination. All such issues establish the ripeness of the controversy, considering that for some the short list must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle – with finality – the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process.     

 We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal

issue to ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues.[65] Herein, the facts are not in doubt, for only legal issues remain.

 Substantive Merits

 I

Prohibition under Section 15, Article VII does not applyto appointments to fill a vacancy in the Supreme Court

or to other appointments to the Judiciary  Two constitutional provisions are seemingly in conflict. The first, Section 15, Article VII (Executive Department), provides:

 Section 15. Two months immediately before the next presidential elections and up

to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

  

The other, Section 4 (1), Article VIII (Judicial Department), states: 

Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

  

In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not extend to appointments in the Judiciary.

   The Court agrees with the submission.

 First. The records of the deliberations of the Constitutional Commission reveal that the framers

devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain.

 The Constitution consists of 18 Articles, three of which embody the allocation of the awesome

powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in his sponsorship speech:

 We have in the political part of this Constitution opted for the separation of powers

in government because we believe that the only way to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments. [66]

  

 As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists

the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.

 Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of

Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least three nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the occurrence of the vacancy.

 Had the framers intended to extend the prohibition contained in Section 15, Article VII to the

appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

   Although Valenzuela[67] came to hold that the prohibition covered even judicial appointments, it

cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmationValenzuela even expressly mentioned, should prevail.           Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz: 

V            . Intent of the Constitutional Commission The journal of the Commission which drew up the present Constitution discloses

that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy “must be filled within two months from the date that the vacancy occurs.”  His proposal to have a 15-member Court was not initially adopted.  Persisting however in his desire to make certain that the size  of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court’s membership) of the same mandate that “IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF.”  He later agreed to suggestions to make the period three, instead of two, months.  As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence.

 In this connection, it may be pointed out that that instruction that any

“vacancy shall be filled within ninety days” (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that “a President or Acting President shall not make appointments…”

 The commission later approved a proposal of Commissioner Hilario G. Davide, Jr.

(now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: “WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST” (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a “uniform rule” for lower courts.  According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one.

 On the other hand, Section 15, Article VII - which in effect deprives the President of

his appointing power “two months immediately before  the next presidential elections up to the end of  his term” - was approved without discussion.[68]

           However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, “a command [to the President] to fill up any vacancy therein within 90 days from its occurrence,” which even Valenzuela conceded.[69] The exchanges during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz:

 MR. DE CASTRO. I understand that our justices now in the Supreme Court, together

with the Chief Justice, are only 11. MR. CONCEPCION. Yes. MR. DE CASTRO. And the second sentence of this subsection reads: “Any

vacancy shall be filled within ninety days from the occurrence thereof.” MR. CONCEPCION. That is right. MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy? MR. CONCEPCION. That is right. That is borne out of the fact that in the past

30 years, seldom has the Court had a complete complement.[70]

         Moreover, the usage in Section 4(1), Article VIII of the word shall – an imperative, operating to

impose a duty that may be enforced[71] – should not be disregarded. Thereby, Sections 4(1) imposes

on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.

 The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the

Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in  Valenzuela to the effect that Section 15, Article VII prevailed because it was “couched in stronger negative language.” Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commission’s deliberations on Section 4 (1), Article VIII.

 How Valenzuela justified its pronouncement and result is hardly warranted. According to an

authority on statutory construction:[72]

 xxx the court should seek to avoid any conflict in the provisions of the statute by

endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled.

 Consequently, that construction which will leave every word operative will be

favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rule’s application, largely because of the principle of implied repeal.

  In this connection, PHILCONSA’s urging of a revisit and a review of Valenzuela is timely and

appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.[73]

           Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last after its false premises have been exposed.[74] It will not do to merely distinguish Valenzuela from these cases, for the result to be reached herein is entirely incompatible with what  Valenzuela decreed. Consequently, Valenzuela nowdeserves to be quickly sent to the dustbin of the unworthy and forgettable. 

We reverse Valenzuela. 

Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

 There is no question that one of the reasons underlying the adoption of Section 15 as part of

Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that:

 xxx it appears that Section 15, Article VII is directed against two types of

appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.:

 xxx

 The second type of appointments prohibited by Section 15, Article VII consists of

the so-called “midnight” appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a “caretaker” administrator whose duty was to “prepare for the orderly transfer of authority to the incoming President.”  Said the Court:

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

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

 As indicated, the Court recognized that there may well be appointments to

important positions which have to be made even after the proclamation of the new President.  Such appointments, so long as they are “few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications,” can be made by the outgoing President.  Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld.

 Section 15, Article VII has a broader scope than the Aytona ruling.  It may not

unreasonably be deemed to contemplate not only “midnight” appointments – those made obviously for partisan reasons as shown by their number and the time of their making – but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.

 On the other hand, the exception in the same Section 15 of Article VII – allowing

appointments to be made during the period of the ban therein provided – is much narrower than that recognized in Aytona.  The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban.

 Considering the respective reasons for the time frames for filling vacancies in the

courts and the restriction on the President's power of appointment, it is this Court’s view that, as a general proposition, in case of conflict, the former should yield to the latter.  Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases.  Temporary vacancies can abide the period of the ban which, incidentally and as earlier  pointed  out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation.  But prohibited appointments are long-lasting and permanent in their effects.  They may, as earlier

pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.[76]

  Given the background and rationale for the prohibition in Section 15, Article VII, we have no

doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President or for partisanship,[77] the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBC’s prior processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on “the law of the statute,” i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.[78]

 Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can

be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any level backed by people influential with the President could not always be assured of being recommended for the consideration of the President, because they first had to undergo the vetting of the JBC and pass muster there.  Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments. This insulating process was absent from the Aytona midnight appointment.

 Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the

Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the “constitutionality of xxx appointments” to the Court of Appeals in light of the forthcoming presidential elections. He assured that “on the basis of the (Constitutional) Commission’s records, the election ban had no application to appointments to the Court of Appeals.”[79] This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.[80]

 The fault of Valenzuela was that it accorded no weight and due consideration to the

confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the President’s power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, hadValenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado.

 Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16)

concern the appointing powers of the President. Section 14 speaks of the power of the succeeding President to revoke appointments made by

an Acting President,[81] and evidently refers only to appointments in the Executive Department. It has

no application to appointments in the Judiciary, because temporary or acting appointments can only undermine the independence of the Judiciary due to their being revocable at will. [82] The letter and spirit of the Constitution safeguard that independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed only by impeachment.

 Section 16 covers only the presidential appointments that require confirmation by the

Commission on Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary.[83]

 Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect

the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. [84] It is absurd to assume that the framers deliberately situated Section 15 betweenSection 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

 Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the

Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010. 

Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

 The argument is flawed, because it is focused only on the coming vacancy occurring from

Chief Justice Puno’s retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.

 The argument also rests on the fallacious assumption that there will still be time remaining in

the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment.

 Section 4 (3), Article VII requires the regular elections to be held on the second Monday of

May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer

than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity.   In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts.

 Seventh. As a matter of fact, in an extreme case,  we can even raise a doubt on whether a

JBC list is necessary at all for the President – any President – to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. 

Sec. 9, Article VIII says: 

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation.

xxx 

           The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one.  It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC.  

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

 The question is not squarely before us at the moment, but it should lend itself to a deeper

analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile’s statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list.

 II

The Judiciary Act of 1948 

          The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President appoint the successor.  

Section 12 of the Judiciary Act of 1948 states: 

Section 12. Vacancy in Office of Chief Justice. — In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice.

  

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed.

           Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now.           We cannot agree with the posture.           A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution. 

For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable  to perform the duties and powers of the office. It ought to be remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected.

 The appointment of the next Chief Justice by the incumbent President is preferable to

having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President.

 Historically, under the present Constitution, there has been no wide gap between the

retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows:

 1.     When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice

Pedro Yap was appointed on the same day; 2.     When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was

appointed on the same day; 

3.     When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991;

 4.     When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario

Davide, Jr. was sworn into office the following early morning ofNovember 30, 1998; 

5.     When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and

 6.     When Chief Justice Panganiban retired on December 6, 2006, Chief Justice

Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.[85]

 III

Writ of mandamus does not lie against the JBC

           May the JBC be compelled to submit the list of nominees to the President?            Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.[86] It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer.Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.[87]

           For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. 

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to the President for every vacancy in the Judiciary:

 Section 8. xxx (5) The Council shall have the principal function of recommending

appointees to the Judiciary. xxx Section 9. The Members of the Supreme Court and judges of lower courts shall be

appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

 For the lower courts, the President shall issue the appointments within ninety

days from the submission of the list. 

 However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in

the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.

 Under the Constitution, it is mandatory for the JBC to submit to the President the list of

nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be

unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.

 The duty of the JBC to submit a list of nominees before the start of the President’s mandatory

90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty.[88] For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in submitting the list to the President.

 The distinction between a ministerial act and a discretionary one has been delineated in the

following manner:        The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. Theduty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.[89]

  

          Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno.  

IVWrit of prohibition does not lie against the JBC

  

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, Soriano’s petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit.

 On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit.

The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the chances of some candidates for nomination by raising the minimum number of votes required in accordance with the rules of the JBC, is not based on the petitioners’ actual interest, because they have not alleged in their petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners lack locus standion that issue.

  

WHEREFORE, the Court: 1.     Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No.

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

 2.     Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of

merit; and 3.     Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar

Council: (a) To resume its proceedings for the nomination of candidates to fill the vacancy to be

created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;

 (b) To prepare the short list of nominees for the position of Chief Justice; (c) To submit to the incumbent President the short list of nominees for the position of

Chief Justice on or before May 17, 2010; and (d) To continue its  proceedings  for the  nomination of candidates to fill other vacancies

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

 SO ORDERED.

ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) G. R. No. 191002. March 17, 2010.

FACTS: This case is based on multiple cases field with dealt with the controversy that has arisen from the forthcoming compulsory requirement of Chief Justice Puno on May 17, 2010 or seven days after the presidential election. On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately. In its January 18, 2010 meeting en banc, the JBC passed a resolution which stated that they have unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice. As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement in the Philippine Daily Inquirer and the Philippine Star. In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite to the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010. Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy in this case being unresolved. The compiled cases which led to this case and the petitions of intervenors called for either the prohibition of the JBC to pass the shortlist, mandamus for the JBC to pass the shortlist, or that the act of appointing the next Chief Justice by GMA is a midnight appointment. A precedent frequently cited by the parties is the In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the RTC of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, shortly referred to here as the Valenzuela case, by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed. 

ISSUES: 1. Whether or not the petitioners have legal standing.

2. Whether or not there is justiciable controversy that is ripe for judicial determination.

3. Whether or not the incumbent President can appoint the next Chief Justice.

4. Whether or not mandamus and prohibition will lie to compel the submission of the shortlist of nominees by the JBC. 

HELD:1.Petitioners have legal standing because such requirement for this case was waived by the Court. Legal standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest.” But even if, strictly speaking, the petitioners “are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.” 

2. There is a justiciable issue. The court holds that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the “interview of constitutional experts, as may be needed.” The resolution of the controversy will surely settle – with finality – the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process. 

3.Prohibition under section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the judiciary. The records of the deliberations of the

Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain. As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article. 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. 

4.Writ of mandamus does not lie against the JBC. Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.  For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

DE CASTRO VS. JBC   ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYOG.R. No. 191002, March 17, 2010FACTS: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010.These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that “vacancy shall be filled within ninety days from the occurrence thereof” from a “list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.” Also considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice.

Conformably with its existing practice, the JBC “automatically considered” for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court to ensure its independence from “political vicissitudes” and its “insulation from political pressures,” such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.

ISSUE: Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement.

HELD:

Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary.

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

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.

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.

Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

Aytona vs Castillo Case Digest

FACTS:

On December 29, 1961, Carlos P. Garcia, who was still President that time, made last minute appointments while the Commission on Appointments was not in session. Said last minute appointment included Dominador R. Aytona, who was appointed as ad interim Governor of Central Bank. The latter took oath on the same day.

At noon on December 30, 1961, President-elect Diosdado Macapagal assumed office. He issued Administrative Order No. 2 on December 31, 1961 recalling, withdrawing and canceling all ad interim appointments made by President Garcia after December 13, 1961, which was the date when Macapagal was proclaimed President by the Congress. He then appointed Andres V. Castillo as ad interim Governor of the Central Bank and the latter qualified immediately.

On January 2, 1962, both exercised the powers of their office. However, Aytona was prevented from holding office the following day and thus instituted a quo warranto proceeding, challenging Castillo’s right to exercise the powers of the Governor of the Central Bank. Aytona claims that he was validly appointed and had qualified for the post, therefore making Castillo’s appointment void. Castillo then contended that Aytona’s appointment had already been revoked by Administrative Order No. 2 issued by President Macapagal.

ISSUE:

Whether President Diosdado Macapagal had power to issue the order of cancellation of the ad interim appointments made by President Carlos P. Garcia even after the appointees had already qualified.

RULING:

Upon the ground of separation of powers, the court resolved that it must decline and refuse jurisdiction in disregarding the Presidential Administrative Order No. 2, canceling such “midnight” or “last-minute” appointments.

Case dismissed.

Aytona vs Castillo Case Digest

4 SCRA 1 G.R. No. L-19313 January 19 1962 [Midnight Appointment]

FACTS:On December 29, 1961, Outgoing President Carlos Garcia appointed petitioner Dominador Aytona as ad interim Governor of the Central Bank. Aytona took the corresponding oath. On the same day, at noon, President-elect Diosdado Macapagal assumed office; and on the next day, he issued administrative order no. 2 recalling, withdrawing, and cancelling all ad interim appointments made by former President Garcia. There were all-in all, 350 midnight or last minute appointments made by the former President Garcia. On January 1, President Macapagal appointed Andres Castillo  as ad interim Governor of the Central Bank. Aytona instituted a case (quo warranto) against Castillo, contending that he was validly appointed, thus the subsequent appointment to Castillo by the new President, should be considered void.

ISSUE:Whether or not the 350 midnight appointments of former President Garcia were valid.

RULING:No. After the proclamation of the election of President Macapagal, previous President Garcia administration 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.  It was not for him to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The filling up vacancies in important positions, if few, and so spaced to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being

apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby deprive the new administration of an opportunity to make the corresponding appointments.