G.R. No. L-11985 MARIANO CONDE, plaintiff-appellant, vs.

THE NATIONAL TOBACCO CORPORATION and THE BOARD OF LIQUIDATORS, defendants-appellees. Matias E. Vergara for plaintiff-appellant. Feliciano Tumale for defendants-appellees. DIZON, J.: Appeal by Mariano Conde from the decision of the Court of First Instance of Manila dismissing the complaint filed by him against the National Tobacco Corporation and the Board of Liquidators, without costs. It appears that on September 6, 1940 appellant was appointed Secretary-Treasurer of the National Tobacco Corporation with an annual compensation of P4,800 effective as of October 15, 1940. On August 22, 1941 he was appointed Secretary and Administrative Officer of the same company with the same annual compensation. On October 23, 1945 he was appointed Acting Secretary and Administrative Officer of the company with an annual compensation of P5,100.00. On March 18, 1946 he was appointed Acting Secretary and Administrative Officer with an increased annual compensation of P6,000.00. On September 16 of the same year he was appointed Treasurer and Chief, Credit Department, with the same annual compensation of P6,000.00. The appointment extended indicated that it was a mere change of designation. On November 18, 1946 he was appointed Treasurer and Credit Manager with an increased annual compensation of P7,200.00 effective as of November 1st of said year. Finally, on December 21, 1948 he was appointed Treasurer with a reduced annual compensation of P6,000.00 effective as of December 16, of said year. This was in pursuance of Resolution No. 265 passed by the Board of Directors of the company on December 6, 1948, which stated, inter alia, that the reduction of the salary of appellant was for the purpose of making uniform the annual compensation of the Department Chiefs of the company. In this connection the resolution also renewed appellant of his duties as Secretary of the Board of Directors and Administrative Officer, presumably in order that his work as department chief would not be much more than that of other department chiefs. Several petitions for reconsideration filed by appellant in connection with the reduction of his annual compensation were denied by the Board of Directors. By executive order No. 372, the National Tobacco Corporation was dissolved and a Board of Liquidators was created for the purpose of settling and closing its affairs within a period of three years. Appellant also sought twice from the Board of Liquidators a reconsideration of the Board

resolution reducing his annual compensation, but his petitions were denied. As a result, after his retirement from the service of the National Tobacco Corporation on January 31, 1952, he commenced the present action to recover from the latter and/or the Board of Liquidators, jointly and severally, the sum of P5,283.33, with legal interest thereon from the filing of the complaint, plus the sum of P1,750.00 for attorneys fees, and the cost of the suit. The first amount represented alleged salaries and gratuity differentials which he failed to receive by reason of the fact that the computations made for the payment of his salaries and gratuity were based on his reduced compensation of P6,000.00 per annum. The question raised by appellant in this instance may be summarized as follows: firstly, that the document Exhibit B constituted an appointment and not a mere notice of the reduction of his salary, and that, therefore, it was not valid without the approval of the Chief Executive; secondly, that the approval of the Operation Budget of the company for the first year July 1, 1948, to June 30, 1949 by the Control Committee of the Government Enterprises Council did not amount to presidential approval of Exhibit B; and lastly, that the court should have judgment in his favor by reason of the prevailing governmental practice of not applying any reduction of salary for any particular position to the incumbent, and on the further ground that the Board of Directors of the National Tobacco Corporation had discriminated against appellant. Appellant concedes the authority of this former employee to reduce his salary or compensation, but argues that the document Exhibit B appointing him as Treasurer was never approved by the President of the Philippines and, for this reason never became legally effective. This contention is untenable. It is true that the approval of the President was necessary in the case of appointments to Positions in the National Tobacco Corporation involving a salary of P3,000.00 or more annually. It is likewise a fact that the appointments extended to appellant mentioned heretofore were submitted to and approved by the President of the Philippine, through the Chief of the Executive Officer with the exception of the last which appointed him as Treasurer only and reduced his annual compensation from P7,200.00 to P6,000.00. The rule referred to, however, would apply to appellants case only if the document marked Exhibit B constituted in fact and in law, a real appointment and not a mere notice advising him of the reduction of his annual salary and of his duties as employee of the company. After a careful consideration of the circumstances that led to the issuance thereof, we are inclined to believe that the document was in the nature of a mere notice and, therefore, needed no presidential approval. It must be observed that the preceding appointments were as Secretary-Treasurer (Exhibit C); as Secretary and Administrative Officer (Exhibit D); as Acting Secretary and Administrative Officer

(Exhibit E); as Acting Secretary and Administrative Officer (Exhibit F); as Treasurer and Chief, Credit Department (Exhibit G); and as Treasurer and Credit Manager (Exhibits A, A-1), while the one in question was as Treasurer exclusively. Appellant, therefore, was not given a new job; the so-called appointment merely reduced his duties and, as a consequence, made a corresponding reduction states that the change was made in pursuance of Resolution No. 265 which was adopted for the purpose of standardizing the salaries of chiefs of departments, for which reason, the compensation of the treasurer be (was) reverted to six thousand (P6,000.00) pesos per annum effective December 16, 1948 (Exhibit 6). It is clear therefore, that exhibits 6 and B, in effect, merely took away from appellant his additional duties as credit manager, and in view of his reduced duties and to accomplish standardization of salaries, his compensation WAS REVERTED to P6,000.00 per annum. Moreover, the reduction of appellants duties was not at all arbitrary. It was motivated principally by the fact that there had been created in the corporation a separate position with an annual compensation of P6,000.00, entrusted with the discharge of the duties of which appellant was relieved. From a technical point of view, there would seem to be less reason to uphold appellants contention. The term appointment is in law equivalent to filling a vacancy (6 C.J.S. 89). In this case it seems obvious to us that appellant never vacated the position of Treasurer; he did not have to vacate it in order to accept the position to which he was appointed on December 21, 1948 (Exhibit B). In point of fact, therefore, the position of Treasurer was not vacated by him by reason of his alleged appointment as Treasurer only. The fact that the appointments extended in favor of appellant prior to the one in question were submitted to and actually approved by the Office of the President of the Philippines is explained by the fact that the appointment of September 6, 1940 was his original appointment as SecretaryTreasurer and the subsequent ones involved increases in salary or additional duties imposed upon the appointee. Their submission to the Office of the President was in pursuance of a policy in relation to appointments in government controlled corporations involving additional expenditure and disbursement or appropriation of funds. There is no showing in the record that the same policy applied to a case of reduction of salary. But even granting that the so-called appointment required presidential approval, it may be cleaned from the record that there had been substantial compliance with this requirement. The reduction of appellants salary, after its approval by the General Manager and the Board of Directors of the National Tobacco Corporation was carried in the Operation Budget of the corporation for the fiscal

year July 1, 1948 to June 30, 1949. This Operation Budget was submitted to and approved by the Control Committee of the Government Enterprises Council, through its Chairman. This affirmative action was taken by authority of the President of the Philippines (Exhibit 8-A). It must be stated in this connection that by Executive Order No. 93 (Exhibit 15) the Government Enterprises Council and particularly the Control Committee thereof is the representative of the President in the supervision of all government-owned and controlled corporations. The act of said body, therefore, should be deemed to be an act done on behalf of the President of the Philippines himself. This must be binding upon appellant for the reason that all his appointments prior to the one in question which lie deems valid and regular were not approved by the President of the Philippines personally but by the Executive Secretary acting by authority of the President. (Exhibits 1 to 5) With what has been stated heretofore we deem fully resolved the main questions involved in this appeal and, finding the appealed decision to be in accordance with law, the same is hereby affirmed, with costs. Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Gutierrez David and Paredes, JJ., concur. Paras, C.J. and Concepcion, J., took no part. G.R. No. 92103 November 8, 1990 VIOLETA T. TEOLOGO, petitioner, vs. THE CIVIL SERVICE COMMISSION, DR. PRUDENCIO J. ORTIZ, DR. JOSE M. TUPAZ, JR., and MRS. RUBY G. GELVEZON, respondents. Tranquilino R. Gale for petitioner. Rene S. Sarabia for Ruby G. Gelvezon. Thelma S. Panganiban-Gamindo, Rogelio C. Limare and Florencio P. Gabriel, Jr. for CSC.

CRUZ, J.: The petitioner questions the appointment of private respondent Ruby G. Gelvezon as Chief Nurse I of the Representative Pedro Trono Memorial Hospital in Guimbal, Iloilo, as approved by the Civil Service Commission in its Resolution No. 89-321 dated May 5,1989. She claims she has a preferential right to

be appointed to the said position, which she had held in an acting capacity for more than a year. She stresses that she is next-in-rank and not disqualified; Gelvezon, on the other hand, is not eligible. At the time of the challenged appointment, Gelvezon was no longer in the service, having retired as Senior Nurse of the said hospital on October 26,1986, subsequently collecting the gratuity, terminal leave and other benefits due her. She was therefore being reinstated under CSC MemorandumCircular No. 5, s-1983, which allows the reinstatement of a retiree only under certain conditions. The required request of the Regional Health Office No. 6 for authority to reinstate her was denied by Civil Service Regional Office No. 6 (CSRO No. 6) on the ground that the vacancy could be filled by promotion of qualified personnel, "attention being invited to the attached copy of the letter protest dated September 15,1988 of Ms. Violeta Teologo," one of two other aspirants for the same position. This denial was appealed to the Civil Service Commission by Dr. Prudencio J. Ortiz, Regional Health Director, who justified the appointment of Gelvezon on grounds of the "exigency of the service" and her superior qualifications compared to those of the other applicants. In the assailed resolution, the CSC set aside the denial of CSRO No. 6 and directed it "to take appropriate action on the appointment of Mrs. Ruby G. Gelvezon, subject to Civil Service Laws and Rules." It declared inter alia that "in the case of Mrs. Gelvezon, who is neither a retiree nor overage (57 or over), the head is not required to secure prior authority." The petitioner filed a motion for reconsideration insisting that the appointment of Gelvezon was violative of law and the pertinent administrative regulations, particularly CSC Memorandum Circular No. 5, s-1982. CSRO No. 6 also reminded the CSC that "grant of authority is a condition precedent before Mrs. Gelvezon can be reinstated in the service, considering that she retired therefrom as may be duly supported" by her application for retirement dated May 23, 1988 and its approval effective October 26, 1988. These representations were denied by the CSC in its Resolution No. 90-307, dated January 11, 1990, the dispositive portion of which read: WHEREFORE, the foregoing premises considered, the Commission resolved to deny, as it hereby denies, the instant motion for reconsideration. The earlier decision of this Commission as embodied in CSC Resolution No. 89-321 dated May 5, 1989 is therefore affirmed. However, Mrs. Ruby G. Gelvezon, the Chief of Hospital II of RPTMH and the Regional Health Director of Region VI, Iloilo City are hereby admonished to be more prudent and circumspect in making representations, otherwise, a repetition of a similar act in the future will be dealt with administratively. The petitioner then came to this Court, claiming that the respondent CSC had committed grave abuse of discretion in sustaining the reinstatement of private respondent Gelvezon.

Required to comment, the Solicitor General begins with an assertion of his right and duty "to present to the Court the position that will legally uphold the best interest of the Government although it may run counter to a client's position" and his "specific mandate to act and represent the Republic and/or the people before any court, tribunal, body or commission in any matter, action or proceeding which, in his opinion, affects the welfare of the people as the ends of justice may require." He then declares that he cannot agree with the respondent CSC and proceeds to explain why he thinks it is in error. In the recent case of Orbos v. Civil Service Commission we sustained the authority invoked here by the Solicitor General. To be fair, however, we have made it clear that whenever he disagrees with the office he is supposed to represent, as in the case at bar, we shall allow such office to file its own comment in support of its position. Such comment has been submitted by public respondent CSC. It is the contention of the Solicitor General that the abovementioned resolutions of the CSC should be reversed as contrary to law and regulations. His view is that the CSC cannot direct the appointment of Gelvezon as this would be an encroachment on the prerogative of another department, besides the fact that there is no justification for her appointment in view of her ineligibility and the availability of other candidates. He notes especially her disqualification for the office for having misrepresented that she had merely resigned (and so needed no special authority to return) when the truth was that she had retired. It is true, as he maintains, that the CSC cannot usurp the appointing power from the appropriate authority and substitute its choice with another on the ground that the latter is better qualified. The discretion to determine this matter belongs to the appointing authority and not respondent CSC. The only function of the CSC in this regard is to ascertain whether the appointee possesses the prescribed qualifications and, if so, to attest to such fact. The only ground upon which the appointment may be disallowed is that the appointee is not qualified, not that he is in its opinion less qualified than others. The presumption is that the appointing authority is the best judge of this matter. As we said in Luego 2 v. Civil Service Commission: 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. The CSC denies that it has usurped the appointing power of another department and stresses that all it did was direct CSRO No. 6 to act on the appointment made by the Health authorities. It was not making the appointment itself or ordering it to be made but merely sustaining it under the applicable civil service rules and regulations. Finding that Gelvezon possessed the prescribed qualifications and satisfied the requirements of CSC Memorandum-Circular No. 5, s-1983, it had merely approved her reinstatement as proposed by the Regional Health Director.
1

It is not clear from the records who has appointed Gelvezon as Chief Nurse I. Dr. Jose M. Tupaz, Jr., Director of the Hospital, merely recommended her reinstatement to Dr. Prudencio M. Ortiz as Regional Health Director, who in turn requested from CSRO No. 6 authority to reinstate her. The reinstatement was presumably to be done by him. Under the law, it is the President of the Philippines or his alter ego, the Secretary of Health, who can make appointments of key personnel in the Department of Health. Yet, in the case at bar, Dr. Ortiz was asking for authority to reinstate Gelvezon as if he himself had the power to do this. It seems to us that Dr. Ortiz's request should at the very least have been coursed through or cleared by the Secretary of Health before being submitted to CSRO No. 6 with his approval. The reinstatement of Gelvezon would require a new appointment and it has not been shown that the Regional Health Director has the power to make such appointment. The presumption of regularity of official functions is not applicable because the power in question clearly belongs not to Dr. Ortiz but his superiors. But even assuming that the Regional Health Director was duly empowered to make the appointment, there were still special conditions that had to be fulfilled under Memorandum-Circular No. 5, s-1983, which, significantly, was promulgated by the Civil Service Commission itself. It must be remembered that we deal here not with the appointment of a newcomer to the public service. Gelvezon is a retiree. Additional requirements are prescribed for her appointment because it involves the reinstatement of a person who, after having left the government, has a change of heart and wishes to return. These requirements are embodied in CSC Memorandum-Circular No. 5, s-1983, reading in full as follows: MEMORANDUM CIRCULAR TO: ALL HEADS OF MINISTRIES, BUREAUS, AND AGENCIES OF THE NATIONAL AND LOCAL GOVERNMENTS, INCLUDING GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS. SUBJECT: Guidelines on Appointment of Persons who have Reached the age of 57 Years. Reinstatement of persons who have been Previously Retired from the Service, and Retention in the Service of Persons who have Reached the Compulsory Retirement Age of 65 Years Pursuant to Presidential Decree No. 830 dated November 27, 1975 as implemented by Letter of implementation No. 47 dated August 18, 1976, the Civil Service Commission is empowered to reinstate in the service persons who have been previously retired from the service, and to extend the

services of persons who have reached the compulsory retirement age of 65 years, except Presidential appointees. To insure effective and facilitate action on requests of such nature, the following guidelines are prescribed: 1. All requests shall be made by the appointing authority concerned and directly addressed to the respective Civil Service Regional Office. CSC Regional Offices have been given authority to act on such requests. 2. Requests for authority for such appointment, reinstatement or retention shall meet the following conditions as certified by the appointing authority. a. the exigencies of the service so require; b. the officer or employee concerned possesses special qualification not possessed by other officers or employees in the agency where he is to be appointed or retained; and c. the vacancy cannot be filled by promotion of qualified officers or employees in the agency concerned, or by transfer of qualified officers or employees from other government agencies, or there are no eligibles in the appropriate register of the Commission available for certification to the vacancy. 3. No person shall be reinstated if he has been separated from the service through delinquency or misconduct on his part or if he has been separated under LOI Nos. 11, 14, 14-A, and 14-B unless he has been granted executive clemency by the President. 4. Each request must be accompanied by a medical certificate issued by a government physician certified that the person is still physically and mentally healthy to be appointed in the service. 5. Officers or employees who have been recommended for appointment, reinstatement, or retention in the service shall not be allowed to assumed or continue in office pending receipt of authority from the Civil Service Regional Office concerned. Henceforth, all requests relating to the above matters should make reference to this Memorandum Circular.

This Memorandum Circular shall take effect immediately. (SGD.) ALBINA MANALO-DANS Chairman August 1, 1983 (Emphasis supplied). The Solicitor General maintains that the appointment of Gelvezon, assuming it has been made by the appropriate authority, nevertheless does not meet the three conditions mentioned in Paragraph 2 of the memorandum-circular. Neither is the authorization to reinstate required in Paragraph 5 sustainable under the proven facts. Like the assessment of the appointee's qualifications, the determination of whether the appointment is demanded by the exigencies of the service should be made by the appointing authorities themselves, at least in the first instance. As it is they who can best understand the needs and operations of their own offices, their findings on this matter are entitled to great respect even from this Court. We note, however, that in meeting the requirement of Paragraph 2(a), Dr. Tupas, as Director of the 3 RPTMH merely said in his recommendation. 1. That the exigency of the service demands that the position should be filled. Problems in the Nursing Service have cropped up, wanting of the attendance of a nursing administrator which may assume, unmanageable magnitude if left unsolved. This same recommendation was reiterated verbatim by Dr. Ortiz in his own letter to CSRO No. 6 4 requesting authority to reinstate Gelvezon . Its tortuous construction aside, the above-quoted statement actually says nothing. It is no more than so many cliches stringed together to satisfy the requirement, without any earnest effort to specify the problems facing the Nursing Service and why they "may assume unmanageable magnitude if left unsolved" because of the non-appointment of the recommendee. The "exigency of the service" is not explained nor is it shown why it "demands" the filling of the position. The necessity for Gelvezon sounds exaggerated. The generalization seeks more to impress than to inform and persuade. If a meaningless justification like this could suffice, the requirement might as well be discarded altogether as a useless formality. Regarding subsection (b), the respondents stress that in the examination given by the Selection, Placement and Promotion Board of the RPTMH, Gelvezon placed first with a rating of 88.25%, followed by Medalla P. Balandra with 87.5% and Violeta T. Teologo with 83.25%. This was probably

the main reason for the conclusion that Gelvezon was the best candidate among the three and for the following encomium from Dr. Ortiz (again echoing Dr. Tupaz word for word): 2. Mrs. Ruby G. Gelvezon brings along with her the degree of competence, respectability and dedication to service, qualities very desirable among people in the Civil Service, especially in the Department of Health. These qualities are found 5 wanting in the other applicants. It is not explained why applicants Balandra and Teologo are "wanting" in the qualities of "competence, respectability and dedication to service" that seem to be the exclusive virtues of the private respondent. The statement is itself wanting for not stating what other special qualifications Gelvezon possessed, besides topping the examination, that were not possessed by the other candidates. The qualifications of these aspirants were not discussed at all and were probably simply dismissed as irrelevant. But they are not, of course, for the requirement is that the appointee must possess special qualifications "not possessed" by the other candidates. As we see it, the recommendation is at best an unfair commentary on Balandra and Teologo, at worst an undeserved disparagement of their credentials. These are not so far behind those of Gelvezon, especially in the case of Balandra, or even of Teologo, who had served as acting Chief Nurse and holds the degree of Bachelor of Science in Nursing. Gelvezon finished only the Graduate Nurse course. The discretion given the appointing authority is subject to stricter review where the person appointed is being returned to the government after voluntarily retiring and collecting all the benefits appurtenant to such retirement. The earlier approval of Gelvezon's retirement signifies that her services as Senior Nurse were dispensable in 1986. Suddenly she is needed again. It must take more than the usual explanation to justify her reinstatement now on the ground that her services are after all indispensable. A retiree cannot just resume where he left off without the special qualifications (not possessed by the other candidates) required in Paragraph 2(b). Even assuming that Gelvezon does have these qualifications, her appointment is still not defensible under Paragraph 2(c) because there are other candidates for the office who are eligible and available. The rule expressly allows reinstatement only "if the vacancy cannot be filled by promotion of qualified officers or employees in the agency concerned." It is true that the next-in-rank rule admits 6 of exceptions, as we have ruled in many cases. But deviation from that rule requires special justification in the case at bar because a retiree should ordinarily not be allowed to pre-empt incumbent aspirants. The treatment of Paragraph 5 is still another matter that is not easy to understand. Contrary to the original findings of the respondent CSC, there was a need for authority to reinstate Gelvezon because she had retired from the public service four years ago. The reason for the original erroneous finding was her suppression of that material fact. Confronted later with the record, she could not deny that she had indeed not merely resigned but retired. The CSC then retracted its earlier statement and

conceded that as a retiree Gelvezon was directly covered by the memorandum-circular. Nevertheless, by some queer logic, it blandly declared in its Resolution No. 90-037: ... Moreover, the Commission, in said Resolution, directed CSRO No. 6 to act on the appointment of Mrs. Gelvezon for the reason that the Commission found that said Mrs. Gelvezon merely resigned from her position and thus, CSC MC No. 5, series of 1983 does not apply to her case. By this action of the Commission, whatever defect there may be in the questioned appointment of Mrs. Gelvezon to the contested position is thus validated or rectified. The Court feels that in giving such authority, the CSC was unduly forebearing. Even if Paragraph 2 were disregarded, Gelvezon would still not qualify for the position because she had falsified her application and concealed the fact that she was a retiree. It is plain that she was less than honest. As the CSC itself later declared: A keen restudy of the case reveals that Mrs. Gelvezon actually filed an Application for Retirement under RA 1616 on May 23, 1986 effective October 26, 1986, as shown by the said document and her signature in it. More importantly, in a letter dated July 12,1988 to the Secretary of the Department of Health (DOH), the Manager of the Government Service Insurance System (GSIS), Iloilo Branch, Iloilo City, approved the said application for retirement of Mrs. Gelvezon effective October 26, 1986, which approval was docketed as Retirement Gratuity No. ILO-RG 003331. Hence, it can be said that a misrepresentation or suppression of fact was made by Mrs. Gelvezon, the Chief of Hospital II of RPTMH and the Regional Health Director as to the alleged resignation of Mrs. Gelvezon ..., (Emphasis supplied). One wonders why, despite this finding, the CSC still approved Gelvezon's appointment, deciding simply to rap her on the wrist with a mere admonition. To use the language of Rule 111, Section 23, of Civil Service Rules and Personnel Actions and Policies, she "had intentionally made a false statement of a material fact or had practiced or attempted to practice a deception or fraud in connection with her appointment." Yet the CSC brushed aside this offense as a minor infraction that deserved no sterner action than a mild reproof. Her reinstatement does not square with the high standards the CSC has itself set for the members of the Civil Service. As the constitutional body charged with the improvement of the quality of the civil service, the CSC should have been the first to question Gelvezon's appointment instead of heartily endorsing it. Parenthetically, we note the Solicitor General's observations that Gelvezon was not really being reinstated as she had never before held the position of Chief Nurse I, having retired only as Senior Nurse, He is correct, strictly speaking, but the word out "reinstatement" was probably used in a generic sense to mean simply returning to the service. At any rate, the point is not really material

because the memorandum-circular speaks of "appointment, reinstatement or retention" of the persons covered by its provisions. We hold, in sum, that as a retiree, Gelvezon could not be simply reinstated like any new appointee but had to satisfy the stringent requirements laid down by CSC Memorandum-Circular No. 5, s-1983. While it is true that the appointing authority has wide discretion to determine the need to appoint and to assess the qualifications of the person to be appointed, that discretion may not be exercised ex-gratia but "in conformity to the spirit of the law and in a manner to subserve the ends of 7 substantial justice." That discretion may be reviewed and reversed in proper cases, especially where extraordinary care is required to attend its exercise, as in the case at bar. Apart from the fact that the Regional Health Director does not appear to be the official authorized to appoint the private respondent, we are not convinced that Gelvezon was the best choice under the particular circumstances of this case, not the least important of which was the shunting aside of the other candidates, who were eligible and available, besides being incumbent in the service. We also feel that while not the crucial consideration, the private respondent's disqualification should have been taken into serious account in comparing the over-all competence of the candidates instead of being dismissed as a light and forgivable misdeed. It is really curious that Gelvezon was accommodated in the disputed position despite the confluence of formidable arguments against her reinstatement. For prejudicing the rights of the other qualified candidates, the grave abuse of discretion clearly shown here should be corrected and reversed. 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. WHEREFORE, certiorari is GRANTED. CSC Resolution Nos. 89-321 and 90-037 are hereby SET ASIDE as NULL AND VOID. It is so ordered. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ., concur. Feliciano, J., is on leave.

Footnotes

1 G.R. No. 92561, September 12,1990. 2 143 SCRA 327. 3 Rollo, p. 39. 4 Ibid., p. 191. 5 Id. 6 Pineda v. Claudio 28 SCRA 3; Taduran v. Commissioner of Civil Service, 131 SCRA 66; Luego v. Civil Service Commission, 143 SCRA 327; Santiago v. Civil service Commission, G.R. No. 81467, October 27,1989. 7 Lamb v. Phipps, 22 Phil. 456. G.R. No. L-31947 March 21, 1974 ANTONIO P. TORRES, petitioner, vs. OSCAR T. BORJA, ALEJO SANTOS, in his capacity as Acting Director of Prisons, and the HONORABLE ABELARDO SUBIDO, in his capacity as Commissioner of Civil Service, respondents. Puno Law Office for petitioner. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Dominador L. Quiroz and Solicitor Rosalio A. de Leon for respondents.

credit of petitioner's counsel, now Solicitor, Reynato S. Puno, that he could press such contention with learning and with vigor. At bottom, however, the question is really the acceptance or repudiation of the choice of a successor to a vacant position. As will be apparent, the matter was studied with care by three high-ranking public functionaries, precisely entrusted with such responsibility. It strains credulity to impute to them a failure to abide by what the Constitution commands as to the test of fitness. After all, even considering that academically petitioner had a more creditable background, respondent Borja had in his favor experience and seniority. It borders on the unorthodox, the service records of both aspirants being known, to cavil at the allegation of a lack of fullblown hearing concerning the choice of a successor to a vacancy. The standard of due 3 process is fairness. What is proscribed by it is arbitrariness. Reliance on the Constitution, whether substantively or procedurally, was thus in vain. The petition must fail. The facts are not in dispute. As shown in the petition, on July 27, 1968, the position of penal supervisor in the Bureau of Prisons fell vacant. Eight days later, on August 4, 1969, respondent Santos, then its Acting Director, recommended to then Secretary of Justice Ponce Enrile that respondent Borja be the successor. Even before the retirement of the incumbent, however, on April 28, 1969, to be exact, petitioner, then training officer, had already protested the proposed promotion of respondent Borja, with the claim that he was academically better prepared as he had two degrees, Bachelor of Arts and Bachelor of Science and he had five civil service eligibilities. On July 23, 1969, there was a communication of the then Secretary Ponce Enrile to respondent Borja that the objection 4 of petitioner to his proposed promotion as penal supervisor was well taken. There was however, a second indorsement of August 11, 1969 from respondent Santos to Secretary Ponce Enrile worded thus: "It may be stated in this connection the cases of retired Penal Supervisor Gil Ofina who only finished 2nd grade civil service eligibility, and retired Penal Supervisor Jose Gatmaitan who only finished 2nd Year High School with a 1st grade civil service eligibility. Moreover, Mr. Magno Castillo, who is only a High School graduate with a 2nd grade civil service eligibility, proposed for promotion as Penal Supervisor, Iwahig Penal Colony, was allowed by that Office, and approved by the 5 Commissioner of Civil Service not earlier than August 7, 1969." On November 28, 1969, Secretary Ponce Enrile gave "due course to the appointment of Mr. Borja to the position of penal 6 supervisor. Its last sentence reads: "The letter of this Department dated July 23, 1969, is set aside 7 accordingly." After setting forth that neither petitioner nor respondent Borja were next in rank to the contested position, the Secretary made clear why it is the latter who should be preferred. Thus: "A review of the records of the case reveals that the Civil Service Commission had in the past approved the appointments of the following to positions of Penal Supervisor: 1. Gil Ofina (retired) finished only second year high school and a second grade civil service eligible; 2. Jose Gatmaitan (retired) finished only second year high school and first grade civil service eligible; and, 3. Magno Castillo a high school graduate and second grade civil service eligible. Mr. Borja is a high school graduate and a second grade and prison guard eligible. The Complaints Committee of the Department of Justice took cognizance of his outstanding performance as shown in the report of that Bureau. On the basis of the commendations and citations given him and his performance rating of outstanding, it is believed he is fit to perform the duties and responsibilities of penal 8 supervisor." The appointment of respondent Borja was appealed to the Civil Service 9 Commission. The decision of respondent Subido turning down the appeal of petitioner came on January 29, 1970. Why there should be no reversal of the appointment of respondent Borja was

FERNANDO, J.:p There are constitutional overtones in this certiorari proceeding to set aside the appointment of respondent Oscar T. Borja to the position of penal supervisor of the Bureau of Prisons, the other respondents being Alejo Santos, then Acting Director of Prisons, and Abelardo Subido, the then Commissioner of Civil Service, with the then Secretary of Justice, now National Defense Secretary Juan Ponce Enrile, not being proceeded against. In effect, this is a quo warranto suit, petitioner asserting a right to the contested office, alleging that his failure to be thus chosen amounted to a clear and plain disregard to constitutional requirements, both substantive and procedural. As to the 1 former, he would invoke the merit and fitness principle enshrined in the fundamental law. As to the latter, he would rely on due process in administrative proceedings in accordance with the cardinal 2 requirements as set forth by Justice Laurel in Ang Tibay v. Court of Industrial Relations. It is to the

therein explained in these words: "Mr. Torres is a Bachelor of Arts and in addition, he is also a Bachelor of Science in Commerce. He is a Supervisor (First Grade) Chief of Police; General Clerical; Cooperative Officer; and Patrolman (City of Manila) eligible. He has been with the Bureau of Prisons since 1951, and has held various positions such as Driver, Prison Guard, Keeper, Supervising Prison Guard and finally as Security Officer I. He attended and completed the following in-service training courses and seminars: Executive Development and Public Administration; Law Enforcement Officer's Course; Special Security Officer's Course; Correctional Administration and Treatment; Supervision Techniques in Correctional Service; Seminar on Custodial Procedures; Seminar on Performance Rating System; Seminar on "The Role of Law Enforcement Agencies in Crime Prevention and Seminar on the Treatment of Offenders." He was the recipient of a citation of Merit Award for academic excellency and for leadership. His efficiency rating for the relevant period is very satisfactory. On the other hand, Mr. Borja is a high school graduate and a 3rd class Prison Guard and a second grade eligible. He started to work for the government in 1942 as a 3rd Class Guard in the Bureau of Prisons, then he was promoted to the positions of 2nd Class Guard; 1st Class Guard; Junior Inspector; Overseer; and Security Officer which position he holds to the present. He completed in-service training courses on Supervision Techniques on Correctional Service and on Custodial Procedures. His efficiency rating for 10 the same period is outstanding." There was a motion for reconsideration for petitioner dated March 4, 1970. Thereafter on March 20 of that year, it was denied. Again respondent Subido gave the reason of the absence of any justification for a reversal. Thus: "This refers to the petition filed by Mr. Antonio P. Torres for reconsideration of the action taken by this Office in a 4th Indorsement dated January 29, 1970, approving the appointment of Mr. Oscar T. Borja as Penal Supervisor in the New Bilibid Prison, Bureau of Prisons at P4404 per annum effective August 4, 1969, and ruling his protest without merit. After a careful re-study of the record of the case, this Office finds that petitioner has not submitted any new material evidence that would warrant modification of the action taken by this Office. Wherefore, the instant petition is hereby denied. In this connection, attention is invited to Section 14 of the Civil Service Memorandum Circular No. 13, series of 1963 which states in parts: 11 'Only one petition for reconsideration shall be entertained.' " Hence this petition for certiorari before this Court. The bare recital of the undeniable facts demonstrates wellnigh conclusively why this petition for certiorari, as set forth at the outset, is doomed to fail. In the light of the foregoing, it is apparent that the choice of respondent Borja was not contrary to but in accordance with the principle of merit and fitness. Nor do the circumstances disclose any failure to accord petitioner all the opportunity to be heard on his claim that he was entitled to the promotion sought. 1. The plea that only merit and fitness should be the gauge of promotion the public service finds support, as noted, in both the 1935 Constitution and the present Charter. That such should be the case is self-evident. It is a truism that a public office is a public trust. The test then should be, after being clear what kind of work is to be done, who can do it best. To that over mastering consideration, all else is subordinate. It cannot be too often stressed that the protection accorded a civil servant, while undoubtedly accruing to his benefit, is intended primarily to assure that with the security of tenure and rational basis for promotion, there is an inducement for individuals of the requisite skill and ability to enter public service. The standard in this specific case then should be who as between

the two contenders met such criterion. It was the decision of the three administrative officials entrusted with such responsibility that respondent Borja was entitled to the promotion. It came about with the records of both being carefully scrutinized. The very petition with its annexes is indicative that there was not the slightest favoritism or discrimination shown. Respondent Borja appeared to have both experience and seniority on his side. Moreover, he is possessed of the ability to discharge the task incumbent on a penal supervisor. He had earned the promotion then. What is more, there was no disregard of the constitutional principle of merit and fitness. It may not be 12 inappropriate at this stage to refer to Orencia v. Ponce Enrile. There, after stressing that the essential requirement for a place in the public service is the possession of the requisite ability and competence, we upheld the right to the disputed position of assistant chief of the clerks of court division of respondent Guillermina M. Gener, a member of the bar, rather than petitioner whose educational attainment was merely that of a high school graduate. It is quite obvious there is no analogy. In that decision the disparity is rather plain, the position being one in which the possession of a legal background would certainly prove more than salutary. It is not so in the case before us where the contest is over who should be penal supervisor. Whatever advantage may inhere in petitioner having finished college work, with respondent Borja merely completing his high school, is more than offset by the latter's seniority of more than nine years and the experience that was his as a junior inspector, overseer and security officer. To repeat, no infringement of the constitutional requirement as to merit and fitness is discernible. The petition must fail. 2. The invocation of procedural due process by petitioner is equally unavailing. This is not to say that under all circumstances, the insistence on the right to be heard should be rejected outright. It is to be remembered that both under the 1935 Constitution and the present Charter, an officer or employee 13 in the Civil Service is not to be suspended or removed except for cause as provided by law. It follows that for a provision of this character to be truly meaningful, and security of tenure to be really significant, the expected promotion of an employee is not excepted from the operation of the due process guarantee. There is to be no unfairness or arbitrariness. The right to be heard should not be ruled out. Audi alteram partem. The acceptance of this doctrine does not however aid petitioner. For if there is anything that is clear from the undisputed facts, it is that he was accorded full hearing. His very petition makes that clear. Included therein were his six-page protest registered as far back as 14 April 28, 1969 to the proposed appointment of respondent Borja; his seventeen-page appeal to respondent Subido after the appointment made by the then Secretary Ponce Enrile of respondent 15 Borja, dated January 6, 1970 with annexes of its own requiring twelve pages; his ten-page reply to answer dated February 23, 1970 reiterating his claim that he should be given the contested 16 position; and lastly, his fourteen-page motion for reconsideration addressed to respondent Subido 17 dated March 4, 1970. Parenthetically, it may be observed that in all such communications, petitioner was understandably far from being unduly modest, stressing the virtues possessed by him. Moreover, again understandably, he was more than just deprecatory as to the fitness of respondent Borja. It would be an affront to reason therefore to hold that under such circumstances, petitioner was not given the hearing prior to the rejection of his claim to the position so fervently sought by him.

3. The constitutional objection thus being shown to be lacking in merit, the question really boils down as to whether, considering the facts on record, this Court should set aside the decision reached after due care and circumspection by the three high-ranking executive officials that respondent Borja rather than petitioner Torres should be the appropriate choice for the position of penal supervisor. 18 The answer is supplied by Reyes v. Abeleda. There is this relevant excerpt from that decision: "It would seem fairly obvious then that the law does not impose a rigid or mechanistic formula on the appointing power, compliance with which is inexorable and a deviation therefrom fatal. Far from it. If there be adherence to the concept that public office is a public trust, as there ought to be, the criterion should be what public welfare demands, what satisfies public interest. For it is axiomatic that public needs could best be attended to by officials about whose competency and ability there is no question. To that over mastering requirement, personal ambition must of necessity yield. Discretion if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the offices concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. Happily, there is nothing in the Civil Service Act, which is fittingly concerned with protecting the rights of those in the career service, that, rightly construed, calls for a different conclusion. It is well worth repeating that the broad authority of a department head appears indisputable. Such is the policy of the law, a policy reflected with fidelity in the decisions of this 19 20 Court." Such an approach has substantially been followed. WHEREFORE, the petition for certiorari is denied. No costs. Zaldivar (Chairman), Barredo, Fernandez and Aquino, JJ., concur. Antonio, J., took no part.

FLORENCIO P. SALLES, petitioner, vs. NICEFORO B. FRANCISCO, CERILO FRANCISCO, HON. JOSE V. ONG and HON. PATRICIA STO. TOMAS,respondents. Reynaldo L. Herrera for petitioner. Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for Patricia Sto. Tomas.

NOCON, J.: This is a petition for quo warranto seeking to recall, cancel and revoke the appointment of the defendant-appellee Niceforo B. Francisco as Chief Revenue Officer III. The instant petition is a result of the Decision promulgated by the Merit System and Protection Board, Civil Service Commission June 7, 1990 in MSPB Case No. 589, entitled "Florencio P. Salles vs. Niceforo B. Francisco", dismissing petitioner Florencio P. Salles' appeal from the decision dated September 25, 1989 of the Committee on Contested Appointments, Bureau of Internal Revenue, also dismissing his protest on the appointment of respondent Niceforo Francisco to the position of Chief Revenue Officer III, Fiscal Operations Branch, Revenue Region 5, Legaspi City. The undisputed facts of the case are as follows: Respondent Niceforo Francisco has been working with the Bureau of Internal Revenue since 1978 as Revenue Collector I. He was subsequently promoted to the position of Revenue Budget Examiner II effective July 31, 198l; Revenue Budget Officer effective August 1, 1985; and a year later, to the position of Revenue Fiscal Officer effective October 28, 1986. Pursuant to Executive Order No. 127 (Reorganizing the Ministry of Finance), the Bureau of Internal Revenue created a Fiscal Operations branch in Revenue Region 5, BIR, Legaspi City which required the appointment of a Chief Revenue Officer. A certain Fe D. Peralta was appointed by BIR Commissioner Bienvenido A. Tan to said position. On being informed of said appointment, petitioner, then a Revenue Enforcement Officer assigned in the BIR office in Goa, Camarines Sur protested Peralta's appointment with the BIR-Reorganization Appeals Board (BIR-RAB) on the ground that the appointee did not possess the minimum qualification requirements for the position.
1

Footnotes 1 Article XII, Sec. 1 of the 1935 Constitution reads: "A Civil Service embracing all branches and subdivisions of the Government shall be provided by law. Appointments in the Civil Service, except as to those which are policy-determining, primarily confidential or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination." There is a reiteration of the above provision in the present Constitution, Article XII, B, Sec. 2. G.R. No. 95425 February 26, 1992

While petitioner's protest was pending before the BIR-RAB, defendant Francisco was temporarily appointed to the position of Chief Revenue Officer III, Fiscal Operations Branch, Revenue Region 5, BIR, Legaspi City by the then BIR Commissioner Bienvenido A. Tan, Jr. effective November 1, 1987. Meanwhile, in a letter dated July 1, 1988, the protest of petitioner over the appointment of Fe D. Peralta was dismissed for having been filed out of time. Petitioner moved for reconsideration of the BIR-RAB's ruling and this time included in his protest the appointment of defendant Francisco. On July 25, 1988, the BIR-RAB thru its Chairman, informed petitioner about the Rules and Regulations embodied in Revenue Memorandum Order No. 15-88 dated March 7, 1988 and was advised to go to the Civil Service Commission. Hence, the petitioner, in his letter dated August 29, 1988 directed his appeal only against the appointment of defendant Francisco as Chief Revenue Officer III. In his appeal, he advanced the following: (1) That Defendant Francisco is holding the position in a temporary capacity; (2) That appellee is a mere college graduate while appellant is a Certified Public Accountant (CPA); (3) That he has been an Examiner III in the Commission on Audit (COA), and has attended several seminars on Government Accounting and Auditing and taught the subject. On two occasions he has been designated as Officer-in-Charge. Meanwhile, defendant Francisco's temporary appointment to the position of Chief Revenue Officer III was renewed effective November 1, 1988. On March 6, 1989, the Civil Service Commission dismissed petitioner Salles' appeal for lack of merit. The Commission ruled that After a careful review of the records, in the absence of a showing or proof to the contrary, this Commission adheres with the BIR-RAB finding that, subject protest was filed beyond the reglementary period. Section 18 of the Rules on Government Reorganization provides that, "Any officer or employee aggrieved by the appointments made may file an appeal with the appointing authority within ten (l0) days from the last day of posting of the appointments by the Personnel Officer . . ." Assuming however, that the protest was filed within the period prescribed therefor, it cannot, just the same be given due course. Records show that protestantappellant is not an incumbent of the subject position. Neither was he a holder of a higher level position than herein appellee. His position of Revenue Enforcement Officer (Grade 16) before the BIR reorganization is of the same level, rank and salary to the Revenue Fiscal Officer (Grade 16) held by herein appellee. Such being the case, in the absence of a showing that a holder of a higher level position protested subject appointment in time and/or abuse of authority or discretion was committed in issuing said appointment, the choice of the appointing authority is hereby upheld.
2

WHEREFORE, the instant appeal of Mr. Florencio P. Salles is hereby dismissed for lack of merit. Unfazed, petitioner Salles sent a letter dated August 14, 1989 to BIR Commissioner Jose U. Ong protesting defendant Francisco's new appointment as Chief Revenue Officer, Fiscal Operations Branch, BIR Legaspi City effective November 1, 1988. While the aforesaid protest of Salles was still unresolved by the Office of the BIR Commissioner, Commissioner Ong permanently appointed defendant Francisco to the contested position of Chief Revenue Officer III effective June 27, 1989. The Committee on Contested Appointments, Bureau of Internal Revenue, where the protest of petitioner was indorsed informed plaintiff that it found no substantial reasons to reconsider the Resolution of the Civil Service Commission in CSC Case No. 178 promulgated on March 6, 1989. Petitioner appealed said ruling to the Merit System Protection Board of the Civil Service Commission, 3 which likewise dismissed his appeal on the ground of res adjudicata. Hence, the instant petition. We find no merit in the petition. Section 19(3) of P.D. No. 807 provides: that when a vacancy occurs in a position in the second level of the Career Service as defined in Section 7, the employees in the government service who occupy the next lower positions in the occupational group under which the vacant position is classified and in other functionally related occupational groups and who are competent, qualified and with the appropriate civil service eligibility shall be considered for promotion. Paragraph 4 of the same section likewise provides: that each department or agency shall evolve its own screening process, which may include tests of fitness, in accordance with the standards and guidelines set by the Commission and that promotion boards shall be formed to formulate criteria for evaluation, conduct tests and/or interviews, and make systematic assessment of training and experience. The position of Chief Revenue Officer III to which Francisco was appointed on June 27, 1989 falls under the second level of the career service (Sections 5 and 7, Civil Service Law). Plaintiff, however, questions defendant Francisco's appointment to the said position upon the claim that only CPAs are

qualified for appointment to the said position as the functions and duties of such newly created office or position under the Reorganization Act categorically falls under Accountant positions in the Accounting Occupational Group and equivalent positions in allied occupational groups, the duties of which falls squarely within the meaning of the practice of Accountancy, as defined in the Accountancy Board Law and the Revised Accountancy Law, and petitioner being a CPA, is the one qualified and entitled to be appointed to the position in question and not respondent Francisco. The law in point is Civil Service Memorandum Circular No. 17 S. 1987 which deals specifically on the subject "Requirements of RA 1080 (CPA) Eligibility for Appointment to Accountant and Equivalent Positions in Allied Occupational Groups in the Government" which reads as follows: Pursuant to CSC Resolution No. 87-388 dated October 20, 1987 and the pertinent provisions of Presidential Decree No. 692, otherwise known as the Revised Accountancy Law of 1976 which regulates the practice of Accountancy, the following policies relative to the appropriate civil service eligibility requirement for appointment to Accountant positions and other allied second level positions the duties of which involve practice of the accountancy profession as defined under said Decree, are hereby adopted, to wit: "1. R A 1080 (CPA) eligibility shall be required for appointment to the position of Accountant, and equivalent positions in allied occupational groups the duties of which involve the practice of Accountancy in the following government agencies: a). Executive Departments, including their bureaus/offices/regional offices/attached agencies; xxx xxx xxx 2. For Second Class or lower class cities, provinces, and municipalities, RA 1080 (CPA) eligibility shall only be required for permanent appointment to the position of Chief of the Accounting Division or other Chiefs of Divisions the duties of which involve the practice of the accountancy profession. For Accountant positions lower than the Chief of the Accounting Division or its equivalent, Career Service (Professional) eligibility may be considered, provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration, major in Accounting. 3. Incumbents of positions mentioned above who have been appointed under PERMANENT STATUS before the effectivity of this Memorandum Circular on the basis of their civil service eligibilities previously considered appropriate for those positions,

shall retain their permanent status. However, they may no longer be promoted to higher positions in these occupational groups requiring RA 1080 (CPA) eligibility as mentioned above until they meet such eligibility requirement. 4. In the absence of an RA 1080 (CPA) eligible and it becomes necessary in the public interest to fill a vacancy of an Accountant position and/or other positions in allied occupational groups, a non-CPA may be appointed as Temporary to the position involved provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration, major in Accounting, and provided further that such temporary appointment shall not exceed twelve (12) months and that the appointee may be replaced sooner if a qualified RA 1080 (CPA) eligible becomes actually and immediately available for employment. It is clear that R.A. 1080 (CPA) eligibility shall only be required for permanent appointment to the position of Chief of the Accounting Division or other Chiefs of Divisions, the duties of which involve the practice of the accountancy profession and that for accountant position lower than the Chief of the Accounting Division or its equivalent, the career service (Professional) eligibility may be considered, provided that the appointee is a graduate of Bachelor of Science in Commerce or Business Administration, Major in Accounting. In the case at bar, petitioner has not shown that the position of Chief Revenue Officer of the Fiscal Operations Branch of the BIR, Legaspi City falls within the category of Chief of the Accounting Division of the BIR. In the absence thereof, the career service (Professional) eligibility of respondent Francisco may be considered sufficient qualification for the contested position. Moreover, 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 examination and seniority. Consequently, the appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for 4 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 The court should not substitute its own judgment to that of the appointing authority. WHEREFORE. the petition is dismissed for lack of merit. Costs against petitioner. SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur.

ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents.

Footnotes YNARES-SANTIAGO, J.: 1 83 O.G. 17, p. 2009, April 27, 1987. 2 Salles vs. Niceforo Francisco, CSC Case No. 178, March 6, 1989. 3 The pertinent portions of the decision read, as follows: Upon careful evaluation of the records of the case, this Board found that the instant appeal of Mr. Salles is but a reiteration of his previous appeal with the CSC against the same appointment. Following the principle of res adjudicata this Instant appeal must fall. WHEREFORE, for lack of merit, the appeal of Florencio Salles is hereby dismissed. 4 Pamantasan ng Lunsod ng Maynila v. CA, G.R. No. L-65439, 140 SCRA 22 (1985). G.R. No. 124374 December 15, 1999 ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents. G.R. No. 126354 December 15, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents. G.R. No. 126366 December 15, 1999 Before this Court are three, consolidated petitions filed under Rule 45 of the Revised Rules of Court. The facts behind the consolidated petitions are undisputed. During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972. On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling 3 inTanada vs. Tuvera the presidential decree is deemed never "in force or effect and therefore 4 cannot at present, be a basis for establishment of the CSUs . . . ." On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety ("DPOS"). At the heart of these petitions is Section 3 of the Ordinance which provides: Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights and other benefits. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. (Emphasis ours).
2 1

Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992. On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed. The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents' appointments became the seed of discontent from which these three consolidated petitions grew. We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly. G.R. No. 124374 and G.R. No. 126366 After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on 5 absorption in Quezon City Ordinance No. NC-140, Series of 1990, and ordering their reinstatement 6 7 to their former positions in the DPOS. Petitioner brought petitions for certiorari to this Court, to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari. In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS. We agree with petitioner. The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being

inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council orsanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council orsanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is 8 not applicable to local governments." We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local 9 chief executive. The power of the city council or sanggunian, on the other hand, is limited to creating,consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio inius est exclusio 10 alterius. Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of 11 the appointing power. This cannot be done. In a long line of cases, we have consistently ruled that the Civil Service Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140. The Ordinance refers to the "personnel of the CSU", the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created DPOS, there is therefore 12 no room left for the exercise of discretion. In Farinas vs. Barba, we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the power of appointment is adiscretionary power.

When the Civil Service Commission ordered the reinstatement of private respondents, it technically 13 issued a new appointment. This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. In Apurillo vs. Civil Service Commission, we held that "appointment is essentially a discretionary 14 power and must be performed by the officer in which it is vested." The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A. Mathay, Jr., to reinstate private respondents. Petitioner similarly assails as error the Court of Appeals' ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance. In its decision of March 21, 1996 the Court of Appeals held: It is clear however, that Ordinance No. NC-140, absorbing the "present personnel of the Civil Security Agent Unit" in the DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents were still holders of de jure appointments as permanent regular employees at the time, and therefore, by operation of said Ordinance private respondents were automatically absorbed in 15 the DPOS effectively as of March 27, 1990. (Emphasis ours.) The decision is based on the wrong premise. Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held 16 permanent positions. Accordingly, as petitioner correctly points out, the private respondents' appointments in the defunct CSU were invalid ab initio. Their seniority and permanent status did not arise since they have no valid appointment. For then to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended an original appointment, subject again to the attesting power of the Civil Service Commission. Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Emphasis ours). It is axiomatic that the right to hold public office is not a natural right. The right exists only by 17 virtue of a law expressly or impliedly creating and conferring it. Since Presidential Decree 51

creating the CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed. In Debulgado vs. Civil Service Commission we held that "a void appointment cannot give rise to security of tenure on the part of the holder of the appointment." While the Court of Appeals was correct when it stated that "the abolition of an office does not 19 mean the invalidity of appointments thereto," this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law. At the most, private respondents held temporary and contractual appointments. The non-renewal of these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil 20 Service Commission we treated temporary appointments as follows: The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto. (Emphasis ours.) Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to 21 be absorbed. We note that Section 1 of Ordinance NC-140 provides: There is hereby established in the Quezon City Government the Department of Public Order and Safety whose organization, structure, duties, functions and responsibilities are as provided or defined in the attached supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance. A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible. Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an "abandonment" or "waiver" of such positions. It escapes us how one can "relinquish" or
18

"renounce" a right one never possessed. A person waiving must actually have the right which he is renouncing. G.R. 126354 In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to "reinstate" Jovito C. Labajo to the DPOS. The standing of petitioner Civil Service Commission to bring this present appeal is questionable. We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal. Basic is the rule that "every action must be prosecuted or defended in the name of the real party in 22 interest." A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. In Ralla vs. Ralla we defined interest as "material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental 23 interest." As a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action. In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or nonreinstatement. We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro 24 25 Dacoycoy which overturned our rulings in Paredes vs. Civil Service Commission Mendez vs. Civil 26 27 Service Commission and Magpale vs. Civil Service Commission. In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system. The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be over emphasized. The subject of the present case, on the other hand, is "reinstatement." We fail to see how the present petition, involving as it does the reinstatement or nonreinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply.

To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasijudical body, the Civil Service Commission can be likened to a judge who should "detach himself 28 from cases where his decision is appealed to a higher court for review." In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated functions is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments 29 and to review decisions and actions of its offices and agencies," not to litigate. Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354. WHEREFORE, the petitions of Ismael A. Mathay in G.R. No. 124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE. The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED. No costs. SO ORDERED. Davide, Jr., C. J., Bellosillo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr., JJ., concur. Melo and Vitug, JJ., in the result. Footnotes 1 In G.R. No. 124374, petitioner Mayor Mathay questions the decision of the Court of Appeals which upheld Resolution No. 95-3003 dated April 25, 1995 of the Civil Service Commission and ordered the reinstatement of private respondents to their former positions at the Department of Public Order and Safety ("DPOS") under permanent status or to comparable positions in the said agency. In G.R. No, 126354, petitioner Civil Service Commission assails the decision of the Court of Appeals which annulled and set aside its Resolution Nos. 955040 and 932732.

In G.R. No, 126366, the assailed decision of the 15th Division of the Court of Appeals found no grave abuse of discretion amounting to lack or excess jurisdiction on the part of public respondent Civil Service Commission when it issued Resolution Nos. 92-1974 and 94-0902 ordering petitioner Ismael A. Mathay to reinstate private respondent Sandy Marquez to a position in the DPOS without dimunition in salary or position. 2 In G.R. No. 124374 Private respondents are Eduardo A. Tan, Lourdes M. de Guzman, Manuel Chua, Anselmo Mateo, Christopher Santos, Buenaventura Punay, Enrico Bandilla, Felino Camacho, Dante E. Deoquino, Jaime P. Urcia, Jesus B. Regondola, Romualdo Liberato, Cesar Franciso, William Panti Jr., Michael A. Jacinto and Cesar Dacio. In G.R. No. 126366 private respondent is Sandy Marquez. In G.R. No. 126354 there is no private respondent (Jovito C. Labajo did not appeal from the order of the Court of Appeals). 3 148 SCRA 446 (1986). 4 Opinion No. 33 of the Secretary of Justice, February 1991. 5 CSC Resolution No. 92-1974 (G.R. No. 126366). 6 CSC Resolution No. 95-3003 (G.R. Jo. 124374). 7 G.R. Nos. 114320 and 120442. 8 Page 8 of the Fifteenth Division of the Court of Appeals Decision dated January 15, 1996 citingSinco. Political Law, 1949 ed. pp. 154-155 citing State vs. City of Maulcato, 136 N.W. 164, 41 L.R.A.N.S. 111; People vs. Provinces 35 Cal. 520. 9 Sec. 1719 of B.P. 337 provides that, "the city mayor shall . . . appoint in accordance with Civil Service law, rules and regulations all officers and employees of the city, whose appointments are not otherwise provided in this Code." 10 The express mention of one thing in a law will, as a general rue, mean the exclusion of others not expressly mentioned. This rule as a guide to probable legislative intent is based upon rules of logic and the natural workings of the human mind (Tavora vs. Gavina, 79 Phil. 421). 11 Orbos vs. Civil Service Commission, 189 SCRA 459 (1990); Villanueva vs. Balallo, 9 SCRA 407 (1963); Santos vs. Chito, 25 SCRA 343 (1968); Said Benzar Ali vs. Teehankee, 46 SCRA 728 (1972); Luego vs. Civil Service Commission, 143 SCRA 327 (1986); Central Bank vs. Civil Service Commission, 171 SCRA 741 (1989).

12 256 SCRA 396 (1996). 13 Gloria vs. Judge de Guzman, G.R. No. 116183, October 6, 1995. 14 227 SCRA 320 (1994). 15 Rollo (G.R. 124374), p. 47. 16 Rollo (G.R. 12633), p. 32. 17 Aparri vs. Court of Appeals, 127 SCRA 234 (1984). 18 263 SCRA 184 (1996). 19 Rollo (G.R. 126366), p. 21. 20 197 SCRA 168 (1991). 21 The defunct CSU consisted of 64 positions, to wit: Number of Positions Title of Position Monthly Salary 1 Office Head P12,650.00 1 Assistant Dept. Head III P11,385.00 2 Security Officer IV P8,250.00 20 Security Officer II P4,418.00 2 Security Agent II P3,102.00 9 Security Agent I P2,752.00 24 Security Guard II P2,355.00 1 Clerk III P2,473.00 2 Clerk II P2,250.00 1 Driver P2,250.00

1 Utility Worker P2,000.00 64 Positions While the Intelligence and Security Division of the DPOS created to replace the defunct CSU (p. 1 of Ordinance NC-130) is composed of the following positions: Number of Position Title of Position Monthly Salary

282 Positions 22 Rule 3, Section 2, 1997 Rules on Civil Procedure. 23 199 SCRA 497 (1991). 24 G.R. No. 135805, April 29, 1999. 25 192 SCRA 84 (1990).

1 Chief, Intelligence & 26 204 SCRA 965 (1991). Security Officer P10,135.00 27 215 SCRA 389 (1992). 1 Asst. Chief Intelligence 28 Judge Calderon vs. Solicitor General, 215 SCRA 876 (1992). & Security Officer P8,250.00 1 Security Officer III P5,670.00 1 Special Police Area Supervisor P5,670.00 1 Security Officer II P4,418.00 1 Asst. Spl. Police Area Sv P4,418.00 4 Security Agent II P3,102.00 60 Security Agent I P2,752.00 1 Clerk III P2,473.00 10 Special Police Corporal P2,473.00 1 Clerk II P2,250.00 200 Special Policemen P2,250.00 29 Chapter 3, Section 12 (11). The Revised Administrative Code of 1987 on the Civil Service Commission. G.R. No. L-25491 February 27, 1968

BIENVENIDO F. REYES, petitioner-appellee, vs. ROMEO G. ABELEDA, SECRETARY OF EDUCATION, DIRECTOR OF PUBLIC SCHOOLS, COMMISSIONER OF CIVIL SERVICE & CASHIER AND DISBURSING OFFICER OF THE BUREAU OF PUBLIC SCHOOLS,respondents-appellants. Cecilia B. Magadia, Jr. for petitioner-appellee. Office of the Solicitor General for respondents-appellants. FERNANDO, J.: This petition, filed with the Court of First Instance of Manila, for certiorari and mandamus with 1 preliminary injunction, calls for the determination of who, under the Civil Service Law, has the right to a promotion to fill a vacancy in a competitive or classified position in the government as the person "next in rank" likewise "competent and qualified to hold the position and possessed of an appropriate civil service eligibility. . . ." The facts are not in dispute, the case having been submitted before the lower court on a stipulation of facts. Thus: "That since June 15, 1939 and continuously up to the present, the

petitioner has been employed in the government, particularly, in the School Finance Division, Bureau of Public Schools, since July 25, 1940, . . . while respondent Abeleda has been in the government service since August 16, 1937, . . . , that on August 2, 1962, the petitioner was last appointed as Acting Budget Officer III at P5,376 per annum, in the School Finance Division, Bureau of Public Schools, . . . , while respondent Abeleda was last appointed as Budget Officer III in the Medical and Dental Services Division, same Bureau, at P5,376 per annum effective July 1, 1962; that in a Memorandum dated December 10, 1962, the Director of Public Schools submitted to the Secretary of Education an assignment proposal recommending the promotion of petitioner to the position of Budget Officer IV,. . . ; that in a first indorsement dated December 19, 1962 of the respondent Secretary of Education to the respondent Director of Public Schools, the former requested the latter for 'appropriate ranking lists' . . . ; that in a 3rd indorsement dated January 7, 1964, the Secretary of Education instructed the respondent Director of Public Schools to prepare an appointment proposal in favor of respondent Romeo G. Abeleda to the position of Budget Officer IV; that in the 4th indorsement dated January 23, 1964, the petitioner was informed of the respondent Secretary's action on the basic proposition for the promotional appointment of petitioner . . . ; that on February 10, 1964, petitioner filed a formal protest with respondent Commissioner of Civil Service contesting the appointment of respondent Romeo G. Abeleda to the position of Budget Officer IV in the Bureau of Public Schools, School Finance Division, . . . ; that the protest was resolved by the respondent Commissioner of Civil Service against petitioner, . . . ; that respondent Romeo G. Abeleda was promoted from Budget Officer III, School Medical and Dental Services, to Budget Officer, IV, School Finance Division, . . . ." After setting forth the facts and considering the law, the conclusion reached by the lower court was set forth thus: "In view, therefore, of the foregoing, it appearing that the petitioner has the necessary qualifications to the position of the Budget Officer IV, Division of School Finance, Bureau of Public Schools; that he is the officer next in rank in said division to that vacant position; respondent Abeleda is not of equal rank in said division, he, belonging to another independent, separate division, that in point of authority, responsibility and importance, the Budget Officer III of the School Finance Division outranks and is more important than its counterpart in the Medical and Dental Services Division, the appointment and promotion, therefore, of respondent Romeo G. Abeleda, to fill the vacant position of Budget Officer IV, School Finance Division, was in error, in violation of the Civil Service Law on the point, and in excess of the exercise of legal discretion on the part of the respondent Secretary of Education and the Commissioner of Civil Service." The lower court decision was to this effect: "1. The appointment of Romeo Abeleda as Budget Officer IV, Division of School Finance, Bureau of Public Schools, is hereby declared null and void and, therefore, set aside; 2. That the respondents Secretary of Education and Commissioner of Civil Service are ordered to approve the appointment of the petitioner, Bienvenido F. Reyes, as recommended by the Director of Public Schools." Not being satisfied with the above decision, which to his mind was an erroneous interpretation of the above legal provision and a denial of his right to said position, respondent Abeleda along with the Secretary of Education, the Director of the Bureau of Public Schools and the Commissioner of Civil Service, appealed to this Court.

If the law correctly construed be applied to the above facts, the judgment of the lower court must be reversed; the appointment made in favor of respondent Abeleda by the Secretary of Education must prevail. As noted at the outset, a person next in rank, competent and qualified to hold the position and possessing an appropriate civil service eligibility is entitled to a vacancy occurring in any competitive or classified position in the government. There is the proviso however that should there be two or 2 more persons under equal circumstances, seniority must be given preference. As between petitioner Reyes and respondent Abeleda, who is the person next in rank? Both as admitted in the Brief of petitioner are in the ranking list, being Budget Officers III, the petitioner in the School Finance Division and respondent Abeleda in the Medical Dental Services Division of the Bureau of Public 3 Schools. Petitioner however, as was set forth in the stipulation of facts was holding such office in an acting capacity, unlike respondent Abeleda whose tenure had permanency. Under the above circumstances it cannot be said that petitioner was the person next in rank. Even on the assumption however that both petitioner Reyes and respondent Abeleda could be considered, in the language of the law, "as persons of equal circumstances" still respondent's appointment by the Secretary of Education could not be declared illegal as the very same proviso makes clear that seniority shall be given preference. There was no denial of the statement in the Brief of respondent Abeleda about his seniority, having been appointed in the government service on August 8, 1937 while petitioner did not join the government until June 15, 1939, having been 4 assigned thereafter to the School Finance Division on July 25, 1940. Now as to the discharge of the functions of Budget Officer III. While petitioner was appointed in an acting capacity on August 21, 1962, respondent Abeleda assumed such position with a permanent status earlier, namely, on July 1, 1962. The right to the promotion then had been earned by respondent Abeleda. There was precisely compliance with, not deviation from, the applicable statutory provision, with the appointment extended to him by respondent Secretary of Education. There is this further point to consider. Referring to the very same section, this Court, in Pilar v. 5 Secretary of Public Works and Communications, speaking through Justice Dizon stressed that "the appointing power enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position to be filled . . . ." Passing on the power of the Commission on Elections to appoint election registrars, this Court in Amponin v. 6 Commission on Elections, the opinion being penned by Justice Castro, could fitly summarize the law thus: "Finally, considering that the power to appoint is in essence discretionary, and that there is here absent a showing that in the exercise of the right of choice the [Commission on Elections] abused its discretion, we will not even attempt to substitute our own discretion for that exercised by [it]." It would seem fairly obvious then that the law does not impose a rigid or mechanistic formula on the appointing power, compliance with which is inexorable and a deviation therefrom fatal. Far from it. If there be adherence to the concept that public office is a public trust, as there ought to be, the criterion should be what public welfare demands, what satisfies public interest. For it is axiomatic

that public needs could best be attended to by officials, about whose competency and ability there is no question. To that overmastering requirement, personal ambition must of necessity yield. Discretion if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the officers concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. Happily, there is nothing in the Civil Service Act, which is fittingly concerned with protecting the rights of those in the career service, that, rightly construed, calls for a different conclusion. It is well worth repeating that the broad authority of a department head appears indisputable. Such is the policy of the law, a policy reflected with fidelity in the decisions of this Court. WHEREFORE, the judgment of the lower court is reversed and the petition for certiorari and mandamusdenied. With costs against petitioner. Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur. Concepcion, C.J., is on leave. Footnotes
1

This is an appeal from a decision of the Court of First Instance of Ilocos Sur involving purely questions of law. The main facts are set forth in said decision, from which we quote: On November 24, 1959, 14 days after the general elections of November 10, 1959, Inocencio Espiritu, the chief of police of the municipality of Santa, Ilocos Sur, resigned effective at the close of office hours on that day for the reason that he wanted to seek another job (Exh. E). Jose Burgonio, the incumbent mayor then on December 28, 1959, three days before his term expired on December 31, 1959 extended an appointment to the petitioner Antonio Villanueva as chief of police of Santa, Ilocos Sur (Exh. A). On the same date, the provincial treasurer of Ilocos Sur as deputy of the Commissioner of Civil Service and pursuant to the provision of Republic Act No. 2260 approved the appointment. On December 30, 1959, the petitioner Antonio Villanueva took his oath of office as chief of police of Santa, Ilocos Sur before the then mayor Jose Burgonio (Exh. 1). It also appears that the appointee Antonio Villanueva is a civil service eligible having passed the examination for patrolman (qualifying) on October 2, 1937 with a rating of 86.5 per cent (Exh. J). On January 5, 1960 Jesus R. Bueno, newly elected mayor of Santa, Ilocos Sur, at the election of November 10, 1959, extended an appointment to Atty. Felix Balallo for the same position of chief of police "vice Mr. Inocencio Espiritu, resigned"(Exh. 2). The record shows that Atty. Balallo is also a civil service eligible per his application to be entered in the register of eligibles pursuant to the provisions of Republic Act No. 1080, as amended by Republic Act 1844 (Exh. 1). Before the former appointment of the petitioner Antonio Villanueva could be finally attested by the Commissioner of Civil Service on March 4, 1960 the Commissioner of Civil Service approved the appointment of the respondent Atty. Felix Balallo subject to the usual physical and medical examination and to the availability of funds, that is, provided the former incumbent Inocencio Espiritu has no more leave with pay to his credit. Since the appointment of the petitioner Antonio Villanueva he has been performing his duties as chief of police of Santa and receiving the emoluments therefor. However, the provincial auditor has annotated in the payroll that the payment of the petitioner's salary is subject to reimbursement if and when the matter is decided against him. In view of this predicament, the Commissioner of Civil Service in his 4th indorsement dated May 13, 1960 to the provincial treasurer (Exh. 5) finally decided that the attestation made by the provincial treasurer under section 20, Republic Act 2260 is not final for it is subject to review by the Commissioner of Civil Service; that the appointment made to Antonio Villanueva has been revoked upon the appointment of Atty. Felix Balallo to the same position. By virtue of the aforementioned indorsement (Exh. 5), Mayor Jesus Bueno advised the petitioner Antonio Villanueva "... to cease rendering further service in the Police Department ... and to return all the property of the said department...to the municipal treasurer." (Exh. 7).

Section 23 of Republic Act No. 2260. Section 23, Republic Act No. 2260. Paragraph 2, Stipulation of Facts. Brief for respondents-appellants, p. 26 and stipulation of facts. L-21039, February 18, 1967. L-27420, September 29, 1967. October 31, 1963

G.R. No. L-17745

ANTONIO VILLANUEVA, petitioner, vs. FELIX BALALLO, respondent. Luis Bello, Jr. for petitioner. Buenaventura Martinez for respondent. CONCEPCION, J.:

On June 3, 1960, the petitioner filed this quo warranto proceedings and as prayed for, the Court on June 6, 1960 issued the writ of preliminary mandatory injunction upon the petitioner filing a bond in the sum of P2,000. (Record pp. 91-93). In due course, the Court of First Instance of Ilocos Surrendered judgment sustaining the action taken by the Commissioner of Civil Service and, accordingly, dismissing the complaint without costs, as well as dissolving the writ of preliminary injunction issued by said court on June 7, 1960. Hence, this appeal by Villanueva. The decision appealed from is mainly based upon our rulings in Gorospe vs. Secretary of Public Works and Communications, G.R. No. L-11090 (January 31, 1959) and Cui vs. Ortiz, G. R. No. L-13753 (April 29, 1960), but these cases are not in point. The first involved an employee who had been found guilty of certain irregularities and, accordingly, ordered dismissed by the Commissioner of Civil Service, for which reason a subsequent appointment in favor of the same employee was disapproved by the Commissioner of Civil Service, said previous dismissal being a ground for the disapproval of the new appointment, under Section 5 Rule of the Civil Service Rules, reading: 5. The Commissioner may, in his discretion, refuse to examine an applicant, or to certify or attest an appointment of an eligible, who is physically unfit for the performance of the duties of the position to which he seeks appointment; or who has been guilty of a crime, or of infamous, notoriously disgraceful, or immoral conduct, drunkenness, or dishonesty; or who has been dismissed from the service for other deliquency or misconduct; or who has intentionally made a false statement in any material fact, or practiced or attempted to practice any deception or fraud in securing his examination, registration, or appointment. Any of the foregoing disqualifications shall be good cause for the removal of the person from the service after his appointment. Indeed, if the grounds for disqualification enumerated in the foregoing provision are, likewise, grounds for removal, it follows that the refusal of the Commissioner of Civil Service to approve the appointment of Gorospe was fully justified for it would serve no useful purpose to approve the appointment and, at the same time, to remove the appointee. Petitioner herein does not fall, however, under any of the aforementioned disqualifications or causes for removal. Neither is the second case controlling in the one at bar for the appointment involved in the Cui case required the approval of the President which was not secured by him. Hence, his appointment was not completed. The appointment in the present case did not require said approval of the President. In fact, Mayor Burgonio had applied for presidential authority to fill the vacancy resulting from the resignation of Inocencio Espiritu as Chief of Police of Santa, and the Office of the President replied stating that said "authority ... is not necessary". The issue in this case hinges on the role of the Commissioner of Civil Service under the provisions of the Civil Service Act requiring his attestation to appointments made in the civil service. As stated by this Court in the Gorospe case (supra), the appointment of an employee in the civil service "must be

submitted to the Commissioner of Civil Service for approval to determine whether the prospective appointee is qualified to hold the position." In the language of former Deputy Commissioner of Civil Service, Gregorio Rasalan (in his book on the Philippine Civil Service Law, pp. 27 and 28): If the appointee concerned is a civil service eligible and otherwise qualified for the position and the appointing authority has already performed all the acts necessary to make the appointment complete, a probational, promotional, transfer or re-instatement appointment may not be withdrawn without the consent of the appointee. ... Pursuant to law and regulations an appointment in the service must be submitted to the Commissioner of Civil Service for determination whether the proposed appointee is qualified to hold the position. .... When the appointee is qualified, as petitioner herein admittedly is, then the Commissioner of Civil Service has no choice but to attest to the appointment. It has been repeatedly held that an appointment becomes complete upon the performance of the last act required by law of the appointing power. The attestation required of the Commissioner of Civil Service is merely a check to assure compliance with the civil service laws. In fact, upon attestation by the provincial treasurer the appointee may collect the corresponding salaries, although subject to the condition that, if the Commissioner of Civil Service should later on properly reject the appointment by reason of lack of eligibility, as provided in said Section 5, Rule II, of the Civil Service Rules, then the appointment shall lapse, despite the aforementioned attestation by the provincial treasurer. This notwithstanding, the amounts collected by the appointee, by way of salary, prior to notice of the unfavorable action taken by the Commissioner of Civil Service, shall be deemed validly paid to said appointee. This goes to show that the appointment in question is not only valid, but, also, complete prior to said notice, for, otherwise, said payment could not be deemed legally made. WHEREFORE, the decision appealed from is hereby reversed, and another one shall be entered granting the writ prayed for and declaring that petitioner Antonio Villanueva is the duly appointed and qualified chief of police of the Municipality of Santa, Ilocos Sur; that, as such, he is legally entitled to perform the powers and duties of said office and to receive the emoluments attached thereto; and that respondent Felix Balallo has no right to said office and, consequently, ordering him to yield the same to the aforementioned petitioner, as well as to refrain from obstructing or interfering in any manner whatsoever in the discharge by the latter of the functions of said office, with costs against said respondent. It is so ordered. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur. G.R. No. L-39451 February 20, 1989

ISIDRO M. JAVIER, petitioner-appellee, vs. PURIFICACION C. REYES, respondents-appellant.** Victorino B. Aldaba for petitioner-appellee. Jesus R. Mabagos for respondent-appellant.

SARMIENTO, J.: Before the Court is a certified case involving pure questions of law. The facts, as found by the trial court, are as follows: ...It is alleged that petitioner was the duly appointed Chief of Police of Malolos, Bulacan, on November 7, 1967 by the then Mayor Victorino B. Aldaba, which appointment was confirmed and approved by the Municipal Council of the said municipality on the same date as per Resolution No. 210, Series of 1967; that the following day, petitioner took his oath of office and thereafter assumed and discharged the rights, prerogatives and duties of the office; that on January 3, 1968, pending approval and attestation of his appointment by the Civil Service Commission, respondent, who had then assumed the office of Municipal Mayor, recalled petitioner's appointment from the Civil Service Commission in her letter of said date; that not satisfied with her letter of recall, respondent summarily, arbitrarily and illegally ousted and relieved petitioner as Chief of Police and at the same time, designated Police Lt. Romualdo F. Clements, a non-eligible, as Officer-inCharge of the Police Department, in her memorandum dated January 12, 1968, that on February 2, 1968, pursuant to the letter of recall, the Civil Service Commission returned the appointment papers of petitioner without action, duly excepted to by petitioner in his motion for reconsideration dated February 16, 1968; that on May 2, 1968, the Civil Service Commission attested and approved the appointment of petitioner as such Chief of Police, in its 3rd Indorsement, pertinent portion of which reads as follows: In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan, in its meeting of September 26, 1967, notifying this Office that the appointment of Mr, Bayani Bernardo as Chief of Police of Malolos has not been confirmed by said Council, and as the consent of the Municipal Council is a mandatory requirement under Section 1 of Rep. Act 1551, the said appointment is considered null and void. In view thereof, the attached appointment of Mr. Isidro M. Javier has been approved as permanent under Section 24 (b) of R.A. 2260...;

that in its letter to respondent dated July 9, 1968 wherein its ruling contained in the aforequoted 3rd Indorsement was reiterated, the Civil Service Commission directed respondent "that steps be taken immediately to install Mr. Javier as Chief of Police of that Municipality (Malolos)"; that notwithstanding the aforementioned ruling and directive, respondent neglected and refused to reinstate petitioner to tile position of Chief of Police of Malolos which act is specifically enjoined upon her as Municipal Mayor and public officer, in Sec. 19, Article IV of Rep. Act 2260 otherwise known as the Civil Service Act o)f 1959; that as a result of respondent's refusal to perform the act enjoined upon her by law, petitioner was deprived of his salary since November 8, 1967 up to his ouster on January 13, 1968 and from then on up to the present; that as a further consequence of the inaction of respondent, petitioner suffered social humiliation and embarrassment, was exposed to public ridicule, causing him mental anguish thereby sustaining moral damages in the amount of P5,000.00 and was forced to engage counsel to prosecute his rights for the sum of Pl,000.00 attorney's fees. Respondent denies the material allegations of the petition and as special and affirmative defenses alleges that one Bayani Bernardo was appointed Chief of Police of Malolos by the then Mayor Jovencio C. Caluag on September 4, 1967; that likewise, Isidro M. Javier, petitioner herein, was appointed Chief of Police of the same municipality on November 8, 1967 by the then Mayor Victorino B. Aldaba, both of which appointments were approved by the Civil Service Commission; that in justifying the approval of the appointment of Bayani Bernardo, despite lack of consent of the Municipal Council, the Civil Service Commission stated in its 7th indorsement dated January 17, 1968, as follows: ...The non-retention of the phrase "With the consent of the Municipal Council " found in Section lf of the Republic Act No. 1551 (effective June 16, 1966) which, insofar as pertinent, x x x only shows the clear intention of the lawmaking body to amend the provision first above quoted by the Police Act of 1966 which vest in the Mayor the sole authority to appoint members of the police force with exception of course, of cities whose charters may require the participation of the council in such matters. Furthermore, the Decentralization Act of 1967 (effective September 12, 1967) does not require the consent of the Municipal Council on the appointment of policemen. ... that the same Commission, however, in approving the appointment of petitioner Isidro Javier, stated in its 3rd indorsement of May 2, 1968, as follows: ... In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan, in its meeting of September 26, 1967 notifying this Office that the appointment of Mr. Bayani Bernardo Chief of Police of Malolos, Bulacan has not been confirmed by said Council as the consent of the Municipal Council is a

mandatory requirement under Sec. 1 of Republic Act 1551, the said appointment is considered null and void. In view thereof, the attached appointment of Mr. Isidro M. Javier has been approved ... that in view of the obvious conflict of both actions of the Civil Service Commission which virtually renders the two appointments apparently valid, respondent is placed in a set of circumstances wherein her action in favor of either of the appointees may render her personally liable for salaries and other damages in favor of the other. Having been granted the right to intervene, Bayani Bernardo moved to dismiss the petition on the grounds that the cause of action of petitioner has already prescribed and/or is barred by the Statute of Limitations and that the present petition is not founded on a clear, complete, undisputed and indubitable legal right. However, having been filed out of time, the motion to dismiss was not resolved and intervenor was declared in default in the order of this Court dated September 26,1969. The following facts have been admitted by the parties: that petitioner Isidro M. Javier was appointed Chief of Police of Malolos, Bulacan on November 7,1967 by the then Mayor Victorino B. Aldaba, and approved by the Civil Service Commission on May 2, 1968; that petitioner took his oath of office as such on November 8, 1967 and immediately assumed the position and discharged his duties until January 13, 1968 when he was separated from office by respondent Municipal Mayor Purificacion Reyes; that respondent recalled the said appointment of petitioner on January 3,1968 pursuant to which said appointment was returned by the Civil Service Commission returning his appointment on the basis of which the said commission reconsidered the same and approved his appointment on May 2, 1968; that since May 2, 1968 to the present, respondent has not reinstated the petitioner notwithstanding a follow-up letter circular dated July 9, 1968 of the Commission of Civil Service, directing the immediate reinstatement of petitioner; that one Bayani Bernardo was also appointed Chief of Police of Malolos, Bulacan on September 4,1967, approved by the Commissioner of Civil Service on September 17,1967; and that said appointment of Bayani Bernardo by the then Mayor Jovencio Caluag was 1 not referred to the Police Commission for decision. (pp. 164-168, Record) The legal questions involved are as follows: (1) When an appointment to the position of municipal chief of police was made by a municipal mayor and said appointment was not approved by the municipal council and such lack of approval lasted for more than ninety (90) days from the issuance of the appointment, will Sec. 8 of R.A. 4864, otherwise known as the Police Act of 1966 apply?

(2) When two appointments to one and the same position were both approved by the Civil Service Commission on the basis of two legal provisions, which one will 2 prevail over the other ? (Pp. 1-2, Appellant's Brief) The Court finds that preeminently, the question is: Between the petitioner's appointment and that of Bayani Bernardo, which prevails? It shall be recalled that the petitioner was appointed Chief of Police of Malolos, Bulacan, on November 7, 1967, by then Mayor Victorino Aldaba and the following day, took his oath of office. He discharged the powers of the office until January 13, 1968 when the respondent, who had meanwhile succeeded as local chief executive, and in an apparent political maneuver, removed him in favor of Bayani Bernardo. On the other hand, Bernardo never assumed office or took his oath. It cannot be said, then, that he had accepted his appointment. Such an appointment being ineffective, we hold that the petitioner's appointment prevails. Acceptance is indispensable to complete an appointment. The fact that Bernardo's appointment was confirmed by the Civil Service Commission does not complete it since confirmation or attestation by 3 the Commission, although an essential part of the appointing process, serves merely to assure the 4 eligibility of the appointee. Furthermore, Bernardo never contested the petitioner's right to office. He did, of course, intervene in themandamus suit, but it was a belated effort to assert his alleged rights. It is not indicative of an interested party. It was too little and too late. Bernardo's argument that he had thought it "prudent" to await a clarification on the double appointments comes as a lame excuse. He should have challenged the petitioner's subsequent appointment, rather than allow events to take their course. The Court believes that he is guilty of laches. On the other hand, we cannot say the same thing as far as the petitioner is concerned. The records show that he was appointed on November 7, 1967, and the following day, November 8, 1967, he took his oath of office and discharged the duties appurtenant thereto until January 13, 1968, when the succeeding mayor, the herein respondent Purificacion Reyes, recalled his appointment and appointed another. Thereupon, the petitioner went to the Civil Service Commission to ask for reinstatement. Finally, he brought suit for mandamus. These acts amounted to acceptance and gave rise to a vested 6 right to the office in his favor. This case should be distinguished from Cristobal v. Melchor, where we held that a party is not precluded by laches from pursuing reinstatement (notwithstanding the lapse of the one-year period within which to sue on quo warranto.) In that case, we were impressed by the efforts of the dismissed employee to seek reinstatement upon assurances from his superiors that one would be
7 5

forthcoming. Moreover, we said that Ingles v. Mutuc, in which we ordered reinstatement, was the law of the case among the parties, although the dismissed employee was not a party thereto. In the case at bar, Bayani Bernardo never undertook steps that would have convinced us that he was interested in, or had accepted, the appointment. Let the Court say that it would have been differently 9 minded had he done so. Under the circumstances, there is no necessity in delving on the questions raised at the outset. Our findings herein render them moot, and academic. WHEREFORE, the respondent Mayor, or her successor in office, as well as the respondent, the Municipality of Malolos, Bulacan, are ORDERED to REINSTATE the petitioner to office of Chief of Police, Malolos, Bulacan, or its equivalent, or to any position equivalent in rank and pay, subject to the requirements of age and fitness, and to PAY him back salaries equivalent to five (5) years without qualification or deduction. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur.

without the dismissed workers having voluntarily vacated their posts, amounted to their removal in violation of their secure tenure. G.R. No. L-21691 September 15, 1967

RAMON V. MITRA, petitioner-appellee, vs. ABELARDO SUBIDO, in his capacity as Acting Commissioner of Civil Service, ET AL., respondentsappellants. Garcia, Perez and Sikat for petitioner-appellee. Office of the Solicitor General for respondents-appellants.

ANGELES, J.: This is an appeal from the decision of the Court of First instance of Manila, dated July 26, 1963, in Civil Case No. 53006, entitled Ramon V. Mitra, petitioner, versus Abelardo Subido, et al., respondents, declaring null and void the order of the Acting Commissioner of Civil Service terminating the services of Ramon V. Mitra as Senior Technical Assistant in the Office of the Mayor, City of Manila, and ordering the respondent City Auditor to authorize the other respondent City Treasurer to pay the salary of the petitioner beginning January 16, 1963, and during his tenure of office as Senior Technical Assistant in the Office of the City Mayor, Antonio J. Villegas. The record of the proceeding had in this case in the court a quo shows the antecedent facts that gave rise to the controversy, as follows: Effective July 1, 1962, Mayor Antonio J. Villegas, of the City of Manila, appointed the petitioner as Senior Technology Assistant in his office, with compensation at the rate of P8,400 per annum. This appointment was forwarded to the Civil Service Commission for approval, and after processing the same, was released with the required approval as follows: APPROVED: subject to the usual physical and medical examination. Subject to the availability of funds As an exceptional case under Sec. 256 of the Revised Administrative Code. (x) A. del Rosario Commissioner of Civil Service By:

Footnotes 1 Rollo, 34-38. 2 Id., 38-39. 3 Mitra v. Subido, No. L-21691, September 15, 1967, 21 SCRA 127. 4 Villanueva v. Balallo, No. L-17745. October 31, 1963, 9 SCRA 407. 5 Brief for Respondent-Appellant, 8. 6 Mitra v. Subido, supra. 7 No. L-43203, July 29,1977, 78 SCRA 175. 8 No. L-20390. November 29, 1968, 26 SCRA 171. 9 In Lacson vs. Romero, 84 Phil. 740 (1949) as well as Santos vs. Mallare, 87 Phil. 289 (1950), the Court decreed reinstatement following timely appeals by the dismissed employees. We held therein that the succeeding appointments issued,

(SGD) EPI REY PANGRAMUYEN Chief, Personnel Transaction Division (x) Provided the provisions of Par. 3, Sec. 23 of Republic Act Act 2260 have been observed. The appointee Ramon V. Mitra qualified for and assumed the position of Senior Technical Assistant in the Office of the Mayor of Manila on said date, July 1, 1962. Since then, he discharged the duties of the position and was paid the corresponding salary for his services, until January 15, 1963. On January 11, 1963, the Acting Commissioner of Civil Service, Abelardo Subido, wrote to the City Mayor informing him that the appointment extended to the petitioner was in violation of the certification requirement prescribed by the Civil Service Law and was incomplete, because the approval thereof by Epi Rey Pangramuyen, Chief, Personnel Transactions Division, was "ultra vires," the latter having acted beyond the scope of his delegated authority. In the same communication, the acting Commissioner of Civil Service ordered the termination of the services of Ramon V. Mitra, upon receipt of said letter by the City Mayor, who was "requested to notify accordingly the employee affected and to advise" the Civil Service Commission of the date of said notice. On January 14, 1963, the said letter-order of the Acting Commissioner of Civil Service was received by the City Mayor who, on the same date, returned it to the sender with a first indorsement wherein he explained that the duties of Ramon V. Mitra as Senior Technical Assistant in his office involved the knowledge of the law profession and as such, was entitled to the full benefits of Republic Act 1080, as amended. In the concluding paragraph of the indorsement, the City Mayor requested the Commissioner to withdraw his aforesaid letter-order of January 11, 1963, terminating the services of the petitioner. On January 14, 1963, the Acting Commissioner of Civil Service simultaneously sent to the City Treasurer and the City Auditor, both of Manila, and the General Manager of the Government Service Insurance System communications furnishing each of them with a copy of his order terminating the services of the petitioner as Senior Technical Assistant in the Office of the Mayor, City of Manila.1awphl.nt On January 17, 1963, the City Auditor wrote a letter to the City Treasurer requesting that the salary of the petitioner Ramon V. Mitra be suspended beginning with the period from January 16 to 31, 1963. The City Treasurer forwarded this communication with his first indorsement to the City Mayor informing the latter that the salary of Ramon V. Mitra would be suspended corresponding to the period from January 16 to 31, 1963. The same communication was returned on January 25, 1963 by the City Mayor with his second indorsement to the City Treasurer directing him to continue paying the salary of the petitioner unless otherwise expressly ordered by his Office. The foregoing communications of the City Mayor did not in any way afford relief in the predicament that the petitioner found himself in, as the Acting Commissioner of Civil Service did not

heed the request of the City Mayor to withdraw the letter-order of the former terminating the services of the petitioner; similarly, the City Treasurer did not comply with the directive contained in the second indorsement of the City Mayor, dated January 25, 1963, directing him to continue paying the salary of petitioner; and accordingly, Ramon V. Mitra did not receive his salary for the period from January 16 to 31, 1963. Consequently, on February 5, 1963, Ramon V. Mitra filed with the Court of First Instance of Manila, this case which is a petition for mandamus with preliminary mandatory injunction against Abelardo Subido, in his capacity as Acting Commisisoner of Civil Service; Manuel Cudiamat, in his capacity as City Treasurer of Manila; and Jose Erestain, in his capacity as City Auditor. Pending trial of the case on the merits, petitioner prayed for the issuance of a writ of preliminary mandatory injunction to restrain the Acting Commisisoner of Civil Service from enforcing his order of January 11, 1963, terminating his services as Senior Technical Assistant in the Office of the Mayor, and to order the City Auditor and City Treasurer to authorize and pay, respectively, his salary corresponding to the period from January 16 to 31, 1963, and those which may thereafter become due and payable. On the basis of the evidence adduced at the hearing thereof, however, the lower court found no extreme necessity justifying the issuance of the writ prayed for; and in its order dated March 9, 1963, denied the prayer for the issuance of the writ of preliminary mandatory injunction. Finally, after due trial on the merits in the main cause, the court a quo on July 26, 1963, rendered the decision appealed from, holding that the appointment of petitioner Ramon V. Mitra as Senior Technical Assistant in the Office of the Mayor at P8,400.00 per annum effective July 1, 1962, bears the valid approval of the Civil Service Commission and is complete; that the order of the Commissioner of Civil Service dated March 11, 1960 did not limit the authority of the Chief, Personnel Transactions Division of said Office to approve appointments; that his being a member of the bar, in relation to the position of Senior Technical Assistant in the Office of the Mayor is equivalent to "first grade" eligibility under Republic Act 1080, as amended by Republic Act 1844, because the position involves professional knowledge of the law; that the certification requirement of the law is not necessary in the appointment; that the principle of exhaustion of adsition involves professional knowledge of the law; that the Acting Commissioner of Civil Service has no authority to order the cancellation of petitioner's appointment; and that the order of the Acting Commissioner terminating the services of the petitioner dated January 11, 1963, was null and void. Conformably thereto, the Court rendered the decision appealed from which, as aforestated in the opening paragraph of this opinion, declared null and void the order of the Acting Commissioner of Civil Service terminating the services of Ramon V. Mitra as Senior Technical Assistant in the Office of the Mayor of Manila, and ordered the respondent City Auditor of said city to authorize the City Treasurer to pay the salary of the petition of the petitioner beginning January 16, 1963, and during his tenure of office in his position as Senior Technical Assistant. Respondent Acting Commissioner of Civil Service and City Auditor of Manila have come to Us on appeal, specifically assigning as errors the above-enumerated holdings of the lower court.

Appellants contend that the appellee, Ramon V. Mitra, does not possess the necessary eligibility required by the position to which he was appointed. It is alleged that his being a member of the bar, considered in relation to his position as Senior Technical Assistant in the Office of the Mayor, City of Manila, which does not involve the knowledge edge of the law profession, is equivalent to "second grade" civil service eligibility under Republic Act No. 1080, as amended by Republic Act No. 1944, and is, therefore, not appropriate for the position aforementioned which involves a compensation of P8,400.00 per annum and requires a "first grade" civil service eligibility. We shall examine the provision of the law invoked in relation to the duties of the appellee under the position in question. Section 1 of Republic Act 1080, as amended by Republic Act 1844 provides among others, as follows: Sec. 1. The bar examinations and the examinations given by the various boards of examiners of the Government are declared as civil service examinations, and shall, for purposes of appointment to the positions in the classified service the duties of which involve the knowledge of the respective professions, except positions requiring highly specialized knowledge not covered by the ordinary board examinations, be considered as equivalent to first grade regular examination given by the Bureau of Civil Service if the profession requires at least four years of study in college, and as equivalent to the second grade regular examination if the profession requires less than four years of college study: Provided, however, That such bar or board examination shall be equivalent to the next lower grade of civil service examination when the person is to be employed in a position other than one requiring his professional knowledge; . . . . On the other hand, as Senior Technical Assistant in the Office of the Mayor, City of Manila, petitioner was assigned to perform the following duties: 1. To study and make the necessary recommendation on matters involving the legal, technical and administrative aspects of the city government administration, for appropriate consideration by the undersigned; 2. To undertake research, legal or otherwise, to determine the legality and/or feasibility of the execution of projects of the city which are calculated to insure the promotion of the best interest and welfare of the city residents, and to make the necessary report thereon for consideration; 3. To take action on official matters wherein his qualifications, knowledge and experience are required and may be utilized to fullest advantage; and 4. To perform such other assignments as may be given to him from time to time. It is argued by the appellants that the above-enumerated duties do not involve knowledge of the legal profession as contemplated in the law, aforecited. It is suggested that a distinction should

be made between "professional knowledge" and "legal knowledge;" and that while Republic Act 1080, as amended, requires professional knowledge of the law, the position in question, on the other hand, like any other position in the government service, calls only for some legal knowledge. The implication is, that one need not be a lawyer to undertake legal research to determine the legality of city projects, and to study and make necessary recommendation on matters involving the legal aspects of the city government administration for consideration of the Mayor of the City of Manila. We find these contention and suggestion devoid of any reasonable basis. The duties devolving upon the position of Senior Technical Assistant as above described involve the capacity not only of finding what and where the law applicable to a given situation is, but also of making legal research to know the principles evolved by the courts in construing that law as applied to the given situation. Only lawyers, by reason of their academic preparation and training in law, are technically equipped with knowledge to handle such duties. When the law or the duties of the position to be filled speaks of legal work, it means proficiency in law is required, which only lawyers are presumed to possess. Likewise, in passing upon legal matters involving the corporate and governmental affairs of the City of Manila, it is indispensable that the incumbent must be a lawyer, otherwise, he would not be in a position to determine the legality of a course of action which the office of the Mayor may desire to take. Neither is the observation of herein appellants, that the City Fiscal of Manila as legal adviser of the city, is the proper person to pass upon the legal aspects of city administration, entirely correct, for such contention strikes not only at the very prerogative of the power that created the position in question, but also because it would deny the Mayor of Manila a chance to ascertain for himself in the first instance, through his assistants, the legal aspects of matters or problems brought before him. For these reasons, appellee's admission to the bar, in relation to the position of Senior Technical Assistant in the Office of the Mayor, should be considered as equivalent to first grade eligibility under the provisions of Republic Act 1080. It is next argued by the appellants that the appointment of Ramon V. Mitra as Senior Technical Assistant in the Office of the Mayor of Manila is in violation of the "certification requirement" of the Civil Service Law, relying upon the provisions of Section 23, Republic Act No. 2260: . . . if the vacancy is not filled by promotion as provided herein, then the same shall be filled by transfer of present employees in the government service, by reinstatement, by reemployment of persons separated through reduction in force, or by certification from appropriate registers of eligibles in accordance with rules promulgated in pursuance of this Act. It is apparent from the foregoing provision of the Civil Service Law that prior certification of eligibles is required only if a position is not filled by promotion, by transfer of persons already in the government service, and by reinstatement or reemployment of persons separated from the service through reduction in force. In the case at bar, it was shown during the trial that the appointee was formerly employed in the Department of Foreign Affairs and the Central Bank of the Philippines. Obviously, therefore, the appointment was a reinstatement, and there was no necessity of obtaining prior certification of eligibles from the Civil Service Commission.

Appellants further maintain that the appellee in this case, had not exhausted administrative remedies, for appeal from the order of the Commissioner of Civil Service to the President was yet available, and it was error on the part of the Court of First Instance of Manila to entertain the premature action instituted against them. We find no merit in this argument. It has been repeatedly held that the principle requiring the previous exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal one (Tapales vs. The President & Board of Regents of the U.P., L-17523, March 30, 1963), where the controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction (Mangubat vs. Osmea, L-12837, April 30, 1959), where the respondent is a department secretary whose acts as an alter ego of the President bear the implied or assumed approval of the latter (Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, G.R. No. L-15982, May 31, 1963), or where there are circumstances indicating the urgency of judicial intervention (Alzate vs. Aldaba, L-14407, February 29, 1960; Demaisip vs. Court of Appeals, L13000, September 29, 1959). Similarly, when, as in this case, in terminating the services of the appellee, the Commissioner of Civil Service acted summarily without any semblance of compliance, or even an attempt to comply with the elementary rules of due process, when the order is immediately executed and petitioner was immediately removed from office, then appeal was not a plain, speedy and adequate remedy in the ordinary course of law (Fernandez, et al. vs. Cuneta, et al., G.R. No. L14392, May 30, 1960), and the employee adversely affected may forthwith seek the protection of the courts. Moreover, appellant Commissioner of Civil Service maintains that in terminating the services of the appellee, he was not acting in the exercise of his power to impose disciplinary measures to erring subordinate officers and employees which is subject to review by the Civil Service Board of Appeals and the President, but in pursuance of his power to approve or disapprove appointments, in the exercise of which latter function, his jurisdiction is exclusive (Sec. 16 [h], Republic Act 2260), which all the more renders the claim of non-exhaustion of administrative remedies in this case untenable (Billy Millares vs. Abelardo Subido, et al., L-23281, August 10, 1967). Regarding the holding of the lower court that the Commissioner of Civil Service had no power to cancel the appointment of the appellee, the appellants argue that said Commissioner had power to do so because the appointment in question was null and void from the beginning, and that in terminating the services of the appellee, he was merely enforcing the provisions of the Civil Service Law which should not be construed as a removal of the appointee from office. In justifying his act, reliance is made by the Commissioner of Civil Service upon Section 16 of Republic Act No. 2260, otherwise known as the Civil Service Act of 1959, and Section 693 of the Revised Administrative Code, to wit: Sec. 16. Powers and duties of the Commissioner of Civil Service. It shall be among the powers and duties of the Commissioner of Civil Service: (f) To make investigations and special reports upon all matters relating to the enforcement of the Civil Service Law and rules; to inspect and audit the agencies' personnel work programs to determine compliance with the Civil Service Law, rules, standards and other requirements; and to take corrective measures when unsatisfactory situations are found; (Republic Act No. 2260) [Emphasis Ours]

Sec. 693. Opinion of the Commissioner of Civil Service on Controverted Questions Related to the Service. A disbursing officer, the head of any department, bureau, or office, or the Auditor General, may apply for, and the Commissioner of Civil Service shall render, a decision upon any question as to whether a position is in the classified or in the unclassified civil service, or whether the appointment of any person to a classified position has been made in accordance with law, which decision, when rendered, shall be final unless reversed by the President of the Philippines on appeal. (Revised Administrative Code.) There is no sense in denying that the Commissioner of Civil Service possesses ample powers to review appointments made to positions in the civil service, and to take corrective measures when unsatisfactory situations are found to exist under the above-quoted provisions of the law. It is also laudable that the Commissioner of Civil Service sees to it that the provisions of the Civil Service Law are properly enforced. However, the power to take corrective measures should be exercised with caution. It may be stated as a general rule that an appointment once made is irrevocable and not subject to reconsideration. This view represents the great weight of authority (note found at page 135 American Law Reports, supported by innumerable decisions). The rule is qualified, however, where the assent, confirmation or approval of some other officer or body is needed before the appointment may issue and be deemed complete. Necessarily, this calls for a determination in any given situation whether or not all the acts necessary to make an appointment complete have been performed. 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 be complete only when such assent or confirmation is obtained. (Mechem, Law of Public Offices and Officers, Sec. 112, p. 46) Under our Civil Service Law and the rules promulgated thereunder, an appointment to a position in the civil service must be submitted to the Commissioner of Civil Service for approval, i.e., for determination whether the proposed appointee is qualified to hold the position, and whether or not the pertinent rules had been followed in making the appointment. We have said in this connection that the appointment made by an officer duly empowered to make it, is not final and complete until after the Commissioner of Civil Service has certified that such appointment may be made (Gorospe vs. Secretary of Public Works, L-11090, January 31, 1959). The acts of the head of Department or Office making the appointment and the Commissioner of Civil Service acting together, though not concurrently, but consecutively, are necessary to make an appointment complete. And there should be no question that for an appointee in the clasiffied position in the civil service to be entitled to the protection of the law against unjust removal, his appointment must receive the approval of the Commissioner of Civil Service (Favis vs. Rupisan, et al., L-22823, May 19, 1966).

Applying the rules above-explained, We hold that the appointment of the appellee had become complete when the appellant Commissioner of Civil Service issued his order terminating the services of the former. The appointment in question was extended to the appellee on July 1, 1962, by virtue of which the appointee assumed the duties of his position. Under the same appointment as approved by the Chief, Personnel Transactions Division in the name of the Commissioner of Civil Service, the City Auditor and City Treasurer allowed and paid, respectively, the salary of the appellee for the period from July 1, 1962 to January 15, 1963, a period of six and a half months. In the case of appointments made by local officials and attested to by Provincial Treasurers and City Treasurers under Section 20 of the Civil Service Law, the appointments are deemed to have been properly made if within a period of one hundred eighty days the Commissioner of Civil Service fails to make any correction or revision thereof. The same section of the law ordains that the Commissioner should make a review of actions taken in the discharge of delegated authority thereunder, which include those performed by chiefs of divisions and primary units in his office, to insure compliance with standards and regulations. After the lapse of the period therein allowed, corrections of mistakes may no longer be had, considering that after the lapse of that time the probationary period of an employee under his appointment also ends, and his appointment automatically becomes permanent. We find no plausible reason why the presumption of regularity which attaches to appointments attested to by Provincial and City Treasurers after the lapse of six months should not be applied to appointments submitted directly to the Civil Service Commissioner and approved in his name by a Chief of Division in his office. Even on the premise that the appointment of the appellee did suffer from an infirmity occasioned by the mistake of the division chief concerned who approved the appointment, the same should now be deemed complete under the circumstances and reasons above-enumerated. There should be some point of time when an appointment made and approved should not be disturbed by reason of some violation of certain office rules that has been due to mere inadvertence. Unless the appointment is an absolute nullity, or in the absence of fraud on the part of the appointee, the irregularity must be deemed cured by the probational and absolute appointment of the appointee and should be considered conclusive. A removal from office takes place after title to the office has become vested in the appointee, whereas revocation of an appointment is had, if it is to be successful, before the appointment is complete (42 Am. Jur. 959). The moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable right, which is protected not only by statute, but also by the Constitution, and it cannot be taken away from him, either by revocation of the appointment or by removal, except for cause, and with previous notice and hearing, consistent with Section 4 of Article XII of our fundamental law, and with the constitutional requirement of due process. And when, as in this case, the appointee has been regularly performing the duties of his office and been paid the corresponding salary for more than six months already under a known appointment that was never questioned by either the City Treasurer or the City Auditor of Manila before granting the salary of the appellee, the act of the Acting Commissioner of Civil Service in summarily terminating the services of the appointee may not be said to be a reconsideration of the appointment, but is in fact a removal from office. Like a judgment that is not void upon its face, the appointment in question is not "the serpent that may be attacked or slain at sight." The power to remove from office cannot lightly be inferred from the duty of the Commissioner of Civil Service to make investigations and take corrective measures when unsatisfactory situations are found to exist.

Under the circumstances of this case, that duty should be exercised, if it is to be exercise at all, with the end in view of ratifying the appointment in question should he believe that the act of his subordinate in approving the appointment is not sufficient, considering that the appellee has been found qualified for the position to which he was appointed. In the same token, We find it unnecessary to pass upon the authority of the Chief of Personnel Transactions Division of the Civil Service Commission to approve the disputed appointmentof the appellee. WHEREFORE, and considering all the foregoing, the instant appeal should be, as hereby it is, dismissed, and the decision appealed from affirmed in toto. No pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar Sanchez, Castro and Fernando, JJ., concur. G.R. No. 86439 April 13, 1989 MARY CONCEPCION BAUTISTA, petitioner, vs. SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents. Mary Concepcion Bautista for and in her own behalf. Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin

PADILLA, J.: The Court had hoped that its decision in Sarmiento III vs. Mison, would have settled the question of which appointments by the President, under the 1987 Constitution, are to be made with and without the review of the Commission on Appointments. The Mison case was the first major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution which provides: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.
1

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's experience under the 1935 and 1973 Constitutions, held that only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution." All other appointments by the President are to be made without the participation of the Commission on Appointments. Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid and in accordance with the Constitution. The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect and obedience accorded to it by the people, especially the officials of government, who are the subjects of its commands. Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or not the appointment by the President of the Chairman of the Commission on Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on Appointments (CA, for brevity). Once more, as in Mison, the Court will resolve the issue irrespective of the parties involved in the litigation, mindful that what really matters are the principles that will guide this Administration and others in the years to come. Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the (CHR), is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the President with the consent of the 2 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. It provides: (c) The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. The above conclusions appear to be plainly evident and, therefore, irresistible. However, the presence in this case of certain elements absent in the Mison case makes necessary a closer scrutiny. The facts are therefore essential. On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion Bautista as"Acting Chairman, Commission on Human Rights." The letter of designation reads: 27 August 1987 M a d a m: You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes.

M a d a m:

R A Z O N C . A Q U I N O

Commission on Human Rights Pasig, Metro Manila

Pursuant to the provisions of existing laws, the following are hereby appointed to the positions indicated opposite their respective names in the Commission on Human Rights: MARY CONCEPCION BAUTISTA Chairman ABELARDO L. APORTADERA, JR Member SAMUEL SORIANO Member HESIQUIO R. MALLILLIN Member NARCISO C. MONTEIRO Member By virtue hereof, they may qualify and enter upon the performance of the duties of the office furnishing this Office and the Civil Service Commission with copies of their oath of office. V e r y t r u l y y o u r s , C O R A Z O

HON. MARY CONCEPCION BAUTISTA

Realizing perhaps the need for a permanent chairman and members of the Commission on Human 4 Rights, befitting an independent office, as mandated by the Constitution, the President of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent appointment as Chairman of the Commission. The appointment letter is as follows: 1 7 D e c e m b e r 1 9 8 8 The Honorable The Chairman

N C . A Q U I N O
5

E P C I O N B A U T I S T A SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, 1988 in Manila.

It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she could qualify and enter upon the performance of the duties of the office of Chairman of the Commission on Human Rights, requiring her to furnish the office of the President and the Civil Service Commission with copies of her oath of office. On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of the oath of office is as follows: OATH OF OFFICE I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati, Metro Manila having been appointed to the position of CHAIRMAN of the Commission on Human Rights, do solemnly swear that I will discharge to the best of my ability all the duties and responsibilities of the office to which I have been appointed; uphold the Constitution of the Republic of the Philippines, and obey all the laws of the land without mental reservation or purpose of evasion. SO HELP ME GOD. M A R Y C O N C

C h i e f

J u s t i c e

Immediately, after taking her oath of office as Chairman of the Commission on Human Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman of the Commission on Human Rights which, as previously stated, she had originally held merely in an acting capacity beginning 27 August 1987. On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on Appointments requesting her to submit to the Commission certain information and documents as required by its rules in connection with the confirmation of her appointment as Chairman of the 7 Commission on Human Rights. On 10 January 1989, the Commission on Appointments' Secretary again wrote petitioner Bautista requesting her presence at a meeting of the Commission on Appointments Committee on Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that 8 would deliberate on her appointment as Chairman of the Commission on Human Rights. On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments stating, for the reasons therein given, why she considered the Commission on Appointments as having no jurisdiction to review her appointment as Chairman of the Commission on Human Rights. The petitioner's letter to the Commission on Appointments' Chairman reads:

S u p r e m e C o u r t o f t h e P h i l i p p i n e s
6

SENATE PRESIDENT JOVITO R. SALONGA Chairman Commission on Appointments Senate, Manila S i r:

We acknowledge receipt of the communication from the Commission on Appointments requesting our appearance on January 19, 1989 for deliberation on our appointments. We respectfully submit that the appointments of the Commission commissioners of the Human Rights Commission are not subject to confirmation by the Commission on Appointments. The Constitution, in Article VII Section 16 which expressly vested on the President the appointing power, has expressly mentioned the government officials whose appointments are subject to the confirmation of the Commission on Appointments of Congress. The Commissioners of the Commission on Human Rights are not included among those. Where the confirmation of the Commission on Appointments is required, as in the case of the Constitutional Commissions such as the Commission on Audit, Civil Service Commission and the Commission on Elections, it was expressly provided that the nominations will be subject to confirmation of Commission on Appointments. The exclusion again of the Commission on Human Rights, a constitutional office, from this enumeration is a clear denial of authority to the Commission on Appointments to review our appointments to the Commission on Human Rights. Furthermore, the Constitution specifically provides that this Commission is an independent office which: a. must investigate all forms of human rights violations involving civil and political rights; b. shall monitor the government's compliance in all our treaty obligations on human rights. We submit that, the monitoring of all agencies of government, includes even Congress itself, in the performance of its functions which may affect human rights; c. may call on all agencies of government for the implementation of its mandate. The powers of the Commission on Appointments is in fact a derogation of the Chief Executive's appointing power and therefore the grant of that authority to review a valid exercise of the executive power can never be presumed. It must be expressly granted.

The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the President of Commissioners of the Commission on Human Rights. In view of the foregoing considerations, as Chairman of an independent constitutional office. I cannot submit myself to the Commission on Appointments for the purpose of confirming or rejecting my appointment. V e r y t r u l y y o u r s ,

S i r:

A U T I S T A C h a i r m a n
9

HON. CATALINO MACARAIG, JR. Executive Secretary Malacanang, Manila

This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights. As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments, assembled in plenary (session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. This is to inform you that the Commission on Appointments, likewise assembled in plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights.

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission 10 on Human Rights" and informing Secretary Macaraig that, as previously conveyed to him in a letter of 25 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. The letter reads:

1 F e b r u a r y 1 9 8 9

L V . V I C ATTY. MARY CONCEPCION BAUTISTA T Commission on Human Rights O Integrated Bar of the Philippines R Bldg. Pasig, Metro Manila I N Dear Atty. Bautista: O Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the Commission on Appointments, assembled in plenary (session) S earlier today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the e disapproval of your ad interim appointment as Chairperson of the Commission on c Human Rights is respectfully conveyed. r e Thank you for your attention. t a r y
1 1

On the same date (1 February 1989), the Commission on Appointments' Secretary informed petitioner Bautista that the motion for reconsideration of the disapproval of her "ad interim appointment as Chairman of the Commission on Human Rights" was denied by the Commission on Appointments. The letter reads as follows: 1 F e b r u a r

The PresidentU designated PCHR commissioner Hesiquio R. Mallillin as acting chairman of the Commission pending the resolution of Bautista's case which had L been elevated to the Supreme Court. V . The President's action followed after Congressional Commission on Appointments Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on V to her position after her appointment was not confirmed for the second time. I C For all practical purposes, Salonga said Bautista can be accused of usurpation of T authority if she insists to stay on her office. O R In effect, the President had asked Bautista to vacate her office and give way to I 13 Mallillin (Mari Villa) N O On 20 January 1989, or even before the respondent Commission on Appointments had acted on her "ad interimappointment as Chairman of the Commission on Human Rights" petitioner Bautista filed S with this Court the present petition for certiorari with a prayer for the immediate issuance of a e restraining order, to declare "as unlawful and unconstitutional and without any legal force and effect c any action of the Commission on Appointments as well as of the Committee on Justice, Judicial and r Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman e of the Commission on Human Rights, on the ground that they have no lawful and constitutional t 14 authority to confirm and to review her appointment." a r The prayer for temporary restraining order was "to enjoin the respondent Commission on y Appointments not to proceed further with their deliberation and/or proceedings on the appointment 1 of the petitioner ... nor to enforce, implement or act on any order, resolution, etc. issued in the 15 course of their deliberations." 2 In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission" pending the resolution of Bautista's case which had been elevated to the Supreme Court. The news item is here quoted in full, thus Aquino names replacement for MaryCon President Aquino has named replacement for Presidential Commission on Human Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew by the Congressional commission on appointments. Respondents were required to file comment within ten (10) days. On 7 February 1989, petitioner filed an amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and praying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to exercise the functions of chairman and to refrain from demanding courtesy resignations from officers or separating or dismissing employees of the Commission. Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issue a temporary restraining order directing respondent Mallillin to cease and desist from effecting the dismissal, courtesy resignation, i removal and reorganization and other similar 17 personnel actions. Respondents were likewise required to comment on said amended petition with allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof.
16

Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and 18 Human Rights filed a comment to the amended petition on 21 February 1989. Petitioner filed her 19 20 reply. On 24 February 1989, respondent Mallillin filed a separate comment. The Court required 21 22 petitioner to reply to respondent Mallillin's comment . Petitioner filed her reply. In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal branch of government, the Court did not issue a temporary restraining order directed against it. However, this does not mean that the issues raised by the petition, as met by the respondents' comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter of constitutional issues, in the same way that it did not in Mison. As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was extended by Her Excellency, the President a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that was for the President solely to make, i.e., not an appointment to be submitted for review and confirmation (or rejection) by the Commission on Appointments. This is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated. The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by taking the oath of office and actually assuming and discharging the functions and duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent Commission on Appointments or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for confirmation by the Commission on Appointments. The Court, with all due respect to both the Executive and Legislative Departments of government, and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could qualify and enter upon the performance of the duties of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission on Human Rights was a completed act on the part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of 23 Marbury vs. Madison. xxx xxx xxx

The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him. xxx xxx xxx Some point of time must be taken when the power of the executive over an officer, not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. .... xxx xxx xxx But having once made the appointment, his (the President's) power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. xxx xxx xxx THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989 It is respondent Commission's submission that the President, after the appointment of 17 December 1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic and in fact, that no new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee, through a valid qualification and assumption of its duties. Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such appointment to the Commission on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that the President (with Congress agreeing) may, from time to time move power boundaries, in the Constitution differently from where they are placed by the Constitution. The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with, is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create power where the

Constitution confers none. The evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the President and Congress (the latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked off certain appointments for the President to make with the participation of the Commission on Appointments, so also has the Constitution mandated that the President can confer no power of participation in the Commission on Appointments over other appointments exclusively reserved for her by the Constitution. The exercise of political options that finds no support in the Constitution cannot be sustained. Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review presidential appointments, create power to confirm appointments that the Constitution has reserved to the President alone. Stated differently, when the appointment is one that the Constitution mandates is for the President to make without the participation of the Commission on Appointments, the executive's voluntary act of submitting such appointment to the Commission on Appointments and the latter's act of confirming or rejecting the same, are done without or in excess of jurisdiction. EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989 Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the Commission on Appointments to exercise the power of review over an appointment otherwise solely vested by the Constitution in the President. Yet, as already noted, when the President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human Rights with the advice to her that by virtue of such appointment (not, until confirmed by the Commission on Appointments), she could qualify and enter upon the performance of her duties after taking her oath of office, the presidential act of appointment to the subject position which, under the Constitution, is to be made, in the first place, without the participation of the Commission on Appointments, was then and there a complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said office to this day. Nor can respondents impressively contend that the new appointment or re-appointment on 14 January 1989 was anad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments solely for the President to make, i.e., without the participation of the Commission on Appointments. Ad interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until disapproval

by the Commission on Appointments or until the next adjournment of Congress; but appointments that are for the President solely to make, that is, without the participation of the Commission on Appointments, can not bead interim appointments. EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL. Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's appointment (nomination) by the Commission on Appointments, there was greater reason for her removal by the President and her replacement with respondent Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and academic. We do not agree that the petition has become moot and academic. To insist on such a posture is akin to deluding oneself that day is night just because the drapes are drawn and the lights are on. For, aside from the substantive questions of constitutional law raised by petitioner, the records clearly show that petitioner came to this Court in timely manner and has not shown any indication of abandoning her petition. Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as follows: WHEREAS, the Constitution does not prescribe the term of office of the Chairman and Members of the Commission on Human Rights unlike those of other Constitutional Commissions; NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order: SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows: The Chairman and Members of the Commission on Human Rights shall be appointed by the President. Their tenure in office shall be at the pleasure of the President. SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eightyseven.

( S g d . ) C O R A Z O N

By the President: (Sgd.) JOKER P. ARROYO 24 Executive Secretary

C 25 Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 was issued by . the President, Sec. 2(c) of which provides: A Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall Q be appointed by the President for a term of seven years without reappointment. U Appointments to any vacancy shall be only for the unexpired term of the I predecessor. N O It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the Chairman and Members of the Commission on Human Rights which is seven (7) years without P reappointment the later executive order (163-A) speaks of the tenure in office of the Chairman and r Members of the Commission on Human Rights, which is "at the pleasure of the President." e s Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice) i 26 Concepcion in his concurring opinion in Alba vs. Evangelista, stated: d e n The distinction between "term" and "tenure" is important, for, pursuant to the t Constitution, "no officer or employee in the Civil Service may be removed or suspended except for cause, as provided by law" (Art. XII, section 4), and this o fundamental principle would be defeated if Congress could legally make the tenure f of some officials dependent upon the pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the expiration of his t term. 27 h e When Executive Order No. 163 was issued, the evident purpose was to comply with the constitutional provision that "the term of office and other qualifications and disabilities of the Members of the P Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution). h

As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven (7) years, without reappointment, as provided by Executive Order No. 163, and consistent with the constitutional design to give the Commission the needed independence to perform and accomplish its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made dependent on the pleasure of the President. Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman and Members of the Commission on Human Rights shall have a "term of office." Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent as the Commission on Human Rights-and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional. The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its being plainly at war with the constitutional intent of independence for the Commission. Thus MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be constitutionalized is the fact that regardless of who is the President or who holds the executive power, the human rights issue is of such importance that it should be safeguarded and it should be independent of political parties or powers that are actually holding the reins of government. Our experience during the martial law period made us realize how precious those rights are and, therefore, these must be safeguarded at all times. xxx xxx xxx MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of the Commission on Human Rights to be coterminous with the president, because the President's power is such that if he appoints a certain commissioner and that commissioner is subject to the President, therefore, any human rights violations committed under the person's administration will be subject to presidential pressure. That is what we would like to avoid to make the protection

of human rights go beyond the fortunes of different political parties or 28 administrations in power. xxx xxx xxx MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an independent Commission on Human Rights free from executive influence because many of the irregularities on human rights violations are committed by members of the armed forces and members of the executive branch of the government. So as to insulate this body from political interference, there is a 29 need to constitutionalize it. xxx xxx xxx MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I would refer to a previous inquiry that there is still a need for making this a constitutional body free or insulated from interference. I conferred with former Chief Justice Concepcion and the acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in saying that this body should be constitutionalized so that it will be free from executive control or interferences, since many of the abuses are committed by the members 30 of the military or the armed forces. xxx xxx xxx MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to Congress, this commission will be within the reach of politicians and of public officers and that to me is dangerous. We should insulate this body from political control and political interference because of the nature of its functions to investigate all forms of human rights violations which are principally committed by 31 members of the military, by the Armed Forces of the Philippines. xxx xxx xxx MR. GARCIA. The critical factor here is political control, and normally, when a body is appointed by Presidents who may change, the commission must remain above these changes in political control. Secondly, the other important factor to consider are the armed forces, the police forces which have tremendous power at their command and, therefore, we would need a commission composed of men who also 32 are beyond the reach of these forces and the changes in political administration.

xxx xxx xxx MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to function effectively, must be invested with an independence that is necessary not only for its credibility but also for the effectiveness of its work. However, we want to make a distinction in this Constitution. May be what happened was that it was referred to the wrong committee. In the opinion of the committee, this need not be a commission that is similar to the three constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be in that 33 article. xxx xxx xxx MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is not involved in the project. How sure are we that the next President of the Philippines will be somebody we can trust? Remember, even now there is a growing concern about some of the bodies, agencies and commission created by 34 President Aquino. xxx xxx xxx

A FINAL WORD It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the Commission on Human Rights (pending decision in this case) instead of appointing another permanent Chairman. The latter course would have added only more legal difficulties to an already difficult situation. WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled to all the benefits, privileges and emoluments of said office. The temporary restraining order heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or terminating personnel of the Commission on Human Rights is made permanent. SO ORDERED. Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ., concur. Fernan, C.J., took no part, having administered petitioner's oath of office. Sarmiento, J., took no part, respondent Mallillin is my godson.

.... Leaving to Congress the creation of the Commission on Human Rights is giving less importance to a truly fundamental need to set up a body that will effectively 35 enforce the rules designed to uphold human rights. PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be removed from office before the expiration of her seven (7) year term. She certainly can be removed but her removal must be for cause and with her right to due process properly safeguarded. In the case of NASECO vs. 36 NLRC, this Court held that before a rank-and-file employee of the NASECO, a government-owned corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights. If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed against her with the Ombudsman. If he finds a prima facie case against her, the corresponding information or informations can be filed with the Sandiganbayan which may in turn order her 37 suspension from office while the case or cases against her are pending before said court. This is due process in action. This is the way of a government of laws and not of men. Separate Opinions

GUTIERREZ, JR., J.: Dissenting Opinion With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too much to expect a constitutional ruling which results in absurd or irrational consequences to ever become settled. The President and Congress, the appointees concerned, and the general public may in time accept the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb. Serious students of the Constitution will continue to be disturbed until the meaning of the consent power of the Commission on Appointments is straightened out either through a re-examination of this Court's decision or an amendment to the Constitution.

Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in the first sentence clearly require confirmation by the Commission on Appointments. The officers mentioned in the third sentence just as clearly do not require confirmation. The problem area lies with those in the second sentence. I submit that we should re-examine the three groups of presidential appointees under the three sentences of Section 16. The first group are the heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The first sentence of Section 16 state they must be confirmed by the Commission on Appointments. The third group are officers lower in rank whose appointments Congress has by law vested in the President alone. They need no confirmation. The second group of presidential appointees are "all other officers of the Government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint." To which group do they belong?-Group I requiring confirmation or Group 3 where confirmation is not needed? No matter how often and how long I read the second sentence of Section 16, I simply cannot associate the officers mentioned therein as forming part of those referred to in the third sentence. Why am I constrained to hold this view? (1) If the officers in the first group are the only appointees who need confirmation, there would be no need for the second and third sentences of Section 16. They become superfluous. Any one not falling under an express listing would need no confirmation. I think the Court is wrong in treating two carefully crafted and significant provisions of the fundamental law as superfluities. Except for the most compelling reasons, which do not exist here, no constitutional provision should be considered a useless surplusage. (2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view results in the absurd consequence where one of several hundred colonels and naval captains must be confirmed but such important officers as the Governor of the Central Bank with broad powers over the nation's economy and future stability or the Chairman of the Commission on Human Rights whose office calls for no less than a constitutional mandate do not have to be scrutinized by the Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him there and who exercises control over his acts can be appointed by the President alone? Why should we interpret Section 16 in such a strange and irrational manner when no strained construction is needed to give it a logical and more traditional and understandable meaning.?

(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the word "also" in a sentence, we associate it with preceding sentences, never with the different sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank' who are appointed pursuant to law by the President "alone." This can only mean that the higher ranking officers in the second sentence must also be appointed with the concurrence of the Commission on Appointments. When the Constitution requires Congress to specify who may be appointed by the President alone, we should not add other and higher ranking officers as also appointed by heralone. The strained interpretation by the Court's majority makes the word "alone" meaningless if the officers to whom "alone" is not appended are also included in the third group. (4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment in the President alone before such an appointment is freed from the scrutiny of the Commission on Appointments. By express constitutional mandate, it is Congress which determines who do not need confirmation. Under the majority ruling of the Court, if Congress creates an important office and requires the consent of the Commission before a presidential appointment to that office is perfected, such a requirement would be unconstitutional. I believe that the Constitution was never intended to so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power of the people's elected representatives through an implied and, I must again add, a strained reading of the plain text of Section 16. Any restriction of legislative power must be categorical, express, and specific-never implied or forced. (5) The Constitution specifies clearly the presidential appointees who do not need confirmation by the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial and Bar Council screens nominees before their names are forwarded to the President. The Vice-President as a cabinet member needs no confirmation because the Constitution says so. He or she is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those falling under the third sentence of Section 16, Article VII do not have to be confirmed because the Constitution gives Congress the authority to free lower ranking officials whose positions are created by law from that requirement. I believe that we in the Court have no power to add by implication to the list of presidential appointees whom the Constitution in clear and categorical words declares as not needing confirmation. (6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an important constitutional body which helps give fuller expression to the democratic principles inherent in our presidential form of government. There are those who would render innocuous the Commission's power or perhaps even move for its abolition as a protest against what they believe is too much horsetrading or sectarian politics in the exercise of its functions. Since the President is a genuinely liked and popular leader, personally untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people would want the Commission to routinely rubberstamp those whom she appoints to high office.

Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16 was intended to check abuse or ill-considered appointments by a President who belongs to the latter class. It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly represents the people. We should not expect Congress to act only as the selfless Idealists, the wellmeaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The masses of our people are poor and underprivileged, without the resources or the time to get publicly involved in the intricate workings of Government, and often ill-informed or functionally illiterate. These masses together with the propertied gentry and the elite class can express their divergent views only through their Senators and Congressmen. Even the buffoons and retardates deserve to have their interests considered and aired by the people's representatives. In the democracy we have and which we try to improve upon, the Commission on Appointments cannot be expected to function like a mindless machine without any debates or even imperfections. The discussions and wranglings, the delays and posturing are part of the democratic process. They should never be used as arguments to restrict legislative power where the Constitution does not expressly provide for such a limitation. The Commission on Human Rights is a very important office. Our country is beset by widespread insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use force and violent means against those who hold opposite views appears irresistible to the holders of both governmental and rebel firepower. The President is doubly careful in the choice of the Chairman and Members of the Commission on Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be a joint responsibility of the Presidency and Congress, through the Commission on Appointments. She wants a more thorough screening process for these sensitive positions. She wants only the best to survive the process. Why should we tell both the President and Congress that they are wrong.? Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel concentrations should receive greater scrutiny in his appointment than the Chairman of the Human Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and satisfactory end. But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of the Human Rights Commission as one of the "other officers whose appointments are vested in him in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the Constitution as classifying the chairman among the lower ranking officers who by law may be appointed by the

head of an executive department, agency, commission, or board. The Constitution created the independent office. The President was intended to appoint its chairman. I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call for a re-examination of its doctrine. CRUZ, J., dissenting: This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by the Court more than a year ago over two dissents. The President of the Philippines has taken a second look at it, and so too has the Commission on Appointments representing both Houses of the Congress of the Philippines. It appears that they are not exactly certain now that the decision in that case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the Constitution again on the possibility that we may have misread it before. The ponencia assumes that we were right the first time and that the Mison case is settled there is no need to re-examine it. It therefore approaches the problem at hand from another perspective and would sustain the petitioner on an additional ground. The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not confirmed, conformably to Mison, and could not be replaced with the second appointment on 14 January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely avoid the question squarely presented to the Court, viz., whether or not the Chairman of the Commission on Human Rights is subject to confirmation as required now by both the President of the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance. The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-seeit-now-you-don't. As one who never agreed with the bison ruling in the first place, I suspect that the seeming diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its correctness. I think this is the reason another justification had to be offered to bolster Mison. In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights as among the important officers who would not have to be confirmed if the majority view were to be followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation although he is not a constitutional officer with the serious responsibilities of the former. Also not to be confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral representative of the regional consultative commission, and the Undersecretary of Foreign Affairs although the consul, who is his subordinate, would need confirmation. When I pointed to these incongruous situations, I was told it was not our place to question the wisdom of the Constitution.

What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me. Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion. As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful developments must give us pause. We may have committed an error in Mison, which is bad enough, and may be persisting in it now, which is worse. Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988 was an ad interim appointment that although immediately effective upon acceptance was still subject to confirmation. I cannot agree that when the President said the petitioner could and enter into the performance of her duties, "all that remained for Bautista to do was to reject or accept the appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by the President of the Philippines to the Commission on Appointments "for confirmation." The ponencia says that the appointment did not need any confirmation, being the sole act of the President under the Mison ruling. That would have settled the question quite conclusively, but the opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart. Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no question that the petitioner was still validly holding the office by virtue of her ad interim appointment thereto on 17 December 1988. The nomination made later was unnecessary because the ad interim appointment was still effective. When the Commission on Appointments sent the petitioner the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and inviting her to appear before it, it was acting not on the nomination but on the ad interim appointment. What was disapproved was the ad interim appointment, not the nomination. The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, it is important only as an affirmation of the President's acknowledgment that the Chairman of the Commission on Human Rights must be confirmed under Article VII, Section 16 of the Constitution. It does not follow, of course, that simply because the President of the Philippines has changed her mind, and with the expressed support of the Commission on Appointments, we should docilely submit and reverse Mison. That is not how democracy works. The Court is independent. I do suggest, however, that the majority could have erred in that case and that the least we can do now is to take a

more careful look at the decision. Let us check our bearings to make sure we have not gone astray. That is all I ask I repeat my view that the Chairman of the Commission on Human Rights is subject to confirmation by the Commission on Appointments, for the reasons stated in my dissent in Mison Accordingly, I vote to DENY the petition. GRIO-AQUINO, J.: dissenting: I believe that the appointments of the chairman and the members of the Commission on Human Rights by the President require review and confirmation by the Commission on Appointments in view of the following provision of Section 16, Article VII of the 1987 Constitution: SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution.... In my view, the "other officers" whose appointments are vested in the President in the Constitution are theconstitutional officers, meaning those who hold offices created under the Constitution, and whose appointments are not otherwise provided for in the Charter. Those constitutional officers are the chairmen and members of the Constitutional Commissions, namely: the Civil Service Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are, without excaption, declared to be "independent," but while in the case of the Civil Service Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution expressly provides that "the Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on Human Rights. Its absence, however, does not detract from, or diminish, the President's power to appoint the Chairman and Commissioners of the said Commission. The source of that power is the first sentence of Section 16, Article VII of the Constitution for: (1) the Commission on Human Rights is an office created by the Constitution, and (2) the appointment of the Chairman and Commissioners thereof is vested in the President by the Constitution. Therefore, the said appointments shall be made by the President with the consent of the Commission on Appointments, as provided in Section 16, Article VII of the Constitution.

It is not quite correct to argue, as the petitioner does, that the power of the Commission on Appointments to review and confirm appointments made by the President is a "derogation of the Chief Executive's appointing power." That power is given to the Commission on Appointments as part of the system of checks and balances in the democratic form of government provided for in our Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President Vicente G. Sinco: The function of confirming appointments is part of the power of appointment itself. It is, therefore, executive rather than legislative in nature. In giving this power to an organ of the legislative department, the Constitution merely provides a detail in the scheme of checks and balances between the executive and legislative organs of the government. (Phil. Political Law by Sinco, 11th ed., p. 266). WHEREFORE, I vote to dismiss the petition. Medialdea, J., dissenting:

I submit that we should re-examine the three groups of presidential appointees under the three sentences of Section 16. The first group are the heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The first sentence of Section 16 state they must be confirmed by the Commission on Appointments. The third group are officers lower in rank whose appointments Congress has by law vested in the President alone. They need no confirmation. The second group of presidential appointees are "all other officers of the Government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint." To which group do they belong?-Group I requiring confirmation or Group 3 where confirmation is not needed? No matter how often and how long I read the second sentence of Section 16, I simply cannot associate the officers mentioned therein as forming part of those referred to in the third sentence. Why am I constrained to hold this view?

Separate Opinions GUTIERREZ, JR., J.: Dissenting Opinion With all due respect for the contrary view of the majority in the Court, I maintain that it is asking too much to expect a constitutional ruling which results in absurd or irrational consequences to ever become settled. The President and Congress, the appointees concerned, and the general public may in time accept the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb. Serious students of the Constitution will continue to be disturbed until the meaning of the consent power of the Commission on Appointments is straightened out either through a re-examination of this Court's decision or an amendment to the Constitution. Section 16, Article VII of the Constitution consists of only three sentences. The officers specified in the first sentence clearly require confirmation by the Commission on Appointments. The officers mentioned in the third sentence just as clearly do not require confirmation. The problem area lies with those in the second sentence.

(1) If the officers in the first group are the only appointees who need confirmation, there would be no need for the second and third sentences of Section 16. They become superfluous. Any one not falling under an express listing would need no confirmation. I think the Court is wrong in treating two carefully crafted and significant provisions of the fundamental law as superfluities. Except for the most compelling reasons, which do not exist here, no constitutional provision should be considered a useless surplusage. (2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view results in the absurd consequence where one of several hundred colonels and naval captains must be confirmed but such important officers as the Governor of the Central Bank with broad powers over the nation's economy and future stability or the Chairman of the Commission on Human Rights whose office calls for no less than a constitutional mandate do not have to be scrutinized by the Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the thorough scrutiny during the confirmation process while the Undersecretary of Foreign Affairs who sends him there and who exercises control over his acts can be appointed by the President alone? Why should we interpret Section 16 in such a strange and irrational manner when no strained construction is needed to give it a logical and more traditional and understandable meaning.? (3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see the word "also" in a sentence, we associate it with preceding sentences, never with the different sentence that follows. On the other hand, the third sentence specifies "other officers lower in rank' who are appointed pursuant to law by the President "alone." This can only mean that the higher

ranking officers in the second sentence must also be appointed with the concurrence of the Commission on Appointments. When the Constitution requires Congress to specify who may be appointed by the President alone, we should not add other and higher ranking officers as also appointed by heralone. The strained interpretation by the Court's majority makes the word "alone" meaningless if the officers to whom "alone" is not appended are also included in the third group. (4) The third sentence of Section 16 requires a positive act of Congress which vests an appointment in the President alone before such an appointment is freed from the scrutiny of the Commission on Appointments. By express constitutional mandate, it is Congress which determines who do not need confirmation. Under the majority ruling of the Court, if Congress creates an important office and requires the consent of the Commission before a presidential appointment to that office is perfected, such a requirement would be unconstitutional. I believe that the Constitution was never intended to so restrict the lawmaking power. The Court has no jurisdiction to limit the plenary lawmaking power of the people's elected representatives through an implied and, I must again add, a strained reading of the plain text of Section 16. Any restriction of legislative power must be categorical, express, and specific-never implied or forced. (5) The Constitution specifies clearly the presidential appointees who do not need confirmation by the Commission. The reason for non-confirmation is obvious. The members of the Supreme Court and all lower courts and the Ombudsman and his deputies are not confirmed because the Judicial and Bar Council screens nominees before their names are forwarded to the President. The Vice-President as a cabinet member needs no confirmation because the Constitution says so. He or she is chosen by the nation's entire electorate and is only a breath away from the Presidency. Those falling under the third sentence of Section 16, Article VII do not have to be confirmed because the Constitution gives Congress the authority to free lower ranking officials whose positions are created by law from that requirement. I believe that we in the Court have no power to add by implication to the list of presidential appointees whom the Constitution in clear and categorical words declares as not needing confirmation. (6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an important constitutional body which helps give fuller expression to the democratic principles inherent in our presidential form of government. There are those who would render innocuous the Commission's power or perhaps even move for its abolition as a protest against what they believe is too much horsetrading or sectarian politics in the exercise of its functions. Since the President is a genuinely liked and popular leader, personally untouched by scandal, who appears to be motivated only by the sincerest of intentions, these people would want the Commission to routinely rubberstamp those whom she appoints to high office. Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely, Section 16 was intended to check abuse or ill-considered appointments by a President who belongs to the latter class.

It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly represents the people. We should not expect Congress to act only as the selfless Idealists, the wellmeaning technocrats, the philosophers, and the coffee-shop pundits would have it move. The masses of our people are poor and underprivileged, without the resources or the time to get publicly involved in the intricate workings of Government, and often ill-informed or functionally illiterate. These masses together with the propertied gentry and the elite class can express their divergent views only through their Senators and Congressmen. Even the buffoons and retardates deserve to have their interests considered and aired by the people's representatives. In the democracy we have and which we try to improve upon, the Commission on Appointments cannot be expected to function like a mindless machine without any debates or even imperfections. The discussions and wranglings, the delays and posturing are part of the democratic process. They should never be used as arguments to restrict legislative power where the Constitution does not expressly provide for such a limitation. The Commission on Human Rights is a very important office. Our country is beset by widespread insurgency, marked inequity in the ownership and enjoyment of wealth and political power, and dangerous conflicts arising from Ideological, ethnic and religious differences. The tendency to use force and violent means against those who hold opposite views appears irresistible to the holders of both governmental and rebel firepower. The President is doubly careful in the choice of the Chairman and Members of the Commission on Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the appointments to be a joint responsibility of the Presidency and Congress, through the Commission on Appointments. She wants a more thorough screening process for these sensitive positions. She wants only the best to survive the process. Why should we tell both the President and Congress that they are wrong.? Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel concentrations should receive greater scrutiny in his appointment than the Chairman of the Human Rights Commission who has infinitely more power and opportunity to bring the rebellion to a just and satisfactory end. But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the Chairman of the Human Rights Commission as one of the "other officers whose appointments are vested in him in this Constitution" under the first sentence of Section 16, Article VII. Certainly, the chairman cannot be appointed by Congress or the Supreme Court. Neither should we read Article XIII of the Constitution as classifying the chairman among the lower ranking officers who by law may be appointed by the head of an executive department, agency, commission, or board. The Constitution created the independent office. The President was intended to appoint its chairman. I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the call for a re-examination of its doctrine.

CRUZ, J., dissenting: This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted by the Court more than a year ago over two dissents. The President of the Philippines has taken a second look at it, and so too has the Commission on Appointments representing both Houses of the Congress of the Philippines. It appears that they are not exactly certain now that the decision in that case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to read the Constitution again on the possibility that we may have misread it before. The ponencia assumes that we were right the first time and that the Mison case is settledthere is no need to re-examine it. It therefore approaches the problem at hand from another perspective and would sustain the petitioner on an additional ground. The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not confirmed, conformably to Mison, and could not be replaced with the second appointment on 14 January 1989 because there was no vacancy to fill. By this reasoning, the opinion would definitely avoid the question squarely presented to the Court, viz., whether or not the Chairman of the Commission on Human Rights is subject to confirmation as required now by both the President of the Philippines and the Commission on Appointments. In effect, we are asked to reconsider the Mison ruling in the light of this supervening significant albeit decidedly not controlling circumstance. The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we must address the legal question frontally instead of falling back on a legal sleight-of hand of now-you-seeit-now-you-don't. As one who never agreed with the bison ruling in the first place, I suspect that the seeming diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its correctness. I think this is the reason another justification had to be offered to bolster Mison. In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human Rights as among the important officers who would not have to be confirmed if the majority view were to be followed. By contrast, and inexplicably, the colonel in the armed forces would need confirmation although he is not a constitutional officer with the serious responsibilities of the former. Also not to be confirmed are the Governor of the Central Bank unlike the relatively minor multisectoral representative of the regional consultative commission, and the Undersecretary of Foreign Affairs although the consul, who is his subordinate, would need confirmation. When I pointed to these incongruous situations, I was told it was not our place to question the wisdom of the Constitution. What I was questioning was not the wisdom of the Constitution but the wisdom of our interpretation which I said would lead to absurd consequences. But only Justice Gutierrez agreed with me. Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our own ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.

As I see it, the submission of the petitioner's appointment to the Commission on Appointments is a clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at least insofar as it applies to the present case. Signifi cantly the Commission on Appointments, which was also aware of Mison, has as clearly rejected it by acting on the appointment. These meaningful developments must give us pause. We may have committed an error in Mison, which is bad enough, and may be persisting in it now, which is worse. Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with my view in Mison, I submit that what President Aquino extended to the petitioner on 17 December 1988 was an ad interim appointment that although immediately effective upon acceptance was still subject to confirmation. I cannot agree that when the President said the petitioner could and enter into the performance of her duties, "all that remained for Bautista to do was to reject or accept the appointment." In fact, on the very day it was extended, the ad interim appointment was submitted by the President of the Philippines to the Commission on Appointments "for confirmation." The ponencia says that the appointment did not need any confirmation, being the sole act of the President under the Mison ruling. That would have settled the question quite conclusively, but the opinion goes on to argue another justification that I for one find unnecessary, not to say untenable. I sense here a palpable effort to bolster Mison because of the apprehension that it is falling apart. Of course, there was no vacancy when the nomination was made on 14 January 1989. There is no question that the petitioner was still validly holding the office by virtue of her ad interim appointment thereto on 17 December 1988. The nomination made later was unnecessary because the ad interim appointment was still effective. When the Commission on Appointments sent the petitioner the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain data and inviting her to appear before it, it was acting not on the nomination but on the ad interim appointment. What was disapproved was the ad interim appointment, not the nomination. The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best, it is important only as an affirmation of the President's acknowledgment that the Chairman of the Commission on Human Rights must be confirmed under Article VII, Section 16 of the Constitution. It does not follow, of course, that simply because the President of the Philippines has changed her mind, and with the expressed support of the Commission on Appointments, we should docilely submit and reverse Mison. That is not how democracy works. The Court is independent. I do suggest, however, that the majority could have erred in that case and that the least we can do now is to take a more careful look at the decision. Let us check our bearings to make sure we have not gone astray. That is all I ask I repeat my view that the Chairman of the Commission on Human Rights is subject to confirmation by the Commission on Appointments, for the reasons stated in my dissent in Mison Accordingly, I vote to DENY the petition. GRIO-AQUINO, J.: dissenting:

I believe that the appointments of the chairman and the members of the Commission on Human Rights by the President require review and confirmation by the Commission on Appointments in view of the following provision of Section 16, Article VII of the 1987 Constitution: SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution.... In my view, the "other officers" whose appointments are vested in the President in the Constitution are theconstitutional officers, meaning those who hold offices created under the Constitution, and whose appointments are not otherwise provided for in the Charter. Those constitutional officers are the chairmen and members of the Constitutional Commissions, namely: the Civil Service Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII). These constitutional commissions are, without excaption, declared to be "independent," but while in the case of the Civil Service Commission, the Commission on Elections and the Commission on Audit, the 1987 Constitution expressly provides that "the Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is found in Section 17, Article VIII creating the Commission on Human Rights. Its absence, however, does not detract from, or diminish, the President's power to appoint the Chairman and Commissioners of the said Commission. The source of that power is the first sentence of Section 16, Article VII of the Constitution for: (1) the Commission on Human Rights is an office created by the Constitution, and

scheme of checks and balances between the executive and legislative organs of the government. (Phil. Political Law by Sinco, 11th ed., p. 266). WHEREFORE, I vote to dismiss the petition. Medialdea, J., dissenting: Footnotes 1 G.R. No. 79974, 17 December 1987, 156 SCRA 549. 2 See Section 2 (B), Section 2(C), and Section 2(D), Article IX, 1987 Constitution. 3 Annex A, Petition, Rollo, p. 8. 4 Sec. 17(l), Art. XIII, 1987 Constitution. 5 Annex B, Petition, Rollo, p. 9. 6 Annex C, Petition, Rollo, p. 10. 7 Annex D, Petition, Rollo, p. 11-1 3. 8 Annex D-1, Petition, Rollo, p. 14. 9 Annex E, Petition, Rollo, pp. 15-16.

(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the Constitution. Therefore, the said appointments shall be made by the President with the consent of the Commission on Appointments, as provided in Section 16, Article VII of the Constitution. It is not quite correct to argue, as the petitioner does, that the power of the Commission on Appointments to review and confirm appointments made by the President is a "derogation of the Chief Executive's appointing power." That power is given to the Commission on Appointments as part of the system of checks and balances in the democratic form of government provided for in our Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and President Vicente G. Sinco: The function of confirming appointments is part of the power of appointment itself. It is, therefore, executive rather than legislative in nature. In giving this power to an organ of the legislative department, the Constitution merely provides a detail in the

10 Emphasis supplied. 11 Annex 1, Commission's comment, Rollo, p. 53. 12 Annex 2, Commission's comment, Rollo, p. 54. 13 Annex 3, Commission's comment, Rollo, p. 55. 14 Rollo, p. 5. 15 Rollo, pp. 5-6. 16 Resolution of 2 February 1989, Rollo, p. 17.

17 Resolution of 9 February 1989, Rollo, p. 92. 18 Rollo, pp. 145-150. 19 Rollo, pp. 100-144. 20 Rollo, pp. 153-183. 21 Resolution of 28 February 1989, Rollo, p. 183-A. 22 Rollo, pp. 189-201. 23 1 Cranch 60, 2 Law Ed., U.S. 5-8. 24 Official Gazette, Vol. 83, July 29, 1987, p. 3307. 25 Official Gazette, Vol. 83, May 11, 1987, p. 2270. 26 100 Phil. at 683. 27 100 Phil. at 694. 28 Record of the 1986 Constitutional Commission, Vol. 3, August 26,1986, p. 718. 29 Ibid., P. 728. 30 Ibid., P. 730. 31 Ibid., P. 734. 32 Ibid., P. 737. 33 Ibid., p. 743. 34 Ibid., p. 747. 35 Ibid., p. 748. 36 G.R. No. 69870, Naseco vs. NLRC: G.R. No. 70295, Eugenia C. Credo vs. NLRC, 29 November 1988.

37 Sec. 13, Rep. Act No. 3019; People of the Philippines vs. Hon. Rodolfo B. Albano , G.R. No. L-45376-77, July 26, 1988; Luciano vs, Provincial Governor, 20 SCRA 516.