EN BANC

[G.R. No. 83216. September 4, 1989.] TERESITA QUINTOS-DELES, GLORIA T. ARAGON (M.D.), LOURDES V. MASTURA, TRINIDAD A. GOMEZ, ADUL DE LEON, JOSEFINA AZARCON-DELA CRUZ, TRINIDAD M. DOMINGO, MARIA MAYET T. LEDANO, LOLIT ANTONIO, ET AL., petitioners,vs. THE COMMISSION ON CONSTITUTIONAL COMMISSIONS, AND OFFICES (C.A.), COMMISSION ON APPOINTMENTS, THE SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, THE CHIEF ACCOUNTANT OF THE HOUSE OF REPRESENTATIVES, ET AL., respondents. SYLLABUS 1.ADMINISTRATIVE LAW; PUBLIC OFFICERS; SECTORAL REPRESENTATIVES; APPOINTMENT UNDER SECTION 16, ARTICLE VII OF THE CONSTITUTION SUBJECT TO CONFIRMATION BY THE COMMISSION ON APPOINTMENTS. In Sarmiento vs. Mison, et al. (156 SCRA 549 [1987]), we construed Section 16, Article VII of the Constitution to mean that only appointments to offices mentioned in the first sentence of the said Section 16, Article VII require confirmation by the Commission on Appointments. The ruling in Mison was reiterated in the recent case of Mary Concepcion Bautista vs. Sen. Jovito Salonga, et al. (G.R. No. 86439, promulgated on April 13, 1989). Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is indubitable that sectoral representatives to the House of Representatives are among the "other officers whose appointments are vested in the President in this Constitution," referred to in the first sentence of Section 16, Art. VII whose appointments are subject to confirmation by the Commission on Appointments (Sarmiento v. Mison, supra). 2.ID.; ID.; APPOINTMENTS VESTED IN THE PRESIDENT NOT REQUIRING CONFIRMATION BY THE COMMISSION ON APPOINTMENTS. There are appointments vested in the President in the Constitution which, by express mandate of the Constitution, require no confirmation such as appointments of members of the Supreme Court and judges of lower courts (Sec. 9, Art. VIII) and

the Ombudsman and his deputies (Sec. 9, Art. XI). No such exemption from confirmation had been extended to appointments of sectoral representatives in the Constitution. 3.ID.; ID.; APPOINTMENT OF SECTORAL REPRESENTATIVE UNACTED ON BY THE COMMISSION ON APPOINTMENTS UNTIL ADJOURNMENT OF CONGRESS, RENDERED MOOT AND ACADEMIC. Implicit in the invocation of paragraph 2, Section 16, Art. VII as authority for the appointment of petitioner is, the recognition by the President as appointing authority that petitioner's appointment requires confirmation by the Commission on Appointments. Under paragraph 2, Section 16, Art. VII, appointments made by the President pursuant thereto "shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." If indeed appointments of sectoral representatives need no confirmation, the President need not make any reference to the constitutional provisions above-quoted in appointing the petitioner. As a matter of fact, the President in a letter dated April 11, 1989 had expressly submitted petitioner's appointment for confirmation by the Commission on Appointments. Considering that Congress had adjourned without respondent Commission on Appointments having acted on petitioner's appointment, said appointment/nomination had become moot and academic pursuant to Section 23 of the Rules of respondent Commission and "unless resubmitted shall not again be considered by the Commission." 4.ID.; ID.; EXECUTIVE ORDER NO. 198; SCOPE THEREOF. The provisions of Executive Order No. 198 do not deal with the manner of appointment of sectoral representatives. Executive Order No. 198 confines itself to specifying the sectors to be represented, their number, and the nomination of such sectoral representatives. The power of the President to appoint sectoral representatives remains directly derived from Section 7, Article XVIII of the Constitution which is quoted in the second "Whereas" clause of Executive Order No. 198. Petitioner Deles' appointment was issued not by virtue of Executive Order No. 198 but pursuant to Art. VII, Section 16, paragraph 2 and Art. XVIII, Section 7 of the Constitution which require submission to the confirmation process. DECISION BIDIN, J :
p

This is a special civil action for prohibition and mandamus with injunction seeking to compel respondent Commission on Appointments to allow petitioner Teresita Quintos-Deles to perform and discharge her duties as a member of the House of Representatives representing the Women's Sector and to restrain respondents from subjecting petitioner's appointment to the confirmation process.
LLjur

The antecedent facts which gave rise to this petition are as follows: On April 6, 1988, petitioner and three others were appointed Sectoral Representatives by the President pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7 of the Constitution. Executive Secretary Catalino Macaraig, Jr. transmitted by letter, also dated April 6, 1988 (Annex L) the appointment of the said sectoral representatives to Speaker Ramon Mitra, Jr. as follows:
"April 6, 1988 Hon. Ramon V. Mitra, Jr. Speaker, House of Representatives Quezon City Sir: Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Constitution, the President has appointed the following persons to the seats reserved for sectoral representatives in paragraph (1), Section 5 of Article VI of the Constitution: 1.Teresita Quintos-Deles Women 2.Al Ignatius G. Lopez Youth 3.Bartolome Arteche Peasant 4.Rey Magno Teves Urban Poor. Copies of their appointments are enclosed. With best wishes. Very truly yours, (SGD.) CATALINO MACARAIG, JR. Executive Secretary"

On April 18, 1988, the above-mentioned sectoral representatives were scheduled to take their oaths before Speaker Ramon V. Mitra, Jr. at the Session Hall of Congress after the Order of Business. However, petitioner and the three other sectoral representatives-appointees were not able to take their oaths and discharge their duties as members of Congress due to the opposition of some congressmen-members of the Commission on Appointments, who insisted that sectoral representatives must first be confirmed by the respondent Commission before they could take their oaths and/or assume office as members of the House of Representatives. This opposition compelled Speaker Ramon V. Mitra, Jr. to suspend the oathtaking of the four sectoral representatives. In view of this development, Executive Secretary Catalino Macaraig, Jr. transmitted on April 25, 1988, a letter dated April 11, 1988 of the President addressed to the Commission on Appointments submitting for confirmation the appointments of the four sectoral representatives as follows:
"11 April 1988 The Honorable Jovito R. Salonga The Senate President and The Members of the Commission on Appointments Congress of the Philippines M a n i la Gentlemen: Pursuant to Article VII, Section 16, paragraph 2, and Article XVIII, Section 7, of the Constitution, I hereby submit, for confirmation, the appointments of the following persons as Members of the House of Representatives representing the sectors indicated opposite their respective names: TERESITA QUINTOS-DELES Women AL IGNATIUS G. LOPEZ Youth BARTOLOME ARTECHE Peasant REY MAGNO TEVES Urban Poor An early confirmation of their appointments will be appreciated. Very truly yours, (Sgd) Corazon C. Aquino"

Meanwhile, petitioner in a letter dated April 22, 1988 addressed to Speaker Ramon V. Mitra, Jr. (Annex V) appealed to the House of Representatives alleging, among others, that since "no attempt was made to subject the sectoral representatives ** already sitting to the confirmation process, there is no necessity for such confirmation and subjection thereto of the present batch would certainly be discriminatory." In reply, Speaker Mitra in a letter dated May 2, 1988 (Annex BB) informed petitioner that since "President Corazon C. Aquino has submitted your appointment to the Commission on Appointments for confirmation in a letter dated April 11, 1988, . . . the Commission on Appointments now has sole jurisdiction over the matter." On May 10, 1988, petitioner Deles received an invitation dated May 6, 1988 to attend a Commission on Appointments Committee Meeting scheduled for May 12, 1988 for the deliberation of her appointment as sectoral representative for women (Annex DD). Petitioner sent a reply dated May 11, 1988 explaining her position and questioning the jurisdiction of the Commission on Appointments over the appointment of sectoral representatives (Annex EE). In the May 12, 1988 meeting of the Committee of the Constitutional Commissions and Offices of the Commission on Appointments, chaired by Sen. Edgardo J. Angara, the Committee ruled against the position of petitioner Deles. Hence, this petition for prohibition and mandamus praying that respondent Commission on Appointments be enjoined from subjecting to confirmation process the petitioner's appointment as sectoral representative for the women's sector and as member of Congress. Petitions in intervention were likewise filed by Estefania Aldaba Lim, et al. (Rollo, p. 147); Ma. Iris Melizza, et al. (Rollo, p. 172); Margarita Gomez, et al. (Rollo, p. 186); Hernani Panganiban, et al. (Rollo, p. 208); Presentacion Castro, et al. (Rollo, p. 215); Sr. Teresa Dagdag, et al. (Rollo, p. 251); and Civil Liberties Union (Rollo, p. 274). Petitioner Teresita Quintos-Deles contends that her appointment as Sectoral Representative for Women by the President pursuant to Section 7, Article XVIII of the Constitution, does not require confirmation by the Commission on Appointments to qualify her to take her seat in the House of Representatives. The opposite view is taken by the Solicitor General in his Statement of Position (In lieu of Comment), dated July 15, 1988 (Rollo, p. 206) in this wise: "In view of

llcd

the President's submission of the four sectoral representatives, the petitioner included, to the Commission on Appointments by letter dated April 11, 1988, then confirmation by the Commission on Appointments is required."

On August 15, 1988, respondent Commission on Appointments, in addition to adopting the Statement of Position (in lieu of Comment) submitted by the Solicitor General, likewise submitted its own Statement of Position (In lieu of Comment) and further manifested that (1) the appointment of petitioner Deles was not acted upon by the Commission on Appointments when Congress went into recess as required by the Constitution; (2) the case of petitioner Deles for appointment as sectoral representative to the House of Representatives has become moot and academic not having been finally acted upon at the close of the session of Congress pursuant to Sec. 23 of the Rules of the Commission (Rollo, pp. 233-234) which reads as follows:
"Section 23.Suspension of Consideration of Nomination or Appointments to be Returned to the President. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President, and unless resubmitted, shall not again be considered by the Commission."

On January 31, 1989, the Court after noting the reply filed by the petitioner and the rejoinder filed by respondents, resolved to give due course to the petition and the parties were required to submit their respective memoranda (Rollo, p. 309). By way of manifestation and motion dated March 9, 1989 (Rollo, p. 311), the Office of the Solicitor General adopted its statement of position (in lieu of comment) and rejoinder as its memorandum. Petitioners and intervenor Civil Liberties Union submitted their memoranda on March 22, 1989 and March 30, 1989, respectively. A supplemental statement of position (in lieu of memorandum) dated March 31, 1989 was filed by respondent Commission.
LexLib

The Constitution provides that the House of Representatives shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law, who shall be elected from the legislative districts and those who as provided by law, shall be elected thru a party-list system. The party-list representatives shall constitute 20% of the total number of representatives or fifty (50) seats. One-half or twenty-five (25) of the seats allocated to party-list representatives is reserved for sectoral representatives. The reservation is limited to three

consecutive terms after ratification of the 1987 Constitution. Thus, Section 5 (1) and (2), Article VI of the 1987 Constitution provides:
"SEC. 5.(1)The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. "(2)The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector."

Under Section 7, Article XVIII of the Constitution, the appointment of sectoral representatives is vested upon the President until otherwise provided by law, as follows:
"SEC. 7.Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representation in paragraph (1), Section 5 of Article VI of this Constitution."

The issue is, whether the Constitution requires the appointment of sectoral representatives to the House of Representatives to be confirmed by the Commission on Appointments. Section 16, Article VII of the Constitution enumerates among others, the officers who may be appointed by the President with the consent of the Commission on Appointments, as follows:
"SEC. 16.The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those

whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." LexLib

In Sarmiento vs. Mison, et al. (156 SCRA 549 [1987]), we construed Section 16, Article VII of the Constitution to mean that only appointments to offices mentioned in the first sentence of the said Section 16, Article VII require confirmation by the Commission on Appointments, as follows:
"It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:

First, the heads of the executive departments, ambassadors, other

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

Second, all other officers of the Government whose appointments are

not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank whose appointments the Congress may by
law vest in the President alone. The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. xxx xxx xxx (T)he purposive intention and deliberate judgment of the framers of the 1987 Constitution (is) that, except as to those officers whose appointments require the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII,

appointments of other officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseeable effects thereof. Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein enumerated require the consent of the Commission on Appointments."

Our ruling in Mison was reiterated in the recent case of Mary Concepcion Bautista vs. Sen. Jovito Salonga, et al. (G.R. No. 86439, promulgated on April 13, 1989) wherein the Court held:
prcd

"The Mison case was the first major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987 Constitution, . . . 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 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.' All other appointments by the President are to be made without the participation of the Commission on Appointments."

Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is undubitable that sectoral representatives to the House of Representatives are among the "other officers whose appointments are vested in the President in this Constitution," referred to in the first sentence of Section 16, Art. VII whose appointments are-subject to confirmation by the Commission on Appointments (Sarmiento v. Mison, supra). Nevertheless, there are appointments vested in the President in the Constitution which, by express mandate of the Constitution, require no confirmation such as appointments of members of the Supreme Court and judges of lower courts (Sec. 9, Art. VIII) and the Ombudsman and his deputies (Sec. 9, Art. XI). No

such exemption from confirmation had been extended to appointments of sectoral representatives in the Constitution. Petitioner was appointed on April 6, 1988 pursuant to Art. XVIII, Section 7 and Art. VII, Section 16, paragraph 2 of the Constitution, to wit:
"6 April 1988 Madam: Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Constitution, you are hereby appointed MEMBER OF THE HOUSE OF REPRESENTATIVES. By virtue hereof, you may qualify to said position furnishing this office with copies of your oath of office.

Very truly yours, (Sgd.) CORAZON C. AQUINO Hon. TERESITA QUINTOS-DELES" (Annex "M", Petition, Rollo, p. 108.)

The invocation of Art. XVIII, Section 7 of the Constitution as authority for the appointment of petitioner places said appointment within the ambit of the first sentence of Section 16, Art. VII; hence, subject to confirmation by the Commission on Appointments under the Mison doctrine. Petitioner's appointment was furthermore made pursuant to Art. VII, Section 16, paragraph 2 which provides:
"SEC 16.. . . The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress."

The reference to paragraph 2, Section 16 of Article VII as additional authority for the appointment of petitioner is of vital significance to the case at bar. The records show that petitioner's appointment was made on April 6, 1988 or while Congress was in recess (March 26, 1988 to April 17, 1988); hence, the reference

to the said paragraph 2 of Section 16, Art. VII in the appointment extended to her. Implicit in the invocation of paragraph 2, Section 16, Art. VII as authority for the appointment of petitioner is, the recognition by the President as appointing authority that petitioner's appointment requires confirmation by the Commission on Appointments. Under paragraph 2, Section 16, Art. VII, appointments made by the President pursuant thereto "shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." If indeed appointments of sectoral representatives need no confirmation, the President need not make any reference to the constitutional provisions abovequoted in appointing the petitioner. As a matter of fact, the President in a letter dated April 11, 1989 had expressly submitted petitioner's appointment for confirmation by the Commission on Appointments. Considering that Congress had adjourned without respondent Commission on Appointments having acted on petitioner's appointment, said appointment/nomination had become moot and academic pursuant to Section 23 of the Rules of respondent Commission and "unless resubmitted shall not again be considered by the Commission." Petitioners further contend that nowhere in the Constitution nor in Executive Order No. 198 is mention made of the need for petitioner's appointment to be submitted to the Commission on Appointments for confirmation. Executive Order No. 198 promulgated on June 18, 1987 before the convening of Congress, is denominated: "Providing for the Manner of Nomination and Appointment of Sectoral Representatives to the House of Representatives." We agree with the submission of respondent Commission that the provisions of Executive Order No. 198 do not deal with the manner of appointment of sectoral representatives. Executive Order No. 198 confines itself to specifying the sectors to be represented, their number, and the nomination of such sectoral representatives.
LLjur

The power of the President to appoint sectoral representatives remains directly derived from Section 7, Article XVIII of the Constitution which is quoted in the second "Whereas" clause of Executive Order No. 198. Thus, appointments by the President of sectoral representatives require the consent of the Commission on Appointments in accordance with the first sentence of Section 16, Art. VII of the Constitution. More to the point, petitioner Deles' appointment was issued not by virtue of Executive Order No. 198 but pursuant to Art. VII, Section 16, paragraph 2 and Art. XVIII, Section 7 of the Constitution which require submission to the confirmation process.

WHEREFORE, the petition for prohibition and mandamus with preliminary injunction is hereby DISMISSED for lack of merit. Without pronouncement as to costs. SO ORDERED.

EN BANC
[G.R. No. L-79974. December 17, 1987.] ULPIANO P. SARMIENTO III AND JUANITO G. ARCIALLA, petitioners, vs. SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor. DECISION PADILLA, J :
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Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on Appointments. Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test respondent Mison's right to the office of Commissioner of the

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

This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution. The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:
"The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves."

The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide. Section 16, Article VII of the 1987 Constitution says:
"The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. "The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such

appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress."

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 2

Second, all other officers of the Government whose appointments are

not otherwise provided for by law;
3

Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank
whose appointments the Congress may by law vest in the President alone.
4

The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. 5 The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes others not enumerated, it would follow that only those appointments to positions expressly stated in the first group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:
"In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been framed and adopted in the

light and understanding of prior and existing laws and with reference to them. "Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its adoption." (Barry vs. Truax, 13 N.D., 131; 99 N.W., 769; 65 L. R. A., 762.) 6 "

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that
xxx xxx xxx "(3)The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. "(4)The President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. xxx xxx xxx "(7). . ., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers and consuls . . ."

Upon the other hand, the 1973 Constitution provides that

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

Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading" and similar malpractices. On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and remolded by successive amendments, placed the absolute power of appointment in the President with hardly any check on the part of the legislature.
LLphil

Given the above two in extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank. The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows:
"Section 16.The president shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments" 7 [Emphasis supplied.].

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

"Mr. Rama:. . . May I ask that Commissioner Monsod be recognized. The President:We will call Commissioner Davide later. Mr. Monsod:With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some of the amendments that I would like to propose to the Committee this morning. xxx xxx xxx On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels. xxx xxx xxx"
8

(Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence 9 the section from the same requirement. The records of the deliberations of the Constitutional Commission show the following:
"MR. ROMULO:I ask that Commissioner Foz be recognized. THE PRESIDENT:Commissioner Foz is recognized. MR. FOZ:Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words 'and bureaus,' and on line 28 of the same page, to change the phrase 'colonel or naval captain' to MAJOR GENERAL OR REAR ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO APPOINT, et cetera. MR. REGALADO:May we have the amendments one by one. The first proposed amendment is to delete the words 'and bureaus' on line 26. MR. FOZ:That is correct. MR. REGALADO:For the benefit of the other Commissioners, what would be the justification of the proponent for such a deletion?

MR. FOZ:The position of bureau director is actually quite low in the executive department, and to require further confirmation of presidential appointment of heads of bureaus would subject them to political influence. MR. REGALADO:The Commissioner's proposed amendment by deletion also includes regional directors as distinguished from merely staff directors, because the regional directors have quite a plenitude of powers within the regions as distinguished from staff directors who only stay in the office. MR. FOZ:Yes, but the regional directors are under the supervision of the staff bureau directors. xxx xxx xxx MR. MAAMBONG:May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete 'and bureaus' on Section 16. Who will then appoint the bureau directors if it is not the President? MR. FOZ:It is still the President who will appoint them but their appointment shall no longer be subject to confirmation by the Commission on Appointments. MR. MAAMBONG:In other words, it is in line with the same answer of Commissioner de Castro? MR. FOZ:Yes. MR. MAAMBONG:Thank you. THE PRESIDENT:Is this clear now? What is the reaction of the Committee? xxx xxx xxx MR. REGALADO:Madam President, the Committee feels that this matter should be submitted to the body for a vote. MR. DE CASTRO:Thank you. MR. REGALADO:We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus' on line 26, such that

appointments of bureau directors no longer need confirmation by the Commission on Appointment. Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on Appointments, shall appoint the heads of the executive departments, ambassadors . . .' THE PRESIDENT:Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears none; the amendments is approved. xxx xxx xxx MR. ROMULO:Madam President. THE PRESIDENT:The Acting Floor Leader is recognized. THE PRESIDENT:Commissioner Foz is recognized. MR. FOZ:Madam President, this is the third proposed amendment on page 7, line 28. I propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY. MR. REGALADO:Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments. MR. DAVIDE:Madam President. THE PRESIDENT:Commissioner Davide is recognized. xxx xxx xxx MR. DAVIDE:So would the proponent accept an amendment to his amendment, so that after 'captain' we insert the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION? FR. BERNAS:It is a little vague. MR. DAVIDE:In other words, there are positions provided for in the Constitution whose appointments are vested in the President, as a matter of fact like those of the different constitutional commissions.

FR. BERNAS:That is correct. This list of officials found in Section 16 is not an exclusive list of those appointments which constitutionally require confirmation of the Commission on Appointments. MR. DAVIDE:That is the reason I seek the incorporation of the words I proposed. FR. BERNAS:Will Commissioner Davide restate his proposed amendment? MR. DAVIDE:After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION. FR. BERNAS:How about: 'AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS CONSTITUTION'? MR. DAVIDE:Yes, Madam President, that is modified by the Committee. FR. BERNAS:That will clarify things. THE PRESIDENT:Does the Committee accept? MR. REGALADO:Just for the record, of course, that excludes those officers which the Constitution does not require confirmation by the Commission on Appointments, like the members of the judiciary and the Ombudsman. MR. DAVIDE:That is correct. That is very clear from the modification made by Commissioner Bernas. THE PRESIDENT:So we have now this proposed amendment of Commissioners Foz and Davide. xxx xxx xxx THE PRESIDENT:Is there any objection to this proposed amendment of Commissioners Foz and Davide as accepted by the Committee? (Silence) The Chair hears none: the amendment, as amended, is approved" 10 (Emphasis supplied).

It is, therefore, clear that appointments to the second and third groups of officers can be made by the President without the consent (confirmation) of the Commission on Appointments.

It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII reading
". . . He (the President) shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint . . . xxx xxx xxx" (Emphasis supplied)

with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on Appointments.
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Amicus curiae's reliance on the word "also" in said second sentence is not

necessarily supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said second sentence means that the President, in addition to nominating and, with the consent of the Commission on Appointments, appointing the officers enumerated in the first sentence, can appoint (without such consent (confirmation) the officers mentioned in the second sentence. Rather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of nomination by the President and appointment by the President with the consent of the Commission on Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of different language in two (2) sentences proximate to each other underscores a difference in message conveyed and perceptions established, in line with Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences. As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in rank,

compared to some officers whose appointments have to be confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service.

But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the Commission on Appointments by express mandate of the first sentence in Sec., 16, Art. VII, appointments of other officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseable effects thereof. Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein enumerated require the consent of the Commission on Appointments.
Cdpr

As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:
"The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards." [Emphasis supplied]

and argues that, since a law is needed to vest the appointment of lowerranked officers in the President alone, this implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President subject to confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the President, subject also to confirmation by the Commission on Appointments.

The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of the various departments, agencies, commissions, or boards in the government. No reason however is submitted for the use of the word "alone" in said third sentence. The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations of the 1986 Constitutional Commission, that the use of the word "alone" after the word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip orlapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 10, Article VII thereof
". . .; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments." [Emphasis supplied]

The above provision in the 1935 Constitution appears immediately after the provision which makes practically all presidential appointments subject to confirmation by the Commission on Appointments, thus
"3.The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein provided for, and those whom he may be authorized by law to appoint; . . ."

In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide that Congress may, however, by law vest the appointment of inferior officers (equivalent to "officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the heads of departments. In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress

may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII. Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments. Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution, on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments. Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22 June 1967, reads as follows:
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"601.Chief Officials of the Bureau. The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed by the proper department head."

Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows:
"Sec. 601.Chief Officials of the Bureau of Customs. The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by the President of the Philippines" (Emphasis supplied.)

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution, under which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs. After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment he is authorized by law to make, such appointment, however, no longer needs the confirmation of the Commission on Appointments. Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of the office and to receive all the salaries and emoluments pertaining thereto.
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WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs. SO ORDERED.

EN BANC
[G.R. No. 86439. April 13, 1989.] MARY CONCEPCION BAUTISTA, petitioner, vs. SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS, COMMITTEE ON JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents. DECISION PADILLA, J :
p

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

this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's experience under the 1935 and

1973 Constitutions, held that only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution." All other appointments by the President are to be made without the participation of the Commission on Appointments. Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid and in accordance with the Constitution.
LibLex

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 come. Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the CHR is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are

expressly vested by the Constitution in the President with the consent of the

Commission on Appointment.

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 re-appointment. 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 Madam: You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes. Very truly yours, CORAZON C. AQUINO HON. MARY CONCEPCION BAUTISTA"
3

Realizing perhaps the need for a permanent chairman and members of the Commission on Human Rights, befitting an independent office, as mandated by the Constitution, 4 the President of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent appointment as Chairman of the Commission. The appointment letter is as follows:

"17 December 1988 The Honorable The Chairman Commission on Human Rights Pasig, Metro Manila Madam: Pursuant to the provisions of existing laws, the following are hereby appointed to the positions indicated opposite their respective names in the Commission on Human Rights: MARY CONCEPCION BAUTISTA Chairman ABELARDO L. APORTADERA, JR. Member SAMUEL SORIANO Member HESIQUIO R. MALLILLIN Member NARCISO C. MONTEIRO Member By virtue hereof, they may qualify and enter upon the performance of the duties of the office furnishing this Office and the Civil Service Commission with copies of their oath of office. Very truly yours, CORAZON C. AQUINO"
5

It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she could qualify and enter upon the performance of the duties of the office of Chairman of the Commission on Human Rights, requiring her to furnish the office of the President and the Civil Service Commission with copies of her oath of office. On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of the oath of office is as follows:
"OATH OF OFFICE I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati, Metro Manila having been appointed to the position ofCHAIRMAN of the Commission on Human Rights, do solemnly swear that I will discharge to the best of my ability all the duties and

responsibilities of the office to which I have been appointed; uphold the Constitution of the Republic of the Philippines, and obey all the laws of the land without mental reservation or purpose of evasion. SO HELP ME GOD. MARY CONCEPCION BAUTISTA SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, 1988 in Manila. MARCELO B. FERNAN Chief Justice Supreme Court of the Philippines"

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

Commission on Appointments Senate, Manila Sir: 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 Commissioners of the Human Rights Commission are not subject to confirmation by the Commission on Appointments. The Constitution, in Article VII Section 16 which expressly vested on the President the appointing power, has expressly mentioned the government officials whose appointments are subject to the confirmation of the Commission on Appointments of Congress. The Commissioners of the Commission on Human Rights are not included among those.

Where the confirmation of the Commission on Appointments is required, as in the case of the Constitutional Commissions such as the Commission on Audit, Civil Service Commission and the Commission on Elections, it was expressly provided that the nominations will be subject to confirmation of Commission on Appointments. The exclusion again of the Commission on Human Rights, a constitutional office, from this enumeration is a clear denial of authority to the Commission on Appointments to review our appointments to the Commission on Human Rights. Furthermore, the Constitution specifically provides that this Commission is an independent office which: a.must investigate all forms of human rights violations involving civil and political rights; b.shall monitor the government's compliance in all our treaty obligations on human rights. We submit that, the monitoring of all agencies of government, includes even Congress itself, in the performance of its functions which may affect human rights;

c.may call on all agencies of government for the implementation of its mandate. The powers of the Commission on Appointments is in fact a derogation of the Chief Executive's appointing power and therefore the grant of that authority to review a valid exercise of the executive power can never be presumed. It must be expressly granted. The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the President of Commissioners of the Commission on Human Rights. In view of the foregoing considerations, as Chairman of an independent constitutional office. I cannot submit myself to the Commission on Appointments for the purpose of confirming or rejecting my appointment. Very truly yours, MARY CONCEPCION BAUTISTA Chairman" 9

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights'' 10 and informing Secretary Macaraig that, as previously conveyed to him in a letter of 26 January 1989, the Commission on Appointments disapproved petitioner Bautista's "ad interim appointment" as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. The letter reads:
"1 February 1989 HON. CATALINO MACARAIG, JR. Executive Secretary Malacanang, Manila Sir: This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights.

As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments, assembled in plenary (session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments. This is to inform you that the Commission on Appointments, likewise assembled in plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad interim appointment as Chairperson of the Commission on Human Rights. Very truly yours, RAOUL V. VICTORINO Secretary" 11

On the same date (1 February 1989), the Commission on Appointments' Secretary informed petitioner Bautista that the motion for reconsideration of the disapproval of her "ad interim appointment as Chairman of the Commission on Human Rights" was denied by the Commission on Appointments. The letter reads as follows:
"1 February 1989 ATTY. MARY CONCEPCION BAUTISTA Commission on Human Rights Integrated Bar of the Philippines Bldg. Pasig, Metro Manila Dear Atty. Bautista: Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the Commission on Appointments assembled in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval of your ad interim appointment as Chairperson of the Commission on Human Rights is respectfully conveyed. Thank you for your attention. Very truly yours, RAOUL V. VICTORINO Secretary" 12

In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission" pending the resolution of Bautista's case which had been elevated to the Supreme Court. The news item is here quoted in full, thus
"Aquino names replacement for MaryCon President Aquino has named replacement for Presidential Commission on Human Rights Chairman Mary Concepcion Bautista whose appointment was rejected anew by the Congressional commission on appointments. The President designated PCHR commissioner Hesiquio R. Malilillin as "acting chairman" of the Commission pending the resolution of Bautista's case which had been elevated to the Supreme Court. The President's action followed after Congressional Commission on Appointments Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on to her position after her appointment was not confirmed for the second time. "For all practical purposes," Salonga said Bautista can be accused of usurpation of authority if she insists to stay on her office. In effect, the President had asked Bautista to vacate her office and give way to Mallillin. (Mari Villa)" 13

On 20 January 1989, or even before the respondent Commission on Appointments had acted on her "ad interim appointment as Chairman of the Commission on Human Rights" petitioner Bautista filed with this Court the present petition for certiorari with a prayer for the immediate issuance of a restraining order, to declare "as unlawful and unconstitutional and without any legal force and effect any action of the Commission on Appointments as well as of the Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended appointment of the petitioner as Chairman of the Commission on Human Rights, on the ground that they have no lawful and constitutional authority to confirm and to review her appointment." 14 The prayer for temporary restraining order was "to enjoin the respondent Commission on Appointments not to proceed further with their deliberation and/or proceedings on the appointment of the petitioner . . . nor to enforce,

implement or act on any order, resolution, etc. issued in the course of their deliberations." 15 Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner filed an amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and praying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to exercise the functions of chairman and to refrain from demanding courtesy resignations from officers or separating or dismissing employees of the Commission. Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issue a temporary restraining order directing respondent Mallillin to cease and desist from effecting the dismissal, courtesy resignation, removal and reorganization and other similar personnel actions.17 Respondents were likewise required to comment on said amended petition with allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof. Respondents Senator Salonga, the Commission on Appointments, the Committee on J & BC and Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed her reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court required petitioner to reply to respondent Mallillin's comment. 21 Petitioner filed her reply. 22 In deference to the Commission on Appointments, an instrumentality of a coordinate and co-equal branch of government, the Court did not issue a temporary restraining order directed against it. However, this does not mean that the issues raised by the petition, as met by the respondents' comments, will not be resolved in this case. The Court will not shirk from its duty as the final arbiter of constitutional issues, in the same way that it did not in Mison. As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was extended by Her Excellency, the President a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988. Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an appointment that was for the President solely to make, i.e., not an appointment to be submitted for review and confirmation (or rejection) by the Commission on

Appointments. This is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated. The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by taking the oath of office and actually assuming and discharging the functions and duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent Commission on Appointments or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for confirmation by the Commission on Appointments.

The Court, with all due respect to both the Executive and Legislative Departments of government, and after careful deliberation, is constrained to hold and rule in the negative. When Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could qualify and enter upon the performance of the duties of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17 December 1988 as

Chairman of the Commission on Human Rights was a completed act on the part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23
xxx xxx xxx "The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him. xxx xxx xxx "Some point of time must be taken when the power of the executive over an officer, not removable at his will must cease. That point of time

must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed . . . xxx xxx xxx "But having once made the appointment, his (the President's) power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. xxx xxx xxx"

THE "APPOINTMENT' OF PETITIONER BAUTISTA ON 14 JANUARY 1989 It is respondent Commission's submission that the President, after the appointment of 17 December 1988 extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately, nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious enough, both in logic and in fact, that no new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee, through a valid qualification and assumption of its duties. Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such appointment to the Commission on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that the President (with Congress agreeing) may, from time to time move power boundaries, in the Constitution differently from where they are placed by the Constitution. The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with, is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create power where the Constitution confers none. The evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the President and

Congress (the latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked off certain appointments for the President to make with the participation of the Commission on Appointments, so also has the Constitution mandated that the President can confer no power of participation in the Commission on Appointments over other appointments exclusively reserved for her by the Constitution. The exercise of political options that finds no support in the Constitution cannot be sustained. Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review presidential appointments, create power to confirm appointments that the Constitution has reserved to the President alone. Stated differently, when the appointment is one that the Constitution mandates is for the President to make without the participation of the Commission on Appointments, the executive's voluntary act of submitting such appointment to the Commission on Appointments and the latter's act of confirming or rejecting the same, are done without or in excess of jurisdiction. EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989 Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the Commission on Appointments to exercise the power of review over an appointment otherwise solely vested by the Constitution in the President. Yet, as already noted, when the President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of the Commission on Human Rights with the advice to her that by virtue of such appointment (not, until confirmed by the Commission on Appointments), she could qualify and enter upon the performance of her duties after taking her oath of office, the presidential act of appointment to the subject position which, under the Constitution, is to be made, in the first place, without the participation of the Commission on Appointments, was then and there a complete and finished act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which an appointment could be validly made. In fact, there is no vacancy in said office to this day.

Nor can respondents impressively contend that the new appointment or reappointment on 14 January 1989 was an ad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments solely for the President to make, i.e., without the participation of the Commission on Appointments. Ad interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are for the President solely to make, that is, without the participation of the Commission on Appointments, can not be ad interim appointments. EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL. Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be removed from said office at anytime, at the pleasure of the President; and that with the disapproval of Bautista's appointment (nomination) by the Commission on Appointments, there was greater reason for her removal by the President and her replacement with respondent Mallillin. Thus, according to respondent Mallillin, the petition at bar has become moot and academic. We do not agree that the petition has become moot and academic. To insist on such a posture is akin to deluding oneself that day is night just because the drapes are drawn and the lights are on. For, aside from the substantive questions of constitutional law raised by petitioner, the records clearly show that petitioner came to this Court in timely manner and has not shown any indication of abandoning her petition. Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as follows:
"WHEREAS, the Constitution does not prescribe the term of office of the Chairman and Members of the Commission on Human Rights unlike those of other Constitutional Commissions; NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order:

SECTION 1.Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows: The Chairman and Members of the Commission on Human Rights shall be appointed by the President. Their tenure in office shall be at the pleasure of the President. SEC. 2.This Executive Order shall take effect immediately. DONE in the City of Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eighty-seven. (Sgd.) CORAZON C. AQUINO President of the Philippines By the President: (Sgd.) JOKER P. ARROYO Executive Secretary" 24

Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was issued by the President, Sec. 2(c) of which provides:
"Sec. 2(c).The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without re-appointment. Appointments to any vacancy shall be only for the unexpired term of the predecessor."

It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the Chairman and Members of the Commission on Human Rights which is seven (7) years without re-appointment the later executive order (163-A) speaks of the tenure in office of the Chairman and Members of the Commission on Human Rights, which is "at the pleasure of the President."

Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
"The distinction between 'term' and 'tenure' is important, for, pursuant to the Constitution, 'no officer or employee in the Civil Service may be removed or suspended except for cause, as provided by law' (Art. XII, section 4), and this fundamental principle would be defeated if Congress could legally make the tenure of some officials dependent upon the

pleasure of the President, by clothing the latter with blanket authority to replace a public officer before the expiration of his term" 27

When Executive Order No. 163 was issued, the evident purpose was to comply with the constitutional provision that "the term of office and other qualifications and disabilities of the Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution). As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven (7) years, without re-appointment, as provided by Executive Order No. 163, and consistent with the constitutional design to give the Commission the needed independence to perform and accomplish its functions and duties, the tenure in office of said Chairman (and Members) cannot be later made dependent on the pleasure of the President. Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the power of the President, sustained therein, to replace a previously appointed vice-mayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman and Members of the Commission on Human Rights shall have a "term of office." Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent as the Commission on Human Rights and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional. The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point to its being plainly at war with the constitutional intent of independence for the Commission. Thus

"MR. GARCIA (sponsor).Precisely, one of the reasons why it is important for this body to be constitutionalized is the fact that regardless of who is the President or who holds the executive power, the human rights issue is of such importance that it should be safeguarded and it should be independent of political parties or powers that are actually holding the reins of government. Our experience during the martial law period made us realize how precious those rights are and, therefore, these must be safeguarded at all times. xxx xxx xxx MR. GARCIA.I would like to state this fact: Precisely we do not want the term or the power of the Commission on Human Rights to be coterminous with the president, because the President's power is such that if he appoints a certain commissioner and that commissioner is subject to the President, therefore, any human rights violations committed under the person's administration will be subject to presidential pressure. That is what we would like to avoid to make the protection of human rights go beyond the fortunes of different political parties or administrations in power." 28 xxx xxx xxx "MR. SARMIENTO (sponsor).Yes, Madam President. I conferred with the honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an independent Commission on Human Rights free from executive influence because many of the irregularities on human rights violations are committed by members of the armed forces and members of the executive branch of the government. So as to insulate this body from political interference, there is a need to constitutionalize it." 29 xxx xxx xxx "MR. SARMIENTO:On the inquiry on whether there is a need for this to be constitutionalized, I would refer to a previous inquiry that there is still a need for making this a constitutional body free or insulated from interference. I conferred with former Chief Justice Concepcion and the acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in saying that this body should be constitutionalized so that it will be free from executive control or interferences, since many of the abuses are committed by the members of the military or the armed forces." 30

xxx xxx xxx "MR. SARMIENTO.Yes, Congress can create this body, but as I have said, if we leave it to Congress, this commission will be within the reach of politicians and of public officers and that to me is dangerous. We should insulate this body from political control and political interference because of the nature of its functions to investigate all forms of human rights violations which are principally committed by members of the military, by the Armed Forces of the Philippines" 31 xxx xxx xxx "MR. GARCIA.The critical factor here is political control, and normally, when a body is appointed by Presidents who may change, the commission must remain above these changes in political control. Secondly, the other important factor to consider are the armed forces, the police forces which have tremendous power at their command and, therefore, we would need a commission composed of men who also are beyond the reach of these forces and the changes in political administration." 32 xxx xxx xxx "MR. MONSOD.Yes, It is the committee's position that this proposed special body, in order to function effectively, must be invested with an independence that is necessary not only for its credibility but also for the effectiveness of its work. However, we want to make a distinction in this Constitution. May be what happened was that it was referred to the wrong committee. In the opinion of the committee, this need not be a commission that is similar to the three constitutional commissions like the COA, the COMELEC, and Civil Service. It need not be in that article." 33 xxx xxx xxx "MR. COLAYCO.The Commissioner's earlier objection was that the Office of the President is not involved in the project. How sure are we that the next President of the Philippines will be somebody we can trust? Remember, even now there is a growing concern about some of the bodies, agencies and commission created by President Aquino." 34 xxx xxx xxx ". . . Leaving to Congress the creation of the Commission on Human Rights is giving less importance to a truly fundamental need to set up a

body that will effectively enforce the rules designed to uphold human rights." 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE. To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be removed from office before the expiration of her seven (7) year term. She certainly can be removed but her removal must be for cause and with her right to due process properly safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file employee of the NASECO, a government-owned corporation, could be dismissed, she was entitled to a hearing and due process. How much more, in the case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.
cdphil

If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed against her with the Ombudsman. If he finds a prima facie case against her, the corresponding information or informations can be filed with the Sandiganbayan which may in turn order her suspension from office while the case or cases against her are pending before said court. 37 This is due process in action. This is the way of a government of laws and not of men. A FINAL WORD It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the Commission on Human Rights (pending decision in this case) instead of appointing another permanent Chairman. The latter course would have added only more legal difficulties to an already difficult situation. WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled to all the benefits, privileges and emoluments of said office. The temporary restraining order heretofore issued by the Court against respondent Mallillin enjoining him from dismissing or terminating personnel of the Commission on Human Rights is made permanent. SO ORDERED.

EN BANC
[G.R. No. 91636. April 23, 1992.] PETER JOHN D. CALDERON, petitioner, vs. BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations Commission; EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN, and OSCAR N. ABELLA, in their capacity as Commissioners of the National Labor Relations Commission; and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

EN BANC
[G.R. No. 91636. April 23, 1992.] PETER JOHN D. CALDERON, petitioner, vs. BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations Commission; EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN, and OSCAR N. ABELLA, in their capacity as Commissioners of the National Labor Relations Commission; and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

Rafael Antonio M. Santos for petitioner.

SYLLABUS

1.POLITICAL LAW; LEGISLATIVE DEPARTMENT; COMMISSION ON APPOINTMENT; POWER OF CONFIRMATION OVER APPOINTMENTS BY THE PRESIDENT RULE. From the cases of Sarmiento III vs. Mison (156 SCRA 549); Mary Concepcion Bautista v. Salonga (172 SCRA 160), and Teresita Quintos Deles, et al. v. the Commission on Constitutional Commissions, et al (177 SCRA 259), these doctrines are deducible: 1. Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in the first sentence of Section 16, Article VII, including, those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and Election). 2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments, the officers are considered as among those whose appointments are not otherwise provided for by law. 2.ID.; ID.; ID.; CONFIRMATION OF APPOINTMENTS OF THE CHAIRMAN AND MEMBERS OF THE NATIONAL LABOR RELATIONS COMMISSION AS PROVIDED UNDER R.A. 6715; UNCONSTITUTIONAL; REASONS THEREFOR. The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointment are not otherwise provided for by law and those whom the President may be authorized by law to appoint. Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments. To the extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is unconstitutional because: 1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the Commission on Appointments; and 2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the President. Deciding on what law to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The Court respects the laudable

intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments over appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof. 3.ID.; ID.; CANNOT EXPAND A CONSTITUTIONAL PROVISION AFTER THE SUPREME COURT HAS INTERPRETED IT; ENDENCIA AND JUGO VS. DAVID (193 PHIL. 699) CITED. In Endencia and Jugo vs. David, the Court held: . . . "The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied). 'The legislature cannot, upon passing law which violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional inhibition." (11 Am., Jur., 919, emphasis supplied). "We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature

may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decision. Under such a system, a final court determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers."
4.ID.; ID.; LIMITATION ON THE POWER OF CONFIRMATION OVER PRESIDENTIAL APPOINTMENTS; PURPOSE. It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the Commission on Appointments exercised the power of confirmation over almost all presidential appointments, leading to many cases of abuse of such power of confirmation.

The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure and disapproval of members of the Congress. The solution to the apparent problem, if indeed a problem, is not judicial or legislative but constitutional. A future constitutional convention or Congress sitting as a constituent (constitutional) assembly may then consider either a return to the 1935 Constitutional provisions or the adoption of a hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the duty of the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the legislature or the executive would want it interpreted. 5.ID.; JUDICIAL DEPARTMENT; SUPREME COURT; DECISIONS THEREOF APPLYING OR INTERPRETING THE CONSTITUTION; FORM PART OF THE LEGAL SYSTEM OF THE PHILIPPINES. Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the Philippines. No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc. ". . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law was originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of the legal maxim 'legis interpretado legis vim obtinent' the interpretation placed upon the written law by a competent court has the force of law." 6.ID.; ID.; ID.; FUNCTION THEREOF IN PASSING UPON AN ACT OF CONGRESS. Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional powers when it sets out to enact legislation and it must take into account the relevant constitutional prohibitions. ". . . The Constitution did not change with public opinion. It is not only the same words, but the same in meaning . . . and as long as it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted and adopted by the people . . ." The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former" and to "announce its considered judgment upon the question." DECISION

PADILLA, J :
p

Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:
"SECTION 16.The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

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

The power of the Commission on Appointments (CA for brevity) to confirm appointments, contained in the aforequoted paragraph 1 Sec. 16, Art. VII, was first construed in Sarmiento III vs. Mison 2 as follows:
". . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes 'heads of bureaus' among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution, on the other hand, deliberately excluded the position of `heads of bureaus' from appointments that need the consent (confirmation) of the Commission on Appointments. ". . . Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation . . ."

". . . In the 1987 Constitution, however, as already pointed out, the

clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Art. VII. Consequently, there was no reason to use in the

third sentence of Sec. 16, Article VII the word 'alone' after the word 'President' in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of the departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII." (emphasis supplied).

Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the Chairman of the Commission on Human Rights. Adhering to the doctrine in Mison, the Court explained:
". . . Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the CHR is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the President with the consent of the Commission on Appointments. The President appoints the Chairman and Members of the Commission on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government 'whom he (the President) may be authorized by law to appoint.' And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the Commission on Human Rights."

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

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

From the three (3) cases above-mentioned, these doctrines are deducible: 1.Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in the first sentence of Section 16, Article VII, including, those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and Election). 2.Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments, the officers are considered as among those whose appointments are not otherwise provided for by law. Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved. It provides in Section 13 thereof as follows:
"xxx xxx xxx

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

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

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

This petition for prohibition questions the constitutionality and legality of the permanent appointments extended by the President of the Philippines to the respondents Chairman and Members of the National Labor Relations Commission (NLRC), without submitting the same to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as amended by said RA 6715. Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity. RA 6715 is not, according to petitioner, an encroachment on the appointing power of the executive contained in Section 16, Art. VII, of the Constitution, as Congress may, by law, require confirmation by the Commission on Appointments of other officers appointed by the President additional to those mentioned in the first sentence of Section 16 of Article VII of the Constitution. Petitioner claims that the Mison and Bautista rulings are not decisive of the issue in this case for in the case at bar, the President issued permanent appointments to the respondents without submitting them to the CA for confirmation despite passage of a law (RA 6715) which requires the confirmation by the Commission on Appointments of such appointments. The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code transgresses Section 16, Article VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis. Mison and Bautista laid the issue to rest, says the Solicitor General, with the following exposition:
prcd

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

"Had it been the intention to allow Congress to expand the list of officers whose appointments must be confirmed by the Commission on Appointments, the Constitution would have said so by adding the phrase "and other officers required by law" at the end of the first sentence, or the phrase, "with the consent of the Commission on Appointments" at the end of the second sentence. Evidently, our Constitution has significantly omitted to provide for such additions. "The original text of Section 16 of Article VII of the present Constitution as embodied in Resolution No. 517 of the Constitutional Commission reads as follows: 'The President shall nominate and, with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts or in the head of the department.'

"Three points should be noted regarding subsection 3 of Section 10 of Article VII of the 1935 Constitution and in the original text of Section 16 of Article VII of the present Constitution as proposed in Resolution No. 517. "First, in both of them, the appointments of head of bureaus were required to be confirmed by the Commission on Appointments. "Second, in both of them, the appointments of other officers, "whose appointments are not otherwise provided for by law to appoint" are expressly made subject to confirmation by the Commission on Appointments. However, in the final version of Resolution No. 517, as embodied in Section 16 of Article VII of the present Constitution, the appointment of the above mentioned officers (heads of bureaus; other officers whose appointments are not provided for by law; and those whom he may be authorized by law to appoint) are excluded from the list of those officers whose appointments are to be confirmed by the Commission on Appointments. This amendment, reflected in Section 16 of Article VII of the Constitution, clearly shows the intent of the framers

to exclude such appointments from the requirement of confirmation by the Commission on Appointments. "Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of Section 10 of Article VII thereof. "Respondent reiterates that if confirmation is required, the three (3) stage process of nomination, confirmation and appointment operates. This is only true of the first group enumerated in Section 16, but the word nominate does not any more appear in the 2nd and 3rd sentences. Therefore, the president's appointment pursuant to the 2nd and 3rd sentences need no confirmation." 6

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

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

". . . there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are: 'First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 'Second, all other officers of the Government whose appointments are not otherwise provided for by law; 'Third, those whom the President may be authorized by law to appoint; 'Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.'" 7

Mison also opined:

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

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointment are not otherwise provided for by law and those whom the President may be authorized by law to appoint. Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments. To the extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is unconstitutional because: 1)it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the Commission on Appointments; and 2)it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the President. Deciding on what law to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The Court respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments over appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.
cdll

Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the Philippines. 8 No doctrine or principle of law laid down

by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc. 9
". . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law was originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of the legal maxim 'legis interpretado legis vim obtinent' the interpretation placed upon the written law by a competent court has the force of law." 10

The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently in one manner. Can legislation expand a constitutional provision after the Supreme Court has interpreted it? In Endencia and Jugo vs. David,
11

the Court held:

"By legislative fiat as enunciated in section 13, Republic Act No. 590, Congress says that taxing the salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the meaning of the phrase 'which shall not be diminished during their continuance in office,' found in section 9, Article VIII of the Constitution, referring to the salaries of judicial officers." xxx xxx xxx 'The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied). 'The legislature cannot, upon passing law which violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional inhibition.' (11 Am., Jur., 919, emphasis supplied). "We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the

sphere of the Legislative department. If the Legislature may declare

what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decision. Under such a system, a final court determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers." 12 (emphasis supplied)

Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional powers when it sets out to enact legislation and it must take into account the relevant constitutional prohibitions. 13
". . . The Constitution did not change with public opinion. It is not only the same words, but the same in meaning . . . and as long as it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted and adopted by the people . . ." 14

The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former" and to "announce its considered judgment upon the question." 15 It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the Commission on Appointments exercised the power of confirmation over almost all presidential appointments, leading to many cases of abuse of such power of confirmation. Subsection 3, Section 10, Art. VII of the 1935 Constitution provided:
"3.The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureau, officers of the Army from the rank of the colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein

otherwise provided for, and those whom he may be authorized by law to appoint; . . ."

The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure and disapproval of members of the Congress. The solution to the apparent problem, if indeed a problem, is not judicial or legislative but constitutional. A future constitutional convention or Congress sitting as a constituent (constitutional) assembly may then consider either a return to the 1935 Constitutional provisions or the adoption of a hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the duty of the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the legislature or the executive would want it interpreted. WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715 insofar as it requires the confirmation of the Commission on Appointments of appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect. SO ORDERED.

Narvasa, C .J ., Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ ., concur. Bellosillo, J ., took no part.

[G.R. No. 111243. May 25, 1994.] JESUS ARMANDO A.R. TARROSA, petitioner, vs. GABRIEL C. SINGSON and HON. SALVADOR M. ENRIQUEZ III, respondents. SYLLABUS 1.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; QUO WARRANTO; PROPER PROCEEDING TO RESOLVE QUESTION OF TITLE TO OFFICE; WHO MAY COMMENCE ACTION; CASE AT BAR. The instant petition is in the nature of quo warranto proceeding as it seeks the ouster of respondent Singson and alleges that the latter is unlawfully holding or exercising the powers of Governor of the Bangko Sentral. Such a special civil action can only be commenced by the Solicitor General or by a "person claiming to be entitled to a public office or position unlawfully held or exercised by another." We have held that a petitioner, who did not aver that he was entitled to the office of the City Engineer of Cabanatuan City, could not bring the action for quo warranto to oust the respondent from said office as a mere usurper. Likewise it had been held that the question of title to an office, which must be resolved in a quo warranto proceeding, may not be determined in a suit to restrain the payment of salary to the person holding such office, brought by someone who does not claim to be the one entitled to occupy the said office. It is obvious that the instant action was improvidently brought by petitioner. To uphold the action would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable mischief and hindrance to the efficient operation of the governmental machinery. 2.CONSTITUTIONAL LAW; JUDICIAL DEPARTMENT; JUDICIAL INQUIRY INTO CONSTITUTIONALITY OF LAW; WHEN PROPER. The Court refrains from passing upon the constitutionality of Section 6, R.A. No. 7653 in deference to the principle that bars a judicial inquiry into a constitutional question unless the resolution thereof is indispensable for the determination of the case. 3.ID.; LEGISLATIVE DEPARTMENT; COMMISSION ON APPOINTMENTS; LIMITS OF CONFIRMATION POWERS. We have ruled that Congress cannot by law expand the confirmation powers of the Commission on Appointments and require confirmation of appointment of other government officials not expressly mentioned in the first sentence of Section 16 of Article VII of the Constitution.

PADILLA, J., concurring: 1.CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; COMMISSION ON APPOINTMENTS; DOCTRINE LAID DOWN IN CALDERON v. CARALE, 208 SCRA 254, APPLICABLE TO CASE AT BAR. I concur in the result. Instead, however, of basing the petition's dismissal mainly on technicality, I would anchor said dismissal squarely on the ruling laid down by the Court in Calderon vs. Carale, 208 SCRA 254 (1992), to the effect that appointments by the President of the Philippines, which under the Constitution (Sec. 16, Article VII) are not among those required to be confirmed by the Commission on Appointments, may not, by legislation, be made subject to such confirmation. DECISION QUIASON, J :
p

This is a petition for prohibition filed by petitioner as a "taxpayer," questioning the appointment of respondent Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas for not having been confirmed by the Commission on Appointments. The petition seeks to enjoin respondent Singson from the performance of his functions as such official until his appointment is confirmed by the Commission on Appointments and respondent Salvador M. Enriquez, Secretary of Budget and Management, from disbursing public funds in payment of the salaries and emoluments of respondent Singson. I Respondent Singson was appointed Governor of the Bangko Sentral by President Fidel V. Ramos on July 2, 1993, effective on July 6, 1993 (Rollo, p. 10). Petitioner argues that respondent Singson's appointment is null and void since it was not submitted for confirmation to the Commission on Appointments. The petition is anchored on the provisions of Section 6 of R.A. No. 7653, which established the Bangko Sentral as the Central Monetary Authority of the Philippines. Section 6, Article II of R.A. No. 7653 provides:
"Sec. 6.Composition of the Monetary Board. The powers and functions of the Bangko Sentral shall be exercised by the Bangko Sentral Monetary Board, hereafter referred to as the Monetary Board, composed of seven

(7) members appointed by the President of the Philippines for a term of six (6) years.
LLphil

The seven (7) members are: (a)The Governor of the Bangko Sentral, who shall be the Chairman of the Monetary Board. The Governor of the Bangko Sentral shall be head of a department and his appointment shall be subject to confirmation by the Commission on Appointments. Whenever the Governor is unable to attend a meeting of the Board, he shall designate a Deputy Governor to act as his alternate: Provided, That in such event, the Monetary Board shall designate one of its members as acting Chairman . . ." (Emphasis supplied).

In their comment, respondents claim that Congress exceeded its legislative powers in requiring the confirmation by the Commission on Appointments of the appointment of the Governor of the Bangko Sentral. They contend that an appointment to the said position is not among the appointments which have to be confirmed by the Commission on Appointments, citing Section 16 of Article VII of the Constitution which provides that:
"Sec. 16.The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of department, agencies, commissions, or boards . . ." (Emphasis supplied).

Respondents also aver that the Bangko Sentral has its own budget and accordingly, its budgetary requirements are not subject to the provisions of the General Appropriations Act.
LLjur

We dismiss the petition. II The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of respondent Singson and alleges that the latter is unlawfully holding or

exercising the powers of Governor of the Bangko Sentral (Cf. Castro v. Del Rosario, 19 SCRA 196 [1967]). Such a special civil action can only be commenced by the Solicitor General or by a "person claiming to be entitled to a public office or position unlawfully held or exercised by another" (Revised Rules of Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]). In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held that the petitioner therein, who did not aver that he was entitled to the office of the City Engineer of Cabanatuan City, could not bring the action for quo warranto to oust the respondent from said office as a mere usurper. Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the question of title to an office, which must be resolved in a quo warrantoproceeding, may not be determined in a suit to restrain the payment of salary to the person holding such office, brought by someone who does not claim to be the one entitled to occupy the said office. It is obvious that the instant action was improvidently brought by petitioner. To uphold the action would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable mischief and hindrance to the efficient operation of the governmental machinery (See Roosevelt v. Draper, 7 Abb. Pr. 108, 23 N.Y. 218). Its capstone having been removed, the whole case of petitioner collapses. Hence, there is no need to resolve the question of whether the disbursement of public funds to pay the salaries and emoluments of respondent Singson can be enjoined. Likewise, the Court refrains from passing upon the constitutionality of Section 6, R.A. No. 7653 in deference to the principle that bars a judicial inquiry into a constitutional question unless the resolution thereof is indispensable for the determination of the case (Fernandez v. Torres, 215 SCRA 489 [1992]).
cdll

However for the information of all concerned, we call attention to our decision in Calderon v. Carale, 208 SCRA 254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that Congress cannot by law expand the confirmation powers of the Commission on Appointments and require confirmation of appointment of other government officials not expressly mentioned in the first sentence of Section 16 of Article VII of the Constitution. WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED.

EN BANC
[G.R. No. 107369. August 11, 1999.] JESULITO A. MANALO, petitioner, vs. PEDRO G. SISTOZA, REGINO ARO III, NICASIO MA. CUSTODIO, GUILLERMO DOMONDON, RAYMUNDO L. LOGAN, WILFREDO R. REOTUTAR, FELINO C. PACHECO, JR., RUBEN J. CRUZ, GERONIMO B. VALDERRAMA, MERARDO G. ABAYA, EVERLINO B. NARTATEZ, ENRIQUE T. BULAN, PEDRO J. NAVARRO, DOMINADOR M. MANGUBAT, RODOLFO M. GARCIA and HONORABLE SALVADOR M. ENRIQUEZ II In His Capacity as Secretary of Budget and Management, respondents.

Manalo Puno Gozos Jocson and Placido Law Offices for petitioner. The Solicitor General for respondents. Valdez, Domondon, & Associates for respondent Domondon.
SYNOPSIS The case under consideration is a special civil action for prohibition under Rule 65 of the Revised Rules of Court filed by petitioner questioning the constitutionality and legality of the permanent appointments issued by former President Corazon Aquino to the respondent senior officers of the Philippine National Police who were promoted to the ranks of Chief Superintendent and Director without their appointments submitted to the Commission on Appointments for confirmation under Section 16, Article VII of the 1987 Constitution and Republic Act 6975 otherwise known as the Local Government Act of 1990. Impleaded in the case was the former Secretary of Budget and Management Salvador Enriquez III, who approved and effected the disbursements for the salaries and other emoluments of subject police officers. The Court found the petition not meritorious. The Court ruled that there was no need for the confirmation of respondent officers by the Commission on Appointments because these were not included in the first group of officers of the government enumerated under Section 16, Article VII of the Constitution requiring the confirmation of the Commission on Appointments. Consequently,

unconstitutional were Sections 26 and 31 of Republic Act 6975 which empowered the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed. In view thereof, former Secretary Enriquez of the Department of Budget and Management did not act with grave abuse of discretion in authorizing and effecting disbursements for the salaries and other emoluments of the respondent police officers whose appointments are valid. Accordingly, the petition under consideration was dismissed for lack of merit. SYLLABUS 1.POLITICAL LAW; CONSTITUTIONAL LAW; THE CONSTITUTION DOES NOT REQUIRE THE CONFIRMATION OF THE APPOINTMENTS OF OFFICERS OF THE PHILIPPINE NATIONAL POLICE FROM THE RANK OF SENIOR SUPERINTENDENT AND HIGHER BY THE COMMISSION ON APPOINTMENTS; CASE AT BAR. Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III vs. Mison, and in the subsequent cases of Bautista vs. Salonga, Quintos-Deles vs. Constitutional Commission, and Calderon vs. Carale; under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President: First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; Second, all other officers of the Government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. It is well-settled that only presidential appointments belonging to the first group require the confirmation by the Commission on Appointments. The appointments of respondent officers who are not within the first category, need not be confirmed by the Commission on Appointments. As held in the case of Tarrosa vs. Singson, Congress cannot by law expand the power of confirmation of the Commission on Appointments and require confirmation of appointments of other government officials not mentioned in the first sentence of Section 16 of Article VII of the 1987 Constitution. Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed. But the unconstitutionality of the aforesaid sections notwithstanding, the rest of Republic Act 6975 stands. It is well-settled that when provisions of law declared void are severable from the main statute and

the removal of the unconstitutional provisions would not affect the validity and enforceability of the other provisions, the statute remains valid without its voided sections.
CEDScA

2.ID.; ID.; REPUBLIC ACT 6975; THE PHILIPPINE NATIONAL POLICE IS SEPARATE AND DISTINCT FROM THE ARMED FORCES OF THE PHILIPPINES; CASE AT BAR. The Philippine National Police is separate and distinct from the Armed Forces of the Philippines. The Constitution, no less, sets forth the distinction. Under Section 4 of Article XVI of the 1987 Constitution, "The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service, as may be provided by law. It shall keep a regular force necessary for the security of the State." On the other hand, Section 6 of the same Article of the Constitution ordains that: "The State shall establish and maintain one police force, which shall be national in scope and civilian in character to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law." To so distinguish the police force from the armed forces, Congress enacted Republic Act 6975 which states in part: Section 2. Declaration of policy It is hereby declared to be the policy of the State to promote peace and order, ensure public safety and further strengthen local government capability aimed towards the effective delivery of the basic services to the citizenry through the establishment of a highly efficient and competent police force that is national in scope and civilian in character. . . The policy force shall be organized, trained and equipped primarily for the performance of police functions. Its national scope and civilian character shall be paramount. No

element of the police force shall be military nor shall any position thereof be occupied by active members of the Armed Forces of the Philippines. Thereunder,
the police force is different from and independent of the armed forces and the ranks in the military are not similar to those in the Philippine National Police. Thus, directors and chief superintendents of the PNP, such as the herein respondent police officers, do not fall under the first category of presidential appointees requiring the confirmation by the Commission on Appointments. DECISION PURISIMA, J :
p

The case at bar is not of first impression. The issue posed concerning the limits of the power of the Commission on Appointments to confirm appointments

issued by the Chief Executive has been put to rest in a number of cases. The court finds no basis for departing from the ruling laid down in those cases. In this special civil action for Prohibition under Rule 65 of the Revised Rules of Court, petitioners question the constitutionality and legality of the permanent appointments issued by former President Corazon C. Aquino to the respondent senior officers of the Philippine National Police who were promoted to the ranks of Chief Superintendent and Director without their appointments submitted to the Commission on Appointments for confirmation under Section 16, Article VII of the 1987 Constitution and Republic Act 6975 otherwise known as the Local Government Act of 1990. Impleaded in the case is the former Secretary of Budget and Management Salvador M. Enriquez III, who approved and effected the disbursements for the salaries and other emoluments of subject police officers.
LibLex

The antecedents facts are as follows: On December 13, 1990, Republic Act 6975 creating the Department of Interior and Local Government was signed into law by former President Corazon C. Aquino. Pertinent provisions of the said Act read:
Sec. 26.Powers, Functions and Term of Office of the PNP Chief . The command and direction of the PNP shall be vested in the Chief of the PNP who shall have the power to direct and control tactical as well as strategic movements, deployment, placement, utilization of the PNP or any of its units and personal, including its equipment, facilities and other resources. Such command and direction of the Chief of the PNP may be delegated to subordinate officials with respect to the units under their respective commands, in accordance with the rules and regulations prescribed by the Commission. The Chief of the PNP shall also have the power to issue detailed implementing policies and instructions regarding personnel, funds, properties, records, correspondence and such other matters as may be necessary to effectively carry out the functions, powers and duties of the Bureau. The Chief of the PNP shall be appointed by the President from among the senior officers down to the rank of the chief superintendent, subject to confirmation by the Commission on Appointments: Provided, That the Chief of the PNP shall serve a term of office not to exceed four (4) years: Provided, further, That in times of war or other national emergency declared by Congress, the President may extend such term of office." 1 (underlining supplied).

Sec. 31.Appointment of PNP Officers and Members. The appointment of the officers and members of the PNP shall be effected in the following manner:
llcd

(a)Police Officer I to Senior Police Officer IV Appointed by the PNP regional director for regional personnel or by the Chief of the PNP for the national headquarters personnel and attested by the Civil Service Commission;

(b)Inspector to Superintendent Appointed by the Chief of the PNP, as recommended by their immediate superiors, and attested by the Civil Service Commission; (c)Senior Superintendent to Deputy Director General Appointed by the President upon recommendation of the Chief of the PNP, with the proper endorsement by the Chairman of the Civil Service Commission and subject to confirmation by the Commission on Appointments; and (d)Director General Appointed by the President from among the senior officers down to the rank of chief superintendent in the service,subject to confirmation by the Commission on Appointments; Provided, That the Chief of the PNP shall serve a tour of duty not to exceed four (4) years; Provided, further, That, in times of war or other national emergency declared by Congress, the President may extend such tour of duty. " (underlining supplied).

In accordance therewith, on March 10, 1992, the President of the Philippines, through then Executive Secretary Franklin M. Drilon, promoted the fifteen (15) respondent police officers herein, by appointing them to positions in the Philippine National Police with the rank of Chief Superintendent to Director 2 , namely:
cdtai

Chief Supt. PEDRO G. SISTOZADirector Chief Supt. REGINO ARO IIIDirector Chief Supt. NICASIO MA. CUSTODIODirector Chief Supt. GUILLERMO DOMONDONDirector Chief Supt. RAYMUNDO L. LOGANDirector

Senior Supt. WILFREDO REOTUTARChief Superintendent Senior Supt. FELINO C. PACHECO, JR.Chief Superintendent Senior Supt. RUBEN J. CRUZChief Superintendent Senior Supt. GERONIMO B. VALDERRAMAChief Superintendent Senior Supt. MERARDO G. ABAYAChief Superintendent Senior Supt. EVERLINO NARTATEZChief Superintendent Senior Supt. ENRIQUE T. BULANChief Superintendent Senior Supt. PEDRO J. NAVARROChief Superintendent Senior Supt. DOMINADOR MANGUBATChief Superintendent Senior Supt. RODOLFO M. GARCIAChief Superintendent

The appointments of respondent police officers were in a permanent capacity. Their letters of appointment stated in part:
"By virtue hereof, they may qualify and enter upon the performance of the duties of the office, furnishing this office and the Civil Service Commission with copies of their oath of office." 3

Without their names submitted to the Commission on Appointments for confirmation, the said police officers took their oath of office and assumed their respective positions. Thereafter, the Department of Budget and Management, under the then Secretary Salvador M. Enriquez III, authorized disbursements for their salaries and other emoluments. On October 21, 1992, the petitioner brought before this Court this present original petition for prohibition, as a taxpayer suit, to assail the legality of subject appointments and disbursements made therefor.
prLL

Petitioner contends that:

"I.Respondent officers, in assuming their offices and discharging the functions attached thereto, despite their invalid appointments, in view of the failure to secure the required confirmation of the Commission on Appointments as required by the Constitution and the law, are acting without or in excess of their jurisdiction or with grave abuse of discretion, considering that :

A.Republic Act 6975 is a valid law that duly requires confirmation of the appointments of officers from the rank of senior superintendent and higher by the Commission on Appointments; B.The Philippine National Police is akin to the Armed Forces where the Constitution specifically requires confirmation by the Commission on Appointments. II.Respondent Secretary in allowing and/or effecting disbursements in favor of respondent officers despite the unconstitutionality and illegality of their appointments is acting without or in excess of his jurisdiction or with grave abuse of discretion."
prLL

The petition must fail. It is not impressed with merit. Petitioner theorizes that Republic Act 6975 enjoys the presumption of constitutionality and that every statute passed by Congress is presumed to have been carefully studied and considered before its enactment. He maintains that the respect accorded to each department of the government requires that the court should avoid, as much as possible, deciding constitutional questions. The Court agrees with petitioner. However, it is equally demanded from the courts, as guardians of the Constitution, to see to it that every law passed by Congress is not repugnant to the organic law. Courts have the inherent authority to determine whether a statute enacted by the legislature transcends the limit delineated by the fundamental law. 4 When it does, the courts will not hesitate to strike down such unconstitutional law. The power to make appointments is vested in the Chief Executive by Section 16, Article VII of the Constitution, which provides:
prLL

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

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

The aforecited provision of the Constitution has been the subject of several cases on the issue of the restrictive function of the Commission on Appointments with respect to the appointing power of the President. This court touched upon the historical antecedent of the said provision in the case ofSarmiento III vs. Mison 5 in which it was ratiocinated upon that Section 16 of Article VII of the 1987 Constitution requiring confirmation by the Commission on Appointments of certain appointments issued by the President contemplates a system of checks and balances between the executive and legislative branches of government. Experience showed that when almost all presidential appointments required the consent of the Commission on Appointments, as was the case under the 1935 Constitution, the commission became a venue of "horse-trading" and similar malpractices. 6 On the other hand, placing absolute power to make appointments in the President with hardly any check by the legislature, as what happened under 1973 Constitution, leads to abuse of such power. Thus was perceived the need to establish a "middle ground" between the 1935 and 1973 Constitutions. The framers of the 1987 Constitution deemed it imperative to subject certain high positions in the government to the power of confirmation of the Commission on Appointments and to allow other positions within the exclusive appointing power of the President.
LibLex

Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III vs. Mison, 7 and in the subsequent cases of Bautista vs. Salonga, 8Quintos-Deles vs. Constitutional Commission, 9 and Calderon vs. Carale; 10 under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President:
First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; Second, all other officers of the Government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint;

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

It is well-settled that only presidential appointments belonging to the first group require the confirmation by the Commission on Appointments. The appointments of respondent officers who are not within the first category, need not be confirmed by the Commission on Appointments. As held in the case of Tarrosa vs. Singson, 11 Congress cannot by law expand the power of confirmation of the Commission on Appointments and require confirmation of appointments of other government officials not mentioned in the first sentence of Section 16 of Article VII of the 1987 Constitution. Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed. But the unconstitutionality of the aforesaid sections notwithstanding, the rest of Republic Act 6975 stands. It is well-settled that when provisions of law declared void are severable from the main statute and the removal of the unconstitutional provisions would not affect the validity and enforceability of the other provisions, the statute remains valid without its voided sections. 12 It is petitioner's submission that the Philippine National Police is akin to the Armed Forces of the Philippines and therefore, the appointments of police officers whose rank is equal to that of colonel or naval captain require confirmation by the Commission on Appointments.
cdll

This contention is equally untenable. The Philippine National Police is separate and distinct from the Armed Forces of the Philippines. The Constitution, no less, sets forth the distinction. Under Section 4 of Article XVI of the 1987 Constitution,
"The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service, as may be provided by law. It shall keep a regular force necessary for the security of the State."

On the other hand, Section 6 of the same Article of the Constitution ordains that:
"The State shall establish and maintain one police force, which shall be national in scope and civilian in character to be administered and controlled by a national police commission. The authority of local

executives over the police units in their jurisdiction shall be provided by law."

To so distinguish the police force from the armed forces, Congress enacted Republic Act 6975 which states in part:
prcd

Section 2.Declaration of policy. It is hereby declared to be the policy of the State to promote peace and order, ensure public safety and further strengthen local government capability aimed towards the effective delivery of the basic services to the citizenry through the establishment of a highly efficient and competent police force that is national in scope and civilian in character . . . . The policy force shall be organized, trained and equipped primarily for the performance of police functions. Its national scope and civilian character shall be paramount. No element of the police force shall be

military nor shall any position thereof be occupied by active members of the Armed Forces of the Philippines.

Thereunder, the police force is different from and independent of the armed forces and the ranks in the military are not similar to those in the Philippine National Police. Thus, directors and chief superintendents of the PNP, such as the herein respondent police officers, do not fall under the first category of presidential appointees requiring the confirmation by the Commission on Appointments. In view of the foregoing disquisition and conclusion, the respondent former Secretary Salvador M. Enriquez III of the Department of Budget and Management, did not act with grave abuse of discretion in authorizing and effecting disbursements for the salaries and other emoluments of the respondent police officers whose appointments are valid.
prLL

WHEREFORE, for lack of merit, the petition under consideration is hereby DISMISSED. No pronouncement as to costs. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes andYnares-Santiago, JJ., concur. Puno, J., took no part.
Footnotes

HIRD DIVISION
[G.R. No. 153881. March 24, 2003.] ELPIDIO G. SORIANO III, petitioner, vs. REUBEN S. LISTA, DOMINGO T. ESTERA, ELPIDIO B. PADAMA, MIGUEL C. TABARES, ARTHUR N. GOSINGAN, EFREN L. TADURAN, CESAR A. SARILE, DANILO M. VILDA and HONORABLE EMILIA T. BONCODIN, in her capacity as Secretary of Budget and Management, respondents.

Soriano Lu Reyes & Associates for petitioner. The Solicitor General for respondents.
SYNOPSIS Petition for prohibition filed by petitioner as IBP member and taxpayer, questioning the constitutionality of the permanent appointments made by the President of public respondents to different positions in the Philippine Coast Guard without confirmation by the Commission on Appointments. The Supreme Court found petitioner to be without any legal personality to file the instant petition. A private citizen can raise constitutional questions only if he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government. This, petitioner failed to do. Moreover, public respondents did not commit grave abuse of discretion since they are not covered by Sec 16, Art. VII of the 1987 Constitution, which enumerates appointments subject to confirmation by the CA. SYLLABUS 1.CONSTITUTIONAL LAW; JUDICIARY; JUDICIAL REVIEW; CONSTITUTIONALITY OF AN ACT OR STATUTE MAY BE CHALLENGED UPON A SHOWING OF ACTUAL OR THREATENED INJURY AS A RESULT THEREOF; CASE AT BAR. We have ruled that a private citizen is allowed to raise constitutional questions only if he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, the injury is fairly traceable to the challenged action and the injury is likely to be redressed by a favorable action. In the case at bar, petitioner has failed to clearly

demonstrate that he has personally suffered actual or threatened injury. It should be emphasized that a party bringing a suit challenging the constitutionality of an act or statute must show "not only that the law or act is invalid, but also that he has sustained or is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement and not merely that he suffers thereby in some indefinite way."
cIHSTC

2.ID.; EXECUTIVE DEPARTMENT; APPOINTMENTS SUBJECT TO CONFIRMATION BY THE COMMISSION ON APPOINTMENTS (CA); PROMOTIONS AND APPOINTMENTS IN THE PHILIPPINE COAST GUARD NEED NOT BE CONFIRMED BY THE CA. Now that the PCG is under the DOTC and no longer part of the Philippine Navy or the Armed Forces of the Philippines, the promotions and appointments of respondent officers of the PCG, or any PCG officer from the rank of captain and higher for that matter, do not require confirmation by the CA. Section 16, Article VII of the 1987 Constitution that only appointed officers from the rank of colonel or naval captain in the armed forces require confirmation by the CA. The rule is that the plain, clear and unambiguous language of the Constitution should be construed as such and should not be given a construction that changes its meaning. The enumeration of appointments subject to confirmation by the CA under Section 16, Article VII of the 1987 Constitution is exclusive. The clause "officers of the armed forces from the rank of colonel or naval captain" refers to military officers alone. DECISION CORONA, J :
p

Before us is a Petition for Prohibition under Rule 65 of the Rules of Court questioning the constitutionality and legality of the permanent appointments, made by President Gloria Macapagal-Arroyo, of public respondents to different positions in the Philippine Coast Guard and their subsequent assumption of office without confirmation by the Commission on Appointments under the 1987 Constitution. The petition impleads Hon. Emilia T. Boncodin in her capacity as Secretary of the Department of Budget and Management (DBM). Petitioner, Elpidio G. Soriano, filed the instant petition as member of the Integrated Bar of the Philippines and as a taxpayer.

Public respondents were promoted to different ranks in the Philippine Coast Guard (PCG) on different dates as follows:
Reuben S. Lista Vice Admiral, Philippine Coast Guard Domingo T. Estera Rear Admiral, Philippine Coast Guard Miguel C. Tabares Commodore, Philippine Coast Guard Arthur N. Gosingan Commodore, Philippine Coast Guard Efren L. Taduran Naval Captain, Philippine Coast Guard Cesar A. Sarile Naval Captain, Philippine Coast Guard Danilo M. Vilda Naval Captain, Philippine Coast Guard Elpidio B. Padama Commodore, Philippine Coast Guard

Petitioner bewails the fact that despite the non-submission of their names to the Commission on Appointments (CA) for confirmation, all of the said respondent officers of the PCG had assumed their duties and functions. According to petitioner, their respective appointments are illegal and unconstitutional for failure to undergo the confirmation process in the CA. Thus, they should be prohibited from discharging their duties and functions as such officers of the PCG. In the same vein, petitioner opines that there is no legal basis for the DBM to allow the disbursement of the salaries and emoluments of respondent officers of the PCG. Accordingly, he prays that respondent Secretary Boncodin be ordered to desist from allowing such disbursements until the confirmation of their respective appointments by the CA. At the outset, the Court finds petitioner to be without any legal personality to file the instant petition. We have ruled that a private citizen is allowed to raise constitutional questions only if he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, the injury is fairly traceable to the challenged action and the injury is likely to be redressed by a favorable action. 1 In the case at bar, petitioner has failed to clearly demonstrate that he has personally suffered actual or threatened injury. It should be emphasized that a party bringing a suit challenging the constitutionality of an act or statute must show "not only that the law or act is invalid, but also that he has sustained or is in immediate, or imminent danger of

sustaining some direct injury as a result of its enforcement and not merely that he suffers thereby in some indefinite way." 2 The instant petition cannot even be classified as a taxpayer's suit because petitioner has no interest as such and this case does not involve the exercise by Congress of its taxing power. Assuming arguendo that petitioner has the legal personality to question the subject appointments, the petition will nevertheless fail. As aptly pointed out by the Solicitor General, the PCG used to be administered and maintained as a separate unit of the Philippine Navy under Section 4 of RA 5173. It was subsequently placed under the direct supervision and control of the Secretary of the Department of National Defense (DND) pursuant to Section 4 of PD 601. Eventually, it was integrated into the Armed Forces of the Philippines (AFP) as a major subordinate unit of the Philippine Navy under Section 54 of Chapter 8, Sub-title II, Title VIII, Book IV of EO 292, as amended.
DcSACE

However, on March 30, 1998, after the aforesaid changes in the charter of the PCG, then President Fidel V. Ramos, in the exercise of his statutory authority to reorganize the Office of the President, issued EO 475 transferring the PCG from the DND to the Office of the President. He later on again transferred the PCG from the Office of the President to the Department of Transportation and Communications (DOTC). Now that the PCG is under the DOTC and no longer part of the Philippine Navy or the Armed Forces of the Philippines, the promotions and appointments of respondent officers of the PCG, or any PCG officer from the rank of captain and higher for that matter, do not require confirmation by the CA. Section 16, Article VII of the 1987 Constitution provides:
Section 16.The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

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

It is clear from the foregoing provision of the Constitution that only appointed officers from the rank of colonel or naval captain in the armed forces require confirmation by the CA. The rule is that the plain, clear and unambiguous language of the Constitution should be construed as such and should not be given a construction that changes its meaning. 3 The enumeration of appointments subject to confirmation by the CA under Section 16, Article VII of the 1987 Constitution is exclusive. The clause "officers of the armed forces from the rank of colonel or naval captain" refers to military officers alone. This is clear from the deliberations of the Constitutional Commission on the proposed text of said Section 16, Article VII of the Constitution. Since the promotions and appointments of respondent officers are not covered by the above-cited provision of the Constitution, the same need not be confirmed by the CA. 4 Accordingly, the Court declares that no grave abuse of discretion amounting to lack or excess of jurisdiction was committed by respondent officers of the PCG. Their assumption to office as well as the disbursement of their respective salaries and other emoluments by the respondent Secretary of the DBM are hereby declared valid and legal.

WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.

caADIC

EN BANC
[G.R. No. 149036. April 2, 2002.] MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge, Finance Services Department of the Commission on Elections, respondents.

Brillantes Navarro Jumamil Arcilla Escolin & Martinez Law Offices for petitioner. The Solicitor General for respondents.
SYNOPSIS Before the Supreme Court is an original Petition for Prohibition wherein petitioner questioned the constitutionality of the appointment and the right to hold office of respondents Alfredo L. Benipayo, as Chairman of the Commission on Elections, and Resurreccion Z. Borra and Florentino A. Tuason, Jr., as COMELEC Commissioners. Petitioner claimed that the ad interim appointments and reappointments of the respondents violated the constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members under Section 1 (2), Article IX-C of the Constitution.
AcIaST

The Court ruled that the ad interim appointments extended by the President to the respondents, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments prohibited under the aforesaid provision. The Constitution itself makes an ad interim appointment permanent in character by making it effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. Moreover, while the Constitution mandates that the COMELEC "shall be independent," this provision should be harmonized with the President's power to extend ad interimappointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before they can assume office will negate the President's power to make ad interim appointments.

The Court further held that the prohibition on reappointment in Section 1(2), Article IX-C of the Constitution applies neither to disapproved nor by-passedad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1(2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. In the case at bar, the ad interimappointments and subsequent renewals of appointments of respondents did not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments did not also breach the seven-year term limit because all the appointments and renewals of appointments of respondents were for a fixed term expiring on February 2, 2008. Any delay in their confirmation will not extend the expiry date of their terms of office. Thus, the continuing renewal of the ad interim appointment of the three respondents did not violate the prohibition on reappointments.
cCSDTI

SYLLABUS 1.CONSTITUTIONAL LAW; JUDICIAL DEPARTMENT; SUPREME COURT; JUDICIAL REVIEW; PETITIONER HAS LOCUS STANDI TO QUESTION THE CONSTITUTIONALITY OF RESPONDENTS' ASSUMPTION OF OFFICE IN CASE AT BAR. Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was placed on detail service. Respondents claim that the reassignment was "pursuant to . .

.Benipayo's authority as Chairman of the Commission on Elections, and as the Commission's Chief Executive Officer." Evidently, respondents anchor the legality
of petitioner's reassignment on Benipayo's authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution. On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution, then petitioner's reassignment is legal and she has no cause to complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the

resolution of the constitutionality of Benipayo'sassumption of office. Petitioner's personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition. 2.ID.; ID.; ID.; ID.; ID.; EARLIEST OPPORTUNITY TO RAISE A CONSTITUTIONAL ISSUE IS TO RAISE IT IN A PLEADING BEFORE A COMPETENT COURT; COURT MAY DETERMINE THE TIME WHEN CONSTITUTIONAL ISSUE MAY BE PASSED UPON. Respondents harp on petitioner's belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on appeal." Petitioner questioned the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon. There is no doubt petitioner raised the constitutional issue on time. 3.ID.; ID.; ID.; ID.; CONSTITUTIONAL ISSUE RAISED BY PETITIONER IS THE LIS MOTA OF THE CASE. Moreover, the legality of petitioner's reassignment hinges on the constitutionality of Benipayo's ad interim appointment and assumption of office. Unless the constitutionality of Benipayo's ad interim appointment and assumption of office is resolved, the legality of petitioner's reassignment from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner. 4.ID.; ID.; ID.; ID.; COURT MAY BRUSH ASIDE TECHNICALITIES OF PROCEDURE AND RESOLVE ANY CONSTITUTIONAL ISSUE RAISED TO DETERMINE WHETHER OTHER AGENCIES OF GOVERNMENT HAVE REMAINED WITHIN LIMITS OF THE CONSTITUTION. In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the constitutional issue raised by

petitioner is left unresolved. In keeping with this Court's duty to determine whether other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them, this Court may even brush aside technicalities of procedure and resolve any constitutional issue raised. Here the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner. 5.ID.; EXECUTIVE DEPARTMENT; PRESIDENT; POWER OF APPOINTMENT; AD INTERIM APPOINTMENT; PERMANENT IN CHARACTER AND CAN NO LONGER BE WITHDRAWN AT ANY TIME ONCE APPOINTEE HAS QUALIFIED INTO OFFICE. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interimappointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides as follows: "The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. 6.ID.; ID.; ID.; ID.; ID.; NATURE. The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interimappointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments, this Court elaborated on the nature of an ad interimappointment as follows: "A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is

not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the

appointment is effective 'until disapproval by the Commission on Appointments or until the next adjournment of the Congress."
TCDHIc

7.ID.; ID.; ID.; ID.; ID.; ELABORATED. Petitioner cites Black's Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, where we explained that: ". . . From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several 'ad interim' appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word 'ad interim' which creates such belief. The term is defined by Black to mean "in the meantime" or "for the time being." Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in

which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. . . .." Thus, the term "ad interim appointment," as used in letters of appointment

signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of Appeals, where the Court stated: "We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondent's appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioner's submission that private

respondent's ad interim appointment is synonymous with a temporary

appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board disapproves them."
8.ID.; ID.; ID.; ID.; ID.; COMPLETE AND IRREVOCABLE ONCE APPOINTEE HAS QUALIFIED INTO OFFICE; WITHDRAWAL OR REVOCATION AFTER APPOINTEE HAS QUALIFIED INTO OFFICE IS TANTAMOUNT TO REMOVAL FROM OFFICE. An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law." Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office. Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. 9.ID.; ID.; ID.; ID.; ID.; TERMINATION; CAUSES. An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. 10.ID.; ID.; ID.; ID.; ID.; DISTINGUISHED FROM TEMPORARY APPOINTMENT. While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac, this Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court

ruled that: "A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal. . . . The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its members. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines." 11.ID.; ID.; ID.; ID.; ID.; TAKES EFFECT IMMEDIATELY; TEMPORARY APPOINTMENT OF MEMBER OF THE COMELEC IS VIOLATIVE OF THE CONSTITUTION; AD INTERIM APPOINTMENTS OF RESPONDENTS ARE ALLOWED BY THE CONSTITUTION. Earlier, in Nacionalista Party vs. Bautista, a case decided under the 1935 Constitution, which did not have a provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. We declared then: "It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily." In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista. The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appointments that take effect immediately.
ISAcHD

12.ID.; ID.; ID.; ID.; ID.; CONFIRMATION OF COMMISSION ON APPOINTMENTS NOT REQUIRED BEFORE APPOINTEES CAN ASSUME OFFICE. While the Constitution mandates that the COMELEC "shall be independent," this provision should be harmonized with the President's power to extend ad interim appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will negate the President's power to make ad

interim appointments. This is contrary to the rule on statutory construction to

give meaning and effect to every provision of the law. It will also run counter to the clear intent of the framers of the Constitution. 13.ID.; ID.; ID.; ID.; ID.; RATIONALE. The reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government services that otherwise would result from prolonged vacancies in government offices, including the three constitutional commissions. In his concurring opinion in Guevara vs. Inocentes, decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in this manner: "Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress, the evil sought to be avoided interruption in the discharge of essential functions may take place. Because the same evil would result if the appointments ceased to be effective during the session of Congress and before its adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of other ad interim appointments or reappointments." Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the interruption of essential government services in the May 2001 national elections. Following the decision of this Court in Gaminde vs. Commission on Appointments, promulgated on December 13, 2000, the terms of office of constitutional officers first appointed under the Constitution would have to be counted starting February 2, 1987, the date of ratification of the Constitution, regardless of the date of their actual appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001.

14.ID.; ID.; ID.; ID.; ID.; MODES IN APPOINTING OFFICIALS WHO ARE SUBJECT TO CONFIRMATION BY COMMISSION ON APPOINTMENTS. Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing officials who are subject to confirmation by the Commission on Appointments. First, while Congress is in session, the President may nominate the prospective appointee, and pending consent of the Commission on Appointments, the nominee cannot qualify and assume office.

Second, during the recess of Congress, the President may extend an ad interim appointment which allows the appointee to immediately qualify and assume office.
IHEDAT

15.ID.; ID.; ID.; ID.; ID.; COURT CANNOT INQUIRE INTO THE PROPRIETY OF PRESIDENT'S CHOICE ABSENT GRAVE ABUSE OF DISCRETION. Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within the prerogative of the President because the Constitution grants her that power. This Court cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power, absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in the instant case. 16.ID.; ID.; ID.; ID.; ID.; SUBJECT TO CHECKING POWER OF LEGISLATURE; AD INTERIM APPOINTMENT DOES NOT COMPROMISE THE INDEPENDENCE OF THE COMELEC. The President's power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers. This situation, however, is only for a short period from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital government services. This is also part of the check-and-balance under the separation of powers, as a trade-off against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the President's appointing power to the checking power of the legislature. This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed appointments, and not one President will appoint all the COMELEC members. In the instant case, the Commission on Appointments had long confirmed four of the incumbent COMELEC members, comprising a majority, who could now be removed from office only by impeachment. The special constitutional safeguards that insure the independence of the COMELEC remain in place. The COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure. 17.ID.; ID.; ID.; ID.; ID.; AD INTERIM APPOINTEE DISAPPROVED BY COMMISSION ON APPOINTMENTS CAN NO LONGER BE EXTENDED A NEW APPOINTMENT; DECISION OF COMMISSION ON APPOINTMENTS IS FINAL AND BINDING AND CANNOT BE APPEALED. There is no dispute that an ad

interim appointee disapproved by the Commission on Appointments can no

longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment.
cTCaEA

18.ID.; ID.; ID.; ID.; ID.; BY-PASSED APPOINTMENT MAY BE RENEWED BY THE PRESIDENT. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows: "Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by the Commission." Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews the appointment. 19.ID.; ID.; ID.; ID.; ID.; ID.; RATIONALE. It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes why by-passed ad interimappointees could be extended new appointments, thus: "In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress," simply because the President may then issue new appointments not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the

interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments or reappointments." 20.ID.; ID.; ID.; ID.; ID.; WHEN DISAPPROVED CANNOT BE REVIVED BY ANOTHER AD INTERIM APPOINTMENT. The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1(2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. 21.ID.; COMELEC; ARTICLE IX-C, SECTION 1(2); SEVEN-YEAR TERM LIMIT; APPLICABILITY. Section 1(2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be appointed . . . for a term of seven years without reappointment." There are four situations where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving more than seven years. The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven

years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1(2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any situation. Not one of these four situations applies to the case of Benipayo, Borra or Tuason. 22.ID.; ID.; ID.; ID.; PROHIBITION ON REAPPOINTMENT; EXPLAINED. The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member whether for a full term of seven years, a truncated term of five or three years, or even for an unexpired term of any length of time can no longer be reappointed to the COMELEC. In Visarra vs. Miraflor, Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six years, provided his term will not exceed nine years in all." This was the interpretation despite the express provision in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine years and may not be reappointed." To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1(2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind.
IDTSaC

23.ID.; ID.; ID.; ID.; ID.; AN AD INTERIM APPOINTMENT THAT HAS LAPSED BY INACTION OF COMMISSION ON APPOINTMENTS DOES NOT CONSTITUTE A TERM OF OFFICE. However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments. 24.ID.; ID.; ID.; ID.; ID.; APPLIES ONLY WHEN THERE IS CONFIRMATION BY COMMISSION ON APPOINTMENTS OF PREVIOUS APPOINTMENT. The phrase

"without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the President's power to make ad interimappointments. In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services. 25.ID.; ID.; ID.; ID.; TWIN PROHIBITIONS; PROHIBITION ON REAPPOINTMENTS AND TEMPORARY ACTING APPOINTMENTS; RATIONALE. The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointee's total term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific reappointment of any kind and exceeding one's term in office beyond the maximum period of seven years.
SacDIE

26.ID.; ID.; ID.; ID.; AD INTERIM APPOINTMENTS AND SUBSEQUENT RENEWALS OF APPOINTMENT OF RESPONDENTS ARE NOT VIOLATIVE THEREOF; REAPPOINTMENT PRESUPPOSES A PREVIOUS CONFIRMED APPOINTMENT. The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not breach the seven-year term limit

because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008. Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution. 27.ADMINISTRATIVE LAW; ADMINISTRATIVE CODE; COMELEC; COMELEC CHAIRMAN; EMPOWERED ON HIS OWN AUTHORITY TO TRANSFER OR REASSIGN PERSONNEL IN ACCORDANCE WITH CIVIL SERVICE LAW; APPROVAL OF COMELEC EN BANC, NOT REQUIRED. Petitioner claims thatBenipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. Petitioner's posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested with the following power: . . .. The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc. 28.ID.; ID.; ID.; ID.; SOLE OFFICER SPECIFICALLY VESTED WITH POWER TO TRANSFER OR REASSIGN PERSONNEL; CASE AT BAR. Contrary to petitioner's allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000, exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code, the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel

pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banccannot legally do. COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. 29.ADMINISTRATIVE LAW; CIVIL SERVICE LAW; APPOINTMENTS; REASSIGNMENT OF PETITIONER IS NOT CONTRARY TO CIVIL SERVICE LAW; A PERSON APPOINTED IN A TEMPORARY OR ACTING CAPACITY DOES NOT ENJOY SECURITY OF TENURE. Petitioner's appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. Petitioner is not a Career Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission. Obviously, petitioner does not enjoy security of tenure as Director IV. Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation.
AEcTCD

30.ID.; ADMINISTRATIVE CODE; COMELEC; COMELEC CHAIRMAN; EMPOWERED ON HIS OWN AUTHORITY TO TRANSFER OR REASSIGN PERSONNEL IN ACCORDANCE WITH CIVIL SERVICE LAW. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayo's order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For

the same reason, Benipayo's order designating Cinco Officer-in-Charge of the EID is legally unassailable. 31.ID.; ID.; ID.; DISBURSEMENTS TO RESPONDENTS CONSIDERED LEGAL IN CASE AT BAR. Respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other emoluments ofBenipayo, Borra, Tuason and Cinco. DECISION CARPIO, J :
p

The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for brevity) as Chairman of the Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cinco 1 ("Cinco" for brevity) as Director IV of the COMELEC's Education and Information Department ("EID" for brevity).
DTEHIA

The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner Rufino S. B. Javier renewed again the appointment of petitioner to the same position in a "Temporary" capacity. 2 On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman, and Borra and

Tuason 5 as COMELEC Commissioners, each for a term of seven years and all expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC Commissioners. The Office of the President submitted to the Commission on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmations. 6However, the Commission on Appointments did not act on said appointments. On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions and for the same term of seven years, expiring on February 2, 2008. 7 They took their oaths of office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the Commission on Appointments for confirmation. 8 Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason to the same positions. 9 The Office of the President submitted their appointments for confirmation to the Commission on Appointments. 10 They took their oaths of office anew. In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001 11 addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-inCharge Mehol K. Sadain objected to petitioner's reassignment in a Memorandum dated April 14, 2001 12 addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayo's failure to consult the Commissionerin-Charge of the EID in the reassignment of petitioner. On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law Department. 13Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are prohibited during the election period beginning January 2 until June 13, 2001." Benipayo denied her request for reconsideration on April 18, 2001, 14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which states in part:

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing."

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23, 2001. 15 Petitioner also filed an administrative and criminal complaint 16 with the Law Department 17 against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules and regulations. During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interimappointments of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance Services Department Officer-inCharge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments. In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a term of seven years expiring on February 2, 2008. 18 They all took their oaths of office anew.

The Issues
The issues for resolution of this Court are as follows:

1Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in constitutional cases; 2Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution; 3Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution; 4Whether or not Benipayo's removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Department is illegal and without authority, having been done without the approval of the COMELEC as a collegial body; 5Whether or not the Officer-in-Charge of the COMELEC's Finance Services Department, in continuing to make disbursements in favor ofBenipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in constitutional cases. Out of respect for the acts of the Executive department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the constitutional issue is the lis mota of the case. 19

Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain that petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions assumed byBenipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the appointments of these three respondents. Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed after the third time that these three respondents were issued ad interim appointments. Respondents insist that the real issue in this case is the legality of petitioner's reassignment from the EID to the Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of this case. We are not persuaded. Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was placed on detail service. 20Respondents claim that the reassignment was "pursuant to . . . Benipayo's authority as

Chairman of the Commission on Elections, and as the Commission's Chief Executive Officer." 21 Evidently, respondents anchor the legality of petitioner's
reassignment on Benipayo's authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution, then petitioner's reassignment is legal and she has no cause to complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the resolution of the constitutionality of Benipayo's assumption of office. Petitioner's personal and substantial injury, ifBenipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition.

Respondents harp on petitioner's belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on appeal." 22 Petitioner questioned the constitutionality of thead interim appointments of Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon. 23 There is no doubt petitioner raised the constitutional issue on time.

Moreover, the legality of petitioner's reassignment hinges on the constitutionality of Benipayo's ad interim appointment and assumption of office. Unless the constitutionality of Benipayo's ad interim appointment and assumption of office is resolved, the legality of petitioner's reassignment from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner. In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Court's duty to determine whether other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them, this Court may even brush aside technicalities of procedure and resolve any constitutional issue raised. 24 Here the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity." (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the Constitution. Based on petitioner's theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B andArticle IX-D providing for the creation of the Civil Service Commission and the Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until his appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer temporary in character. The rationale behind petitioner's theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for any cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the Commission on Appointments. We find petitioner's argument without merit. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The

Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides as follows:
"The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." (Emphasis supplied)

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers vs. Ozaeta, 25 decided on October 25, 1948, we held that:
". . . . an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the 'President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.' It is an appointment permanent in

nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interimappointment is disapproved certainly for a

reason other than that its provisional period has expired. Said appointment is of course distinguishable from an 'acting' appointment which is merely temporary, good until another permanent appointment is issued." (Emphasis supplied)

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments, 26 this Court elaborated on the nature of an ad interim appointment as follows:
"A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments

when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so

with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the
Constitution, the appointment is effective 'until disapproval by the Commission on Appointments or until the next adjournment of the Congress.'"

Petitioner cites Black's Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 27 where we explained that:
". . . From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several 'ad interim' appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word 'ad interim' which creates such belief. The term is defined by Black to mean "in the meantime" or "for the time being." Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given to him.Rather, it is used to denote the manner in

which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. . . .." (Emphasis supplied)

Thus, the term "ad interim appointment," as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of Appeals, 28 where the Court stated:

"We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondent's appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioner's submission that

private respondent's ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board disapproves them." (Emphasis supplied)

An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law. 29Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office. 30 Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting

capacity can be withdrawn or revoked at the pleasure of the appointing power. 31 A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac, 32 this Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal. xxx xxx xxx The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its members. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines."

Earlier, in Nacionalista Party vs. Bautista, 33 a case decided under the 1935 Constitution, which did not have a provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. We declared then: "It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanentCommissioner than to designate one to act temporarily." (Emphasis supplied) In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac 34 and Solicitor General Felix Bautista

in Nacionalista Party vs. Bautista. 35 The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appointments that take effect immediately. While the Constitution mandates that the COMELEC "shall be independent," 36 this provision should be harmonized with the President's power to extendad interim appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will negate the President's power to make ad interim appointments. This is contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will also run counter to the clear intent of the framers of the Constitution. The original draft of Section 16, Article VII of the Constitution on the nomination of officers subject to confirmation by the Commission on Appointments did not provide for ad interim appointments. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. However, because of the need to avoid disruptions in essential government services, the framers of the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. The following discussion during the deliberations of the Constitutional Commission elucidates this:
"FR. BERNAS: . . . our compulsory recess now is only 30 days. So under such circumstances, is it necessary to provide for ad interimappointments? Perhaps there should be a little discussion on that.

xxx xxx xxx

MS. AQUINO: My concern is that unless this problem is addressed, this of involuntary recess or adjournment of the Congress. We are certain, however, of the involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the matter of involuntary recess. FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula . . .. xxx xxx xxx

might present problems in terms of anticipating interruption of government business, considering that we are not certain of the length

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring with the Committee, Commissioner Aquino and I propose the following amendment as the last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS. This is otherwise called the ad interim appointments. xxx xxx xxx THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the amendment is approved." 37 (Emphasis supplied)

Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government services that otherwise would result from prolonged vacancies in government offices, including the three constitutional commissions. In his concurring opinion in Guevara vs. Inocentes, 38 decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in this manner:
"Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress, the evil sought

to be avoided interruption in the discharge of essential functions

may take place. Because the same evil would result if the appointments ceased to be effective during the session of Congress and before its adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of other ad interim appointments or reappointments." (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the interruption of essential government services in the May 2001 national elections. Following the decision of this Court in Gaminde vs. Commission on Appointments, 39 promulgated on December 13, 2000, the terms of office of constitutional officers first appointed under the Constitution would have to be counted starting February 2, 1987, the date of

ratification of the Constitution, regardless of the date of their actual appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001. 40 Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her appointment papers, until February 15, 2002, 41 the original expiry date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001. 42The original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to fall afterthe May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half months away. To their credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court the applicability of the Gaminde ruling to their own situation.

In a Manifestation 43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in choosing her successor might create a "constitutional crisis" in view of the proximity of the May 2001 national elections. Commissioner Desamito chose to file a petition for intervention 44 in the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001. During an election year, Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001. 45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections. If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires that "all . . . election cases shall be

heard and decided in division," 46 the remaining one division would have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration "shall be decided by the Commission en banc," the mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners are expected to travel around the country before, during and after the elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and strengthening our democracy. Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing officials who are subject to confirmation by the Commission on Appointments. First, while Congress is in session, the President may nominate the prospective appointee, and pending consent of the Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad interim appointment which allows the appointee to immediately qualify and assume office. Whether the President chooses to nominate the prospective appointee or extend, an ad interim appointment is a matter within the prerogative of the President because the Constitution grants her that power. This Court cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power, absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in the instant case. The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President Corazon Aquino issued an ad interimappointment to Commissioner Alfredo E. Abueg. 47 Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe. 48 Former President Joseph Estrada also extended ad interimappointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion. 49

The President's power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers. This situation, however, is only for a short period from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a tradeoff against the evil of disruptions in vital government services. This is also part of the check-and-balance under the separation of powers, as a trade-off against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the President's appointing power to the checking power of the legislature. This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed appointments, and not one President will appoint all the COMELEC members. 50 In the instant case, the Commission on Appointments had long confirmed four 51 of the incumbent COMELEC members, comprising a majority, who could now be removed from office only by impeachment. The special constitutional safeguards that insure the independence of the COMELEC remain in place. 52The COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure. In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also argues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution, which provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last members for three years, without reappointment. . . .." (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by passed by the Commission on Appointments, his ad interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad interimappointments are deemed permanent in character. There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows:
"Section 17.Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by the Commission." (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews the appointment.

It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes 53 why by-passed ad interim appointees could be extended new appointments, thus:
"In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress," simply because the President may then issue new appointments not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the

Congress, the President is free to make ad interim appointments or reappointments." (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution on ad interimappointments was lifted verbatim. 54 The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless
applicable to the present Constitution. The established practice under the present Constitution is that the President can renew the appointments of bypassed ad interim appointees. This is a continuation of the well-recognized practice under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing power in the President.

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because

there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be appointed . . . for a term of seven years without reappointment." (Emphasis supplied) There are four situations where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving more than seven years. The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any situation. Not one of these four situations

applies to the case of Benipayo, Borra or Tuason.

The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member whether for a full term of seven years, a truncated term of five or three years, or even for an unexpired term of any length of time can no longer be reappointed to the COMELEC. Commissioner Foz succinctly explained this intent in this manner:
"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the term or tenure is for seven years. But in cases where the appointee serves only

for less than seven years, he would be entitled to reappointment. Unless

we put the qualifying words "without reappointment" in the case of those appointed, then it is possible that an interpretation could be made later on their case, they can still be reappointed to serve for a total of seven years. Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed under the Constitution, no reappointment can be made." 55 (Emphasis supplied)

In Visarra vs. Miraflor, 56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera 57 that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six years, provided his term will not exceed nine years in all." This was the interpretation despite the express provision in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine years and may not be reappointed." To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments. The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the President's power to make ad interimappointments.

In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services. The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who sponsored 58 the proposed articles on the three constitutional commissions, outlined the four important features of the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that) appropriations shall be automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity of the President to appoint all the members during his incumbency; 3) prohibition to decrease salaries of the members of the Commissions during their term of office; and 4) appointments of members would not require confirmation." 59 (Emphasis supplied)

There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the Commission on Appointments of all appointments to the constitutional commissions. Second, the framers decided to strengthen further the prohibition on serving beyond the fixed sevenyear term, in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years. The following exchange in the deliberations of the Constitutional Commission is instructive:

"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsor's attention, first of all, to Section 2 (2) on the Civil Service Commission wherein it is stated: "In no case shall any Member be appointed in a temporary or acting capacity." I detect in the Committee's proposed resolutions a constitutional hangover, if I may use the term, from the past administration. Am I correct in concluding that the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion, he occupied that position for about 12 years in violation of the Constitution?

MR. FOZ: It is only one of the considerations. Another is really to make

sure that any member who is appointed to any of the commissions does not serve beyond 7 years." 60 (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any kind and, therefore as a whole there is no way that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does

not happen by including in the appointment both temporary and acting capacities." 61 (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointee's total term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific reappointment of any kind and exceeding one's term in office beyond the maximum period of seven years. Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those who might wish to extend their terms of office. Thus, the word "designated" was inserted to plug any loophole that might be exploited by violators of the Constitution, as shown in the following discussion in the Constitutional Commission:

"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR DESIGNATED so that the whole sentence will read: "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity." THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say? MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be appointed in a temporary or acting capacity." MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction between an appointment and a designation. The Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he was only designated during the time that he acted as Commissioner on Audit. So, in order to erase that distinction between appointment and designation, we should specifically place the word so that there will be no more ambiguity. "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity." MR. FOZ: The amendment is accepted, Mr. Presiding Officer. MR. DE LOS REYES: Thank you. THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is approved." 62

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not breach the seven-year term limit because all the

appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008. 63 Any delay in their confirmation

will not extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad interimappointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of

office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.

Fourth Issue: Respondent Benipayo's Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. Petitioner's posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested with the following power:
"Section 7.Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer of the Commission, shall: xxx xxx xxx (4)Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service Law." (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en

banc.

Petitioner's appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. 64 Petitioner is not a Career Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil

Service Commission. 65 Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal, 66 this Court held that:
"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig: 'It is settled that a permanent appointment can be issued only 'to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed.' Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and 'at a moment's notice', conformably to established jurisprudence . . .. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated . . .."'

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation. Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code, which provides as follows:
"Section 261.Prohibited Acts. The following shall be guilty of an election offense:

xxx xxx xxx (h)Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission."

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period. 67 Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. Contrary to petitioner's allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000, 68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows: xxx xxx xxx Sec. 261.Prohibited Acts. The following shall be guilty of an election offense: xxx xxx xxx (h)Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon approval of the Commission. WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001; WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the prohibited period in order that it can carry out its constitutional duty to conduct free, orderly, honest, peaceful and credible elections;

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its

personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before
election day shall be effected after due notice and hearing." (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code, 69 the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do. COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure, capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3340, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayo's order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayo's order designating Cinco Officer-in-Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-inCharge of the Finance Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco. WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
ECSHAD

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban, Quisumbing, Y nares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur. Puno and Vitug, JJ., are on official leave.

EN BANC
[G.R. No. 164978. October 13, 2005.] AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R. OSMEA III, petitioners, vs. EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR., MICHAEL T. DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE C. VILLA, and ARTHUR C. YAP, respondents. DECISION CARPIO, J :
p

The Case This is a petition for certiorari and prohibition 1 with a prayer for the issuance of a writ of preliminary injunction to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo ("President Arroyo") through Executive Secretary Eduardo R. Ermita ("Secretary Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap ("respondents") as acting secretaries of their respective departments. The petition also seeks to prohibit respondents from performing the duties of department secretaries. Antecedent Facts The Senate and the House of Representatives ("Congress") commenced their regular session on 26 July 2004. The Commission on Appointments, composed of Senators and Representatives, was constituted on 25 August 2004. Meanwhile, President Arroyo issued appointments 2 to respondents as acting secretaries of their respective departments.

AppointeeDepartmentDate of Appointment Arthur C. YapAgriculture15 August 2004 Alberto G. RomuloForeign Affairs23 August 2004 Raul M. GonzalezJustice23 August 2004 Florencio B. AbadEducation23 August 2004 Avelino J. Cruz, Jr.National Defense23 August 2004 Rene C. VillaAgrarian Reform23 August 2004 Joseph H. DuranoTourism23 August 2004 Michael T. DefensorEnvironment and Natural Resources23 August 2004

The appointment papers are uniformly worded as follows:

Sir: Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY, DEPARTMENT OF (appropriate department) vice(name of person replaced). By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your Oath of Office. (signed) Gloria Arroyo

Respondents took their oath of office and assumed duties as acting secretaries.
DEAaIS

On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator Pimentel"), Edgardo J. Angara ("Senator Angara"), Juan Ponce Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada ("Senator Ejercito-Estrada"), Jinggoy E. Estrada ("Senator Estrada"), Panfilo M. Lacson ("Senator Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator Madrigal"), and Sergio R. Osmea, III ("Senator Osmea") ("petitioners") filed the present petition as Senators of the Republic of the Philippines.

Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad interim appointments 3 to respondents as secretaries of the departments to which they were previously appointed in an acting capacity. The appointment papers are uniformly worded as follows:
Sir: Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [AD INTERIM], DEPARTMENT OF (appropriate department). By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. (signed) Gloria Arroyo

Issue The petition questions the constitutionality of President Arroyo's appointment of respondents as acting secretaries without the consent of the Commission on Appointments while Congress is in session. The Court's Ruling The petition has no merit.

Preliminary Matters On the Mootness of the Petition

The Solicitor General argues that the petition is moot because President Arroyo had extended to respondents ad interim appointments on 23 September 2004 immediately after the recess of Congress. As a rule, the writ of prohibition will not lie to enjoin acts already done. 4 However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review. 5 In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of the President's appointment of department

secretaries in an acting capacity while Congress is in session will arise in every such appointment.

On the Nature of the Power to Appoint

The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere. 6 Limitations on the executive power to appoint are construed strictly against the legislature. 7 The scope of the legislature's interference in the executive's power to appoint is limited to the power to prescribe the qualifications to an appointive office. Congress cannot appoint a person to an office in the guise of prescribing qualifications to that office. Neither may Congress impose on the President the duty to appoint any particular person to an office. 8 However, even if the Commission on Appointments is composed of members of Congress, the exercise of its powers is executive and not legislative. The Commission on Appointments does not legislate when it exercises its power to give or withhold consent to presidential appointments. Thus:
. . . The Commission on Appointments is a creature of the Constitution. Although its membership is confined to members of Congress, said Commission is independent of Congress. The powers of the Commission do not come from Congress, but emanate directly from the Constitution. Hence, it is not an agent of Congress. In fact, the functions of the Commissioner are purely executive in nature. . . . 9

On Petitioners' Standing
The Solicitor General states that the present petition is a quo warranto proceeding because, with the exception of Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully exercising the powers of department secretaries. The Solicitor General further states that petitioners may not claim standing as Senators because no power of the Commission on Appointments has been "infringed upon or violated by the President. . . . If at all, the Commission on Appointments as a body (rather than individual members of the Congress) may possess standing in this case." 10 Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over unconstitutional acts of the President. 11 Petitioners further contend that they possess standing because President Arroyo's appointment of department secretaries in an acting capacity while Congress is in

session impairs the powers of Congress. Petitioners cite Sanlakas v. Executive Secretary 12 as basis, thus:
To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts.

Considering the independence of the Commission on Appointments from Congress, it is error for petitioners to claim standing in the present case as members of Congress. President Arroyo's issuance of acting appointments while Congress is in session impairs no power of Congress. Among the petitioners, only the following are members of the Commission on Appointments of the 13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmea as members. Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have standing in the present petition. This is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived prerogatives as members of Congress, possess no standing in the present petition.

The Constitutionality of President Arroyo's Issuance of Appointments to Respondents as Acting Secretaries

Petitioners contend that President Arroyo should not have appointed respondents as acting secretaries because "in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as Acting Secretary." 13 Petitioners base their argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO 292"), 14 which enumerates the powers and duties of the undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10.Powers and Duties of the Undersecretary. The Undersecretary shall: xxx xxx xxx

(5)Temporarily discharge the duties of the Secretary in the latter's absence or inability to discharge his duties for any cause or in case of vacancy of the said office, unless otherwise provided by law. Where there are more than one Undersecretary, the Secretary shall allocate the foregoing powers and duties among them. The President shall likewise make the temporary designation of Acting Secretary from among them; and xxx xxx xxx

Petitioners further assert that "while Congress is in session, there can be no appointments, whether regular or acting, to a vacant position of an office needing confirmation by the Commission on Appointments, without first having obtained its consent." 15 In sharp contrast, respondents maintain that the President can issue appointments in an acting capacity to department secretaries without the consent of the Commission on Appointments even while Congress is in session. Respondents point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:

SEC. 16.The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.

Respondents also rely on EO 292, which devotes a chapter to the President's power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:

SEC. 16.Power of Appointment. The President shall exercise the power to appoint such officials as provided for in the Constitution and laws. SEC. 17.Power to Issue Temporary Designation. (1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: (a) the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) there exists a vacancy[.] (2)The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned. (3)In no case shall a temporary designation exceed one (1) year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert that the President cannot issue appointments in an acting capacity to department secretaries while Congress is in session because the law does not give the President such power. In contrast, respondents insist that the President can issue such appointments because no law prohibits such appointments.
DTSIEc

The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. 16 In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily have the President's confidence. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person of her choice even while Congress is in session. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee. The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that "[t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch." Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent. Petitioners assert that Section 17 does not apply to appointments vested in the President by the Constitution, because it only applies to appointments vested in the President by law. Petitioners forget that Congress is not the only source of law. "Law" refers to the Constitution, statutes or acts of Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial decisions. 17 Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse. Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on Appointments. In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook writer on constitutional law has observed:
Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon acceptance. But adinterim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important offices

but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments. 18

However, we find no abuse in the present case. The absence of abuse is readily apparent from President Arroyo's issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year. WHEREFORE, we DISMISS the present petition for certiorari and prohibition. SO ORDERED.
TAScID