LAW ON PUBLIC OFFICERS / PUBLIC of the position, scope of duties, and the
CORPORATIONS SYLLABUS designation of the position as an office.—The
 PERTINANT LAWS
1. The 1987 Constitution
2. Revised Administrative Code of 1987
(E.O. 292)
3. Local Government Code
4. The Code of Conduct and Ethical
Standards for Public Officers and
Employees (R.A. 6713)
5. The Revised Penal Code
6. The Anti-Graft and Corrupt Practices Act
(R.A. 3019)
7. The Ombudsman (R.A. 6770)
I. DEFINITIONS, DISTINCTIONS,
CLASSIFICATIONS
a. What is Public Office?
b. Essential Elements
c. Creation
d. Classification
CASES
1. LAUREL VS. DESIERTO
Constitutional Law; Ombudsman; Public
Officers; The Ombudsman has the power to
investigate any malfeasance, misfeasance
and non-feasance by a public officer or
employee of the government, or of any
subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations; Public Officer
Defined.—In sum, the Ombudsman has the
power to investigate any malfeasance,
misfeasance and non-feasance by a public
officer or employee of the government, or of
any subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations. Neither the
Constitution nor the Ombudsman Act of
1989, however, defines who public officers
are. A definition of public officers cited in
jurisprudence is that provided by Mechem, a
recognized authority on the subject: A public
office is the right, authority and duty, created
and conferred by law, by which, for a given
period, either fixed by law or enduring at the
pleasure of the creating power, an individual
is invested with some portion of the sovereign
functions of the government, to be exercised
by him for the benefit of the public. The
individual so invested is a public officer.
Same; Same; Same; The characteristics of a
public office include the delegation of
sovereign functions, its creation by law and
not by contract, an oath, salary, continuance
characteristics of a public office, according to
Mechem, include the delegation of sovereign
functions, its creation by law and not by
contract, an oath, salary, continuance of the
position, scope of duties, and the designation
of the position as an office.
Same; Same; Same; Court holds that the
National Centennial Commission (NCC)
performs executive functions.—We hold that
the NCC performs executive functions. The
executive power “is generally defined as the
power to enforce and administer the laws. It
is the power of carrying the laws into practical
operation and enforcing their due
observance.” The executive function,
therefore, concerns the implementation of the
policies as set forth by law.
Same; Same; Same; The NCC was precisely
created to ensure a more coordinated and
synchronized celebrations of the Philippine
Centennial and wider participation from the
government and non-government or private
organizations and to rationalize the relevance
of historical links with other countries and to
carry them into effect.—E.O. No. 128,
reconstituting the Committee for the National
Centennial Celebrations in 1998, cited the
“need to strengthen the said Committee to
ensure a more coordinated and synchronized
celebrations of the Philippine Centennial and
wider participation from the government and
non-government or private organizations.” It
also referred to the “need to rationalize the
relevance of historical links with other
countries.” The NCC was precisely created to
execute the foregoing policies and objectives,
to carry them into effect.
Same; Same; Same; The promotion of
industrialization and full employment is a
fundamental state policy.—There can hardly
be any dispute that the promotion of
industrialization and full employment is a
fundamental state policy.
Same; Same; Same; The NCC performs
sovereign functions; It is a public office and
petitioner is a public officer.—Clearly, the
NCC performs sovereign functions. It is,
therefore, a public office, and petitioner, as its
Chair, is a public officer.
Same; Same; Same; Fact that petitioner did
not receive any compensation during his
tenure is of little consequence.—That
petitioner allegedly did not receive any
compensation during his tenure is of little
consequence. A salary is a usual but not a
necessary criterion for determining the nature
of the position. It is not conclusive. The salary
is a mere incident and forms no part of the
office. Where a salary or fees is annexed, the
office is provided for it is a naked or honorary
office, and is supposed to be accepted
merely for the public good. Hence, the office
of petitioner as NCC Chair may be
characterized as an honorary office, as
opposed to a lucrative office or an office of
profit, i.e., one to which salary, compensation
or fees are attached. But it is a public office,
nonetheless.
2. ABAKADA VS PURISIMA
Judicial Review; A constitutional question is
ripe for adjudication when the governmental
act being challenged has a direct adverse
effect on the individual challenging it.—An
actual case or controversy involves a conflict
of legal rights, an assertion of opposite legal
claims susceptible of judicial adjudication. A
closely related requirement is ripeness, that
is, the question must be ripe for adjudication.
And a constitutional question is ripe for
adjudication when the governmental act
being challenged has a direct adverse effect
on the individual challenging it. Thus, to be
ripe for judicial adjudication, the petitioner
must show a personal stake in the outcome
of the case or an injury to himself that can be
redressed by a favorable decision of the
Court.
Same; Where an action of the legislative
branch is alleged to have infringed the
Constitution, it becomes not only the right but
in fact the duty of the judiciary to settle the
dispute.—This notwithstanding, public
interest requires the resolution of the
constitutional issues raised by petitioners.
The grave nature of their allegations tends to
cast a cloud on the presumption of
constitutionality in favor of the law. And where
an action of the legislative branch is alleged
to have infringed the Constitution, it becomes
not only the right but in fact the duty of the
judiciary to settle the dispute.
Public Officers; Public Accountability; Public
office is a public trust—it must be discharged
by its holder not for his own personal gain but
for the benefit of the public for whom he holds
it in trust.—Public office is a public trust. It
must be discharged by its holder not for his
own personal gain but for the benefit of the
public for whom he holds it in trust. By
demanding accountability and service with
responsibility, integrity, loyalty, efficiency,
patriotism and justice, all government officials
and employees have the duty to be
responsive to the needs of the people they
are called upon to serve.
Same; Presumption of Regularity; The
presumption of regularity enjoyed by public
officers in the performance of their duties
necessarily obtains in favor of the Bureau of
Internal Revenue (BIR) and Bureau of
Customs (BOC) officials and employees.—
Public officers enjoy the presumption of
regularity in the performance of their duties.
This presumption necessarily obtains in favor
of BIR and BOC officials and employees. RA
9335 operates on the basis thereof and
reinforces it by providing a system of rewards
and sanctions for the purpose of encouraging
the officials and employees of the BIR and the
BOC to exceed their revenue targets and
optimize their revenue-generation capability
and collection. The presumption is disputable
but proof to the contrary is required to rebut
it. It cannot be overturned by mere conjecture
or denied in advance (as petitioners would
have the Court do) specially in this case
where it is an underlying principle to advance
a declared public policy.
Same; Attrition Act of 2005 (R.A. No. 9335);
Judicial Review; To invalidate RA 9335
based on baseless supposition is an affront
to the wisdom not only of the legislature that
passed it but also of the executive which
approved it.—A law enacted by Congress
enjoys the strong presumption of
constitutionality. To justify its nullification,
there must be a clear and unequivocal breach
of the Constitution, not a doubtful and
equivocal one. To invalidate RA 9335 based
on petitioners’ baseless supposition is an
affront to the wisdom not only of the
legislature that passed it but also of the
executive which approved it.
Same; Same; A system of incentives for
exceeding the set expectations of a public
office is not anathema to the concept of public
account-ability.—Public service is its own
reward. Nevertheless, public officers may by
law be rewarded for exemplary and
exceptional performance. A system of
incentives for exceeding the set expectations
of a public office is not anathema to the
concept of public accountability. In fact, it
recognizes and reinforces dedication to duty,
industry, efficiency and loyalty to public
service of deserving government personnel.
Same; Same; Equal Protection; Equality
guaranteed under the equal protection clause
is equality under the same conditions and
among persons similarly situated—it is
equality among equals, not similarity of
treatment of persons who are classified
based on substantial differences in relation to
the object to be accomplished.—Equality
guaranteed under the equal protection clause
is equality under the same conditions and
among persons similarly situated; it is
equality among equals, not similarity of
treatment of persons who are classified
based on substantial differences in relation to
the object to be accomplished. When things
or persons are different in fact or
circumstance, they may be treated in law
differently. In Victoriano v. Elizalde Rope
Workers’ Union, 59 SCRA 54 (1974), this
Court declared: The guaranty of equal
protection of the laws is not a guaranty of
equality in the application of the laws upon all
citizens of the [S]tate. It is not, therefore, a
requirement, in order to avoid the
constitutional prohibition against inequality,
that every man, woman and child should be
affected alike by a statute. Equality of
operation of statutes does not mean
indiscriminate operation on persons merely
as such, but on persons according to the
circumstances surrounding them. It
guarantees equality, not identity of rights. The
Constitution does not require that things
which are different in fact be treated in law as
though they were the same. The equal
protection clause does not forbid
discrimination as to things that are different.
It does not prohibit legislation which is limited
either in the object to which it is directed or by
the territory within which it is to operate.
Same; Same; Same; The equal protection
clause recognizes a valid classification, that
is, a classification that has a reasonable
foundation or rational basis and not arbitrary;
Since the subject of the law is the revenue-
generation capability and collection of the
Bureau of Internal Revenue (BIR) and the
Bureau of Customs (BOC), the incentives
and/or sanctions provided in the law should
logically pertain to the said agencies.—The
equal protection clause recognizes a valid
classification, that is, a classification that has
a reasonable foundation or rational basis and
not arbitrary. With respect to RA 9335, its
expressed public policy is the optimization of
the revenue-generation capability and
collection of the BIR and the BOC. Since the
subject of the law is the revenue-generation
capability and collection of the BIR and the
BOC, the incentives and/or sanctions
provided in the law should logically pertain to
the said agencies. Moreover, the law
concerns only the BIR and the BOC because
they have the common distinct primary
function of generating revenues for the
national government through the collection of
taxes, customs duties, fees and charges.
Delegation of Powers; Test; A law is
complete when it sets forth therein the policy
to be executed, carried out or implemented
by the delegate and lays down a sufficient
standard when it provides adequate
guidelines or limitations in the law to map out
the boundaries of the delegate’s authority
and prevent the delegation from running
riot.—Two tests determine the validity of
delegation of legislative power: (1) the
completeness test and (2) the sufficient
standard test. A law is complete when it sets
forth therein the policy to be executed, carried
out or implemented by the delegate. It lays
down a sufficient standard when it provides
adequate guidelines or limitations in the law
to map out the boundaries of the delegate’s
authority and prevent the delegation from
running riot. To be sufficient, the standard
must specify the limits of the delegate’s
authority, announce the legislative policy and
identify the conditions under which it is to be
implemented.
Same; Civil Service; Security of Tenure;
Inefficiency; Incompetence; The guarantee of
security of tenure only means that an
employee cannot be dismissed from the
service for causes other than those provided
by law and only after due process is accorded
the employee; RA 9335 lays down a
reasonable yardstick for removal (when the
revenue collection falls short of the target by
at least 7.5%) with due consideration of all
relevant factors affecting the level of
collection, a standard analogous to
inefficiency and incompetence in the
performance of official duties, a ground for
disciplinary action under civil service laws.—
RA 9335 in no way violates the security of
tenure of officials and employees of the BIR
and the BOC. The guarantee of security of
tenure only means that an employee cannot
be dismissed from the service for causes
other than those provided by law and only
after due process is accorded the employee.
In the case of RA 9335, it lays down a
reasonable yardstick for removal (when the
revenue collection falls short of the target by
at least 7.5%) with due consideration of all
relevant factors affecting the level of
collection. This standard is analogous to
inefficiency and incompetence in the
performance of official duties, a ground for
disciplinary action under civil service laws.
The action for removal is also subject to civil
service laws, rules and regulations and
compliance with substantive and procedural
due process. At any rate, this Court has
recognized the following as sufficient
standards: “public interest,” “justice and
equity,” “public convenience and welfare” and
“simplicity, economy and welfare.” In this
case, the declared policy of optimization of
the revenue-generation capability and
collection of the BIR and the BOC is infused
with public interest.
Separation of Powers; Legislative Veto;
Congressional oversight is not
unconstitutional per se, meaning, it neither
necessarily constitutes an encroachment on
the executive power to implement laws nor
undermines the constitutional separation of
powers, but to forestall the danger of
congressional encroachment “beyond the
legislative sphere,” the Constitution imposes
two basic and related constraints on
Congress—it may not vest itself, any of its
committees or its members with either
executive or judicial power, and, when it
exercises its legislative power, it must follow
the “single, finely wrought and exhaustively
considered, procedures” specified under the
Constitution, including the procedure for
enactment of laws and presentment; Any
post-enactment congressional measure
should be limited to scrutiny and
investigation—any action or step beyond that
will undermine the separation of powers
guaranteed by the Constitution.—It is clear
that congressional oversight is not
unconstitutional per se, meaning, it neither
necessarily constitutes an encroachment on
the executive power to implement laws nor
undermines the constitutional separation of
powers. Rather, it is integral to the checks
and balances inherent in a democratic
system of government. It may in fact even
enhance the separation of powers as it
prevents the over-accumulation of power in
the executive branch. However, to forestall
the danger of congressional encroachment
“beyond the legislative sphere,” the
Constitution imposes two basic and related
constraints on Congress. It may not vest
itself, any of its committees or its members
with either executive or judicial power. And,
when it exercises its legislative power, it must
follow the “single, finely wrought and
exhaustively considered, procedures”
specified under the Constitution, including the
procedure for enactment of laws and
presentment. Thus, any post-enactment
congressional measure such as this should
be limited to scrutiny and investigation. In
particular, congressional oversight must be
confined to the following: (1) scrutiny based
primarily on Congress’ power of appropriation
and the budget hearings conducted in
connection with it, its power to ask heads of
departments to appear before and be heard
by either of its Houses on any matter
pertaining to their departments and its power
of confirmation and (2) investigation and
monitoring of the implementation of laws
pursuant to the power of Congress to conduct
inquiries in aid of legislation. Any action or
step beyond that will undermine the
separation of powers guaranteed by the
Constitution. Legislative vetoes fall in this
class.
Same; Same; Words and Phrases;
Legislative veto is a statutory provision
requiring the President or an administrative
agency to present the proposed
implementing rules and regulations of a law
to Congress which, by itself or through a
committee formed by it, retains a “right” or
“power” to approve or disapprove such
regulations before they take effect; Congress
has two options when enacting legislation to
define national policy within the broad
horizons of its legislative competence—it can
itself formulate the details or it can assign to
the executive branch the responsibility for
making necessary managerial decisions in
conformity with those standards.—
Legis-lative veto is a statutory provision
requiring the President or an administrative
agency to present the proposed
implementing rules and regulations of a law
to Congress which, by itself or through a
committee formed by it, retains a “right” or
“power” to approve or disapprove such
regulations before they take effect. As such,
a legislative veto in the form of a
congressional oversight committee is in the
form of an inward-turning delegation
designed to attach a congressional leash
(other than through scrutiny and
investigation) to an agency to which
Congress has by law initially delegated broad
powers. It radically changes the design or
structure of the Constitution’s diagram of
power as it entrusts to Congress a direct role
in enforcing, applying or implementing its own
laws. Congress has two options when
enacting legislation to define national policy
within the broad horizons of its legislative
competence. It can itself formulate the details
or it can assign to the executive branch the
responsibility for making necessary
managerial decisions in conformity with those
standards. In the latter case, the law must be
complete in all its essential terms and
conditions when it leaves the hands of the
legislature. Thus, what is left for the executive
branch or the concerned administrative
agency when it formulates rules and
regulations implementing the law is to fill up
details (supplementary rule-making) or
ascertain facts necessary to bring the law into
actual operation (contingent rule-making).
Congress; Statutes; Congress, in the guise of
assuming the role of an overseer, may not
pass upon their legality by subjecting them to
its stamp of approval without disturbing the
calculated balance of powers established by
the Constitution—in exercising discretion to
approve or disapprove the Implementing
Rules and Regulations based on a
determination of whether or not they
conformed with the provisions of RA 9335,
Congress arrogated judicial power unto itself,
a power exclusively vested in this Court by
the Constitution.—Administrative regulations
enacted by administrative agencies to
implement and interpret the law which they
are entrusted to enforce have the force of law
and are entitled to respect. Such rules and
regulations partake of the nature of a statute
and are just as binding as if they have been
written in the statute itself. As such, they have
the force and effect of law and enjoy the
presumption of constitutionality and legality
until they are set aside with finality in an
appropriate case by a competent court.
Congress, in the guise of assuming the role
of an overseer, may not pass upon their
legality by subjecting them to its stamp of
approval without disturbing the calculated
balance of powers established by the
Constitution. In exercising discretion to
approve or disapprove the IRR based on a
determination of whether or not they
conformed with the provisions of RA 9335,
Congress arrogated judicial power unto itself,
a power exclusively vested in this Court by
the Constitution.
Same; Same; Principle of Bicameralism;
Presentment Clause; The requirement that
the implementing rules of a law be subjected
to approval by Congress as a condition for
their effectivity violates the cardinal
constitutional principles of bicameralism and
the rule on presentment; A valid exercise of
legislative power requires the act of both
chambers—it can be exercised neither solely
by one of the two chambers nor by a
committee of either or both chambers.—The
requirement that the implementing rules of a
law be subjected to approval by Congress as
a condition for their effectivity violates the
cardinal constitutional principles of
bicameralism and the rule on presentment.
x x x Legislative power (or the power to
propose, enact, amend and repeal laws) is
vested in Congress which consists of two
chambers, the Senate and the House of
Representatives. A valid exercise of
legislative power requires the act of both
chambers. Corrollarily, it can be exercised
neither solely by one of the two chambers nor
by a committee of either or both chambers.
Thus, assuming the validity of a legislative
veto, both a single-chamber legislative veto
and a congressional committee legislative
veto are invalid.
Same; Same; Same; Every bill passed by
Congress must be presented to the President
for approval or veto and in the absence of
presentment to the President, no bill passed
by Congress can become a law.—Every bill
passed by Congress must be presented to
the President for approval or veto. In the
absence of presentment to the President, no
bill passed by Congress can become a law.
In this sense, law-making under the
Constitution is a joint act of the Legislature
and of the Executive. Assuming that
legislative veto is a valid legislative act with
the force of law, it cannot take effect without
such presentment even if approved by both
chambers of Congress.
Same; Same; Publication; Subject to the
indispensable requisite of publication under
the due process clause, the determination as
to when a law takes effect is wholly the
prerogative of Congress—as such, it is only
upon its effectivity that a law may be executed
and the executive branch acquires the duties
and powers to execute the said law.—Where
Congress delegates the formulation of rules
to implement the law it has enacted pursuant
to sufficient standards established in the said
law, the law must be complete in all its
essential terms and conditions when it leaves
the hands of the legislature. And it may be
deemed to have left the hands of the
legislature when it becomes effective
because it is only upon effectivity of the
statute that legal rights and obligations
become available to those entitled by the
language of the statute. Subject to the
indispensable requisite of publication under
the due process clause, the determination as
to when a law takes effect is wholly the
prerogative of Congress. As such, it is only
upon its effectivity that a law may be executed
and the executive branch acquires the duties
and powers to execute the said law. Before
that point, the role of the executive branch,
particularly of the President, is limited to
approving or vetoing the law.
Same; Same; Same; From the moment the
law becomes effective, any provision of law
that empowers Congress or any of its
members to play any role in the
implementation or enforcement of the law
violates the principle of separation of powers
and is thus unconstitutional.—From the
moment the law becomes effective, any
provision of law that empowers Congress or
any of its members to play any role in the
implementation or enforcement of the law
violates the principle of separation of powers
and is thus unconstitutional. Under this
principle, a provision that requires Congress
or its members to approve the implementing
rules of a law after it has already taken effect
shall be unconstitutional, as is a provision
that allows Congress or its members to
overturn any directive or ruling made by the
members of the executive branch charged
with the implementation of the law.
Same; Statutes; Partial Unconstitutionality;
Separability Clause; The general rule is that
where part of a statute is void as repugnant
to the Constitution, while another part is valid,
the valid portion, if separable from the invalid,
may stand and be enforced; The presence of
a separability clause in a statute creates the
presumption that the legislature intended
separability, rather than complete nullity of
the statute.—In Tatad v. Secretary of the
Department of Energy, 282 SCRA 361
(1997), the Court laid down the following
rules: The general rule is that where part of a
statute is void as repugnant to the
Constitution, while another part is valid, the
valid portion, if separable from the invalid,
may stand and be enforced. The presence of
a separability clause in a statute creates the
presumption that the legislature intended
separability, rather than complete nullity of
the statute. To justify this result, the valid
portion must be so far independent of the
invalid portion that it is fair to presume that
the legislature would have enacted it by itself
if it had supposed that it could not
constitutionally enact the other. Enough must
remain to make a complete, intelligible and
valid statute, which carries out the legislative
intent. x x x The exception to the general rule
is that when the parts of a statute are so
mutually dependent and connected, as
conditions, considerations, inducements, or
compensations for each other, as to warrant
a belief that the legislature intended them as
a whole, the nullity of one part will vitiate the
rest. In making the parts of the statute
dependent, conditional, or connected with
one another, the legislature intended the
statute to be carried out as a whole and would
not have enacted it if one part is void, in which
case if some parts are unconstitutional, all the
other provisions thus dependent, conditional,
or connected must fall with them.
Administrative Law; To be effective,
administrative rules and regulations must be
published in full if their purpose is to enforce
or implement existing law pursuant to a valid
delegation.—To be effective, administrative
rules and regulations must be published in full
if their purpose is to enforce or implement
existing law pursuant to a valid delegation.
The IRR of RA 9335 were published on May
30, 2006 in two newspapers of general
circulation and became effective 15 days
thereafter. Until and unless the contrary is
shown, the IRR are presumed valid and
effective even without the approval of the
Joint Congressional Oversight Committee.
Abakada Guro Party List vs. Purisima, 562
SCRA 251, G.R. No. 166715 August 14,
2008
3. FIGUEROA VS PEOPLE
Criminal Law; Defamation; Words and
Phrases; Defamation means injuring a
person’s character, fame or reputation
through false and malicious statements;
Defamation, which includes libel and slander,
means injuring a person’s character, fame or
reputation through false and malicious
statements.—Defamation, which includes
libel and slander, means injuring a person’s
character, fame or reputation through false
and malicious statements. It is that which
tends to injure reputation or to diminish the
esteem, respect, goodwill or confidence in
the complainant or to excite derogatory
feelings or opinions about him. It is the
publication of anything which is injurious to
the good name or reputation of another or
tends to bring him into disrepute.
Same; Same; In libel cases, the question is
not what the writer of the libelous material
means, but what the words used by him
mean.—In libel cases, the question is not
what the writer of the libelous material
means, but what the words used by him
mean. Here, the defamatory character of the
words used by the petitioners is shown by the
very recitals thereof in the questioned article.
Administrative Law; A public office is the
right, authority and duty, created and
conferred by law, by which an individual is
invested with some portion of the sovereign
functions of the government, to be exercised
by him for the benefit of the public.—A public
office is the right, authority and duty, created
and conferred by law, by which an individual
is invested with some portion of the sovereign
functions of the government, to be exercised
by him for the benefit of the public. The
individual so invested is a public officer. The
most important characteristic which
distinguishes an office from an employment
or contract is that the creation and conferring
of an office involve a delegation to the
individual of some of the sovereign functions
of government, to be exercised by him for the
benefit of the public; that some portion of the
sovereignty of the country, either legislative,
executive or judicial, attaches, to be
exercised for the public benefit. Unless the
powers conferred are of this nature, the
individual is not a public officer.
Same; The operation of a public market is not
a governmental function but merely an
activity undertaken by the city in its private
proprietary capacity.—Rivera cannot be
considered a public officer. Being a member
of the market committee did not vest upon
him any sovereign function of the
government, be it legislative, executive or
judicial. As reasoned out by the CA, the
operation of a public market is not a
governmental function but merely an activity
undertaken by the city in its private
proprietary capacity. Furthermore, Rivera’s
membership in the market committee was in
representation of the association of market
vendors, a non-governmental organization
belonging to the private sector.
Defamation; Article 354(2) of the Revised
Penal Code expressly requires that it be a
“fair and true report, made in good faith,
without any comments or remarks.”—Even if
we were to pretend that Rivera was a public
officer, which he clearly is not, the subject
article still would not pass muster as Article
354(2), supra, of the Revised Penal Code
expressly requires that it be a “fair and true
report, made in good faith, without any
comments or remarks.” Even a mere cursory
glance at the article reveals that it is far from
being that.
Same; Moral Damages; Article 2219(7) of the
Civil Code is express in stating that moral
damages may be recovered in case of libel,
slander or any other form of defamation for
from the very publication and circulation of
the subject defamatory and libelous material
itself, there can be no doubt as to the
resulting wounded feelings and besmirched
reputation sustained by complainant.—
Article 2219(7) of the Civil Code is express in
stating that moral damages may be
recovered in case of libel, slander or any
other form of defamation. From the very
publication and circulation of the subject
defamatory and libelous material itself, there
can be no doubt as to the resulting wounded
feelings and besmirched reputation
sustained by complainant Rivera. The
branding of defamatory names against him
most certainly exposed him to public
contempt and ridicule. As found by the trial
court in its judgment of conviction.
4. JAVIER VS SANDIGANBAYAN
Criminal Procedure; Motions to Quash; Well-
established is the rule that when a motion to
quash in a criminal case is denied, the
remedy is not a petition for certiorari, but for
petitioners to go to trial, without prejudice to
reiterating the special defenses invoked in
their motion to quash—remedial measures as
regards interlocutory orders, such as a
motion to quash, are frowned upon and often
dismissed.—A motion to quash an
Information is the mode by which an accused
assails the validity of a criminal complaint or
Information filed against him for insufficiency
on its face in point of law, or for defects which
are apparent in the face of the Information.
Well-established is the rule that when a
motion to quash in a criminal case is denied,
the remedy is not a petition for certiorari, but
for petitioners to go to trial, without prejudice
to reiterating the special defenses invoked in
their motion to quash. Remedial measures as
regards interlocutory orders, such as a
motion to quash, are frowned upon and often
dismissed. The evident reason for this rule is
to avoid multiplicity of appeals in a single
action. The above general rule, however
admits of several exceptions, one of which is
when the court, in denying the motion to
dismiss or motion to quash, acts without or in
excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies.
The reason is that it would be unfair to require
the defendant or accused to undergo the
ordeal and expense of a trial if the court has
no jurisdiction over the subject matter or
offense, or is not the court of proper venue,
or if the denial of the motion to dismiss or
motion to quash is made with grave abuse of
discretion or a whimsical and capricious
exercise of judgment. In such cases, the
ordinary remedy of appeal cannot be plain
and adequate.
Public Officers; National Book Development
Board (NBDB); Book Publishing Industry
Development Act (Republic Act No. 8047);
Words and Phrases; A public office is the
right, authority and duty, created and
conferred by law, by which, for a given period,
either fixed by law or enduring at the pleasure
of the creating power, an individual is
invested with some portion of the sovereign
functions of the government, to be exercised
by him for the benefit of the public.—The
NBDB is the government agency mandated
to develop and support the Philippine book
publishing industry. It is a statutory
government agency created by R.A. No.
8047, which was enacted into law to ensure
the full development of the book publishing
industry as well as for the creation of
organization structures to implement the said
policy. To achieve this end, the Governing
Board of the NBDB was created to supervise
the implementation. The Governing Board
was vested with powers and functions, to wit:
x x x A perusal of the above powers and
functions leads us to conclude that they
partake of the nature of public functions. A
public office is the right, authority and duty,
created and conferred by law, by which, for a
given period, either fixed by law or enduring
at the pleasure of the creating power, an
individual is invested with some portion of the
sovereign functions of the government, to be
exercised by him for the benefit of the public.
The individual so invested is a public officer.
Same; Same; Same; The fact that the
accused was appointed as member of the
National Book Development Board (NBDB)
from the public sector and not from the other
branches or agencies of the government
does not take her position outside the
meaning of a public office; The purpose of the
law for appointing members from the private
sector is to ensure that they are also properly
represented in the implementation of
government objectives to cultivate the book
publishing industry.—Notwithstanding that
petitioner came from the private sector to sit
as a member of the NBDB, the law invested
her with some portion of the sovereign
functions of the government, so that the
purpose of the government is achieved. In
this case, the government aimed to enhance
the book publishing industry as it has a
significant role in the national development.
Hence, the fact that she was appointed from
the public sector and not from the other
branches or agencies of the government
does not take her position outside the
meaning of a public office. She was
appointed to the Governing Board in order to
see to it that the purposes for which the law
was enacted are achieved. The Governing
Board acts collectively and carries out its
mandate as one body. The purpose of the law
for appointing members from the private
sector is to ensure that they are also properly
represented in the implementation of
government objectives to cultivate the book
publishing industry.
Same; Same; Same; Anti-Graft and Corrupt
Practices Act (Republic Act No. 3019); Words
and Phrases; The Court is not unmindful of
the definition of a public officer pursuant to
the Anti-Graft Law, which provides that a
public officer includes elective and appointive
officials and employees, permanent or
temporary, whether in the classified or
unclassified or exempt service receiving
compensation, even nominal, from the
government; Under the Anti-Graft Law, the
nature of one’s appointment, and whether the
compensation one receives from the
government is only nominal, is immaterial
because the person so elected or appointed
is still considered a public officer.—The Court
is not unmindful of the definition of a public
officer pursuant to the Anti-Graft Law, which
provides that a public officer includes elective
and appointive officials and employees,
permanent or temporary, whether in the
classified or unclassified or exempt service
receiving compensation, even nominal, from
the government. Thus, pursuant to the Anti-
Graft Law, one is a public officer if one has
been elected or appointed to a public office.
Petitioner was appointed by the President to
the Governing Board of the NDBD. Though
her term is only for a year that does not make
her private person exercising a public
function. The fact that she is not receiving a
monthly salary is also of no moment. Section
7, R.A. No. 8047 provides that members of
the Governing Board shall receive per diem
and such allowances as may be authorized
for every meeting actually attended and
subject to pertinent laws, rules and
regulations. Also, under the Anti-Graft Law,
the nature of one’s appointment, and whether
the compensation one receives from the
government is only nominal, is immaterial
because the person so elected or appointed
is still considered a public officer.
Same; Same; Same; Same; Same; The
Revised Penal Code defines a public officer
as any person who, by direct provision of the
law, popular election, popular election or
appointment by competent authority, shall
take part in the performance of public
functions in the Government of the Philippine
Islands, or shall perform in said Government
or in any of its branches public duties as an
employee, agent, or subordinate official, of
any rank or classes, shall be deemed to be a
public officer.—The Revised Penal Code
defines a public officer as any person who, by
direct provision of the law, popular election,
popular election or appointment by
competent authority, shall take part in the
performance of public functions in the
Government of the Philippine Islands, or shall
perform in said Government or in any of its
branches public duties as an employee,
agent, or subordinate official, of any rank or
classes, shall be deemed to be a public
officer. Where, as in this case, petitioner
performs public functions in pursuance of the
objectives of R.A. No. 8047, verily, she is a
public officer who takes part in the
performance of public functions in the
government whether as an employee, agent,
subordinate official, of any rank or classes. In
fact, during her tenure, petitioner took part in
the drafting and promulgation of several rules
and regulations implementing R.A. No. 8047.
She was supposed to represent the country
in the canceled book fair in Spain.
Criminal Law; Double Jeopardy; Requisites;
It is elementary that for double jeopardy to
attach, the case against the accused must
have been dismissed or otherwise terminated
without his express consent by a court of
competent jurisdiction, upon valid information
sufficient in form and substance and the
accused pleaded to the charge.—Records
show that the Informations in Criminal Case
Nos. 25867 and 25898 refer to offenses
penalized by different statues, R.A. No. 3019
and RPC, respectively. It is elementary that
for double jeopardy to attach, the case
against the accused must have been
dismissed or otherwise terminated without his
express consent by a court of competent
jurisdiction, upon valid information sufficient
in form and substance and the accused
pleaded to the charge. In the instant case,
petitioner pleaded not guilty to the
Information for violation of the Anti-Graft Law.
She was not yet arraigned in the criminal
case for malversation of public funds
because she had filed a motion to quash the
latter information. Double jeopardy could not,
therefore, attach considering that the two
cases remain pending before the
Sandiganbayan and that herein petitioner
had pleaded to only one in the criminal cases
against her. It is well-settled that for a claim
of double jeopardy to prosper, the following
requisites must concur: (1) there is a
complaint or information or other formal
charge sufficient in form and substance to
sustain a conviction; (2) the same is filed
before a court of competent jurisdiction; (3)
there is a valid arraignment or plea to the
charges; and (4) the accused is convicted or
acquitted or the case is otherwise dismissed
or terminated without his express consent.
The third and fourth requisites are not present
in the case at bar.
5. ABEJA VS TANADA
Elections; Election Contests; Pleadings and
Procedure; The COMELEC Rules of
Procedure are controlling in election protests
heard by a regional trial court.—Considering
that this petition involves an election protest
heard by a regional trial court, the Comelec
Rules of Procedure are controlling. In view of
the fact that the subject election contest was
filed on May 26, 1992, Section 2, Rule 17 and
Section 11, Rule 35 of the aforementioned
Comelec rules are applicable. Rule 17 treats
of Hearings whereas Rule 35 treats of
Election Contests Before Courts of General
Jurisdiction.
Same; Same; Same; No law or rule
authorizes a procedure in which the revision
of the ballots in the counter-protested
precincts should be revised only if it is shown
after the revision of the ballots in the
protested precincts that protestant leads the
protestee by at least one (1) vote.—The
record shows that the revision of ballots in the
22 protested precincts was completed
sometime in September 1992. Judge Lopez
issued a ruling on the said revision almost a
year later, or on August 18, 1993. In the
interim, private respondent failed to
commence the revision of the ballots in the
counter-protested precincts, stubbornly
maintaining the position that said precincts
should be revised only if it is shown after the
revision that petitioner leads private
respondent by at least one (1) vote. No law or
rule authorizes such a procedure.
Consequently, private respondent must be
deemed to have waived or abandoned his
counter-protest. The applicable Comelec
rules provide for the presentation of evidence
by the parties in succession in the order or
sequence provided under Sec. 2, rule 17
(Comelec Rules) which must be submitted
within a reasonable time, if not immediately
after the revision of the precincts covered by
the protest proper. By insisting that the
counter-protested precincts should be
revised only if it is shown after the revision of
the protested precincts that petitioner, his
opponent, leads by at least one (1) vote,
private respondent is adopting a selfserving
rule without legal sanction calculated to
unduly prolong the litigation.
Same; Same; Same; Nowhere in the
COMELEC Rules is it indicated that
presentation of evidence by the protestee
may continue after the court has ruled on the
evidence of the protestant and determine the
number of votes obtained by the latter.—
Furthermore, it is readily apparent from the
provisions of the applicable Comelec Rules
that the court shall render its decision after
both parties shall have presented their
respective evidence. Nowhere in the said
provisions is it indicated that presentation of
evidence by the protestee may continue after
the court has ruled on the evidence of the
protestant and determine the number of votes
obtained by the latter. Otherwise, it would be
possible for the protestee to prolong the
protest and render it moot by expiration of the
term of office contested.
Same; Same; Same; Laches; The private
respondent is guilty of laches for having
unreasonably failed to cause the revision of
the counter-protested precincts despite being
afforded ample time to do so.—There is
likewise merit to petitioner’s claim that private
respondent is guilty of laches, which, in a
general sense, is a failure or neglect, for an
unreasonable and unexplained length of
time, to do that which, by exercising due
diligence could or should have been done
earlier; it is negligence or omission to assert
a right within a reasonable length of time,
warranting a presumption that a party entitled
to assert it either has abandoned it or
declined to assert it (Republic v. Caballero,
79 SCRA 177 [1977]). In the case at bar,
private respondent unreasonably failed to
cause the revision of the counter-protested
precincts despite being afforded ample time
to do so and must be deemed to have
abandoned it.
Same; Same; Same; Sec. 2, Rule 39 of the
Rules of Court allows execution pending
appeal in election cases upon good
reasons.—Under the circumstances and for
reasons discussed above, the order of Judge
Lopez dated August 18, 1993 which resolved
the party litigants’ objections to the revised
ballots may very well be the subject of a valid
decision to resolve the instant electoral
protest based on the revised ballots of the 22
protested precincts. In the event petitioner is
declared the winning candidate, she should,
upon proper motion, be allowed to
immediately assume the contested office. We
say this because in their pleadings, petitioner
and private respondent have amply
discussed their respective arguments in the
applicability of Garcia v. De Jesus and the
accompanying case of Tobon Uy v. Comelec
(206 SCRA 779 [1992]) and the possibility is
not remote that private respondent may once
again resort to dilatory tactics. Section 2,
Rule 39 of the Rules of Court allows
execution pending appeal in election cases
upon good reasons (Garcia v. De Jesus,
supra; in relation to Rule 43, Sec. 1,
COMELEC Rules of Procedure) which we
find obtaining in the case before us.
Same; Same; Same; Public Officers; Public
office is personal to the incumbent and is not
a property which passes to his heirs.—We
also find as erroneous the substitution of the
deceased Rosauro Radovan’s widow,
Ediltrudes Radovan, on the ground that
private respondent had a counter-claim for
damages. “Public office is personal to the
incumbent and is not a property which passes
to his heirs” (Santos vs. Secretary of Labor,
22 SCRA 848 [1968]; De la Victoria vs.
Comelec, 199 SCRA 561 [1991]). The heirs
may no longer prosecute the deceased
protestee’s counter-claim for damages
against the protestant for that was
extinguished when death terminated his right
to occupy the contested office (Dela Victoria,
supra).
II. ELIGIBILITY, QUALIFICATIONS,
DISQUALIFICATIONS
a. Power of the congress to prescribe
qualifications / disqualifications
b. Qualifying to public office
c. Particular qualifications /
disqualifications
III. ACQUISITION OF RIGHT OR TITLETO
OFFICE
a. Appointments in general
b. Vacancy
c. Nepotism
CASE
DEBULGADO VS CSC
Administrative Law; Civil Service Law;
Nepotism; The original appointment of a civil
service employee and all subsequent
personnel actions undertaken by or in respect
of that employee must comply with the
prohibition against nepotism.—Under the
abovequoted provisions of the Implementing
Rules, both an original appointment and a
promotion are particular species of personnel
action. The original appointment of a civil
service employee and all subsequent
personnel actions undertaken by or in respect
of that employee such as promotion, transfer,
reinstatement, re-employment, etc., must
comply with the Implementing Rules
including, of course, the prohibition against
nepotism in Rule XVIII. To the extent that all
personnel actions occurring after an original
appointment, require the issuance of a new
appointment to another position (or to the
original position in case of reinstatement), we
believe that such appointment must comply
with all applicable rules and prohibitions,
including the statutory and regulatory
prohibition against nepotism. To limit the
thrust of the prohibition against nepotism to
the appointment issued at the time of initial
entry into the government service, and to
insulate from that prohibition appointments
subsequently issued when personnel actions
are thereafter taken in respect of the same
employee, would be basically to render that
prohibition, in the words of Laurel V, etc. v.
Civil Service Commission, “meaningless and
toothless.”
Same; Same; Same; The purpose of the
prohibition against nepotism is to ensure that
all appointments and other personnel actions
in the civil service should be based on merit
and fitness and should never depend on how
close or intimate an appointee is to the
appointing power.—Inquiry into the basic
purpose or objective of the prohibition against
nepotism also strongly indicates that that
prohibition was intended to be a
comprehensive one. Section 1, Book V, E.O.
No. 292 sets out the basic policy which
pervades all the provisions of our Civil
Service Law, including Section 59 thereof:
“Sec. 1. Declaration of Policy.—The State
shall insure and promote the Constitutional
mandate that appointments in the Civil
Service shall be made only according to merit
and fitness; x x x.” (Italics supplied) Put
succinctly, that purpose is to ensure that all
appointments and other personnel actions in
the civil service should be based on merit and
fitness and should never depend on how
close or intimate an appointee is to the
appointing power.
Same; Same; Same; The prohibition against
nepotism applies quite without regard to the
actual merits of the proposed appointee and
to the good intentions of the appointing or
recommending authority.—A major difficulty
with petitioners’ argument is that it tends to
prove too much. For the appointee, whether
in an original or a promotional appointment,
may in fact be quite loyal and efficient and
hard-working; yet that circumstance will not
prevent the application of the prohibition
certainly in respect of the original
appointment. The Court is not unaware of the
difficulties that the comprehensive prohibition
against nepotism would impose upon
petitioner Victoria and others who may be in
the same position. It is essential to stress,
however, that the prohibition applies quite
without regard to the actual merits of the
proposed appointee and to the good
intentions of the appointing or recommending
authority, and that the prohibition against
nepotism in appointments whether original or
promotional, is not intended by the legislative
authority to penalize faithful service.
Same; Same; Same; The purpose of the
prohibition against nepotism is precisely to
take out of the discretion of the appointing or
recommending authority the matter of
appointing or recommending for appointment
a relative.—The purpose of Section 59 which
shines through the comprehensive and
unqualified language in which it was cast and
has remained for decades, is precisely to
take out of the discretion of the appointing
and recommending authority the matter of
appointing or recommending for appointment
a relative. In other words, Section 59 insures
the objectivity of the appointing or
recommending official by preventing that
objectivity from being in fact tested. The
importance of this statutory objective is
difficult to overstress in the culture in which
we live and work in the Philippines, where
family bonds remain, in general, compelling
and cohesive.
Same; Same; Same; Civil Service
Commission; Security of Tenure; Due
Process; Where the Civil Service
Commission disapproves an appointment,
based on its non-conformity to applicable
provisions of law and on the qualifications of
the appointee, the appointee need not be
previously heard since the action does not
involve the imposition of an administrative
disciplinary measure.—We turn to the second
issue where petitioners contend that when
the promotional appointment of petitioner
Victoria was approved by Director Escobia,
CSC Field Office, Bacolod City, that
appointment became complete. When
petitioner Victoria took her oath of office and
commenced the discharge of the duties of a
General Services Officer, she acquired a
vested right to that position and cannot,
according to petitioners, be removed from
that position without due process of law. This
argument misconceives the nature of the
action taken by the respondent Commission.
That action was not the imposition of an
administrative disciplinary measure upon
petitioner Victoria, nor upon petitioner Mayor.
There were no administrative charges in
respect of which petitioner Victoria would
have been entitled to notice and hearing. The
Commission, in approving or disapproving an
appointment, only examines the conformity of
the appointment with applicable provisions of
law and whether the appointee possesses all
the minimum qualifications and none of the
disqualifications. At all events, as the Solicitor
General has noted, petitioner Victoria was
afforded an opportunity to be heard when she
filed a motion for reconsideration with the
Commission and there challenged the
disapproval by the Commission.
Same; Same; Same; Same; Same; A
promotional appointment that violates the
prohibition against nepotism is null and void,
and a void appointment cannot give rise to
security of tenure on the part of the holder of
such appointment.—The action of the
Commission was, in other words, taken in
implementation of Section 59, Book V, E.O.
No. 292 and the relevant Implementing
Regulations. Because the promotional
appointment in favor of petitioner Victoria was
a violation of Section 59, it was null and void
as being contra legem. Section 9 of Rule V of
the Omnibus Implementing Regulations sets
out the principal legal consequence of an
appointment issued in disregard of the
statutory prohibition: “Sec. 9. An appointment
accepted by the appointee cannot be
withdrawn or revoked by the appointing
authority and shall remain in force and effect
until disapproved by the Commission.
However, an appointment may be void from
the beginning due to fraud on the part of the
appointee or because it was issued in
violation of law.” (Italics supplied) A void
appointment cannot give rise to security of
tenure on the part of the holder of such
appointment.
Same; Same; Same; Same; Same; Civil
Service Commission is authorized to recall an
appointment initially approved in disregard of
applicable provisions of the Civil Service law
and regulations.—The Commission is
empowered to take appropriate action on all
appointments and other personnel actions,
e.g., promotions. Such power includes the
authority to recall an appointment initially
approved in disregard of applicable
provisions of Civil Service law and
regulations.
Same; Same; Same; Same; The Commission
may review motu proprio personnel actions
involving the position of a Division Chief or
above, and there is no law or regulation that
requires that a letter-complaint should first be
subscribed under oath before the
Commission may act thereon.—Petitioners
have also complained that the letter of
Congressman Carmona which had
precipitated action on the part of respondent
Commission, was not a verified letter. They
contend that the Commission could not or
should not have acted upon the charges
raised in that letter. We are not aware of any
law or regulation requiring the letter written by
the Congressman to be subscribed under
oath before the Commission could act
thereon. Under its own rules and regulations,
the Commission may review motu proprio
personnel actions involving the position of a
Division Chief or above, such as the position
of General Services Officer. We hold that the
respondent Commission had authority,
indeed the duty, to recall on its own initiative
the erroneous initial approval of the
promotional appointment extended to
petitioner Victoria, and to review the same de
novo.
d. Midnight Appointments
CASES
1. QUIROG VS. AUMENTADO
Administrative Law; Civil Service
Commission; Appointments; Parties; Both the
appointing authority and the appointee are
equally real parties in interest who have the
requisite legal standing to bring an action
challenging a Civil Service Commission
(CSC) disapproval of an appointment.—In
the recent case of Abella, Jr. v. Civil Service
Commission, 442 SCRA 507 (2004), the
Court declared that both the appointing
authority and the appointee are equally real
parties in interest who have the requisite legal
standing to bring an action challenging a CSC
disapproval of an appointment. In said case,
we held that: The CSC’s disapproval of an
appointment is a challenge to the exercise of
the appointing authority’s discretion. The
appointing authority must have the right to
contest the disapproval. Thus, Section 2 of
Rule VI of CSC Memorandum Circular 40, s.
1998 is justified insofar as it allows the
appointing authority to request
reconsideration or appeal.
Same; Same; Same; Statutory Construction;
Since the retroactive application of a law
usually divests rights that have already
become vested, the rule in statutory
construction is that all statutes are to be
construed as having only a prospective
operation unless the purpose and intention of
the legislature to give them a retrospective
effect is expressly declared or is necessarily
implied from the language used.—Records
disclose that on May 28, 2001, the PSB of the
Human Resource Management and
Development Office of Bohol, issued a
certification that Quirog was one of two
candidates qualified for the position of
PGDH-OPA. On the same day, Quirog was
appointed by then Governor Relampagos
and on June 1, 2001, she took her oath of
office. CSC Resolution No. 010988 was
issued three days later, or on June 4, 2001.
Evidently, the CSCROVII should not have
subjected Quirog’s appointment to the
requirements under said resolution, as its
application is against the prospective
application of laws. Having no provision
regarding its retroactive application to
appointments made prior to its effectivity,
CSC Resolution No. 010988 must be taken to
be of prospective application. As we have
held time and again: Since the retroactive
application of a law usually divests rights that
have already become vested, the rule in
statutory construction is that all statutes are
to be construed as having only a prospective
operation unless the purpose and intention of
the legislature to give them a retrospective
effect is expressly declared or is necessarily
implied from the language used.
Same; Same; Same; Midnight Appointments;
The constitutional prohibition on so-called
midnight appointments, specifically, those
made within two (2) months immediately prior
to the next presidential elections, applies only
to the President or Acting President; The
ruling in De Rama v. Court of Appeals, 353
SCRA 95 (2001), does not mean that the
raison d’être behind the prohibition against
midnight appointments may not be applied to
those made by chief executives of local
government units.—It cannot also be said
that Quirog’s appointment was a midnight
appointment. The constitutional prohibition
on so-called midnight appointments,
specifically, those made within two (2)
months immediately prior to the next
presidential elections, applies only to the
President or Acting President. As the Court
ruled in De Rama v. CA, 353 SCRA 95
(2001): The records reveal that when the
petitioner brought the matter of recalling the
appointments of the fourteen (14) private
respondents before the CSC, the only reason
he cited to justify his action was that these
were midnight appointments that are
forbidden under Article VII, Section 15 of the
Constitution. However, the CSC ruled, and
correctly so, that the said prohibition applies
only to presidential appointments. In truth and
in fact, there is no law that prohibits local
elective officials from making appointments
during the last days of his or her tenure. We,
however, hasten to add that the
aforementioned ruling does not mean that the
raison d’être behind the prohibition against
midnight appointments may not be applied to
those made by chief executives of local
government units, as here. Indeed, the
prohibition is precisely designed to
discourage, nay, even preclude, losing
candidates from issuing appointments merely
for partisan purposes thereby depriving the
incoming administration of the opportunity to
make the corresponding appointments in line
with its new policies.
2. DE RAMA VS CA
Political Law; Civil Service Commission;
Appointments; In truth and in fact, there is no
law that prohibits local elective officials from
making appointments during the last days of
his or her tenure.—The records reveal that
when the petitioner brought the matter of
recalling the appointments of the fourteen
(14) private respondents before the CSC, the
only reason he cited to justify his action was
that these were “midnight appointments” that
are forbidden under Article VII, Section 15 of
the Constitution. However, the CSC ruled,
and correctly so, that the said prohibition
applies only to presidential appointments. In
truth and in fact, there is no law that prohibits
local elective officials from making
appointments during the last days of his or
her tenure. Petitioner certainly did not raise
the issue of fraud on the part of the outgoing
mayor who made the appointments. Neither
did he allege that the said appointments were
tainted by irregularities or anomalies that
breached laws and regulations governing
appointments. His solitary reason for
recalling these appointments was that they
were, to his personal belief, “midnight
appointments” which the outgoing mayor had
no authority to make.
Same; Same; Same; Upon the issuance of an
appointment and the appointee’s assumption
of the position in the civil service, “he acquires
a legal right which cannot be taken away
either by revocation of the appointment or by
removal except for cause and with previous
notice and hearing”; It is well-settled that the
person assuming a position in the civil service
under a completed appointment acquires a
legal, not just an equitable, right to the
position.—It has been held that upon the
issuance of an appointment and the
appointee’s assumption of the position in the
civil service, “he acquires a legal right which
cannot be taken away either by revocation of
the appointment or by removal except for
cause and with previous notice and hearing.”
Moreover, it is well-settled that the person
assuming a position in the civil service under
a completed appointment acquires a legal,
not just an equitable, right to the position. This
right is protected not only by statute, but by
the Constitution as well, which right cannot be
taken away by either revocation of the
appointment, or by removal, unless there is
valid cause to do so, provided that there is
previous notice and hearing.
Same; Same; Same; It is the CSC that is
authorized to recall an appointment initially
approved, but only when such appointment
and approval are proven to be in disregard of
applicable provisions of the civil service law
and regulations.—Rule V, Section 9 of the
Omnibus Implementing Regulations of the
Revised Administrative Code specifically
provides that “an appointment accepted by
the appointee cannot be withdrawn or
revoked by the appointing authority and shall
remain in force and in effect until disapproved
by the Commission.” Thus, it is the CSC that
is authorized to recall an appointment initially
approved, but only when such appointment
and approval are proven to be in disregard of
applicable provisions of the civil service law
and regulations.
Remedial Law; Civil Procedure; Pleadings
and Practices; Parties may file supplemental
pleadings to supply deficiencies in aid of an
original pleading, but which should not
entirely substitute the latter; Supplemental
pleadings must be with reasonable notice,
and it is discretionary upon the court or
tribunal to allow the same or not.—There is
no question that parties may file
supplemental pleadings to supply
deficiencies in aid of an original pleading, but
which should not entirely substitute the latter.
The propriety and substance of supplemental
pleadings are prescribed under Rule 10,
Section 6 of the 1997 Rules of Civil
Procedure, x x x Supplemental pleadings
must be with reasonable notice, and it is
discretionary upon the court or tribunal to
allow the same or not. Thus, the CSC was
under no obligation to admit the supplemental
pleading, or even to consider the averments
therein.
Same; Same; Same; Appeals; It is well-
settled that issues or questions of fact cannot
be raised for the first time on appeal.—Be that
as it may, these alleged irregularities were
considered by the CSC and the Court of
Appeals as new issues which were raised for
the first time on appeal. It is rather too late for
petitioner to raise these issues for the first
time on appeal. It is well-settled that issues or
questions of fact cannot be raised for the first
time on appeal. We have consistently held
that matters, theories or arguments not
brought out in the original proceedings
cannot be considered on review or appeal
where they are raised for the first time. To
consider the alleged facts and arguments
raised belatedly in the supplemental pleading
to the appeal at this very late stage in the
proceedings would amount to trampling on
the basic principles of fair play, justice and
due process.
Same; Same; Same; Same; The raising of
factual issues for the first time in a pleading
which is supplemental only to an appeal is
barred by estoppel.—Failure of the petitioner
to raise said grounds and to present
supporting documents constitute a waiver
thereof and the same arguments and
evidence can no longer be entertained on
appeal before the CSC, nor in the Court of
Appeals, and much less in a petition for
review before the Supreme Court. In fine, the
raising of these factual issues for the first time
in a pleading which is supplemental only to an
appeal is barred by estoppel.
MENDOZA, J., Dissenting:
Political Law; Civil Service Commission;
Appointments; After the appointing authority
has lost the elections, his is the duty of a
prudent caretaker of the office, and therefore,
he should not fill positions in the government
unless required by the imperatives of public
service.—What the majority overlooks is that
Art. VII, §15 is simply an application of a
broader principle that after the appointing
authority has lost the elections, his is the duty
of a prudent caretaker of the office, and,
therefore, he should not fill positions in the
government unless required by the
imperatives of public service. This rule binds
all, including mayors, who are vested with the
power of appointment, and it flows from the
principle that a public office is a public trust.
e. Section 16, Article VII
1. SARMIENTO VS. MISON
Statutory Construction; Constitution; Intent of
the framers of the constitution and of the
people adopting it must be given effect.—The
fundamental principle of constitutional
construction is to give ef fect 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.
Same; Same; Same; 1935 Constitution
requires confirmation by the Commission on
Appointments of all presidential
appointments, under the 1973 constitution
the president has absolute power of
appointment while under the 1987
Constitution, only the first group of
appointments requires confirmation of the
Commission on Appointments.—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 re-molded by
successive amendments, placed the
absolute power of appointment in the
President with hardly any check on the part of
the legislature. Given the above two (2)
extremes, one, in the 1935 Constitution and
the other, in the 1973 Constitution, it is not
difficult for the Court to state that the framers
of the 1987 Constitution and the people
adopting it, struck a "middle ground" by
requiring the consent (confirmation) of the
Commission on Appointments for the first
group of appointments and leaving to the
President, without such confirmation, the
appointment of other officers, i.e., those in the
second and third groups as well as those in
the fourth group, i.e., officers of lower rank.
Same; Same; Same; Same; Under the 1987
Constitution, the clear and expressed intent
of its framers is to exclude presidential
appointments from confirmation on the
Commission on Appointments except
appointments to offices mentioned in the first
sentence of Sec. 16 Article VII.—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.
Same; Same; Same; Same; Same; The word
"alone" in the third sentence of Sec. 16 Art.
VII of the 1987 Constitution is a redundancy
in the light of the second sentence of 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.
Commission on Appointments; Confirmation
of the appointment of Commissioners of the
Bureau of Customs by the Commission on
Appointments not required.—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.
Same; Same; Appointment of respondent
Savlador Mison as Commissioner of the
Bureau of Customs without submitting his
nomination to the Commission on
Appointments is within the constitutional
authority of the President of the
Philippines.—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 of fice
and to receive all the salaries and
emoluments pertaining thereto.
2. BAUTISTA VS. SALONGA
Constitutional Law; Executive Department;
Appointing Power of the President;
Commission on Appointments;
Administrative Law; The appointment by the
President of the Chairman of the Commission
on Human Rights is to be made without the
review and participation of the Commission
on Appointments.–––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 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. It provides: “(c) The Chairman and the
Members of the Commission on Human
Rights shall be appointed by the President for
a term of seven years without reappointment.
Appointment to any vacancy shall be only for
the unexpired term of the predecessor.”
Same; Same; Same; Same; Same; Same;
Same; Appointments; Acceptance of;
Petitioner’s appointment on December 17,
1988 as Chairman of the Commission on
Human Rights was a completed act on the
part of the President.–––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. 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. x x x “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. x x x 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. x x x 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.
Same; Same; Same; Same; Same; Same;
Same; Same; Same; Same; No new or
further appointment can 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 duty.–––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.
Same; Same; Same; Same; Same; Same;
Same; Same; Same; Same; Same; 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 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.–––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.
Same; Administrative Law; Appointments; Ad
Interim Appointments; Appointments that are
for the President solely to make, without the
participation of the Commission on
Appointments, cannot be ad interim
appointments.–––Nor can respondents
impressively contend that the new
appointment or re-appointment on 14
January 1989 was an ad interim appointment,
because, under the Constitutional design, ad
interim appointments do not apply to
appointments solely for the President to
make, i.e., without the participation of the
Commission on Appointments. Ad interim
appointments, by their very nature under the
1987 Constitution, extend only to
appointments where the review of the
Commission on Appointments is needed.
That is why ad interim appointments are to
remain valid until disapproval by the
Commission on Appointments or until the
next adjournment of Congress; but
appointments that are for the President solely
to make, that is, without the participation of
the Commission on Appointments, can not be
ad interim appointments.
Same; Same; Same; Tenure in Office as
Distinguished from Term of Office; As the
term of office of the Chairman of the
Commission on Human Rights is 7 years,
without reappointment as provided by Exec.
Order 163, the tenure in office of said
Chairman cannot be later made dependent
on the pleasure of the President, hence, E.O.
163-A providing that the tenure of said
Chairman and the members of the CHR shall
be at the pleasure of the President is
unconstitutional.–––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.
x x x It is to be noted that, while the earlier
executive order (No. 163) speaks of a term of
office of the Chairman and Members of the
Commission on Human Rights–––which is
seven (7) years without reappointment–––the
later executive order (163-A) speaks of the
tenure in office of the Chairman and
Members of the Commission on Human
Rights, which is “at the pleasure of the
President.” Tenure in office should not be
confused with term of office. As Mr. Justice
(later, Chief Justice) Concepcion in his
concurring opinion in Alba vs. Evangelista,
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.” 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.
Same; Same; Same; Same; Same; An
independent office like the CHR cannot truly
function with independence and
effectiveness, if the tenure in office of its
Chairman and its members is made
dependent on the pleasure of the President.–
––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 anti thetical to the
constitutional mandate of independence for
the Commission on Human Rights has to be
declared unconstitutional.
Same; Same; Same; Removal; Due Process;
Petitioner can certainly be removed from her
office even before the expiration of the seven-
year term, but such removal must be for
cause and with her right to due process
properly safeguarded.–––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, this Court held that before a rank-and-
file employee of the NASECO, a government-
owned corporation, could be dismissed, she
was entitled to a hearing and due process.
How much more, in the case of the Chairman
of a constitutionally mandated
INDEPENDENT OFFICE, like the
Commission on Human Rights. If there are
charges against Bautista for misfeasance or
malfeasance in office, charges may be filed
against her with the Ombudsman. If he finds
a prima facie case against her, the
corresponding information or informations
can be filed with the Sandiganbayan which
may in turn order her suspension from office
while the case or cases against her are
pending before said court. This is due
process in action. This is the way of a
government of laws and not of men.
GUTIERREZ, JR., J., dissenting:
Constitutional Law; Administrative Law;
Appointment; Confirmation of Appointments;
The Court has no power to add by implication
to the list of presidential appointees whom the
Constitution, in clear and categorical
language declares as not needing
confirmation.–––The Constitution specifies
clearly the presidential appointees who do
not need confirmation by the Commission.
The reason for non-confirmation is obvious.
The members of the Supreme Court and all
lower courts and the Ombudsman and his
deputies are not confirmed because the
Judicial and Bar Council screens nominees
before their names are forwarded to the
President. The Vice-President as a cabinet
member needs no confirmation because the
Constitution says so. He or she is chosen by
the nation’s entire electorate and is only a
breath away from the Presidency. Those
falling under the third sentence of Section 16,
Article VII do not have to be confirmed
because the Constitution gives Congress the
authority to free lower ranking officials whose
positions are created by law from that
requirement. I believe that we in the Court
have no power to add by implication to the list
of presidential appointees whom the
Constitution in clear and categorical words
declares as not needing confirmation.
Same; Same; Same; Same; The Chairman of
the Human Rights Commission should be
included in the first paragraph of Sec. 16, Art.
VII i.e. “other officers whose appointments
are vested in him in this Constitution,” whose
appointments need the confirmation of the
Commission on Appointments.–––Again, I
fail to see why the captain of a naval boat
ordered to fire broadsides against rebel
concentrations should receive greater
scrutiny in his appointment than the
Chairman of the Human Rights Commission
who has infinitely more power and
opportunity to bring the rebellion to a just and
satisfactory end. But even if I were to agree
with the Sarmiento III v. Mison ruling, I would
still include the Chairman of the Human
Rights Commission as one of the “other
officers whose appointments are vested in
him in this Constitution” under the first
sentence of Section 16, Article VII. Certainly,
the chairman cannot be appointed by
Congress or the Supreme Court. Neither
should we read Article XIII of the Constitution
as classifying the chairman among the lower
ranking officers who by law may be appointed
by the head of an executive department,
agency, commission, or board. The
Constitution created the independent office.
The President was intended to appoint its
chairman. I, therefore, regretfully reiterate my
dissent from the Sarmiento III v. Mison ruling
and join in the call for a reexamination of its
doctrine.
CRUZ, J., dissenting:
Constitutional Law; Administrative Law;
Appointments; The submission of the
petitioner’s appointment to the Commission
on Appointments is a clear indication that the
President no longer agrees with the Mison
ruling.–––As I see it, the submission of the
petitioner’s appointment to the Commission
on Appointments is a clear indication that the
President of the Philippines no longer agrees
with the Mison ruling, at least insofar as it
applies to the present case. Significantly, the
Commission on Appointments, which was
also aware of Mison, has as clearly rejected
it by acting on the appointment. These
meaningful developments must give us
pause. We may have committed an error in
Mison, which is bad enough, and may be
persisting in it now, which is worse.
Same; Same; Same; Confirmation; Ad
Interim Appointments; What President
Aquino extended to the petitioner on Dec. 17,
1988 was an ad interim appointment that
although immediately effective upon
acceptance was still subject to confirmation.–
––Coming now to the theory of the majority, I
regret I am also unable to accept it.
Consistent with my view in Mison, I submit
that what President Aquino extended to the
petitioner on 17 December 1988 was an ad
interim appointment that although
immediately effective upon acceptance was
still subject to confirmation. I cannot agree
that when the President said the petitioner
could qualify and enter into the performance
of her duties, “all that remained for Bautista to
do was to reject or accept the appointment.”
In fact, on the very day it was extended, the
ad interim appointment was submitted by the
President of the Philippines to the
Commission on Appointments “for
confirmation.” x x x I repeat my view that the
Chairman of the Commission on Human
Rights is subject to confirmation by the
Commission on Appointments, for the
reasons stated in my dissent in Mison.
Accordingly, I vote to DENY the petition.
GRIÑO-AQUINO, J., dissenting:
Constitutional Law; Administrative Law;
Appointments; Confirmation; The
appointments of the Chairman and the
members of the Commission on Human
Rights shall be made by the President with
the consent of the Commission on
Appointments.–––I believe that the
appointments of the chairman and the
members of the Commission on Human
Rights by the President require review and
confirmation by the Commission on
Appointments in view of the following
provision of Section 16, Article VII of the 1987
Constitution: “Sec. 16. The President shall
nominate and, with the consent of the
Commission on Appointments, appoint the
heads of the executive departments,
ambassadors, other public ministers and
consuls, or officers of the armed forces from
the rank of colonel or naval captain, and other
officers whose appointments are vested in
him in this Constitution. x x x.” In my view, the
“other officers” whose appointments are
vested in the President in the Constitution are
the constitutional officers, meaning those
who hold offices created under the
Constitution, and whose appointments are
not otherwise provided for in the Charter.
Those constitutional officers are the chairmen
and members of the Constitutional
Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on
Elections (Art. IX-C), the Commission on
Audit (Art. IX-D), and the Commission on
Human Rights (Sec. 17, Art. XIII). These
constitutional commissions are, without
exception, declared to be “independent,” but
while in the case of the Civil Service
Commission, the Commission on Elections
and the Commission on Audit, the 1987
Constitution expressly provides that “the
Chairman and the Commissioners shall be
appointed by the President with the consent
of the Commission on Appointments” (Sec.
1[2], Art. IX-B; Sec. 1[2], Art. IX-C and Sec.
1[2], Art. IX-D), no such clause is found in
Section 17, Article VIII creating the
Commission on Human Rights. Its absence,
however, does not detract from, or diminish,
the President’s power to appoint the
Chairman and Commissioners of the said
Commission. The source of that power is the
first sentence of Section 16, Article VII of the
Constitution for: (1) the Commission on
Human Rights is an office created by the
Constitution, and (2) the appointment of the
Chairman and Commissioners thereof is
vested in the President by the Constitution.
Therefore, the said appointments shall be
made by the President with the consent of the
Commission on Appointments, as provided in
Section 16, Article VII of the Constitution.
Same; Same; Same; Same; Checks and
Balances; The power of the Commission on
Appointments to review and confirm
appointments made by the President is not a
derogation of the Chief Executive’s
appointing power, but is merely a part of the
system of checks and balances in the
democratic form of government provided in
our Constitution.–––It is not quite correct to
argue, as the petitioner does, that the power
of the Commission on Appointments to
review and confirm appointments made by
the President is a “derogation of the Chief
Executive’s appointing power.” That power is
given to the Commission on Appointments as
part of the system of checks and balances in
the democratic form of government provided
for in our Constitution. As stated by a
respected constitutional authority, former
U.P. Law Dean and President Vicente G.
Sinco: “The function of confirming
appointments is part of the power of
appointment itself. It is, therefore, executive
rather than legislative in nature. In giving this
power to an organ of the legislative
department, the Constitution merely provides
a detail in the scheme of checks and
balances between the executive and
legislative organs of the government.” (Phil.
Political Law by Sinco, 11th Ed., p. 266).
3. CALDERON VS. CARALE
Constitutional Law; Appointments; The
Chairman and Members of the National
Labor Relations Commission are not among
the officers mentioned in the first sentence of
Section 16, Article VII whose appointments
requires confirmation by the Commission on
Appointments.—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.
4. TARROSA VS SINGSON
Remedial Law; Special Civil Action; Quo
Warranto; Quo warranto as 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.—
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]).
Same; Same; Same; Petitioner who did not
aver entitlement to the office cannot bring the
action for quo warranto.—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.
Same; Same; Same; Question of title to an
office may not be determined in a suit to
restrain the payment of salary to the person
holding office, brought by one not claiming to
be entitled to said office.—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
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.
Same; Same; Same; The action was
improvidently brought by the petitioner.—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).
Constitutional Law; Judicial Inquiry; Principle
that bars judicial inquiry into a constitutional
question unless the resolution thereof is
indispensable for the determination of the
case.—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]).
Same; Commission on Appointments;
Confirmation Powers; Congress cannot by
law expand the confirmation powers of the
Commission on Appointments and require
appointment of other government officials not
expressly mentioned in the first sentence of
Sec. 16 of Article 7 of the Constitution.—
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.
5. MANALO VS SISTOZA
Constitutional Law; Judicial Review;
Separation of Powers; Statutory
Construction; Courts have the inherent
authority to determine whether a statute
enacted by the legislature transcends the
limit delineated by the fundamental law, and
when it does, they will not hesitate to strike
down such unconstitutional law.–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.
When it does, the courts will not hesitate to
strike down such unconstitutional law.
Same; Same; Same; Appointments;
Commission on Appointments; 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.–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.
Same; Same; Same; Same; Same; Statutes;
Republic Act 6975; 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 are
unconstitutional.–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.
Same; Same; Same; Same; Same; Philippine
National Police; The Philippine National
Police is separate and distinct from the
Armed Forces of the Philippines.–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. 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.
Same; Same; Same; Same; Same; Same;
Directors and chief superintendents of the
PNP do not fall under the first category of
presidential appointees requiring the
confirmation by the Commission on
Appointments.–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.
6. MATIBAG VS. BENIPAYO
Remedial Law; Civil Procedure; Prohibition;
As a rule, the writ of prohibition will not lie to
enjoin acts already done.—As a rule, the writ
of prohibition will not lie to enjoin acts already
done. 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. 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.
Constitutional Law; Appointments; Executive
Department; Congress; 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.—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. Limitations on the
executive power to appoint are construed
strictly against the legislature. 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.
Same; Same; Commission on Appointments;
Even if the Commission on Appointments is
composed of members of Congress, the
exercise of its powers is executive and not
legislative.—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: x x x 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.
xxx
Same; Same; Same; 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.—
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 Osmeña as members.
Thus, on the impairment of the prerogatives
of members of the Commission on
Appointments, only Senators Enrile, Lacson,
Angara, Ejercito-Estrada, and Osmeña 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.
Same; Same; Same; Congress, through a
law, cannot impose on the President the
obligation to appoint automatically the
undersecretary as her temporary alter ego.—
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. 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.
Same; Same; Same; Statutes; 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.”—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.
Same; Same; Same; Ad interim
appointments are extended only during
recess of Congress and are submitted to the
Commission on Appointments for
confirmation or rejection, whereas
appointments in an acting capacity may be
extended any time there is a vacancy and are
not submitted to 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 ad
interim 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.
7. PIMENTEL VS ERMITA
Courts; Judicial Review; An employee’s
personal and substantial injury, if a particular
appointee is not the lawful COMELEC
Chairman, clothes her with the requisite locus
standi to raise the constitutional issue
regarding the ad interim appointment of said
COMELEC Chairman.—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 x x x
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’s
assumption of office. Petitioner’s personal
and substantial injury, if Benipayo is not the
lawful COMELEC Chairman, clothes her with
the requisite locus standi to raise the
constitutional issue in this petition.
Same; Same; The earliest opportunity to
raise a constitutional issue is to raise it in the
pleadings before a competent court that can
resolve the same.—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.
Same; Same; In keeping with the Supreme
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, the
Supreme Court may even brush aside
technicalities of procedure and resolve any
constitutional issue raised.—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.
Administrative Law; Public Officers;
Appointments; Words and Phrases; 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.—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.
Same; Same; Same; Same; The Constitution
imposes no condition on the effectivity of an
ad interim appointment, and thus an ad
interim appointment takes effect immediately;
In case of an appointment made by the
President when Congress is in session, the
President nominates, and only upon the
consent of the Commission on Appointments
may the person thus named assume office,
while with reference to an ad interim
appointment, it takes effect at once, and the
individual chosen may thus qualify and
perform his function without loss of time.—
The Constitution imposes no condition on the
effectivity of an ad interim appointment, and
thus an ad interim appointment takes effect
immediately. The appointee can at once
assume office and exercise, as a de jure
officer, all the powers pertaining to the office.
In Pacete vs. Secretary of the Commission on
Appointments, this Court elaborated on the
nature of an ad interim appointment as
follows: “A distinction is thus made between
the exercise of such presidential prerogative
requiring confirmation by the Commission on
Appointments when Congress is in session
and when it is in recess. In the former, the
President nominates, and only upon the
consent of the Commission on Appointments
may the person thus named assume office. It
is not so with reference to ad interim
appointments. It takes effect at once. The
individual chosen may thus qualify and
perform his function without loss of time. His
title to such office is complete. In the
language of the Constitution, the appointment
is effective ‘until disapproval by the
Commission on Appointments or until the
next adjournment of the Congress.’ ”
Same; Same; Same; Same; 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.—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.” (Emphasis
supplied)
Same; Same; Same; Same; An ad interim
appointment becomes complete and
irrevocable once the appointee has qualified
into office, and the withdrawal or revocation
of an ad interim appointment is possible only
if it is communicated to the appointee before
the moment he qualifies, as any withdrawal
or revocation thereafter 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.
Same; Same; Same; An ad interim
appointment can be terminated for two
causes specified in the Constitution—first, by
the disapproval of his ad interim appointment
by the Commission on Appointments, and,
second, by the adjournment of Congress
without the Commission on Appointments
acting on his appointment.—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 resolu
tory 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.
Same; Same; Same; Security of Tenure; An
appointment or designation in a temporary or
acting capacity is the kind of appointment that
the Constitution prohibits the President from
making to the three independent
constitutional commissions.—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.
Same; Same; Same; Constitutional
Commissions; Commission on Elections;
Statutory Construction; 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.—
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.
Same; Same; Same; Commission on
Appointments; Principle of Check and
Balance; 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.—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.
Same; Same; Same; Same; Same; 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.—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.
Same; Same; Same; Same; Same; Statutory
Construction; The jurisprudence under the
1935 Constitution governing ad interim
appointments by the President is doubtless
applicable to the present Constitution.—
Guevara was decided under the 1935
Constitution from where the second
paragraph of Section 16, Article VII of the
present Constitution on ad interim
appointments was lifted verbatim. The
jurisprudence under the 1935 Constitution
governing ad interim appointments by the
President is doubtless applicable to the
present Constitution. The established
practice under the present Constitution is that
the President can renew the appointments of
by-passed ad interim appointees. This is a
continuation of the well-recognized practice
under the 1935 Constitution, interrupted only
by the 1973 Constitution which did not
provide for a Commission on Appointments
but vested sole appointing power in the
President.
Same; Same; Same; Same; Same; The
prohibition on reappointment in Section 1 (2),
Article IX-C of the Constitution applies neither
to disapprove nor by-passed ad interim
appointments.—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 complete the running of a term of office in the
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.
Same; Same; Same; Same; Same; 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.—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.” (Emphasis supplied)
Same; Same; Same; Same; Same; 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.—
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
COMELEC without the consent of the
Commission on Appointments. This
interpretation renders inutile the confirming
power of the Commission on Appointments.
Same; Same; Same; Same; Same; Words
and Phrases; 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.—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 interim appointments.
Same; Same; Same; Same; Same; The
Supreme Court will not subscribe to a
proposition that will wreak havoc on vital
government services.—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.
Same; Same; Same; Same; Same; The
framers of the present Constitution prohibited
reappointments for two reasons—first, to
prevent a second appointment for those who
have been previously appointed and
confirmed even if they served for less than
seven years, and, second, to insure that the
members of the three constitutional
commissions do not serve beyond the fixed
term of seven years.—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.
Same; Same; Same; Same; Same; One who
has been given an ad interim appointment as
COMELEC Chairman is a de jure officer, and
consequently, he has full authority to exercise
all the powers of that office for so long as his
ad interim appointment remains effective;
The Chairman, as the Chief Executive of the
COMELEC, is expressly empowered on his
own authority, without having to secure the
approval of the COMELEC en banc, to
transfer or reassign COMELEC personnel in
accordance with Civil Service Law.—
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: x x x (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.
Same; Same; Same; Same; Same;
Transfers; Security of Tenure; Career
Executive Service; One who is not a Career
Executive Service (CES) officer, nor a holder
of a 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, does
not enjoy security of tenure as Director IV.—
Petitioner’s appointment papers dated
February 2, 1999, February 15, 2000 and
February 15, 2001, attached as Annexes “X”,
“Y” and “Z” to her Petition, indisputably show
that she held her Director IV position in the
EID only in an acting or temporary capacity.
Petitioner is not a Career Executive Service
(CES) officer, and neither does she hold
Career Executive Service Eligibility, which
are necessary qualifications for holding the
position of Director IV as prescribed in the
Qualifications Standards (Revised 1987)
issued by the Civil Service Commission.
Obviously, petitioner does not enjoy security
of tenure as Director IV. In Secretary of
Justice Serafin Cuevas vs. Atty. Josefina G.
Bacal, this Court held that: “As respondent
does not have the rank appropriate for the
position of Chief Public Attorney, her
appointment to that position cannot be
considered permanent, and she can claim no
security of tenure in respect of that position.
Same; Same; Same; Same; Same; Same;
The COMELEC Chairman is the sole officer
specifically vested with the power to transfer
or reassign COMELEC personnel, 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.—The proviso in COMELEC Resolution
No. 3300, requiring due notice and hearing
before any transfer or reassignment can be
made within thirty days prior to election day,
refers only to COMELEC field personnel and
not to head office personnel like the
petitioner. Under the Revised Administrative
Code, the COMELEC Chairman is the sole
officer specifically vested with the power to
transfer or reassign COMELEC personnel.
The COMELEC Chairman will logically
exercise the authority to transfer or reassign
COMELEC personnel pursuant to COMELEC
Resolution No. 3300. The COMELEC en
banc cannot arrogate unto itself this power
because that will mean amending the
Revised Administrative Code, an act the
COMELEC en banc cannot legally do.
Same; Same; Same; Same; Same; Same;
Election Period; 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.—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.