FLORES v.

DRILON Subject Law

G.R. No. 104732 / JUN 22, 1993 / BELLOSILLO, J. / LOCGOV / MLCAMITAN Sec.13 (d) of RA 7227 or the “Bases Conversion and Development Act of 1992”, more
NATURE Special Civil Action in the SC. Prohibition. specifically the part of the provision which says:
st
“..Provided, however, That for the 1 year of its operations from the effectivity of this Act,
PETITIONER Roberto A. Flores, Daniel Y. Figueroa, Rogelio T. Palo, Domingo
the mayor of the City of Olongapo shall be appointed as the chairman and chief executive
A. Jadloc, Carlito T. Cruz and Manuel P. Reyes
officer of the Subic Authority”
RESPONDENT Hon. Franklin M. Drilon, Exec Sec, and Richard J. Gordon
Grounds for challenging
1) Infringes on Sec. 7, 1st par. of Art. IX-B of the Constitution, which states
SUMMARY. Mayor Richard Gordon was appointed as Chairman and Chief Executive Officer of the
“no elective official shall be eligible for appointment or designation in any capacity
Subic Bay Metropolitan Authority pursuant to Sec. 13 (d) of RA 7227. Petitioners assail the validity
of Sec. 13 (d) for being contrary to the constitutional prohibition on the appointment of any to any public office or position during his tenure”
elective official to any public office or position during his tenure. The Court held the subject - Why? Because the City Mayor of Olongapo is an elective official and
proviso unconstitutional as well as depriving the President of the power to choose who he should the subject office are public offices
appoint.
2) Infringes on Sec.16, Art. VII of the Constitution which states
DOCTRINE. The view that an elective official may be appointed to another post if allowed by law
or by the primary functions of his office, ignores the clear-cut difference in the wording of the 2 “ that the President shall appoint all other officers of the Government whose
paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the 2nd par. authorizes holding of appointments are not otherwise provided for by law, and those whom he may be
multiple offices by an appointive official when allowed by law or by the primary functions of his authorized by law to appoint
position, the 1st par. appears to be more stringent by not providing any exception to the rule - Why? Because it was Congress through said law and not the President
against appointment or designation of an elective official to the government post, except as are who appointed Dick
particularly recognized in the Constitution itself, e.g., the Pres. as head of the economic and
planning agency; the VP, who may be appointed Member of the Cabinet; and, a member of 3) It violates Sec. 261 (g) of the Omnibus Election Code which prohibits the
Congress who may be designated ex officio member of the JBC. appointment of any public officer within the prohibited 45-day period prior
Sec. 7 of Art. IX-B should not be confused with Sec. 13, Art. VI, where "no Senator or Member of the to the May 11 92 elections unless permitted by Comelec.
House of Representatives may hold any other office or employment in the Government . . . during
his term without forfeiting his seat . . . ." The difference between the two provisions is significant in
the sense that incumbent national legislators lose their elective posts only after they have been ISSUES & RATIO:
appointed to another government office, while other incumbent elective officials must first resign WON Sec. 13 par. d of RA 7227 is unconstitutional - YES
their posts before they can be appointed, thus running the risk of losing the elective post as well as Based on Sec. 7 (1) Art. IX-B1 of the Constitution
not being appointed to the other post.
- Section 7 expresses the policy against the concentration of several
Since only one can qualify for the posts in question, the President is precluded from exercising
his discretion to choose whom to appoint. Such supposed power of appointment, sans the public positions in one person, so that a public officer or employee may
essential element of choice, is no power at all and goes against the very nature itself of serve full-time with dedication and thus be efficient in the delivery of
appointment. Gordon however remains Mayor of Olongapo City, and his acts as SBMA official public services. Particularly, the 1st paragraph’s purpose is to prevent a
are not necessarily null and void; he may be considered a de facto officer. situation where a local elective official will work for his appointment in
an executive position in government, and thus neglect his constituents
- It is clear that Section 13(d) of the Bases Conversion and Devt Act
(where President is directed to appoint Mayor of Olongapo to other
government posts) is precisely what Section, Art. X-B seeks to prevent.
Parties involved
Petitioners: taxpayers and employees of the US Facility at Subic Zambales and Officers and Drilon & Gordon: Sec. 94 of the LGC permits the appointment of an elective official
Members of the Filipino Civilian Employees Association to another post if so allowed by law or by the primary functions of his office
Respondents: Franklin Drilon (Executive Secretary) and Richard Gordon in his capacity as
Mayor of Olongapo City and designated Chairman and CEO of the Subic Authority

1
“No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his Unless otherwise allowed by law or by the primary functions of his position, no appointive official hall hold any other office or
tenure. employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCs or subsidiaries”
SC: Sec. 94 is not determinative of the constitutionality of Sec 13 (d) of RA 7227. No
legislative act can prevail over the fundamental law of the land. Moreover, the
constitutionality of Sec. 94 is not the issue here.
Even if Sec. 94 allows the appointment of an elective official to another post, it
ignores the clear-cut difference in the wording of the 2 paragraphs of Sec. 7, Art. IX-
B of the Constitution
o While the 2nd paragraph authorize the holding of multiple offices by an
appointive official when allowed by law or by the primary function of
his position;
o The 1st paragraph is more stringent by not providing to the exception
to the rule against appointment or designation of an elective save for
exceptions (President as head of economic and planning agency; VP a
member of any cabinet and; member of Congress who may be
appointed ex officio member of the JBC)
Such a distinction between the 1st and 2nd paragraph wasn’t accidental and not
without reason. While the ConCom recognized that in some instances, a law should
allow an appointive official to hold other positions, the stringent prohibition re:
elective official was put in to avoid the old practice of Marcos having a free hand in
his decree-making power by nullifying the vote of any elective official
Drilon & Gordon: SBMA posts are merely ex officio to the position of Mayor of
Olongapo, hence an excepted circumstance. According to Civil Liberties Union v.
Exec Sec, the prohibition against the holding of any other office or employment by
the President, VP, Members of Cabinet et al during their tenure under Sec. 13, Art.
VII of the Constitution does not comprehend additional duties and functions
required by the primary functions of the officials concerned, who are to
perform them in an ex officio capacity as provided by law, without receiving
any additional compensation therefor.
SC: Congress didn’t intend to make the SBMA posts as ex officio or automatically
attached to the Office of the City Mayor of Olongapo City without need of
appointment.
- The phrase “shall be appointed” unquestionably shows the intent to
make the SBMS posts appointive and not merely adjunct to the post of
Mayor of Olongapo City. Had it been the intent to make it ex officio,
then Congress should’ve avoided the word appointed and just used ex
officio
- Even in the Senate deliberations, the Senators were fully aware that
Sec.13(d) of RA 7227 may contravene the Constitution. They couldn’t
have been concerned with that if they considered the SBMA posts as
ex officio
Drilon & Gordon: If no elective official may be appointed or designated to another
post, then Sec. 8 Art. IX-B of the Constitution (which allows an elective official to
receive double compensation) would be useless
SC: Argument is non sequitur since Sec. 8 does not affect the constitutionality of the
subject provision. In any case, an elective official like the VP may received additional
compensation if he is appointed to a cabinet post under Art. VIII, Sec. 3
Based on Sec. 16, Art. VII of the Constitution
• Appointment is the designation of a person, by the person or persons having
authority therefor, to discharge the duties of some office or trust
• Considering that appointment calls for a selection or designation, the appointing
power necessarily exercises a discretion. It is intrinsically an executive act involving
the exercise of discretion.
• Hence, when Congress clothes the President with the power to appoint an officer,
it cannot at the same time limit the choice of the President to only one candidate.
The conferment necessarily carries with it the discretion of whom to appoint. Thus,
when the qualifications prescribed by Congress can only be met by one individual,
such enactment effectively eliminates the discretion of the appointing power to
choose.
• This is what happened to the case at bar. While Congress gave the president the
power to appoint the CEO and Chairman of the SBMa for the 1st year of opeations,
the provision limit the appointing authority to one eligible, i.e. the incumbent
Mayor of Olongapo.
• Sure, the qualifications are limited to the 1st year of the operations, but Congress in
this case still abused it authority in prescribing qualifications whre only one, and no
other one, can qualify.
What can an elective official do then?
• The ineligibility of an elective for appointment remains all throughout his tenure or
during his incumbency. He may however resign first from his elective post to cast
off the constitutional disqualification before he may be considered fit for
appointment.
• This is why in the constitutional delibs, Davide recommended the use of the term
tenure, not term, so as to give an elective official the choice to resign to be able to
qualify for appointment.
• In this case, where Dick as elective official, was appointed to other gov’t posts, he
does not automatically forfeit his elective office nor remove his Constitutionally
 imposed ineligibility. On the contrary, since an incumbent elective official is not 13(d)
eligible to the appointive position, his appointment or designation thereto cannot - Sir said that Sec. 94 MAY be struck down but no case yet.
be valid in view of hi disqualification or lack of eligibility.
• This general prohibition is different from that in Section 13, Article VI which
provides that “no Senator or HOR Member may hold any other office or
employment in the Government during his term without forfeiting his seat.”
• The difference between the two provisions is important in the sense that
incumbent national legislator lose their elective posts only after they have been
appointed to another gov’l office, while other incumbent elective officials must 1st
resign their posts before they can be appointed (thus running the risk of losing the
elective post as well as not being appointed to the other post)

What happens to Dick?

• Applying it to this case, Gordon as incumbent elective official, is ineligible to be
appointed to the position of Chairman and CEO of SBMA. His appointment
contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City
• His acts as SBMA official aren’t necessarily n & v. he may be considered as a de
facto officer
• “one whose acts, thought not those of a lawful officer, the law, upon
principle of policy and justice, will hold valid so far as they involve the
interest of the public and third persons, where the duties of the office were
exercised”
• Thus, conforming to Civil Liberties Union v Executive Secretary, any and all per
diems, allowances and other emoluments which may have been received by the
dick pursuant to his appointment may be retained by him.

DECISION.
Sec. 13 (d) of RA 7227 is unconstitutional; consequently, the appointment pursuant
thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID,
hence NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent
Gordon, if any, as such Chairman and Chief Executive Officer may be retained by
him, and all acts otherwise legitimate done by him in the exercise of his authority as
officer de facto of SBMA are hereby UPHELD.

NOTES.
Sec. 94 LGC provides for a contentious provision. Sec. 94 LGC permits appointment
of local elective official to another post if so allowed by law or by primary functions of
his office
- But the SC said that Sec. 94 LGC is not determinative of constitutionality of Sec.